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Pennsylvania Supreme Court: Undated Absentee and Mail-In Ballots Can’t Be Counted

Pennsylvania Supreme Court: Undated Absentee and Mail-In Ballots Can’t Be Counted

“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.

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.

For now.


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Close The Fed | November 1, 2022 at 9:37 pm

Would have been nice if the rule of law had applied in 2020.

And what happens when they count them anyway?

Didn’t the Supreme Court order the same thing last time?

Didn’t the Pennsylvania Sec. State ignore the order?

Were there any consequences?

    james h in reply to clintack. | November 1, 2022 at 9:48 pm

    There are no consequences. I’m pretty sure it’s standard practice to mix in the improper ballot with the rest before a legal challenge can be heard, and then whoopsie it’s too late to unmix them.

    Otto Kringelein in reply to clintack. | November 1, 2022 at 9:54 pm

    Nothing much will happen if they just give the PA Supreme Court the middle finger and count the ballots despite the court order. Nothing ever happens. And if the court does become involved they will wait a few months before making a ruling and then simply declare too much time has passed to do anything meaningful and that will be it.

Should the governor order the ballots mixed together and counted, what happens? You can’t un-do the election, and once the ballots are mixed you can’t figure out which ones should or should not be counted.

What does the Penn SC do then? Hold the governor or Secretary of State in contempt? Jug the various county boards?

As clintack points out, there were orders in the 2020 election that the Penn SoS violated without consequence. Why should this election be any different?

    Mauiobserver in reply to stevewhitemd. | November 1, 2022 at 10:54 pm

    If only some of the counties or precincts ignore the ruling I could see several options.

    The most extreme would be to toss the ballots from those areas and exclude them from the totals.

    Another would be to redo the vote in those areas under supervision of the court and if possible deputies they appoint.

    Lastly the state and precinct officials defying the court order should be jailed and stripped of their offices.

      OwenKellogg-Engineer in reply to Mauiobserver. | November 2, 2022 at 4:33 am

      That all makes sense. It’ll never happen

      CommoChief in reply to Mauiobserver. | November 2, 2022 at 9:13 am

      Exactly. The voters within those precincts and Counties who’s officials recklessly and deliberately flouted the law resulting in their ballots being tossed and ultimately the disenfranchisement of those voters can take action against those officials.

      The voters can file a civil suit under Sec 1983 for a very clear violation of their constitutional rights. They can vote them out. They can protest.

      Those areas which followed the law shouldn’t be punished with a ‘do over’ election or other measures seeking to somehow cure the ballots from an area where every ballot comes into question based on the either the incompetence or malfeasance of local elections officials.

    The Gentle Grizzly in reply to stevewhitemd. | November 2, 2022 at 10:01 am

    Easy. Destroy all of them and the people will just jolly well have to go to the polls on Election Day.

    Absentee? Too bad. Take it up with your representatives.

    You can’t un-do the election

    Of course you can, you just need a judge with principles to make the order. “Since we don’t know which ones are invalid, all of them are, redo the election”. Easy peasy.

ThePrimordialOrderedPair | November 1, 2022 at 10:19 pm

Pennsylvania Supreme Court: Undated Absentee and Mail-In Ballots Can’t Be Counted

That’s a tiny step in the right direction.

All absentee and mail-in balloting needs to be ended. Period. The only absentee excuses are military/state dept people who are truly unable to reach polls. No other exceptions can be allowed, since dems pervert everything and a small exception for 1% of people ends up being abused until half of all ballots are going through it, which is beyond insane.

Mail-in ballots are impossible to secure. They should never be allowed. Absentee voting is usually bullshit. And early voting just makes a complete mockery of the system.

One day. Go to the polls. Use a mechanical machine. Tallies are simply called in by the poll committees (consisting of reps from both parties and some others). And that is all that is needed. Done.

    In that case, I and many other election workers, would lose our vote for being civic minded and doing our part. My county does not place poll workers in their own precincts. Makes sense, right? I vote early at the county elections office for that reason.

      TheOldZombie in reply to SC Reader. | November 2, 2022 at 8:08 am

      “The only absentee excuses are military/state dept people who are truly unable to reach polls.”

      Would apply to you since you’re working the polls in a location that is not your precinct.

      That seems very easy to fix by merely having shifts, or a voting break along with lunch, or just letting election workers vote at the polling place they work at. It doesn’t seem to require a whole new voting method.

        Voting at the polling place where they work?
        How would that work, exactly, since they are likely in different districts for at least some races?

          henrybowman in reply to GWB. | November 2, 2022 at 6:15 pm

          This question seems absurd on the face of it.
          Regardless of what districts what races are in, when a person is told to vote at a particular polling place, that place must clearly be authorized to accept votes in all those races.

    The ballots I am concerned with are the ones mass-mailed out to the addresses on the voter roles with no specific request by the voter.

    Anyone who can’t or won’t see that this practice is unquestionably enabling or committing Voting Fraud (obtaining or providing a ballot illegally) is a fool or a criminal.

    All absentee … balloting needs to be ended. Period.
    The only absentee excuses are military/state dept people who are truly unable to reach polls.
    Ummmm, if there’s a reason to do absentee balloting, then ending all absentee balloting would destroy those people’s ability to vote.

    The rest is fairly simplistic answers to everything, too.

ThePrimordialOrderedPair | November 1, 2022 at 10:24 pm

The Court is evenly divided on the issue of whether failing to count such ballots violates 52 U.S.C. §10101(a)(2)(B).

LOL. “Evenly divided” on that? Friggin morons. Undated or incorrectly dated envelopes are extremely material to the validity of a ballot. The law they are citing is:

(B) deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election; or

I assume this law is meant just to stop someone from being denied because they misspelled “January” on some paper, somewhere … not that they didn’t have a friggin date on their actual election ballot/envelope.

Evenly split … That’s just pathetic.

No ballot received after the polls closed should be counted, with or without a date on it. It is YOUR responsibility to make sure your vote is received in time, nobody else’s.

Some justice, but the modern Halocaust continues:

Texas Judge OKs Taking 10-Year-Old Boy to California to Be Castrated:

Amazing when we’re pleased that the courts say “Hey, that thing that the law says you can’t do? Don’t do it.”

I’ll be more pleasantly amazed if they say “Hey, that thing we told you not to do and you did anyway? You get to think about it in jail for about five years along with everybody else who didn’t think I was serious.”

    It depends on who’s court you’re in. I’ve seen the hard line used against some people while other people catch a break. I have not seen a court take a hard stand on election issues but I may have missed it.

That’s all nice and everything, but here in Pa the Governor, Secretary of State and courts really do what they please when it comes to voting laws the State Legislators are permitted by law to make.

    texansamurai in reply to Skip. | November 2, 2022 at 8:41 am

    That’s all nice and everything, but here in Pa the Governor, Secretary of State and courts really do what they please………


    exactly–matter of fact, am still trying to understand how citizens or their elected representatives, such as AGs, when petitioning the highest court in the land, are told they have “no standing” and therefore no redress as guarenteed in our constitution–essentially giving the finger to apprx 100m citizens in clear and direct violation of our “social contract”–rendering their decisions and our “contract” no longer relevant

If providing a date on the envelope is a trivial detail, why require it? “Sign AND date” is a standard requirement for ALL official documents. I am an RIA and no paperwork moves unless it is signed AND DATED. Is voting important or not?

Capitalist-Dad | November 2, 2022 at 9:47 am

Only our elitist band of morons in robes could come up with a wishy-washy order where ballots not meeting simple requirements are preserved—in case some sophist comes up with an argument to count them anyway. The Constitution says state legislatures make the rules. The rules say the mail in and absentee ballots must be dated on the outer envelope. Therefore, undated ballots aren’t counted. Simple enough for the “peasants” to understand, but a super complex question for navel gazers in black robes.

Quite frankly early voting and mail-in voting should just simply go away. We need to go back to the old standard of having a reason for why you have to vote absentee.

Two things:

One, if you are legit voter that cares about who you vote for, then you think you would care enough to at least put a proper date on it.

Two, how does enforcing this curb fraud? Is there some kind of practice loophole where no date allows forged ballots to get by that forging a date would cause it to be caught? What’s to stop forgers from lying about the date?

    NotCoach in reply to healthguyfsu. | November 2, 2022 at 11:34 am

    It refers to a stamped date from the Post Office. No stamp no idea where it came from.

      healthguyfsu in reply to NotCoach. | November 2, 2022 at 4:23 pm

      Thank you for the clarification but…

      Is the post office a bastion of virtue free from corruption? Do you not think the post office, long a Democrat bastion of stashing govt waste, has super secret secure stamps that can’t be forged?

      It just seems to be at least two steps behind the fraud mechanisms and anyone who’s ever dealt with cheaters (like academics) can see holes all over the current system. This shouldn’t even have been an argument and is just a stall tactic by Dems to create an artificial front of contention. The real battle is catching them red handed and this does nothing to advance that cause.

      henrybowman in reply to NotCoach. | November 2, 2022 at 6:18 pm

      Not that I do a whole bunch of business with the PO, but this would require a hand-stamped date now, right? I’m old enough to remember when all cancellation marks had date stamps, but they haven’t done that for a few decades now.

In 2016, there were 252,574 military absentee ballots counted by all the states; and 382,896 absentee ballots from U.S. citizens overseas, according to the U.S. Election Assistance Commission.

Those are good reasons for not voting in person. But those ballots should have to be individually applied for and be mailed out to a military or overseas address.

They must arrive by election day to be counted, That’s how I recall treating it for the many years I was in service overseas. If I wanted my vote counted I had to take responsibility to apply for the ballot early enough to get it in the mail in time for it to arrive at the counting place by election day.

Yes, that makes it more difficult to vote, Tough, because it also prevents rampant voter fraud and that’s frankly more important.

Probably moot. I recall reading a quote somewhere from a Penn election official being told they can’t count the mail in and absentee votes till voting starts and she said they had already counted them. The number being tossed around of how many mail in, absentee was 500,000 votes.

Ah, how soon they forget.
In the close run Florida Bush v Gore presidential race the Florida branch of the DNC advised their precincts that they should not count any mail in ballots that didn’t come with a dated postmark prior to Election Day – EVEN if they arrived before Election Day.

Technically, they were correct – that was the way the law could be read. The backstory was that overseas military mail in ballots historically went republican. And that military overseas mail was free – therefore has no postmarks, dated or otherwise.

So I’m essence, in Florida, a close election where literally every vote counted, the “Count Every Vote” Dems wanted to not count overseas military votes. To give credit, the majority of Dem poll workers said “F@ck The DNC” rather than “F@ck the troops” and followed the old rule of if it arrives in time it was mailed in time.

Antifundamentalist | November 2, 2022 at 12:31 pm

In other words, if you want to be certain that your vote isn’t rejected, you need to get yourself down to the voting station while it is open, with your identification, and cast your ballot in person – with toddlers in tow if need be. You don’t cast an absentee ballot unless you are a medical shut-in or out of town.

Assuming overseas military mail still doesn’t get dated postmarks – this decision helps the Dems and hurts the Reps. And F@cks the troops.

Russ from Winterset | November 2, 2022 at 12:44 pm

I hate to be a wet blanket here, but you should probably change the title to “…shouldn’t be counted”. Unless they have a plan to enforce this decision, it’s strictly advisory.

Neither the governor nor the courts can rule on the manner of elections — the Constitution delegates power exclusively to the state legislators on the manner, time and place. Too bad the PA lawmakers did not ignore the supreme court in 2020 and fired any election official who followed the court’s ruling on mail-in ballots when such ballots were never authorized to begin with.

based that ruling in part on the extraordinary circumstances created by the pandemic
Maybe they’re not as focused on the law as this ruling would indicate. When scary stuff happens again, they’ll excuse breaking the law all over again.

BierceAmbrose | November 3, 2022 at 1:12 pm

So, the PA Supremes declared: “The law says what it says, means what it says, and implementors should go implement that?”

If that’s how it works, what do we need judges for?

/end sarc