Commonwealth Court President Judge Renee Cohn Jubelirer today denied the preliminary objections of Berks, Fayette and Lancaster County Boards of Elections and directed them to certify the primary election races no later than Wednesday, August 24.
Jubelirer wrote that “the lack of a handwritten date on the declaration on the return envelope of a timely received absentee or mail-ballot does not support excluding those ballots from the Boards’ certified results under both Pennsylvania law and Section 10101(a)(2)(B) of the Civil Rights Act.”
The Pennsylvania Department of State filed a lawsuit on July 12 against the three Commonwealth county governments for not properly certifying vote tallies from the May 17 primary election.
The lawsuit stated that “three county boards of elections are holding up final certification of Pennsylvania’s 2022 primary election because they refuse to send the Acting Secretary of the Commonwealth (Leigh Chapman) certified returns that include every ballot lawfully cast in that election. Their duty to send the Acting Secretary those returns is a ministerial and non-discretionary act, and there is no longer doubt that the ballots the county boards refuse to include — timely received absentee and mail-in ballots cast by qualified voters who neglected to write a date on the declaration printed on the ballot’s return envelope — were lawfully cast and must be included in the certified returns. This Court should order the three county boards that are delaying resolution of the 2022 primary election to send to the Acting Secretary certifications reflecting all lawfully cast ballots.”
State law requires voters to handwrite a date on the outer envelope when returning their ballots, and the three counties followed the practice they and most other counties had over the past two years: Mail ballots without those handwritten dates were rejected and not included in the vote count.
“We are pleased that the Court has affirmed that under federal and Pennsylvania law, these three county boards of elections cannot refuse to certify undated ballots,” said Department of State spokesperson Ellen Lyon.”
Jubelirer concluded “the Boards may not refuse to include in their certified results submitted to the Secretary for her certification the timely received absentee and mail-in ballots of qualified Pennsylvania electors, that are otherwise unchallenged, on the basis that the electors did not date the declaration on the return envelope. Further, the injury involved is disenfranchising qualified Pennsylvania electors, which cannot be compensated by damages. Disenfranchising these electors results in a greater injury than denying the requested relief.”
Updated to include quote from DOS.