The Pennsylvania Supreme Court has declined to step in and immediately decide issues related to mail-in ballots in the commonwealth with early voting already under way in the few weeks before the Nov. 5 election.
The commonwealth's highest court on Saturday night rejected a request by voting rights and left-leaning groups to stop counties from throwing out mail-in ballots that lack a handwritten date or have an incorrect date on the return envelope, citing earlier rulings pointing to the risk of confusing voters so close to the election.
“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 dissented, saying voters, election officials and courts needed clarity on the issue before Election Day.
"We ought to resolve this important constitutional question now, before ballots may be improperly rejected and voters disenfranchised," Todd wrote.
Justice P. Kevin Brobson, however, said in a concurring opinion that the groups waited more than a year after an earlier high court ruling to bring their challenge, and it was “an all-too-common practice of litigants who postpone seeking judicial relief on election-related matters until the election is underway that creates uncertainty.”
Many voters have not understood the legal requirement to sign and date their mail-in ballots, leaving tens of thousands of ballots without accurate dates since Pennsylvania dramatically expanded mail-in voting in a 2019 law.
The lawsuit’s plaintiffs contend that multiple courts have found that a voter-written date is meaningless in determining whether the ballot arrived on time or whether the voter is eligible, so rejecting a ballot on that basis should be considered a violation of the state constitution. The parties won their case on the same claim in a statewide court earlier this year but it was thrown out by the state Supreme Court on a technicality before justices considered the merits.
Democrats, including Gov. Josh Shapiro, have sided with the plaintiffs, who include the Black Political Empowerment Project, POWER Interfaith, Make the Road Pennsylvania, OnePA Activists United, New PA Project Education Fund Pittsburgh United, League of Women Voters of Pennsylvania and Common Cause Pennsylvania.
Republicans say requiring the date is an election safeguard and accuse Democrats of trying to change election rules at the 11th hour.
The high court also rejected a challenge by Republican political organizations to county election officials letting voters remedy disqualifying mail-in ballot mistakes, which the GOP says state law doesn't allow. The ruling noted that the petitioners came to the high court without first litigating the matter in the lower courts.
The court did agree on Saturday, however, to hear another GOP challenge to a lower court ruling requiring officials in one county to notify voters when their mail-in ballots are rejected, and allow them to vote provisionally on Election Day.
The Pennsylvania court, with five justices elected as Democrats and two as Republicans, is playing an increasingly important role in settling disputes in this election, much as it did in 2020’s presidential election.
Issues involving mail-in voting are hyper-partisan: Roughly three-fourths of mail-in ballots in Pennsylvania tend to be cast by Democrats. Republicans and Democrats alike attribute the partisan gap to former President Donald Trump, who has baselessly claimed mail-in voting is rife with fraud.
