Undated mail-in ballots in Lancaster County will be counted but separated from others in November’s General Election, according to the county’s lead elections official, despite a recent decision by the U.S. Supreme Court regarding Pennsylvania’s mail-in ballot system.
Christa Miller, the chief clerk of elections for the county, made the announcement on mail-in ballots at the Oct. 12 Board of Elections meeting, one day after a lower federal court ruling allowing the counting of undated mail-in ballots in Pennsylvania was vacated by the Supreme Court, reintroducing ambiguities in the November General Election. Miller said Pennsylvania’s Department of State announced to county officials that mail-in ballots with no date, a requirement under the state’s election law, should still be opened and counted.
The Third Circuit Court of Appeals ruled in May in the case Ritter v. Migliori that 257 mail-in ballots lacking a date on the envelope could be counted in a Lehigh County election in November of 2021. Pennsylvania election law requires that a voter date the outside of the envelope when returning mail-in ballots, and state courts had ruled the undated ballots must be rejected.
The lower court ruled that invalidating the undated ballots would violate the Civil Rights Act that is meant to ensure minor ballot errors do not prevent someone from voting.
But in a 7-2 summary disposition issued Oct. 11, the Supreme Court ordered the Third Circuit’s decision vacated and remanded it back to the court “with instructions to dismiss the case as moot.”
Justices Sonia Sotomayor and Ketanji Brown Jackson said in the summary disposition that they would have denied the petition without vacating the Third Circuit’s ruling.
Leigh Chapman, Pennsylvania’s acting Secretary of State, issued a statement on Oct. 11 following the Supreme Court’s order, saying every county is expected to continue to include undated mail-in ballots in the results of the Nov. 8 General Election “consistent with the Department of State’s guidance.”
“Today’s order from the U.S. Supreme Court vacating the Third Circuit’s decision on mootness grounds was not based on the merits of the issue and does not affect the prior decision of Commonwealth Court in any way,” Chapman said in her statement. “It provides no justification for counties to exclude ballots based on a minor omission, and we expect that counties will continue to comply with their obligation to count all legal votes.”
Board Opinions
At the Board of Elections meeting, Miller said her office was still planning on segregating any undated ballots in case of legal challenges of the election and vote count as they had been planning to do before the Supreme Court’s decision.
“They will be in their own batch, so should there be litigation going forward, we would be able to remove those should we ever have to,” Miller said. “But we’re just trying to plan ahead on this knowing that we are going to count them and include them.”
Commissioner Josh Parsons said current statutory language in Pennsylvania election law “really is clear” regarding undated mail-in ballots that they “shall be dated.” Parsons said the remedy for the undated ballots is what’s unclear.
Parsons cited a decision in August by Commonwealth Court Judge Renee Cohn Jubelirer who ruled that Lancaster, Berks and Fayette counties must include undated ballots in their certification of the May primary after being sued by the Department of State. He said the decision was “not a precedential case” setting precedent, and the state’s lawsuit relied heavily on the Third Circuit’s decision that was overturned by the Supreme Court.
“Regardless of whatever position you hold on any of this, we ought to try to clearly and correctly state the law,” Parsons said. “It’s very confusing, but I’ve been trying to follow the cases. And it seems like that’s where the law is right now.”
Parsons said the “good news” in the situation is that people using mail-in ballots are hearing more that they need to date their envelopes to officially be counted with no issues. But Parsons continued to criticize Pennsylvania’s Act 77, the state law governing mail-in ballots and other election laws signed by Gov. Tom Wolf in 2019, saying the law has created “continued chaos in the election system.”
“Whatever system you want to set up, there needs to be clear, simple rules,” Parsons said. “And we don’t have that. We have ever-changing rules. And the Department of State issued guidance that, in my view, is not always in accordance with the law. And that is a problem.”
Commissioner Ray D’Agostino said there are “real implications” in elections as to how ballots are counted. D’Agostino cited the 2020 election in the Pennsylvania State Senate District 45 race in which Democrat Jim Brewster defeated Republican Nicole Ziccarelli by less than 100 votes.
D’Agostino said differentials in the way mail-in votes were counted between Allegheny and Westmoreland counties helped decide the race.
“We cannot have this in Pennsylvania,” D’Agostino said. “This is why we say let’s go back to the way it was as it was simple and start over… We’ve got to go back to simple, understandable rules that we all follow.”
Miller said her department is still prepared to handle the General Election on Nov. 8.
As of Oct. 12, the county had received nearly 13,000 mail-in ballots out of a total of 36,500 that had been requested with “several thousand” coming into the office each day. A total of 350,388 people were registered to vote in the county as of last week.
“We are already at a 35.5% return on the ballots that we have sent out, which is great,” Miller said. “That was honestly us getting them out six weeks early and letting people have plenty of time to be able to get their ballots back.”
Republican Lawsuit
By Monday, the mail-in ballot issue was further muddied when the Republican National Committee, the National Republican Congressional Committee and the Pennsylvania GOP filed a joint lawsuit against Gov. Wolf’s administration in the Pennsylvania Supreme Court regarding the counting of undated mail-in ballots.
The Lancaster County Board of Elections is listed as one of the appellants in the case.
Following the lawsuit filing, RNC Chairwoman Ronna McDaniel, NRCC Chairman Tom Emmer and PAGOP Chairman Lawrence Tabas released a statement, saying:
“As the Pennsylvania legislature and U.S. Supreme Court have made clear, undated mail-in ballots should not be counted. Republicans are holding Pennsylvania Democrats accountable for their brazen defiance of the Supreme Court and the rules duly set by the legislature. Pennsylvania Democrats have a history of election integrity failures and Pennsylvanians deserve better: this lawsuit is the latest step in Republican efforts to promote free, fair, and transparent elections in the Keystone State.”
Staff writer Michael Yoder is an award-winning journalist who has been honored with several Keystone Press Awards for his investigative pieces.
