Pennsylvania Supreme Court Rejects Six Appeals Which Challenged 10,684 Ballots Over Missing Info

Mail-in ballots are counted in Lehigh County, Pa., on Nov. 4, 2020. Rachel Wisniewski/Reuters

The Supreme Court of Pennsylvania on Monday in a consolidated opinion rejected five appeals by the Trump campaign and one appeal by a Republican candidate that challenged a total of 10,684 ballots cast in the 2020 election because they were missing required voter information on the outer envelopes.

“Here we conclude that while failures to include a handwritten name, address, or date in the voter declaration on the back of the outer envelope, while constituting technical violations of the Election Code, do not warrant the wholesale disenfranchisement of thousands of Pennsylvania voters,” the court’s opinion stated.

The court considered whether the commonwealth’s election code requires county boards of elections to disqualify mail-in ballots from qualified voters who failed to handwrite their name, address, or the date on their ballot’s outer envelope. The opinion said the judges followed an overarching principle that the election code should be liberally interpreted so as not to deprive people of their right to vote.

The Trump campaign challenged the Philadelphia County Board of Elections decision to count 8,329 absentee and mail-in ballots over missing handwritten info. Separately in Allegheny County, Nicole Ziccarelli, a candidate for the Pennsylvania Senate, challenged 2,349 mail-in ballots over the lack of dates on the declarations on the outer envelopes.

The Pennsylvania Election Code states that for both mail-in and absentee ballots, “the elector shall then fill out, date, and sign the declaration” on the ballot’s outer envelope. The Pennsylvania secretary of state specifically directed election officials on Sept. 28 that “A ballot‐return envelope with a declaration that is not filled out, dated, and signed is not sufficient and must be set aside, declared void, and may not be counted.”

The court acknowledged that the law says voters “shall ... fill out” the outer envelopes but argued that the use of the word “shall” does not imply “that the directive is mandatory and that a failure to comply with any part of it requires a board of elections to declare the ballot void and that it cannot be counted.”

“It has long been part of the jurisprudence of this Commonwealth that the use of ’shall' in a statute is not always indicative of a mandatory directive; in some instances, it is to be interpreted as merely directory,” the court wrote.

Justice David Wecht and Kevin Dougherty dissented with parts of the court’s opinion and specifically criticized the interpretation of the mandatory language.

“This requirement is stated in unambiguously mandatory terms, and nothing in the Election Code suggests that the legislature intended that courts should construe its mandatory language as directory,” Wecht wrote. “Thus, in future elections, I would treat the date and sign requirement as mandatory in both particulars, with the omission of either item sufficient without more to invalidate the ballot in question.”

Dougherty wrote that there was an “unquestionable purpose” behind the requirement for voters to sign and date the declaration on the out ballot envelope.

“The date also ensures the elector completed the ballot within the proper time frame and prevents the tabulation of potentially fraudulent back-dated votes,” Dougherty wrote, adding that he is “cognizant that our interpretation of this relatively new statute will act as precedential guidance for future cases.”