The American Civil Liberties Union and the ACLU of Pennsylvania have filed a federal lawsuit to ensure that Pennsylvania mail-in ballots that are missing a handwritten date on the return envelope or dated incorrectly are counted. The filing comes after the state Supreme Court ordered that ballots without a date or with an incorrect date on the envelope be segregated from other ballots and left uncounted, raising serious questions about the potential disenfranchisement of an untold number of Pennsylvania voters.
In October, the United States Supreme Court rendered moot a lower court’s opinion that misdated mail-in ballots cannot be used to disenfranchise voters. That decision did not overturn the lower court’s ruling, but it prevented that ruling from becoming precedent. The Civil Rights Act clearly states that otherwise eligible ballots cannot be disqualified due to such immaterial technicalities as a paperwork mistake.
The lawsuit was filed on behalf of Pennsylvania State Conference of the NAACP, League of Women Voters of Pennsylvania, Common Cause PA, Make The Road PA, POWER Interfaith, and the Black Political Empowerment Project (BPEP). These organizations have led expansive get-out-the-vote and voter education efforts which are burdened and undermined by hyper-technical rules that could wrongly disenfranchise thousands of Pennsylvania voters.
On November 30, 2022, the plaintiffs' complaint was amended to add eight voters from across the commonwealth, all of whom were disenfranchised in the 2022 general election because of the state rule prohibiting the counting of mail ballots with undated or incorrectly dated return envelopes.
On November 21, 2023, the district court ruled in favor of the plaintiffs, finding that federal law requires that Pennsylvania voters’ mail ballots be counted even when the voter forgets to write the date on the outer mail ballot envelope or writes a date that is somehow “incorrect.”
The intervenor defendants appealed the ruling to the United States Court of Appeals for the Third Circuit. On March 27, 2024, a three-judge panel of the appeals court overturned the district court ruling. On April 10, 2024, the plaintiffs filed a petition for the case to be heard en banc, meaning that it would be heard and decided by all of the sitting judges on the appeals court. On April 30, the full court issued its decision to not hear the case en banc.
The case is now back before the federal district court to consider the constitutional equal protection issue. The plaintiffs have also asked for review by the United States Supreme Court on the statutory interpretation question.
