Undated mail-in ballots in Lancaster County will not be counted in this month’s General Election, according to a policy made last week by the county’s three-member Board of Elections.
The policy change comes after the Oct. 12 Board of Elections meeting in which Christa Miller, the chief clerk of elections for the county, made the announcement that the county would segregate but continue to count undated mail-in ballots per the guidance of Leigh Chapman, Pennsylvania’s acting Secretary of State.
The U.S. Supreme Court in a 7-2 summary disposition issued Oct. 11 ordered a Third Circuit Court of Appeals’ decision allowing the counting of undated mail-in ballots to be vacated and remanded the case back to the court “with instructions to dismiss the case as moot.”
The Third Circuit 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.
Chapman’s statement issued the day after the SCOTUS decision said the ruling was “not based on the merits of the issue” and “provides no justification for counties to exclude ballots based on a minor omission.” She said the Department of State will “expect that counties will continue to comply with their obligation to count all legal votes.”
Commissioner Josh Parsons said he has been reviewing the various court decisions since the last Board of Elections meeting and concluded that Lancaster County was within its rights under Act 77, the state law governing mail-in ballots and other election laws signed by Gov. Tom Wolf in 2019, to segregate and not count the undated mail-in ballots.
Parsons said it was “troubling” that the acting Secretary of State would disregard a court ruling by SCOTUS and order counties to count the undated mail-in votes.
“The role of the board of elections is to take the law and apply it, and so that’s what we’re trying to do,” Parsons said. “We’re trying to find out what the law is and not inject our own personal beliefs into that. And that’s what the Pennsylvania Department of State should be doing, too. The Board of Elections has the responsibility to run elections in Lancaster County. The Pennsylvania Department of State should be a neutral arbiter for the Commonwealth of Pennsylvania.”
Commissioner John Trescot asked Miller how many undated mail-in ballots had been returned so far for the November General Election. According to Trescot, the undated mail-in ballots represented .38% of the total mail-in ballots returned during the May 2022 primary election.
Miller said she didn’t know the exact number of undated mail-in ballots returned, but as of Oct. 26 a total of 28,000 mail-in ballots had been turned into her office.
“We have some, but they’re just set to the side,” Miller said. “We don’t have a number on those.”
The GOP recently filed an emergency lawsuit at the state Supreme Court, asking the judges to block the acting secretary of state’s guidance to counties to count undated ballots.
On Oct. 21, the Pennsylvania Supreme Court agreed to rule quickly on the case under its “king’s bench” power to take on cases that have an immediate need for a ruling.
Commissioner Ray D’Agostino said with so many conflicting court rulings, it would make sense for the county to not count the undated ballots until a definitive decision is made.
“I really think we should not be counting them and to segregate them until we have a final say,” D’Agostino said. “In my mind, when you have a tie in terms of all the different rulings, you go back to what the law says. And the law says in terms of no-date ballots, that they’re supposed to be dated, and therefore shouldn’t be counted.”
Trescot said he also anticipates a decision made soon by the Pennsylvania Supreme Court on the issue.
“Hopefully, it will be a clear decision to count or not count. and I’ll wait for that decision. And we’ll decide what to do with those undated ballots at that moment in time, if something changes.”