An appeals court says 'undated' Pennsylvania ballots don't count

A federal appeals panel has set up a potential U.S. Supreme Court battle about Pennsylvania's mail-in ballots that could play a role in determining who wins this year's presidential election and other races in the key swing state.

Mailed ballots that arrive on time but in envelopes without dates handwritten by Pennsylvania voters or with incorrect dates should not be counted, a three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled Wednesday. Their 2-1 decision strikes down a lower court ruling.

The main legal issue surrounding what are often called "undated ballots" is whether not tallying them violates the Civil Rights Act of 1964, which says a person's right to vote cannot be denied for "an error or omission" that is "not material" in determining voting eligibility.

A current, handwritten date on the return envelope is required by Pennsylvania state law, but that date is not used to confirm if a person is eligible to vote. For past elections, the final vote tallies by county election officials have included ballots arriving in undated or misdated return envelopes.

In the panel's majority opinion, 3rd U.S. Circuit Judge Thomas Ambro said that what's known in legal circles as the materiality provision "only applies when the State is determining who may vote."

"In other words, its role stops at the door of the voting place," wrote Ambro, an appointee of former President Bill Clinton, who was joined by Circuit Judge Cindy Chung, a Biden appointee. "The Provision does not apply to rules, like the date requirement, that govern how a qualified voter must cast his ballot for it to be counted."

Circuit Judge Patty Shwartz, an Obama appointee, dissented and wrote in a separate opinion that the provision "is not limited to that narrow group of documents" used to register to vote, as attorneys for the Republican National Committee argued in this case.

The RNC led this appeal to the 3rd Circuit and has signaled it expects this legal battle to ultimately reach the Supreme Court.

In a statement, RNC Chair Michael Whatley called the ruling "a crucial victory for election integrity and voter confidence."

"Pennsylvanians deserve to feel confident in the security of their mail ballots, and this 3rd Circuit ruling roundly rejects unlawful left-wing attempts to count undated or incorrectly dated mail ballots," Whatley said. "Republicans will continue to fight and win for election integrity in courts across the country ahead of the 2024 election."

Ari Savitzky, an attorney for the American Civil Liberties Union, which is representing the Pennsylvania State Conference of the NAACP, the lead plaintiff, said in a statement that they are "considering all of our options at this time."

"If this ruling stands, thousands of Pennsylvania voters could lose their vote over a meaningless paperwork error," said Mike Lee, executive director of the ACLU of Pennsylvania, in a statement. "The ballots in question in this case come from voters who are eligible and who met the submission deadline. In passing the Civil Rights Act, Congress put a guardrail in place to be sure that states don't erect unnecessary barriers that disenfranchise voters. It's unfortunate that the court failed to recognize that principle. Voters lose as a result of this ruling."

In the 2022 general election, officials rejected more than 10,000 ballots because the voter did not handwrite a correct date on the return envelope, according to Pennsylvania's secretary of the commonwealth. Many of those voters are elderly, including a group of them who joined this lawsuit.

In recent elections, higher shares of Democrats have used mail voting than Republicans, according to the MIT Election Data and Science Lab.

Pennsylvania officials recently redesigned the outer envelopes for the mail-in ballots to try to remind voters to write the current date under their signatures.

Edited by Benjamin Swasey

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