I realize this is of interest only to election-law folks at this point, but I wanted to highlight some noteworthy aspects of the PA Supreme Court’s recent 3-1-3 election-law decision.

The issues are whether absentee ballots are valid votes if the voter failed to comply with requirements to (1) put the date down on which they cast the ballot; (2) handwrite their name; and/or (3) put down their address.  There are no allegations of fraud or any other irregularities in these cases.  The case involved 8,329 ballots in Philadelphia County and 2,349 ballots in Allegheny County, and the lower courts in these counties came out differently on the issues.

All these issues turn on how a state court should interpret the state election code.

First, the supreme court voted 7-0 to treat as valid ballots in categories (2) and (3).  The reasons for this unanimity were that the election code itself does not impose these requirements.  These requirements were imposed by the Secretary of State, exercising delegated authority, and while this information was required to improve the administrative and processing of absentee ballots, inclusion of this information was held not to serve any “weighty” state interests in ensuring the integrity of the absentee-ballot process.

 Second, in contrast, the court held 4-3 that ballots in category (1) – those on which the voter had failed to include the date the ballot was filled out – were invalid votes.  The reasons these four justices reached that conclusion is that the election code itself did include this requirement and, in addition, stated that voters “shall” date and sign the absentee ballot envelope.  The combination of these two factors led the majority of four to hold that it was inappropriate for election officials and courts to not treat these requirements as binding.  The dissenting three justices took a more functional approach to the statutory language; they argued that the state’s purposes in ensuring these were valid votes was fully served by the fact that the ballots were all received on time, since election officials time-stamp the date of receipt.

 Third, one justice (Judge Wecht) who agreed a ballot was invalid if the voter failed to provide the date it was cast nonetheless voted not to invalidate those ballots for this election.  His opinion provides a detailed analysis of the PA Supreme Court’s jurisprudence on election issues over time, coupled with his criticism that the court has been too free-wheeling in departing from the text of the election code.  But he notes all the complicated changes PA made to its absentee voting system, starting with the major bipartisan 2019 legislation that created no-excuse absentee voting, implemented for the first time this year during a general election, and concludes that voters had not been given clear enough instructions and warnings that failing to include the date would make their ballot invalid.  As he put it, “it would be unfair to punish voters for the incidents of systemic growing pains.”   So he voted to make his ruling only prospective, meaning it would apply to future elections.

 Finally, Judge Wecht, in urging the state legislature to address many of the issues that arose in this election, noted that the federal Voting Rights Act includes a provision that makes it illegal to deny the right to vote for “immaterial reasons.”  He then suggested that it would be inconsistent with this provision to insert more requirements for absentee ballots than considerations of fraud, election security, and voter qualifications require.

I wanted to flag this decision for many reasons, one of which is that it’s gratifying to see these shifting alignments, which suggest a court grappling in good-faith with methodological and interpretive issues over how courts should read state election codes.  PA is one of eight states that elects its judges in partisan elections.  The Court has aa 5-2 Democratic majority.