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Pennsylvania sues 3 counties over counting mail-in ballots

An election worker continues the process in counting ballots for the Pennsylvania primary election, Wednesday, May 18, 2022, at the Mercer County Elections Board in Mercer, Pa. Vote counting continues as Republican candidates Dr. Mehmet Oz and David McCormick are locked in a too-early-to-call race for Pennsylvania's hotly contested Republican nomination for an open U.S. Senate seat.
Keith Srakocic
An election worker continues the process in counting ballots for the Pennsylvania primary election, Wednesday, May 18, 2022, at the Mercer County Elections Board in Mercer, Pa.

Pennsylvania's elections agency sued three Republican-controlled county governments on Tuesday, seeking to force their election boards to report primary results that include ballots with undated exterior envelopes — the subject of several other lawsuits.

The Department of State sued Lancaster, Berks and Fayette counties in Commonwealth Court, describing them as “outlier counties” that have not properly certified vote tallies from the May 17 election that included nominating contests for U.S. Senate, governor and most of the Legislature.

The 3rd U.S. Circuit Court of Appeals ruled May 20 that mail-in ballots without a required date on the return envelope must be allowed in a 2021 county judge race in Pennsylvania. Although the U.S. Supreme Court declined to halt the Senate vote-counting after the primary, three justices signed onto an opinion that said the 3rd Circuit was “very likely wrong.”

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A Commonwealth Court judge, in a separate case that was directly about reporting this year's Senate primary election results, ruled on June 2 that county boards of election should count mail-in votes that lack the security envelopes' hand-written dates, and report vote totals both with and without those ballots.

In the new case, the Department of State and acting Secretary of State Leigh Chapman under Democratic Gov. Tom Wolf want an order forcing the three counties to include in their primary election tallies, within three days, all absentee and mail-in voters, “even if the voter failed to write a date on the declaration printed on the ballot's return envelope."

They said in a filing that a ballot envelope's handwritten date “is not necessary for any purpose, does not remedy any mischief and does not advance any other objective," and that “allowing just three county boards to exclude votes that all other county boards have included in their returns creates impermissible discrepancies in the administration of Pennsylvania's 2022 primary election.”

“Interpreting Pennsylvania law to allow a county board of election to exclude a ballot from its final certified results because of a minor and meaningless irregularity, such as a voter omitting a date from the declaration on a timely received ballot, would fail to fulfill the purpose of the Pennsylvania Election Code and would risk a conflict with both the Pennsylvania Constitution and federal law,” wrote the state agency's lawyers from the attorney general's office.

The lawsuit stated that Berks County's election board said on June 23 it would not count mail-in votes without the date. A Berks County spokesperson said a response to the litigation was being developed.

Fayette, the department said in the complaint, notified the state of its decision on June 26 and officials there ignored subsequent attempts to discuss the issue. Lancaster told the state of its decision on June 27 and reiterated it July 5. Messages seeking comment were left with Fayette and Lancaster county government officials on Tuesday.

Department of State press secretary Grace Griffaton said the agency had no further comment because the litigation is pending.

A 2019 law under which legislative Republicans eliminated straight-party voting also gave Democrats a broad expansion of mail-in voting in a state where their use had previously been severely restricted. Since the pandemic, Pennsylvania Democrats have voted by mail in far greater numbers than their Republican counterparts.

Pennsylvania voters are instructed to write a date — not necessarily the date when they signed their ballot — next to their signature on the outside of mail-in return envelopes. The handwritten dates on ballot envelopes do not determine whether voters are eligible or if they cast their ballots on time.