PA Court Rules Improperly Dated Mail Ballots Must Be Counted

A Pennsylvania court Friday sided with left-wing special interests, blocking the state from enforcing part of a law that required mail ballots to be properly dated in order to be counted

In a 4-1 ruling, which saw President Judge Renée Cohn Jubelirer — elected as a Republican — side with three elected Democrat judges, the Commonwealth Court of Pennsylvania majority sided with the left-leaning American Civil Liberties Union and the Black Political Empowerment Project, among others, declaring the “strict enforcement” of state law (Act 77) requiring election officials to reject improperly dated or undated mail-in ballots “unconstitutional.”

Calling the decision a “wholesale abandonment of common sense” made in an “untethered and unprecedented fashion,” Judge Patricia A. McCullough described in a scathing dissent how the court majority bent over backward to ensure Pennsylvania voters did not have to date their mail-in ballots:

“[T]o reach its desired end, the Majority today (1) finds jurisdiction where it does not exist, (2) ignores more than a century of sound Pennsylvania Supreme Court precedent interpreting the Free and Equal Elections Clause, (3) applies strict scrutiny without any authority for doing so, (4) accepts Petitioners’ invitation to usurp the role of the General Assembly and re-write Act 77 of 2019 (Act 77), and, in a twist of tragic irony, (5) voids altogether absentee and mail-in voting in Pennsylvania.”

Act 77 was passed in 2019 as part of Pennsylvania’s mail-in voting law. State statute includes the requirement that “an absentee ‘elector shall. . .fill out, date and sign the declaration printed on’ the second, or outer, envelope ‘on which is printed the form of declaration of the elector,’” as cited in the majority opinion.

Arguing that the date requirement is a simple standard that does not deny voters franchise, as the majority claimed, McCullough concluded, “I must wonder whether walking into a polling place, signing your name, licking an envelope, or going to the mailbox can now withstand the Majority’s newly minted standard.”

The Republican National Committee (RNC) and the Republican Party of Pennsylvania — which intervened in the case in favor of upholding the law — argued that the date requirement advanced state interest in “preventing fraud,” pointing to a 2022 incident where the use of the requirement unearthed fraud committed by the daughter of a deceased Pennsylvanian.

The majority opinion, however, while citing “prior litigation,” stated that “the date on the outer mail-in ballot envelopes is not used to determine the timeliness of a ballot, a voter’s qualifications/eligibility to vote, or fraud. Therefore, the dating provisions serve no compelling government interest.”

According to the lawsuit, filed in part by the left-wing ACLU Pennsylvania on behalf of multiple other left-wing special interest groups earlier this year, roughly 10,000 people in Pennsylvania had their ballots rejected in the 2022 midterms because they were improperly dated — such “errors” which the ACLU categorized as “trivial” in a Friday press release applauding the court’s decision.

With Friday’s ruling, thousands of improperly dated ballots may now be counted in Pennsylvania, a key swing state in the upcoming presidential election.

Although the court “decline[d] to strike Act 77 in its entirety as a consequence of [the] holding,” according to the majority opinion, it ruled “that strict enforcement of the dating provisions to reject timely submitted but undated or incorrectly dated absentee and mail-in ballots is unconstitutional” and ruled to “enjoin” the “strict enforcement” of these provisions “to prevent against further disenfranchisement.”

“It is hereby DECLARED that the Election Code’s dating provisions are invalid and unconstitutional as applied to qualified voters who timely submit undated or incorrectly dated absentee and mail-in ballots,” the opinion reads.

The RNC plans to appeal the decision, according to a statement from Election Integrity Communications Director Claire Zunk reportedly obtained by Votebeat Pennsylvania reporter Carter Walker, which notes how both “[t]he Pennsylvania Supreme Court and US Court of Appeals for the Third Circuit have both upheld Pennsulvania’s dated ballot requirement.”

Pennsylvania passed universal mail-in voting in 2019, but the law required that voters “fill out, date and sign the declaration printed on [the] envelope,” as The Federalist previously reported. The law has been upheld amid parallel legal action against the date requirement in the federal courts as well.

The Pennsylvania Secretary of State’s Office, run by Republican Al Schmidt who was appointed by Democrat Gov. Josh Shapiro in 2023, posted to social media on Friday, saying, “Today’s Commonwealth Court decision is a victory for the fundamental right to vote as guaranteed by our Constitution.”

“Multiple court cases have now confirmed that the dating of a mail-in ballot envelope, when election officials can already confirm it was sent and received within the legal voting window, provides no purpose to election administration,” the statement continued. “This ruling makes clear a voter’s minor error of forgetting to date or misdating a ballot envelope cannot be a cause for disenfranchisement. Our Administration will always uphold Pennsylvanians’ right to vote and is pleased with today’s ruling.”

The Secretary of State’s office released this statement on social media despite Schmidt being named as a defendant in the lawsuit earlier this year. Schmidt, for his part, is also named as head of the Pennsylvania Election Threats Task Force. Shapiro reportedly said this force will be activated to “combat misinformation,” according to NBC News, which they believe includes election integrity oversight, and protecting poll workers against threats.

A similar federal task force from the Biden administration was created in light of claims suggesting increased “intimidation” “against election workers, administrators, officials, and others associated with the electoral process,” according to the Department of Justice, although many critics see this task force as a way to intimidate advocates of election integrity into silence.

Schmidt was awarded the Presidential Citizens Medal by Joe Biden at the White House in January of 2023 for opposing Trump’s efforts to challenge the 2020 election in Pennsylvania.

Schmidt’s office did not respond to The Federalist’s request for comment regarding the statement he made on Friday about the court’s ruling.

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.