Two top Republicans in the Pennsylvania House of Representatives formally asked the Department of State Thursday to revise previously published elections guidance such that county elections officials would segregate undated ballots in the general election rather than automatically count them as the current guidance advises.

The letter from House Speaker Bryan Cutler (Lancaster) and Majority Leader Kerry Benninghoff (Centre/Mifflin) comes days after the U.S. Supreme Court threw out a ruling from the Third Circuit Court of Appeals requiring undated ballots to be counted. That ruling at the federal appeals level had affirmed a ruling from Pennsylvania Commonwealth Court.

The Supreme Court’s move only reignites a debate that was thought to be a settled matter. By vacating the Third Circuit ruling, the Supreme Court will provide its own ruling next year, but it fails to provide any additional clarity for the current election.

For example, when the decision to vacate was announced, the DOS said it had no plans to change the guidance issued to counties requiring them to count undated ballots.

“Every county is expected to include undated ballots in their official returns for the Nov. 8 election, consistent with the Department of State’s guidance. That guidance followed the most recent ruling of the Pennsylvania Commonwealth Court holding that both Pennsylvania and federal law prohibit excluding legal votes because the voter omitted an irrelevant date on the ballot return envelope,” the department said in an online statement.

“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,” the statement went on. “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.”

This is where Cutler and Benninghoff — and presumably a sizable portion of the Republican caucus in the House — take issue.

“Given the high likelihood of new litigation over this provision, segregating undated ballots is the only guarantee these ballots will be easily preserved,” Cutler and Benninghoff wrote in their letter. 

“As always, ensuring elections are properly conducted and current election law is followed remains a top concern for all Pennsylvanians,” the letter continued. “We hope you see the utility in requiring undated ballot segregation post-canvass in ensuring confidence in our elections.”

A request for comment to the Department of State was not immediately returned.

When the Pennsylvania General Assembly passed election reform via Act 77 in 2019, the law required that no-excuse absentee ballots are submitted in a secrecy envelope. That secrecy envelope is placed in a separate envelope, which the voter must sign and date.

In the wake of the law, however, the constitutionality of the signature provision was successfully challenged in a number of courts because of a clause in the Civil Rights Act known as the “materiality provision.”

That part of the law says ballots can not be dismissed “because of an error or omission… if such error or omission is not material in determining whether such individual is qualified.”

Todd Shepherd is Broad + Liberty’s chief investigative reporter. Send him tips at tshepherd@broadandliberty.com, or use his encrypted email at shepherdreports@protonmail.com. @shepherdreports

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