Even before the polls opened on Election Day, a potentially significant legal battle erupted in Pennsylvania over whether to count mail-in ballots with an incorrect or missing date on the outside envelope.
On Nov. 7, the campaign of Democratic Senate candidate John Fetterman filed a federal lawsuit against county boards of election across the state, arguing that dates on the outside of mail-in ballot envelopes are a “needless technical requirement” and should not prevent the votes from being counted.
Although the law that expanded mail-in voting in Pennsylvania requires mail-in voters to sign and date the ballot’s outer envelope, Fetterman’s suit contends that disqualifying votes based on an incorrect or missing date is a violation of the Civil Rights Act of 1964. That law prohibits elections officials from tossing votes due to an “error or omission on any record or paper relating to any application, registration, or other act requisite to voting” that is “not material in determining whether such individual is qualified under State law to vote in such election.”
The lawsuit comes days after a Pennsylvania Supreme Court ruling on Nov. 1 to not count such ballots, but to “segregate and preserve them.” The court split 3-3 on the issue of whether failing to count such ballots violates election law.
The state Supreme Court ruling came despite Oct. 11 guidance from Pennsylvania’s acting secretary of state that said, “Every county is expected to include undated ballots in their official returns for the Nov. 8 election.” In addition, a U.S. Supreme Court ruling in June allowed a Pennsylvania county to count mail-in ballots with a missing or incorrect date on the ballot envelope in a local judicial race in Lehigh County in 2021. The Supreme Court vote came down 6-3.
In a dissenting opinion, Justice Samuel Alito wrote that the circuit court’s decision to allow the votes “broke new ground” and was “very likely wrong.”
“If left undisturbed, it could well affect the outcome of the fall elections, and it would be far better for us to address that interpretation before, rather than after, it has that effect,” warned Alito, who was joined in his dissent by Justices Clarence Thomas and Neil Gorsuch.
It remains to be seen whether ballots with missing or incorrect dates on outer ballot envelopes play a role in the outcome of the U.S. Senate race between Fetterman and Republican Dr. Mehmet Oz, but the race was predicted in preelection polls to be extremely close. According to the Fetterman lawsuit, the day before the election, county boards of elections in Pennsylvania had already identified “thousands” of mail-in ballots that might not be counted due to the date issue.
More than 1.4 million voters requested mail-in ballots and nearly 1.2 million returned them, according to the U.S. Elections Project.
Adding to the confusion in Pennsylvania is that different counties have different policies regarding how to handle flawed ballots, and whether to allow voters to fix (or “cure” in election parlance) those ballots.
On Oct. 21, an evenly divided Pennsylvania Supreme Court blocked a Republican effort to prevent county boards of elections from implementing cure procedures for deficient mail-in ballots. And on Nov. 7, a county judge blocked a Republican attempt to prevent Monroe County from “pre-canvassing” ballots, essentially identifying ones with a missing or incorrect date. Had the county been prohibited from pre-canvassing, wrote Democracy Docket, a website run by Democratic lawyer Marc Elias, it “would have effectively made it impossible for Monroe County voters to cure their mail-in ballots.”
In September, a state judge ruled that counties could not be prohibited from contacting voters about errors such as missing or incorrect dates on the ballot envelope, and allowing those voters to fix them. However, counties were not required to do that.
“Different counties are doing different procedures,” Adam Bonin, an attorney representing the Fetterman campaign, told us in a phone interview. Some counties are notifying voters about ballot errors, he said, and “some counties aren’t doing anything at all as far as allowing voters to correct them.” Whether to even allow voters to fix such ballots, he said, is “a county by county decision.”
In Philadelphia, the Board of Elections on Nov. 4 published a list of voters whose ballots were determined to have errors such that they “may be considered to be potentially incorrect under the Supreme Court of Pennsylvania’s recent decision.” The list included nearly 2,400 that were flagged for a missing or incorrect date on the outer envelope.
“All these ballot submissions have the possibility of NOT being counted,” the Board of Elections notice said. “It is strongly advised that the voters on these lists request a replacement ballot at the County Board of Elections office … to avoid the potential rejection of their ballot.”
Amy Gulli, a spokesperson for the Pennsylvania secretary of state, told us via email, “Voters should contact their county elections office to discuss their options to fix any issues with their mail ballot.”
“If the county will not allow the voter to fix the error, then voters should go to their polling place on Election Day and ask for a provisional ballot,” Gulli said. “If the county refuses to provide the voter with a provisional ballot, they should contact the Department of State by calling 1-877-VOTESPA.”
Ultimately, it will likely be up to the courts to decide whether mail-in ballots with a missing or incorrect date affixed to the outer envelope will be counted. And, of course, it remains to be seen whether there are enough of such ballots to potentially swing the election results in Pennsylvania one way or the other.
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