U.S. appeals court hears argument over missing dates on Pennsylvania mail-in ballots

The 3rd U.S. Circuit Court of Appeals heard argument Tuesday over whether county elections officials in Pennsylvania must count mail-in ballots that are missing the date on their outer envelope.

Voting rights advocates argue that the date is irrelevant to whether the ballots are legitimate and cast on time, while Republicans challenging a lower-court decision said that is a misreading of the law which could unleash “electoral chaos” in Pennsylvania.

The issue could be key as Pennsylvania, a swing state that expanded mail-in voting in 2019, heads into November’s general election.

In the 2022 general election, more than 1.2 million Pennsylvanians voted by mail.

On Nov. 21, U.S. District Judge Susan Paradise Baxter said that mail-in ballots that are submitted on time but missing a handwritten date must be counted by county elections offices.

To do otherwise, she said, would violate the federal Civil Rights Act.

Her ruling stemmed from a lawsuit filed on Nov. 4, 2022, by the Pennsylvania State Conference of the NAACP, Black Political Empowerment Project, Common Cause Pennsylvania, League of Women Voters of Pennsylvania, Make the Road Pennsylvania and POWER Interfaith.

In their suit, the plaintiffs argued that a minor technicality on a mail-in ballot should not disenfranchise otherwise eligible voters.

According to the evidence in the case, more than 7,600 mail-in ballots from 12 counties were not counted in the 2022 general election. Those included: 1,009 in Allegheny County; 2,617 in Philadelphia; 66 in Washington County and 95 in Westmoreland.

In her decision, Baxter found that the date requirement violates federal law, which prohibits rules or regulations that add immaterial requirements to the act of voting.

Baxter’s 77-page opinion was roundly applauded by voting rights groups as a victory.

However, on Dec. 7, the National Republican Congressional Committee, Republican Party of Pennsylvania and Republican National Committee filed a notice of appeal.

They also asked for a stay of the lower court’s order, which was granted Dec. 13 by the 3rd Circuit, which covers Pennsylvania, New Jersey, Delaware and the Virgin Islands.

On Tuesday, 3rd Circuit Judges Thomas L. Ambro, Cindy K. Chung and Patty Shwartz heard argument in Philadelphia.

In their appeal, the Republican party argued that Baxter misconstrued the law and that the materiality provision she cited applies only to the voter registration process — not to casting ballots.

“As a regulation of mail-in voting, the date requirement has nothing to do with determining a voter’s qualifications,” they wrote in their brief.

Instead, it applies only after elections officials have found the voter is qualified to cast a ballot.

Attorney John M. Gore, representing the Republican appellants, said that the date performs an integral function on the ballot.

“The date requirement is material in the same way the signature is material,” he argued.

The requirement for a voter to date a ballot can be “relevant” to confirming someone’s identity and “establishes a point in time against which to measure the elector’s eligibility to cast the ballot,” appellants argued in their brief.

“And like a signature, it performs a ritual function. Important documents are generally signed and dated; these formalities help encourage voters to take the process seriously and be truthful about their declaration that they are eligible voters,” the appellants wrote.

“There is simply no way to draw a principled line that keeps signature requirements lawful, but date requirements unlawful…”

The appellants asked the 3rd Circuit to end the lower court’s misreading of the law and “unleashing of electoral chaos on the Commonwealth of Pennsylvania and its citizens in 2023, 2024 and beyond.”

The appeal alleges that Baxter’s opinion impacted a race for supervisor in the Montgomery County township of Towamencin.

For weeks after the 2023 election, Richard Marino believed he had won-reelection. However, after Montgomery County Board of Elections counted ballots that had not met the date requirement, Marino lost.

He joined in the 3rd Circuit challenge by the Republican Party.

But in their response, the plaintiffs argued that the handwritten date on the outer return envelope of a mail-in ballot is “utterly irrelevant.”

“An immaterial mistake on a piece of paperwork doesn’t go to the validity of the ballot,” said Ari J. Savitzky, who represented the plaintiffs at argument. “It’s just a date that they handwrite on the form.”

The date has no other purpose, he said.

“The handwritten date undisputedly is not used to determine the timely receipt of a ballot, or a voter’s qualifications or identity, or to prevent fraud,” the plaintiffs wrote in their brief. “It is time to end the illegal disenfranchisement of Pennsylvania voters based on an irrelevant paperwork mistake.”

Six friend-of-the-court briefs were filed in the case. Those writing on behalf of the Republican Party’s position included a group of Pennsylvania legislators; Restoring Integrity and Trust in Elections Inc., and 17 states, including Ohio, West Virginia, Texas and Georgia.

For the plaintiffs, briefs were filed on behalf of SeniorLAW Center; the Protect Democracy Project and the federal government.