by Peter Hall, Pennsylvania Capital-Star
Voters who forget to write the date or put the wrong date on the return envelopes of their mail-in ballots must have their votes counted if the ballots are received by the Election Day deadline, a federal court in western Pennsylvania ruled on Tuesday.
The opinion from Erie-based U.S. District Judge Susan Paradise Baxter came in response to a lawsuit by voting rights groups and five individual voters filed after the November 2022 election.
Granting summary judgment in favor of the groups and voters, Baxter found that throwing out ballots over the dating requirement violates a federal law against disenfranchising voters with requirements not material to their qualifications to vote.
“The handwritten-date requirement is completely irrelevant and unnecessary because elections officials know whether the ballot was received on time. And the whole point of this provision in the Civil Rights Act was to stop states from disqualifying votes for frivolous reasons, like this date requirement. We’re grateful that the court understood that,” Witold Walczak, legal director of the American Civil Liberties Union of Pennsylvania, said in a statement.
The suit was filed by the Pennsylvania State Conference of the NAACP, Black Political Empowerment Project, Common Cause Pennsylvania, League of Women Voters of Pennsylvania, Make The Road Pennsylvania, and POWER Interfaith. The ACLU represented the groups along with the law firm Hogan Lovells.
Baxter’s 77-page opinion adds to a series of decisions on the question of whether election officials can enforce the requirement in Pennsylvania’s Act 77, which allows for absentee voting without an excuse, to hand-write the date on ballot envelopes.
Since Act 77 made voting by mail a popular option for voters in 2020, disputes have erupted over how to handle ballots with return envelopes that are not correctly filled out. Voters who use mail-in ballots are supposed to complete a voter declaration on the return envelope by signing it and writing the date.
Baxter found the date requirement violates the provision of the federal Civil Rights Act that prohibits restrictions on ballot access that are not material to a voter’s qualifications.
“The important date for casting the ballot is the date the ballot is received. Here, the date on the outside envelope was not used by any of the county boards to determine when a voter’s mail ballot was received in the November 2022 election,” Baxter wrote.
The date the ballot is received is recorded by the commonwealth’s statewide election management system when the ballot is scanned, Baxter said.
None of the counties where undated or incorrectly dated ballots were set aside used the dates to determine whether the voter was qualified. And varying interpretations of a Pennsylvania Supreme Court order days before the election on what dates should be accepted caused ballots with similar defects to be handled differently across the state.
Baxter’s decision echoed a ruling by the Philadelphia-based 3rd U.S. Circuit Court of Appeals last year in a dispute between two Lehigh County judicial candidates. The 2021 race was decided by five votes after the appeals court ruled disputed mail-in ballots that had been returned without dates on their envelopes should be counted.
Reversing an Allentown-based federal judge’s decision, the 3rd Circuit found the date requirement violated the Civil Rights Act’s materiality clause, which bans restrictions on ballot access that are not material to a voter’s qualifications.
The U.S. Supreme Court vacated the 3rd Circuit’s decision in October 2022 without issuing an opinion and setting the stage for further litigation over the ballot-dating requirement.
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