The Pennsylvania Supreme Court has once again waded into the protracted legal battle over whether mail ballots missing a date or with the wrong date should be thrown out.
But while a series of opinions the justices issued Wednesday offered new clarity, they also opened the door to fresh confusion and the almost certain prospect of counties developing a patchwork of different policies over what exactly constitutes a correct date.
The ruling follows an order the court issued last fall instructing counties to set aside all undated and wrongly dated ballots for last November’s midterm. It did not issue opinions explaining the decision at the time or providing guidance to counties going forward.
The question of how to handle dates on mail ballots — state law requires voters to handwrite a date on the outer envelope — had been one of the most hotly contested legal and political fights in recent elections. In a tense status quo before last fall’s order, some counties had accepted undated ballots or ballots with any date, such as voters’ birth dates, saying it was unfair to disqualify ballots from legal voters simply because they had made a mistake.
But writing for the court Wednesday, Justice David Wecht said the dating requirement spelled out in state law is clear: For a mail ballot to count, it must be dated with the date the voter filled it out.
As for how a county should determine that the date on the ballot is the correct one, Wecht, a Democrat, wrote that that question “falls beyond our purview.” Individual county boards of elections, he said, “retain authority to evaluate the ballots that they receive in future elections.”
That means it’s likely that counties will adopt different policies on which ballots to count or reject going forward.
For instance, some counties could — as the state Supreme Court ordered in October — decide to accept all votes dated between when mail ballots are sent out and Election Day. Others could decide to closely track individual ballots through the mail and only accept those dated when in voters’ possession.
All six Supreme Court justices agreed that undated ballots should be rejected under state law, but two — Justices Christine Donohue and Debra Todd, both Democrats — split from the others on the question of incorrectly dated ballots. In a separate opinion, they said the ballot-dating requirement isn’t as clear as Wecht’s majority opinion makes it out to be.
“In my view,” Donohue wrote, “a mail-in or absentee ballot received on or before election or primary day should be counted if it is signed and bears any date affixed by the elector.”
The likely future patchwork of county policies is likely to only fuel the confusion that has made the issue the subject of more than a half-dozen lawsuits in venues ranging from county courts all the way to the U.S. Supreme Court.
How Appealing links to the various opinions in the case.