We know that the Commonwealth will be a battleground for the 2024 presidential and U.S. Senate races, but now Pennsylvania is set up to be a U.S. Supreme Court battleground as well.
U.S. District Judge Susan Paradise Baxter ruled on Tuesday that mailed ballots that arrive on time but in envelopes without dates handwritten by Pennsylvania voters should be counted.
“The Court has concluded that the Commonwealth’s mandatory application of its Date Requirement violates the Materiality Provision of the Civil Rights Act. Since the Court is confident that the Plaintiffs’ motion for summary judgment should be granted on that basis, there is no need to reach their constitutional claim (and) the Plaintiffs’ equal protection claim will be dismissed.”
Baxter’s ruling is expected to be appealed to the 3rd U.S. Circuit Court of Appeals before it ultimately reaches the high court, whose final word on what are often referred to as “undated ballots” may help determine the outcome of the 2024 presidential race and other key upcoming elections in the swing state.
The challenges over undated ballots in the Commonwealth is as old as Act 77 – the law that permitted no-excuse mail balloting to take place in the state.
The handwritten dates are required by state law, but voters have shown confusion by putting dates such as their birthday on the line on the outer envelope.
Despite the fact that the date has no bearing on the validity of the vote, opponents of mail voting have seized on the issue and attempted to jettison those votes with incorrect dates.
Plaintiffs argued that excluding these “incorrect” ballots would violate the Materiality Provision of the Civil Rights Act of 1964. This provision says that “No person acting under color of law shall…deny the right of any individual to vote in any election because of an error or omission…if such error or omission is not material in determining whether such individual is qualified.”
The Materiality Provision applies to voter registration as well; lawsuits have challenged the disclosure of Social Security numbers for voter registration purposes and “wet signature” requirements. In fact, the U.S. Department of Justice sued the state of Texas in 2021 over its new voter suppression bill for “conditioning the right to cast a mail ballot on a voter’s ability to recall and recite the identification number provided on an application for voter registration months or years before.”
A year ago in the GOP Senate primary, David McCormick invoked the Materiality Provision in a lawsuit in his contest against eventual winner Mehmet Oz. The Pennsylvania Commonwealth Court granted McCormick’s request, but he conceded the race soon after.
In 2022, the U.S. Supreme Court voided a lower court’s ruling in a similar case over ballots for a Pennsylvania county judge’s race after the Republican candidate conceded. Three of the high court’s conservative justices — Justices Samuel Alito, Clarence Thomas and Neil Gorsuch — have indicated that they’re not convinced that disqualifying ballots for missing handwritten dates violates the Civil Rights Act.
The Republican National Committee and other GOP groups have joined the case in opposition to counting ballots without handwritten dates or those that are misdated.
Pennsylvania Secretary of the Commonwealth Al Schmidt “is permanently enjoined from directing all county boards of elections … to segregate, reject, exclude, or in any way not count timely received mail ballots based on a voter’s error or omission in relation to the date on … the mail ballot return envelope.”
If the decision stands, the ruling would allow tens of thousands of Pennsylvania mail ballots to be counted in the 2024 election that would otherwise be rejected.
And with Democrats still outnumbering Republicans in the use of mail ballots by a wide margin, the decision greatly impacts Dems’ chances of delivering the Keystone State next year.