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New court challenge filed in Pennsylvania to prevent some mail-in ballots from getting thrown out

A man picks up a container of mail-in ballots off a storage shelf
Gene J. Puskar
Allegheny County Election Division Deputy Manager Chet Harhut carries a container of mail-in ballots from a secure area as he explains the process of sorting mail-in and absentee ballots in preparations for Pennsylvania's primary election on April 23, at the Elections warehouse in Pittsburgh, Thursday, April 18, 2024.

A new lawsuit filed Tuesday by a constellation of left-leaning groups in Pennsylvania is trying to prevent thousands of mail-in ballots from being thrown out in November's election in a battleground state that is expected to play a critical role in selecting a new president.

The lawsuit, filed in a state court, is the latest of perhaps a half-dozen cases to challenge a provision in Pennsylvania law that voters must write the date when they sign their mail-in ballot envelope.

Voters not understanding that provision has meant that tens of thousands of ballots have been thrown out since Pennsylvania dramatically expanded mail-in voting in a 2019 law.

The latest lawsuit says multiple courts have found that a voter-written date is meaningless in determining whether the ballot arrived on time or whether the voter is eligible. As a result, rejecting someone's ballot either because it lacks a date or a correct date should violate the Pennsylvania Constitution’s free and equal elections clause, the 68-page lawsuit said.

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“This lawsuit is the only one that is squarely addressing the constitutionality of disenfranchising voters under Pennsylvania's Constitution,” said Marian Schneider, a lawyer in the case and senior policy counsel for voting rights for the American Civil Liberties Union of Pennsylvania.

Enforcement of the dating provision resulted in at least 10,000 ballots getting thrown out in the 2022 mid-term election alone, the lawsuit said.

The lawsuit names Democratic Gov. Josh Shapiro's top election official, as well as the election boards in Philadelphia and Allegheny County, both heavily Democratic jurisdictions.

The complaint does not allege any specific problems unique to those counties: The legal groups filing the suit said they were named simply because that’s where voter-advocacy groups found voters whose ballots were set aside during the 2024 primary. That gives those voters a right to be named as plaintiffs, while the voter-advocacy groups contend that the dating requirement forces them to divert resources away from turning out new voters and toward ensuring existing voters focus on paperwork requirements.

Ironically, Allegheny takes steps to prevent votes from being set aside due to the provision: The county sends notices to voters of the issue in hopes of giving them a change to “cure” it. (Though such outreach is not always successful: One of the Allegheny County plaintiffs said in a sworn statement that he didn’t learn his ballot had been disallowed until after the election. A second didn’t see the email notice until she “was already boarding a flight to New York” on her way to a cruise.)

Washington County, by contrast, does nothing at all to notify voters that their ballots have been dated wrongly.

Democrats have fought to undo the dating requirement, while Republicans in the past have fought in court to ensure that counties can and do throw out mail-in ballots that lack a complete or correct date.

Roughly three-fourths of mail-in ballots tend to be cast by Democrats in Pennsylvania, possibly the result of former President Donald Trump baselessly claiming that mail-in voting is rife with fraud.

The “free and equal” clause requires that “elections shall be free and equal; and no power [shall] prevent the free exercise of the right of suffrage.” And while it’s been in the state Constitution for more than two centuries, it’s received little attention in previous legal arguments about the requirement.

Benjamin Geffen, a senior attorney at the Public Interest Law Center, said that previous rounds of litigation focused on narrower questions of how the state’s mail-in ballot law was being interpreted. Those having failed at both the state and federal level, “The last backstop is the state constitution’s protection of the right to vote. The state constitution is the ultimate guarantor of that right. It’s the last place to turn after these other issues have been litigated.

While it may seem counterintuitive to address everything except whether a law is constitutional at the outset, Geffen put it this way: “If you’re a dentist and someone comes in with a cavity, you don’t just rush in and yank the whole tooth.”

Voters may groan at the prospect of yet another legal challenge involving mail-in voting — which has already been a source of partisan rancor for years. (Geffen says it's likely that political parties and elected officials will seek to intervene in the lawsuit.) The putative Republican nominee, Donald Trump, has argued for years that he was cheated out of a win in Pennsylvania, despite the total lack of evidence for such claims. And just last week he suggested to a Pittsburgh TV station that mail-in votes could be used for nefarious purposes again.

But Geffen noted that while courts have come to different conclusions about whether the date requirement should be applied, they have all agreed that it serves no real purpose. (Elections officials, after all, time-stamp mail ballots to verify they arrive in time.)

Which means, Geffin said, “If we prevail, it absolutely won’t make it easier for somebody to vote who shouldn’t. I’ve talked to a lot of voters, and when somebody finds out we didn’t count their vote because of a red-tape reason, they get really upset.”

The plaintiffs in the lawsuit include the Black Political Empowerment Project, POWER Interfaith, Make the Road Pennsylvania, OnePA Activists United, New PA Project Education Fund, Casa San José, Pittsburgh United, League of Women Voters of Pennsylvania and Common Cause Pennsylvania.

Currently, a separate challenge to the date requirement is pending in federal court over whether it violates the 1964 Civil Rights Act or the constitution's equal protection clause. In March, a divided 3rd U.S. Circuit Court of Appeals ruled that the date requirement does not violate the civil rights law.

Updated: May 28, 2024 at 3:50 PM EDT
This story has been updated to include additional reporting and context.
Nearly three decades after leaving home for college, Chris Potter now lives four miles from the house he grew up in -- a testament either to the charm of the South Hills or to a simple lack of ambition. In the intervening years, Potter held a variety of jobs, including asbestos abatement engineer and ice-cream truck driver. He has also worked for a number of local media outlets, only some of which then went out of business. After serving as the editor of Pittsburgh City Paper for a decade, he covered politics and government at the Pittsburgh Post-Gazette. He has won some awards during the course of his quarter-century journalistic career, but then even a blind squirrel sometimes digs up an acorn.