A federal appeals court on Tuesday voided a Pennsylvania law requiring proper dating of mail-in ballots. The law required the rejection of mail-in ballots improperly dated by voters. The Pennsylvania Attorney General, now a Republican, defended the law on appeal after his predecessor, a Democrat, had declined to defend it in a lower court.
Numerous types of dating errors could result in ballot rejection, the appeals court noted:
Pursuant to this “date requirement,” if a return envelope’s date field contains a mistaken additional digit, a stray pen mark, or missing information (including a year) then the ballot contained within that envelope may not be counted. (citations omitted)
The law led to 10,000 discarded ballots in the 2022 General Election. Only 4,500 ballots were discarded in the 2024 General Election after Pennsylvania redesigned the return envelope to reduce the number of discarded ballots.
The U.S. Court of Appeals for the Third Circuit held that while the dating requirement only minimally burdened voters, the consequences of an improperly dated ballot outweighed any purported benefit of the requirement.
The challenge came after the Supreme Court of Pennsylvania interpreted a part of the state election code requiring voters to “fill out, date and sign” their mail-in ballot. The state supreme court held that the dating requirement mandates discarding ballots that are improperly dated.
The state supreme court further held that county election boards are not required to inform affected voters of a ballot rejection due to improper dating. Further, Pennsylvania law bars a voter who received a mail-in ballot from voting in person unless that voter surrenders the mail-in ballot at the polling place.
Thus, the law meant that Pennsylvania voters with an improperly dated mail-in ballot likely had no opportunity to remedy the defect and cast a vote.
A voter whose ballot was rejected during the 2022 General Election challenged the law in the U.S. District Court for the Western District of Pennsylvania. The district court rejected some of her challenges but found the law violated the First and Fourteenth Amendments to the U.S. Constitution.
The state offered three rationales for the dating requirement, which the appeals court rejected:
We . . . examine the three State interests Appellants offer to support the date requirement: (1) facilitating election efficiency; (2) promoting solemnity; and (3) detecting and deterring voter fraud.
The court agreed that “these interests are legitimate” but found them insufficient to support the law.
The court first addressed the efficiency rationale:
[A]s a general proposition, the date requirement does not seem to facilitate orderly election administration in any manner. The date on a return envelope does not inform whether a voter is eligible to cast a ballot. It does not indicate when a voter completed a ballot. And it has no bearing on whether a ballot is timely. If anything, requiring county election boards to check the date field on return envelopes seems to hamper efficiency by foisting an additional responsibility on the boards for no apparent purpose. (citations omitted)
Under Pennsylvania law, a mail-in ballot is timely if received by 8 PM on Election Day.
The court also rejected the solemnity rationale, which the state contended encouraged voters to make more thorough deliberations about their choices. The court found other aspects of the election code more effective in promoting an interest in solemnity:
[T]here are other aspects of the mail-in voting process that promote solemnity, including the process to acquire a mail-in ballot, the steps required to submit a timely ballot, and the fact that the return envelope that accompanies a mail-in ballot features a declaration that a voter must sign. Affixing one’s signature onto a legal document does indeed constitute a solemn act. And under Pennsylvania law, signing the return envelope has legal import and could subject someone to criminal penalties. It is puzzling what incremental solemnity dating a return envelope might possibly add that affixing one’s signature to the document has not already accomplished. (citations and footnote omitted)
Turning to the third rationale, the court found little to link the dating requirement to detecting or deterring fraud:
[W]e are simply unable to discern any connection between dating the declaration on return envelopes and detecting and deterring voter fraud. County election boards have no means of verifying the handwritten dates on return envelopes. And the record shows that county election boards did not view the absence of a date on a return envelope’s declaration or the presence of an incorrect date as a reason to suspect voter fraud.
The state pointed to one criminal conviction for mail-in voter fraud. In that case, a woman filled out and mailed in her deceased mother’s ballot. Pennsylvania’s Statewide Uniform Registry of Electors (SURE) system flagged the ballot because the mother had already been removed from the voter rolls.
“Notably, the SURE system, and not the date on the return envelope, is what alerted the County to the fraud,” the court noted.
The Third Circuit’s opinion:
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