On November 1, the Pennsylvania Supreme Court issued an order requiring boards of elections to refrain from counting “any ballots contained in undated or incorrectly dated outer envelopes,” and to segregate them and set them aside. Ronna McDaniel at the RNC called the decision a massive legal victory. This fight about counting undated or incorrectly dated ballots in Pennsylvania has been going on, in one form or another, for a couple of years now. While this order is good in that it halts the Democrats in Harrisburg from counting undated mail-in ballots on election night next week, this is hardly a massive legal victory. At least not yet.

Pennsylvania contains both an open U.S. Senate seat and several competitive House seats, which means the eyes of the nation will be on the vote count in PA. And the controversy surrounding these types of laws will extend far beyond Pennsylvania as no-excuse voting by mail remains the norm in the coming years. It is therefore worthwhile to back up and understand the legal nuances and procedural complexity of the situation in Pennsylvania.

The Pennsylvania election code requires that “[t]he elector shall then fill out, date and sign the declaration printed on such envelope” when casting a mail-in ballot. In 2020, the Pennsylvania Supreme Court wrote an opinion stating that ballots would be counted even if the name and date were not properly printed as required by statute, but hinted in the concurring opinion by Justice Donohue that this was a one-time deal to remedy the chaos wrought by new mail-in voting laws, slow USPS service, and other COVID-related issues. Justice Donohue stated that “in future elections, I would treat the date and sign requirement as mandatory in both particulars, with the omission of either item sufficient without more to invalidate the ballot in question.” Thus, the question was left open for the next election, with the hint that undated ballots would not be counted going forward.

Pennsylvania’s 2021 test case was an election for a Court of Common Pleas judge in Lehigh County. The election was extremely close, and there were 257 undated (and unopened) ballots. The trial court ordered them to be counted, but the Commonwealth Court (the appeals court in Pennsylvania that hears government-related cases) reversed the trial court's order and held that the dating of the ballot envelopes is a “material requisite” under the election code and that the undated ballots could not be counted. 

One would have expected that either this was the end of the analysis, or that the Pennsylvania Supreme Court would have accepted an appeal of this Commonwealth Court ruling and updated its 2020 decision. Surprisingly, the Pennsylvania Supreme Court refused to take the case, letting the Commonwealth Court opinion stand. But, the Commonwealth Court left this as an “unreported” opinion, which means it binds only the parties in the 2021 judge election and does not become binding precedent. The more inquisitive legal minds among us in Pennsylvania wonder why the court failed to publish this opinion and establish binding precedent to permanently answer this recurring question. 

To further complicate matters, a federal lawsuit was filed by the ACLU in the 2021 judge election, claiming that refusal to count the undated ballots on a minor, “non-material” technicality violates a provision of the Civil Rights Act and disenfranchises voters. To briefly summarize, the 3rd Circuit agreed with the Civil Rights Act violation argument and ordered the votes to be counted. The U.S. Supreme Court accepted the appeal of the decision but refused to stay the case and left the 3rd Circuit’s ruling in place. The undated votes were counted and the Democrat became a county judge. Last month, the U.S. Supreme Court issued an opinion and set aside the 3rd Circuit’s ruling, but ordered the lower court to dismiss the case as moot since the county judge election had already been decided.

If you are a bit dazed and confused by this, you should be. In Pennsylvania, we have an election code stating that mail-in ballots must be dated. We have a state court decision saying undated ballots could be counted in 2020, but probably not beyond that. We have a 2021 state court decision saying undated ballots could not be counted, but that is not a binding precedent. We have a federal court decision stating that it is a Civil Rights Act violation to discard undated ballots, but then the Supreme Court set that decision aside as moot. 

In this quagmire of still-unanswered questions, it is no wonder that last month Pennsylvania's acting secretary of State Leigh M. Chapman simply decided to count undated ballots in the upcoming midterm election. The election code says the envelopes must be dated, but doesn’t specifically say that those votes can’t be counted, and there was not yet any binding court precedent forcing the state not to count them.

This brings us back to the PA Supreme Court decision this past Tuesday. The Republican Party filed suit to stop Pennsylvania from counting the undated or misdated ballots. The opinion grants an injunction, ordering the ballots to be segregated and not counted. The opinion explicitly states that there is a split among the justices about whether not counting the ballots violates federal law. The late Chief Justice Max Baer, who passed away just a few weeks ago, would have likely been the fourth vote to allow the undated votes to be counted. Without him, the court was split and unable to issue a binding majority decision. The court order says that more detailed opinions on both sides of the argument will follow.

As I said above, this stops the counting of undated ballots, but I hesitate to call this a massive legal victory. The ballots will be segregated, and when there is a close election in Pennsylvania on November 8, a losing candidate (likely a Democrat) will file suit and attempt to count the segregated ballots that have not been counted.

There are two lessons to take from this debacle. First, it is important for intelligent readers to be wary of the headlines about legal decisions because they generally range from misleading to wrong. For the last two years, the news agencies have been generating headlines about these Pennsylvania election law cases, claiming that undated ballots can or cannot be counted. But the facts, the particular law and argument in each case, which court is deciding the case, and the timing of the lawsuit drastically change the outcome and often cannot be accurately described in a headline.

Second, this is not over. For reasons I can hardly guess at, the courts have consistently refused to definitively rule on this issue. I will take the risk of oversimplifying: the statute states that the outer envelope of a mail-in ballot must be dated. Either that is a technicality that can be dispensed with—which is highly questionable for the simple reason that the legislature decided it was important enough to be required by law—or it is a requirement, without which a vote is not validly cast. Both state and federal courts have had several opportunities to definitively declare one way or the other, and have failed to do so.

Tuesday’s ruling means Pennsylvania counties will not count undated ballots and will segregate—but not dispose of!—them. A more detailed opinion will follow, as will another round of chaotic vote-counting on November 8. If I had to guess, the next Pennsylvania lawsuit in this saga will go back up to the Commonwealth Court, which will actually issue a published, binding opinion holding that undated votes may not be counted. And the Pennsylvania Supreme Court currently lacks the votes to reverse that decision. But given the history of this issue over the last two years, your guess is as good as mine. Stay tuned.