Federal Judge Rules Undated Mail-In Ballots Must Be Counted in Battleground Pennsylvania

An official vote-by-mail ballot packet in Irvine, Calif., on May 16, 2022. John Fredricks/The Epoch Times

A federal judge has ruled that mail-in or absentee ballots that arrive in envelopes lacking accurate, handwritten dates must be counted in the key battleground state of Pennsylvania, raising the stakes for the 2024 election and setting up a likely fight before the U.S. Supreme Court.

U.S. District Judge Susan Paradise Baxter ruled on Nov. 21 that not counting these types of ballots violates the so-called “materiality provision” of the Civil Rights Act of 1964, which states that the right to vote cannot be denied for an “error or omission” that is “not material” for determining whether a person is eligible to vote or not.

The plaintiffs in the case, which include Democratic campaign committees for House and Senate candidates as well as the Pennsylvania NAACP, have cited the Civil Rights Act’s materiality provision in arguing that dates on envelopes are immaterial to voter identification and ballots in return envelopes lacking an accurate, handwritten date should be counted in 2024 and beyond.

The Republican National Committee (RNC) and other GOP groups joined the case in opposition to counting ballots arriving in envelopes without handwritten dates or in ones that are misdated.

Judge Baxter, a registered Democrat who was—rather surprisingly—nominated by former President Donald Trump, cited decisions by the 3rd Circuit Court of Appeals and other courts in cases involving the materiality provision to rule against the Republican groups.

“The evidence shows, and the parties either agree (Plaintiffs, RNC, Secretary Schmidt, the Lancaster County Board, and the Berks County Board) or admit (all non-responding county boards), that the county boards of elections did not use the handwritten date on the Return Envelope for any purpose related to determining a voter’s age, citizenship, county or duration of residence, or felony status,” she wrote while calling the date requirement “immaterial.”

“Federal law prohibits a state from erecting immaterial roadblocks, such as this, to voting,” she wrote while concluding that Pennsylvania’s application of the date requirement violates the materiality provision.

“The Court has concluded that the Commonwealth’s mandatory application of its Date Requirement violates the Materiality Provision of the Civil Rights Act. Since the Court is confident that the Plaintiffs’ motion for summary judgment should be granted on that basis, there is no need to reach their constitutional claim [and] the Plaintiffs’ equal protection claim will be dismissed,” she wrote.

The status of ballots without properly dated envelopes has been litigated repeatedly since the use of mail-in voting was greatly expanded in Pennsylvania under a state law passed in 2019.

In general, opinions on whether to count mail-in ballots that arrive in envelopes that are undated or feature incorrect dates are split by party. Democrats say the ballots should be counted, Republicans say they should not.

Prior litigation suggests that the case is headed for the U.S. Supreme Court.

Background

Ahead of the 2022 midterm elections, the issue of undated mail-in ballots in Pennsylvania ended up before the 3rd Circuit Court of Appeals and, later, the U.S. Supreme Court.

Litigation related to a 2021 judicial race in Lehigh County involving 257 undated mail ballots resulted in a May 2022 decision by the 3rd Circuit, which ruled that Pennsylvania’s law requiring handwritten dates on ballot envelopes was a technicality used to throw out votes unfairly.

As a result, Lehigh County counted the undated ballots, certified the results, and declared a winner.

However, that case was appealed before the U.S. Supreme Court, which was pending when the 3rd Circuit ruled to allow the counting of undated ballots.

Later, the U.S. Supreme Court voided the 3rd Circuit ruling, with a brief one-paragraph order vacating the case not addressing the legal arguments of the case. In the past, the Supreme Court has voided lower-court decisions in order to prevent rulings from becoming precedent without an opportunity for appeal.

However, even though the brief order did not offer any explicit insights regarding the thinking of the Supreme Court on where justices stand on the key question of whether undated ballots violate the materiality provision of the Civil Rights Act, some hints have emerged.

During an earlier stage of that case, Justice Samuel A. Alito said in a written dissent that the 3rd Circuit’s interpretation of the case “broke new ground” but that it was “very likely wrong” and deserves a future review.

Justice Alito was joined in the opinion by Justices Clarence Thomas and Neil Gorsuch, who argued that the matter should be revisited before the November 2022 midterm elections, but that did not happen.

Instead, a number of Republican groups sued ahead of the Nov. 8, 2022, election that undated ballots shouldn’t be counted, leading to a decision by the State Supreme Court to rule in their favor.

“The Pennsylvania county boards of elections are hereby ORDERED to refrain from counting any absentee and mail-in ballots received for the November 8, 2022, general election that are contained in undated or incorrectly dated outer envelopes,” the court said in its Nov. 1, 2022 order. With the 2024 election now looming ever larger, the question of undated ballots in Pennsylvania, a key battleground state, has once again surged into the limelight in the latest round of related litigation.

While it’s unclear what next steps are coming following Judge Baxter’s Nov. 21 decision, analysts say that unless the U.S. Supreme Court intervenes, mail-in ballots lacking correct, handwritten dates in Pennsylvania will be counted.