RNC Appeals PA Court Decision That Scrapped Ballot Dating Rule

After a court in Pennsylvania scrapped enforcement of a law requiring that mail-in ballots be properly dated in order to be counted, the Republican National Committee is asking the state supreme court to weigh in.

The RNC, joined by the Republican Party of Pennsylvania, intervened in the case brought by multiple left-wing groups (represented by the American Civil Liberties Union of Pennsylvania), while the counsel of Secretary of State Al Schmidt (a Republican official named as defendant in the suit) filed a brief in support of the petitioners.

“We have reached a point of true absurdity in election law litigation. A court that does not even have jurisdiction over this matter somehow concluded that asking people to write down a date on the envelope in which they transmit their mail-in ballots imposes a ‘severe burden’ on their ability to vote,” Derek Lyons, president and CEO of Restoring Integrity and Trust in Elections and former counselor to President Donald Trump, told The Federalist.

“Let’s be clear: Even second-graders know how to write the date on their schoolwork, so every adult voter can do likewise on their ballot envelope with no trouble whatsoever. Next, we will find out that asking people to mark their own ballots is also a constitutional violation. The Pennsylvania Supreme Court must act quickly to reverse this decision and end this madness.”

Last Friday, the Commonwealth Court of Pennsylvania decided that the “strict enforcement” of part of a state law requiring election officials to reject mail-in ballots that are improperly dated or undated was “unconstitutional.” The lower court majority further argued that the strict enforcement of the date requirement could deny voters franchise.

To do so, the court majority argued it had original jurisdiction over the matter, applied strict scrutiny (a presumption that the law is invalid unless the government can prove a compelling state interest) to find an outcome, and bypassed the authority of the general assembly to determine election law in a move both the RNC and dissenting Commonwealth Court Judge Patricia A. McCullough described as “unprecedented.”

If the lower court’s decision is upheld, thousands of improperly dated ballots could be counted in Pennsylvania, a key swing state, in the upcoming election.

“Signing and dating important documents as part of everyday life — and dating a mail-ballot declaration is a usual burden of voting, not an effective ‘denial’ of ‘the franchise,’” the RNC stated, pointing out that even the petitioners acknowledge that the vast majority of mail-in voters are able to comply with the requirement. “A rule that is inapplicable to most voters and complied with by more than 99% of the remainder cannot be ‘so difficult’ as to deny ‘the franchise.’”

“The Commonwealth Court majority’s decision is unprecedented, rests on multiple reversible errors, and threatens to unleash chaos, uncertainty, and an erosion of public confidence in the imminent 2024 general election,” the RNC’s appeal reads, noting that the Pennsylvania Supreme Court already upheld the date requirement in a different challenge.

Lyons referred to several of the core arguments presented by the RNC, including that the Commonwealth Court lacked original jurisdiction because the ACLU and the rest of the petitioners named Schmidt as the only defendant in the case. They did so despite the fact that his office “lacks any authority to enforce the date requirement,” and is therefore not an “indispensable party to the only form of relief Petitioners seek: an order enjoining ‘enforcement’ of the date requirement.”

The ACLU meanwhile did not include as defendants 65 county boards that are responsible for enforcing the date requirement, the appeal states. Those two realities, the RNC argues, require the state supreme court to throw out the case without even addressing the issues brought by challenging the law itself.

“In its eagerness to address the merits, the majority dashed past procedural defects barring it from wading into this dispute in the first place,” the appeal states.

While the lower court decided to apply strict scrutiny to a challenge involving the Pennsylvania Constitution’s Free and Equal Elections Clause, the RNC argued that the opinion of the lower court itself actually violated that clause because, in not including 65 of 67 counties in the lawsuit, the decision only blocks Philadelphia and Allegheny counties from “strictly enforcing” the date requirement.

The order, the appeal argues, has “no effect on the other 65 county boards, which remain bound to enforce the ‘mandatory’ requirement. The Order thus does not ‘treat[]’ Pennsylvania voters ‘alike’ or ‘the same way under similar circumstances,’” in violation of Pennsylvania’s Constitution and state election law. “Nor could strict scrutiny apply because, if it did, the Clause would imperil every ‘reasonable, non-discriminatory restriction[]’ the General Assembly has enacted ‘to ensure honest and fair elections’ in Pennsylvania,” the appeal added.

The RNC argued that the lower court’s decision preempted the authority of the state legislature to control election law, in violation of the U.S. Constitution and the Pennsylvania Supreme Court, which wrote, “While the Pennsylvania Constitution mandates that elections be ‘free and equal,’ it leaves the task of effectuating that mandate to the Legislature.”

“It therefore resides with the General Assembly to determine ‘the procedures for casting and counting a vote by mail’ and whether ‘minor errors’ in compliance require ‘reject[ing]’ ballots,” the appeal states.

The appeal comes after Schmidt’s office issued a statement applauding the lower court’s ruling as a “victory for the fundamental right to vote.” Moreover, Schmidt’s own counsel filed a brief in support of the petitioners challenging the requirement, indicating that the officials tasked with defending the proper dating requirement had no interest in doing so.

In an amicus brief filed in support of the RNC’s appeal, Westmoreland County Commissioner Doug Chew slammed Schmidt, saying:

“From the start, the Election Code never stood a chance. Petitioners, determined to obtain relief this Court has repeatedly denied, devised a scheme that would finally undo statutory requirements that they have long opposed. Their scheme was smart (if not novel): a lawsuit against three parties who find the statutory requirements inconvenient or undesirable — i.e., Al Schmidt, in his official capacity as Secretary of the Commonwealth (Secretary), and the Allegheny and Philadelphia County Boards of Elections (BOEs). With no other governmental entity or elected official to oppose their views, or defend the constitutionality of a statute duly enacted by the political branches, the Commonwealth Court was overwhelmed with a chorus parroting the same canard: requiring voters to date their sworn declarations is so burdensome as to be unconstitutional.”

Neither Schmidt’s office nor the ACLU of Pennsylvania responded to a request for comment from The Federalist.

The Federalist Elections Correspondent Beth Brelje contributed to this report.

Breccan F. Thies is an elections correspondent for The Federalist. He previously covered education and culture issues for the Washington Examiner and Breitbart News. He holds a degree from the University of Virginia and is a 2022 Claremont Institute Publius Fellow. You can follow him on X: @BreccanFThies.