“The Pennsylvania county boards of elections are hereby ORDERED to refrain from counting any absentee and mail-in ballots received for the November 8, 2022 general election that are contained in undated or incorrectly dated outer envelopes.”
You would think this is obvious, particularly since it’s what Pennsylvania law provides. But when it comes to election litigation, in 2020 we saw many examples where courts rewrote election laws.
The Pennsylvania Supreme Court held in pertinent part:
The Pennsylvania county boards of electionsare hereby ORDERED to refrain from counting any absentee and mail-in ballots received for the November 8, 2022 general election that are contained in undated or incorrectly dated outer envelopes. See 25 P.S. §3146.6(a) and §3150.16(a).
The Court is evenly divided on the issue of whether failing to count such ballots violates 52 U.S.C. §10101(a)(2)(B).
We hereby DIRECT that the Pennsylvania county boards of elections segregate and preserve any ballots contained in undated or incorrectly dated outer envelopes.
BOOM! We filed an amicus brief on behalf of Citizens United in the PA Supreme Court case over whether to count undated or incorrectly dated ballots, with our brief focusing on PA law. The court just ruled FOR the RNC, NRCC, & RP PA on PA law grounds! https://t.co/wqw3m4vp0r
— Harmeet K. Dhillon (@pnjaban) November 1, 2022
Because the court split on the application of federal law and ordered the disputed ballots set aside, there is the possibility of post-election litigation if the number of disputed ballots makes a difference.
The Wall Street Journal explains:
Pennsylvania’s highest court on Tuesday ordered election officials to disallow mail-in ballots if voters neglect to put the correct date on the envelope, which could affect thousands of ballots in the hotly contested state.
The Pennsylvania Supreme Court cited state law in a two-page order requiring local counties “to refrain from counting any absentee and mail-in ballots” with undated or incorrectly dated envelopes. The court ordered that such ballots be set aside and preserved.
The court’s six justices, however, said they were split on whether excluding such ballots violates a provision of federal voting law that says ballots shouldn’t be disqualified for trivial errors that are immaterial to determining whether a voter is eligible.
Three of the court’s justices who were elected as Democrats said they believed the exclusion violated federal law, while one justice elected as a Democrat and two who were elected as Republicans said they believed it didn’t. The recent chief justice of the Pennsylvania Supreme Court died this fall, creating a short-handed court with an even number of justices. The court said it would issue full written opinions later….
The ballot-dating issue has already been litigated in federal and state courts. Following a challenge from former President Donald Trump’s campaign during the 2020 presidential election cycle, the state Supreme Court allowed mail-in ballots with missing information on envelopes to be counted, but based that ruling in part on the extraordinary circumstances created by the pandemic.
For now, it’s a victory for the rule of law.
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