Nov. 5 election too close to decide mail-in ballot issues: Pennsylvania Supreme Court

In a pair of decisions published Saturday evening the Pennsylvania Supreme Court denied requests to resolve questions about the commonwealth’s vote-by-mail law in the final few weeks before the Nov. 5 presidential election.

Dismissing a request by the voting rights groups to block the enforcement of a rule requiring mail-in ballots to bear a handwritten date on the return envelope, the Supreme Court said the risk of confusing voters with a change in voting rules was too great.

“This Court will neither impose nor countenance substantial alterations to existing laws and procedures during the pendency of an ongoing election,” the unsigned order said.

Chief Justice Debra Todd filed a dissenting statement in which she argued that voters and election officials need guidance in the upcoming election.

“We ought to resolve this important constitutional question now, before ballots may be improperly rejected and voters disenfranchised,” Todd said.

The court also rejected a request by the Republican National Committee and the Republican Party of Pennsylvania to stop county election officials from allowing voters to remedy mistakes on their mail-in ballots that would cause them to be disqualified.

The flurry of weekend rulings exactly a month before Election Day leaves the rules in place during the April 23 primary unchanged.

That means voters casting ballots by mail in this election must complete the voter declaration on the outside of the return envelope by signing and dating it for their ballot to be counted.

Voters using mail-in ballots should also be certain to place the ballot in the unmarked secrecy envelope before placing it in the return envelope, as that is an error that can lead to a ballot being disqualified.

Counties where the boards of elections have adopted so-called “notice and cure” policies may notify voters of errors and allow them to fix their mistakes before polls close on Election Day. The American Civil Liberties Union of Pennsylvania this week published a guide to such policies in all 67 counties.

The court said the RNC and Pennsylvania GOP had demonstrated a lack of due diligence by failing to pursue the challenge to “notice and cure” policies earlier. The Republican organizations had asked the court to exercise its King’s Bench authority to hear the case without first litigating it in the lower courts, a power generally reserved for exceptionally urgent cases.

“King’s Bench jurisdiction will not be exercised where, as here, the alleged need for timely intervention is created by Petitioners’ own failure to proceed expeditiously and thus, the need for timely intervention has not been demonstrated,” the order said.

In a footnote, the court said the Republican parties had also raised the issue before the 2022 midterm election but the Commonwealth Court dismissed the case for a lack of jurisdiction.

“Three election cycles have since passed, and the Petitioners have not challenged any of the county notice and cure policies in a court of common pleas,” the order said.

Justice Kevin Brobson said in a separate statement that he agrees that it is too close to the election for the court to decide the question

“Deciding these questions at this point would, in my view, be highly disruptive to county election administration,” Brobson wrote, adding that it would be difficult for the court to hear evidence and testimony in such a short timeframe.

Earlier Saturday, the court granted an appeal by the RNC and the RPP challenging a Commonwealth Court ruling last month requiring election officials in Washington County to notify voters when their mail-in ballots are rejected and allow them to vote provisionally at their polling places on Election Day.

The Washington County board of elections had adopted a policy days before last April’s primary of marking ballots as “received” in the state ballot tracking system when they had actually been segregated due to a disqualifying error.

Act 77 of 2019 introduced changes to the Election Code, including allow voters to cast ballots by mail without an excuse for not going to the polls. Mistakes by voters completing their ballot packets have been the subject of challenges in every election since. A study estimated that more than 10,000 voters were disenfranchised in the primary election because of such errors.

Proceedings in several courts since 2020, when no-excuse mail voting was first an option, have established that the date on the outside of the envelopes serves no official purpose.

The Commonwealth Court ruled last month that the dating requirement violates the Pennsylvania Constitution because it serves no compelling reason for the government to infringe upon the charter’s guarantee of the right to vote.

Pennsylvania Capital-Star is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Pennsylvania Capital-Star maintains editorial independence. Contact Editor Kim Lyons for questions: info@penncapital-star.com. Follow Pennsylvania Capital-Star on Facebook and X.