Pennsylvania court loosens mail ballot rules, but a fast-track appeal is likely

HARRISBURG, Pa. — A divided Pennsylvania appeals court ruled Wednesday that the envelopes voters use to send in mail ballots do not need to have been accurately hand-dated, weighing in after the state Supreme Court sidestepped the issue and six days before the end of voting in the presidential election.

The 3-2 decision by Commonwealth Court upheld a Philadelphia judge's ruling that 69 mail ballots should be counted in a pair of single-candidate state House of Representatives special elections held in September.

The majority said the mandate for exterior envelope dates, which are not needed to determine if a ballot has arrived in time, violates a state constitutional provision that says elections must be free and equal and no civil or military power can interfere with the “free exercise of the right of suffrage.”

The majority opinion by Judge Ellen Ceisler said the envelope dating rules “restrict the right to have one's vote counted in the special election to only those voters who correctly handwrite the date on their mail ballots and effectively deny the right to all other qualified electors who sought to exercise the franchise by mail in a timely manner but made minor mistakes or omissions.”

Ceisler, in a footnote, urged the national and state Republican parties, which lost the case, “to proceed expeditiously should they wish to appeal this decision.”

A lawyer for the Republican parties, Linda A. Kerns, said an appeal will be filed in the coming days.

“We know that the Supreme Court of Pennsylvania has already spoken on this issue,” Kerns said Wednesday. “Pennsylvania law requires voters to sign and date mail ballots — that is an important election integrity safeguard.”

Lawyers for the two Philadelphia voters who sued to have their ballots counted hailed the decision but acknowledged it may not be the last word.

“We hope that every county will abide by this ruling in its processing of mail ballots next month,” Mimi McKenzie, legal director of the Public Interest Law Center, said in a statement. She advised voters to still date their return envelopes and fix any balloting mistakes if they can.

In a dissent, Judge Matthew Wolf said his colleagues should have simply forwarded the case to the state Supreme Court or at least waited until after the election.

“The majority, in no uncertain terms, concludes that any county board of elections' decision not to count undated or incorrectly dated mail-in and absentee ballots violates the free and equal elections clause of the Pennsylvania Constitution,” Wolf wrote.

Another dissent, by Judge Patricia McCullough, called the majority decision “a substantial change to voting rules at the eleventh hour and on specious grounds.”

“Wrong decisions issued at the wrong time are doubly threatening to the integrity of Pennsylvania's elections and the public's confidence in them,” McCullough said.

The state Supreme Court earlier this month rejected a request by voting rights and left-leaning groups to stop counties from throwing out mail-in ballots without the accurate, handwritten dates, citing earlier rulings that courts should avoid confusing voters close to elections.