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HARRISBURG — A federal appeals court ruled Friday that election officials in a Pennsylvania county must count legally cast absentee ballots signed by a voter even if the outer envelope is not dated.
Though the ruling was specifically aimed at a local judicial election in 2021, it could have far-reaching implications for some of this year’s primary election — including the closely watched Republican U.S. Senate contest.
Here’s an explanation of the verdict and what’s next:
Last updated: 3pm May 24th
Who filed the lawsuit and why?
The Pennsylvania chapter of the American Civil Liberties Union filed the lawsuit in January over 257 absentee ballots cast in the 2021 Lehigh County general election.
County election officials did not count ballots that arrived at 8 p.m. on Election Day, as required by state law, because voters had not dated their signatures on the outer envelopes.
Law 77 — the 2019 law that instituted absentee voting in Pennsylvania — says voters must “complete, date and sign” the statement printed on the outside envelope. (All absentee ballots have both an inner “secret” envelope and an outer mailing envelope.)
The question of whether a missing signature or date should disqualify a voter was first raised in 2020 when a Republican Senate candidate challenged Allegheny County’s decision to count more than 2,000 such ballots.
The Pennsylvania Supreme Court ruled that “technical violations” of state law – such as a missing date – “did not justify the complete disenfranchisement of thousands of Pennsylvania voters.”
But the 4-3 majority included a judge who only approved the decision if it applied solely to the 2020 election, the first general election with no-parole voting by mail.
After the November 2021 election, Lehigh County did not count undated mail-in ballots, prompting a Democratic Court of Common Pleas nominee to appeal that decision. The Commonwealth Court ruled against the candidate – the ballots should not be counted – and the state Supreme Court declined to hear the appeal.
The ACLU then took up the case and filed a lawsuit in federal court, which resulted in the most recent verdict.
What does the verdict say?
In a May 20 order, a three-member panel of the United States Court of Appeals for the Third Circuit found that the “dating provisions” in state law relating to absentee voting are “irrelevant” under the federal Electoral Rights Act.
“Accordingly, on this basis, there is no basis for denying the count of undated ballots reversed in the November 2, 2021 Common Pleas of Lehigh County Judge election,” the judges wrote. “This matter is hereby remanded to the District Court, and that court is hereby directed to enter forthwith an order that the undated ballots be counted.”
In Lehigh County, the 2021 election case is now back before a local judge, who can either direct the county’s poll workers to open and count the 257 ballots now, or await the full opinion of the federal judges.
The Republican nominee in the running, meanwhile, has indicated he will appeal the case to the US Supreme Court.
Ultimately, the judgment can have a broad impact.
The order came just days after the May 17 primary, which saw at least two hard-fought races decided by a handful of votes.
It’s unclear how many undated absentee ballots were filed during the primary. Allegheny County, home of Pittsburgh, reported 218; Bucks County, in suburban Philadelphia, said it received 168, according to the call in the morning; Rural Lycoming County recorded only three.
Pennsylvania’s US Senate marquee GOP primary has still not been called by analysts and is likely facing a recount. The heart surgeon-turned-TV presenter led Mehmet Oz by nearly 1,000 votes over former hedge fund manager David McCormick on Tuesday, according to unofficial results.
And in the Lehigh Valley, State Senate Chairman Pat Browne (R., Lehigh), one of the most powerful Republicans in Harrisburg, trailed a main Conservative challenger by 17 votes Tuesday.
Does the ruling apply to ballots cast during the May 2022 primary?
The Pennsylvania State Department on Tuesday issued guidance to all of the county’s 67 electoral boards, urging them to separate ballots and, after confirming voter identification, count ballots separately.
“Given the ongoing litigation, it has not yet been decided whether the separate tables will be used to certify elections,” the guidance reads.
Amid the tight GOP Senate primary, the Pennsylvania State Department, which oversees the election, has issued guidance to counties on counting mail-in and mail-in ballots with undated signatures, but in separate counts amid legal action stemming from David McCormick’s campaign. pic.twitter.com/z8QjSPhWRm
— Stephen Caruso (@StephenJ_Caruso) May 24, 2022
The McCormick campaign has already brought an action in the Commonwealth Court to ensure ballots are counted. Oz’s campaign is asking counties to refuse the ballots, while the Pennsylvania Republican Party and Republican National Committee have said they will take legal action to ensure ballots are not counted.
Amidst this legal maelstrom, some county elections officials will be playing it safe, said Forrest Lehman, Lycoming County elections director. He still has to open the three returned, undated postal ballot papers.
“The thing that will give any county pause is that the situation is evolving very quickly,” he said.
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