How undated ballots could affect Pennsylvania's GOP Senate race and voters' rights
Updated May 31, 2022 at 4:35 PM ET
They arrived on time to be counted but in envelopes that were missing one detail — a handwritten date.
Now, according to the secretary of state's office, some 860 undated mail-in ballots from Pennsylvania's Republican voters are caught in the middle of a legal fight over May's tight GOP primary election for an open U.S. Senate seat.
It's the latest twist of a knotty saga in the key swing state over what to do with ballots received in return envelopes that are missing handwritten dates next to voters' signatures.
The fate of these controversial ballots could have ripple effects on the election in November and beyond, in addition to the voting rights of Pennsylvania's more than 8.7 million registered voters.
The accelerated rise of voting by mail since the start of the coronavirus pandemic has brought intense scrutiny of the technicalities of casting ballots, especially among Republicans. For last year's primary, GOP state lawmakers threatened to impeach Philadelphia's election officials if they did not reverse their initial decision to count undated ballots.
Over the past couple of years, a tangle of litigation at both state and federal courts has left the local election officials who run Pennsylvania's elections scrambling to keep up with the latest rulings, as well as guidance from the state's top election official, a role currently held by acting Pennsylvania Secretary of State Leigh Chapman.
On May 25, Chapman officially ordered a statewide recount of votes for the race led by Dr. Mehmet Oz, the celebrity TV doctor backed by former President Donald Trump, and David McCormick, a former CEO of a hedge fund.
As of Tuesday afternoon, Oz leads McCormick by fewer than 1,000 votes.
Those two frontrunners have headed to state court in a dispute over whether ballots missing handwritten dates should be counted. In a move signaling disagreement within the GOP on undated ballots, the Republican National Committee and the Republican Party of Pennsylvania are supporting Oz's position not to tally them. McCormick so far has led among counted mail ballots.
A recent federal court ruling in a related but separate legal fight — over 257 undated ballots for a 2021 election in Pennsylvania's Lehigh County — prompted Chapman to advise local election officials across the state who are still finalizing the May 17 primary results to set aside undated ballots for review.
On Tuesday, U.S. Supreme Court Justice Samuel Alito ordered that the lower federal court's ruling be put on hold while the high court awaits a formal appeal of the ruling.
Here's what else you need to know:
Are handwritten dates required for mail-in ballots in Pennsylvania?
Yes, voters are required to "fill out, date and sign" a declaration printed on an official envelope for returning mail-in ballots, according to Pennsylvania state law.
But the date requirement has come under challenge in multiple court fights that have raised the question of whether missing a handwritten date is enough to disqualify a person's vote — including in lawsuits related to the 2020 election.
How did undated ballots come up in the 2020 election legal fights?
The counting of thousands of undated ballots that were received on time and came with no evidence of fraud were challenged in Philadelphia by Trump's reelection campaign and in Pennsylvania's Allegheny County by a Republican state Senate candidate, Nicole Ziccarelli.
The state's Supreme Court ultimately ruled to count the undated ballots in 2020 after a surge of mail-in voting during the pandemic. For the high court's majority opinion, the justices wrote that while not including a handwritten date on the back of the return envelope is technically a violation of state law, it does not "warrant the wholesale disenfranchisement of thousands of Pennsylvania voters."
As part of the complicated ruling, Justice David Wecht, who was effectively the tiebreaker in the divided court, issued a separate opinion that said undated ballots should be tallied in 2020 but not for future elections.
"I cannot say with any confidence that even diligent electors were adequately informed as to what was required to avoid the consequence of disqualification in this case," Wecht wrote, adding that "it would be unfair to punish voters for the incidents of systemic growing pains."
How did undated ballots end up in court again last year?
A Republican candidate running to be a judge in Pennsylvania's Lehigh County, David Ritter, challenged the counting of 257 undated ballots in 2021. The state Supreme Court did not weigh in on the case, and that allowed a lower court's ruling to stand: Those undated ballots should not be tallied, the state's Commonwealth Court concluded in January, citing in part Wecht's opinion from 2020.
Later in January, however, the American Civil Liberties Union of Pennsylvania filed a lawsuit in federal court on behalf of a group of Lehigh County voters whose undated ballots were disqualified. Not tallying undated ballots, the ACLU lawyers argued, violates the Civil Rights Act, which bans denying a person's right to vote for a reason that is "not material" in determining whether that person qualifies under state law to vote.
In May, a three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled in favor of the voters backed by the ACLU, overturning a lower court's ruling and ordering the counting of the undated ballots for the 2021 Lehigh County election.
In their opinion released on May 27, the 3rd Circuit panel noted that the state's deputy secretary for elections and commissions, Jonathan Marks, has confirmed that a handwritten date is not used to determine a voter's eligibility and that the Lehigh County Board of Elections did count ballots with incorrect dates.
"If the substance of the string of numbers does not matter, then it is hard to understand how one could claim that this requirement has any use in determining a voter's qualifications," U.S. Circuit Judge Theodore McKee wrote on behalf of the panel.
On May 27, attorneys for Ritter asked the U.S. Supreme Court to put the 3rd Circuit's ruling on hold while they prepare to formally appeal that lower court's order.
What does all this mean for the recount in Pennsylvania's Republican Senate primary?
In a race as close as the Oz and McCormick contest, every vote counts. And whether or not the courts allow undated ballots to be included in the recount could be the determining factor in who goes up against the Democratic nominee, Pennsylvania Lt. Gov. John Fetterman, in November.
Recount results are due by June 8. Meanwhile, attorneys for both GOP Senate frontrunners appeared before the state's Commonwealth Court on Tuesday for a hearing over McCormick's emergency request for an order requiring undated ballots to be counted.
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