Pa. court issues another ruling on mail-in ballot dates. What does it mean for Nov. 5?

Pennsylvania judges say it’s unconstitutional to throw out mail-in ballots simply because they are misdated, the latest twist in a legal saga that could decide whether thousands of votes are counted in Tuesday’s presidential election.

Disqualifying ballots because of “meaningless dating errors violates the fundamental right to vote recognized in and guaranteed by the free and equal elections clause of the Pennsylvania Constitution,” the Commonwealth Court judges wrote in Wednesday’s ruling.

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Voting rights groups applauded the decision as “recognizing the rights of voters” whose only mistake was incorrectly dating or forgetting to date their ballot envelope. But they acknowledged it probably won't be the final word in the ballot-dating fight, which has spanned years and multiple lawsuits.

The new ruling could be appealed by the Republican National Committee and Republican Party of Pennsylvania, which have intervened in the case. It’s not clear whether the Pennsylvania Supreme Court would resolve the disagreement with the consequential presidential election still looming.

Attorneys for the GOP intervenors did not immediately respond to a request for comment.

The legal challenge arose after Philadelphia officials rejected 69 mail-in ballots for dating mistakes in the September special election for two seats in the Pennsylvania House of Delegates. The ACLU of Pennsylvania and Public Interest Law Center sued the Philadelphia Board of Elections on behalf of two voters whose ballots had been excluded from the count.

“We applaud the Commonwealth Court for its ruling recognizing the rights of voters, and we hope that eerie county will abide by this ruling in its processing of mail ballots next month,” Mimi McKenzie, the Public Interest Law Center’s legal director, said in a prepared statement.

Given the likelihood of more developments in the case, McKenzie urged Pennsylvanians to continue to date their mail-in ballot envelopes and cure their errors or vote provisionally if they make a mistake.

Elections officials have said the envelope dates serve no purpose in verifying a voter’s eligibility or in confirming that a mail-in ballot has arrived on time. County offices date-stamp ballot envelopes when they receive them to determine their timeliness.

So while the handwritten date might be a requirement under state law, ballots shouldn’t be disqualified on that basis, the judges found.

“We cannot countenance any law governing elections, determined to be mandatory or otherwise, that has the practical effect in its application of impermissibly infringing on certain individuals’ fundamental right to vote,” Commonwealth Court Judge Ellen Ceisler wrote for the five-judge panel's majority.

The Commonwealth Court arrived at a similar conclusion in a different mail-in balloting case in August, but the Pennsylvania Supreme Court vacated that ruling because plaintiffs had failed to name all 67 counties in their lawsuit. Subsequent attempts to resolve the ballot-dating questions have also faltered, as the Supreme Court refused to take up the issue so close to the presidential election.

In a dissenting opinion on the Philadelphia case, Commonwealth Court Judge Matthew Wolf took issue with the timing of his colleagues' ruling, saying they risked confusing the election process.

“Because this Court’s decision is ill-timed, proceeding on an unnecessarily expedited track, has the potential to confuse the electorate, and deprives the Pennsylvania Supreme Court of a reasonable opportunity to review, I am left with no choice but to dissent,” he wrote.

While Wednesday’s decision is binding only on how Philadelphia officials handled the September special election, the court’s constitutionality findings could shape how other counties treat mail-in ballots cast Nov. 5, said Adam Bonin, a Democratic elections lawyer.

“Every board of elections member in all 67 counties … needs to be talking to their county solicitor about what this means for them,” Bonin said in an interview. “And whether their oath to follow both the law and the constitution, both federal and state, means that they can’t deny these ballots.”

More than 10,000 undated or misdated mail-in ballots were rejected in the 2022 general election, according to the ACLU of Pennsylvania. Elections officials anticipate that strictly enforcing the dating requirement could affect thousands of voters in the upcoming presidential election, Ceisler’s opinion states.

A disproportionate number of them are likely to be older voters, such as Brian Baxter, one of the plaintiffs in the Philadelphia case. Baxter, an 81-year-old, had blamed his “old age and increasing forgetfulness” for the dating oversight on his mail-in ballot, according to court records.

Bethany Rodgers is a USA TODAY Network Pennsylvania capital bureau investigative journalist.

This article originally appeared on Erie Times-News: Pa judges say it's unconstitutional to toss misdated mail-in ballots