Pennsylvania Counties Refuse to Count Undated Mail-in Ballots; State Sues

Mail-in primary election ballots are processed at the Chester County Voter Services office in West Chester, Pa., on May 28, 2020. Matt Rourke/AP Photo

Pennsylvania state is suing officials from three counties to force their local governments to count undated mail-in ballots from a recent primary election.

The Pennsylvania Department of State (DOS) and Acting Secretary Leigh Chapman filed a lawsuit on July 12 against the boards of elections of three counties in the commonwealth—Lancaster, Berks, and Fayette—to seek a court injunction forcing the counties to count undated mail-in ballots cast in Pennsylvania’s 2022 primary elections.

Pennsylvania Attorney General Josh Shapiro, a Democrat, said in the filing that election officials in the three Republican-controlled counties refused to count absentee and mail-in ballots that were “lawfully cast by qualified voters,” but lack a date on the return envelope.

“This Court should order the three county boards that are delaying resolution of the 2022 primary election to send to the Acting Secretary certifications reflecting all lawfully cast ballots,” the plaintiffs wrote.

In a July 12 statement, the Lancaster County Board of Elections wrote that the plaintiffs’ demand “is contrary to the law or any existing court order.”

“To be absolutely clear, the Lancaster County Board of Elections properly certified the 2022 primary election results in accordance with the PA Election Code at 25 P.S. 2642(k) and any court order regarding undated mail-in ballots and submitted that certification to the Department of State on June 6, 2022,” the statement reads.

“The County received confirmation of receipt from the DOS on June 7, 2022. The Commonwealth’s demand is contrary to the law or any existing court order. The County will vigorously defend its position to follow the law to ensure the integrity of elections in Lancaster County.”

Pennsylvania state law requires ballots that are received on time and cast by a qualified voter but are missing a handwritten date on the envelope to be rejected.

Undated Ballots

The state’s lawsuit piled onto a series of legal battles focused on whether absentee and mail-in ballots that are cast by qualified voters but are undated should be counted in elections in Pennsylvania.

The legal contention on the undated ballots this year arose from an election for a seat on the Lehigh County Court of Common Pleas, when Republican judicial candidate David Ritter tried to prevent the counting of such disputed ballots.

After a series of court appeals, the case went to the Supreme Court, which vacated an injunction by Justice Samuel Alito and ruled on June 9 to allow the Lehigh County election administrators to resume counting ballots that omitted a handwritten date on their envelope—a decision that would later apply to all elections in the state.

The 6–3 ruling from the high court affirmed a decision by a three-judge panel in the U.S. Court of Appeals for the Third Circuit, which cited the federal Civil Rights Act of 1964 in saying that government officials shouldn’t deny citizens the right to vote “because of an error or omission” that is “not material in determining whether such individual is qualified under state law to vote.”

Justices Clarence Thomas and Neil Gorsuch joined Alito’s dissenting opinion.

Judicial ‘Activists’

“The Third Circuit’s interpretation broke new ground, and at this juncture, it appears to me that that interpretation is very likely wrong,“ Alito wrote in the dissent. ”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.”

He noted that the Third Circuit court’s ruling “seems plainly contrary to the statutory language.”

Jenna Ellis, former senior counsel to President Donald Trump, told The Epoch Times in an interview in June that the dissent from Alito, Thomas, and Gorsuch was “absolutely correct.”

“This is another example of the judicial branch actually violating the law and becoming activists. They are violating state law because the judicial branch is supposed to simply hold everyone to the law,” Ellis said, referring to the Supreme Court’s majority opinion. “When the state has established these voting regulations, it is not for the Supreme Court to determine policy, but to make sure that they are holding the administrators of elections ... to state law.

“They may not have liked it. But that’s not their job. Their job is not to set policy; their job is to arbitrate, according to the U.S. Constitution of the supreme rule of law, and every law that they are required to enforce.”

The commissioners’ offices at Lancaster, Berks, and Fayette counties didn’t respond to requests for comment by press time.