Pennsylvania's top-ranking state elections official said Tuesday a new U.S. Supreme Court decision regarding how rules for the state's mail-in ballots had been applied in a county judge election doesn't change her agency's guidance about counting them.
Acting Secretary of State Leigh M. Chapman said county elections officials should count mail-in votes that arrive in exterior envelopes with inaccurate or nonexistent handwritten dates, despite a requirement in state law.
The U.S. Supreme Court earlier Tuesday had declared as moot a decision in May by the 3rd U.S. Circuit Court of Appeals that had said mail-in ballots without a required date on the return envelope had to be counted in a 2021 Pennsylvania judge race.
Chapman issued a statement saying the high court decision did not affect a separate, previous ruling by state Commonwealth Court in favor of counting ballots without properly dated exterior envelopes.
The new decision, Chapman said, "provides no justification for counties to exclude ballots based on a minor omission, and we expect that counties will continue to comply with their obligation to count all legal votes.” Chapman works in the administration of Gov. Tom Wolf, a Democrat.
The 3rd Circuit had said state election law’s requirement of a date next to the voter’s signature on the outside of return envelopes was “immaterial.” That lower court had said it found no reason to refuse counting the ballots that were set aside in the Nov. 2, 2021, election for common pleas judge in Lehigh County.
Those votes were enough to propel the Democrat, Zac Cohen, to victory in the race. He has since been sworn in and the new U.S. Supreme Court decision is not expected to reverse the results of Cohen's election contest.
In the latest decision, the justices ruled 7-2 that the 3rd Circuit must “dismiss the case as moot.”
Joshua Voss, a lawyer who represents the losing judicial candidate in the Lehigh County race, Republican David Ritter, said in a phone call Tuesday he believes the effect of the new high court ruling is that state law goes back to where it had been.
“The Department of State certainly should update their guidance,” Voss said. “But at the end of the day, elections are administered by counties and counties will need to assess what the state of the law was.”
Adam Bonin, a lawyer for Cohen, said voters should not leave anything to chance.
“Voters should still be careful to follow all of the instructions,” Bonin said, including the use of a security envelope and signing and dating the exterior return envelope.
Voss had argued to the Supreme Court that the 3rd Circuit ruling was already being cited in other cases but should be declared moot.
He said it's possible that more litigation over the undated envelopes might occur if there is a close race in November and a candidate wants to seek a court review.
“I don't know about ‘likely’ because it would require a close race. So, possible? Yes. Likely? I don't know. Remember, these ballots made the difference in Ritter's race, which is why the case existed,” Voss said.
Jason Gottesman, a spokesperson for the state House Republican Caucus, said in a statement that Pennsylvania law “is clear: ballots must be dated,” and urged the Wolf administration to work on comprehensive election law changes that will make the process more uniform, accessible, modern and secure. The case involves the law's requirement for handwritten dates on return envelopes that are also logged in by county election workers and generally have been postmarked.
Pennsylvania allowed only limited use of absentee mail-in ballots until 2019, when a state law OK'd them for voters who did not otherwise qualify from a list of acceptable excuses.
A lawsuit by Republican lawmakers challenging the mail-in voting law is pending in state court, while in August the state Supreme Court upheld the law against a separate challenge.
More than 2.5 million Pennsylvanians voted by mail during 2020′s presidential election, most of them Democrats, out of 6.9 million total votes. Chapman said Tuesday that more than 1.1 million absentee and mail-in ballots have been requested for the fall General Election.
