Senior Pennsylvania elections officials said in a Tuesday court filing that handwritten dates on the envelopes that many voters use to mail in ballots should not be deemed mandatory.
State and national Republican Party organizations and GOP voters have asked the state Supreme Court justices to take up the issue.
In the brief, Democratic officials under Gov. Tom Wolf said that state law between 1945 and 1968 dictated that county election boards set aside mail-in ballots if the date on the envelope was later than the date of the election.
However, when the Election Code was amended in 1968, lawmakers “deleted from the Election Code’s canvassing section the requirement that counties set aside ballots based on the date appearing on the ballot-return envelope.”
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A handwritten exterior envelope date is not necessary to ensure that a ballot has been received by the Election Day deadline. Those ballots are supposed to be time-stamped at county offices.
In a Monday brief, the Republicans who brought the case argued that if justices do not instruct county boards to throw out ballots with undated or incorrectly dated exterior envelopes, counties should be told to set them in a specific pile during counting.
If the high court rules that accurate dates are mandatory, it is likely that more Democratic votes will be disqualified because far more Democrats than Republicans have used mail-in ballots.
The justices have asked parties to consider whether making envelope dates mandatory would violate the U.S. Civil Rights Act of 1964.
According to the governor’s attorneys, it would. They argue that the date on the envelope is the type of “immaterial error or omission” the federal law said should not be used to prevent voting.
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Alternatively, Republican groups and voters said the federal law’s provision does not apply to actual voting, but to “an application, registration or other act requisite to voting.”
The 3rd U.S. Circuit Court of Appeals ruled in earlier this year that the dates aren’t mandatory, but the U.S. Supreme Court deemed that decision moot earlier this month.
Acting Secretary of State Leigh Chapman responded in a statement, saying that every county is expected to include undated ballots in their official returns for the upcoming election, consistent with state election guidance.
“Today’s order from the U.S. Supreme Court vacating the Third Circuit’s decision on mootness grounds was not based on the merits of the issue and does not affect the prior decision of Commonwealth Court in any way,” she said in an Oct. 11 release. “It 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.”
The Pennsylvania Supreme Court said it will likely rule on the matter without holding oral arguments.
The Pennsylvania chapter of the American Civil Liberties Union said some voters in Allegheny County have received mail-in ballots that were mistakenly printed without a form on the exterior envelope for voters to sign and date.
The Pennsylvania GOP and the Pennsylvania Department of State declined to comment, citing active litigation.
Residents planning to vote by mail ballot in the Nov. 8 election are being urged to apply online ahead of the Nov. 1 deadline and return the ballot immediately to ensure the vote is counted.
A Tuesday release from Chapman instructs people to sign and write the date on the outer envelope.
The Associated Press contributed to this report.