A Pennsylvania case could be headed to the U.S. Supreme Court after the 3rd Circuit District Court of Appeals said mail-in ballots that are not dated on the outside envelope by the voter should not be counted, even if they arrive at a county election office on time.

In an 83-page opinion, the three-judge panel voted 2-1 to strike down a lower court decision in a ruling that will likely be headed to the country’s highest court for a resolution that will impact the swing state and the 2024 presidential election.

The plaintiffs alleged that rejecting ballots with a missing or incorrect date violates the Materiality Provision of the Civil Rights Act of 1964 – which prevents disenfranchising a voter for a reason that is not material to their eligibility such as a small error or omission – because the date is not consequential in determining if a voter’s ballot was timely cast. Instead, Pennsylvania uses the time the ballot was received and stamped by the county board to determine when the ballot was received.

Last November, a decision by U.S. District Judge Susan Paradise Baxter, a Trump appointee out of Erie, stated that mail-in ballots that are submitted on time but missing a handwritten date must be counted by county elections offices. Failure to do so would violate the federal Civil Rights Act, she said.

The Republican National Committee appealed that ruling — with seventeen Republican-led states submitting an amicus brief in support of the RNC’s position — and the 3rd Circuit heard the case in February.

“Because the date decision is irrelevant to whether a vote is received timely, the blink response is to believe a voter’s failure to date a return envelope should not cause his ballot to be disqualified,” Senior U.S. Circuit Judge Thomas Ambro wrote in the decision Wednesday. But the provision only applies when the state is determining who may vote, Ambro added, “and does not apply to rules, like the date requirement, that govern how a qualified voter must cast his ballot for it to be counted.”

Ambro, who was nominated by President Bill Clinton, noted that the date requirement “serves little apparent purpose,” but since the state’s Supreme Court ruled that dating of envelopes was mandatory, “undated or misdated ballots are invalid under state law and must be set aside.”

Circuit Judge Patty Shwartz, who was nominated by President Barack Obama, wrote in a dissenting opinion that the ruling was a reminder to voters to carefully review all instructions.

“If they do not, they risk having their otherwise valid votes discounted based on even the most inconsequential mistake,” Shwartz wrote. “One can only hope that election officials do not capitalize on the Majority’s narrow interpretation of the Materiality Provision by enacting unduly technical and immaterial post-registration paperwork requirements that could silence the voices of qualified voters.”

Act 77 – the law that made no-excuse mail voting possible in the Commonwealth – has been challenged again and again since the outcome of the 2020 presidential race. And the flashpoint for most of the controversy has been over the date requirement, causing the Pennsylvania Department of State to redesign its mail ballots in 2024.

“This is a crucial victory for election integrity and voter confidence in the Keystone State and nationwide,” RNC Chairman Michael Whatley said in a statement. “Pennsylvanians deserve to feel confident in the security of their mail ballots, and this 3rd Circuit ruling roundly rejects unlawful left-wing attempts to count undated or incorrectly dated mail ballots. Republicans will continue to fight and win for election integrity in courts across the country ahead of the 2024 election.”

Pennsylvania House Republican Appropriations Chairman Seth Grove (R-York)  issued a statement reading “In 2020 and 2021, I fought to ensure Pennsylvania’s Election Code was being followed to the letter of the law. The third circuit’s ruling ends frivolous attempts to use the courts to re-write Pennsylvania’s Election Code and affirms the signature and dating requirements on mail-in ballots are legal and should be enforced. Writing laws that keep elections safe, secure and efficient is entirely within the Legislature’s authority.”

Ari Savitzky, senior staff attorney with the ACLU’s Voting Rights Project who argued the case before the 3rd Circuit said Wednesday the organization was considering all of its options.

“The thousands of voters affected here are eligible and registered,” Savitzky said in a statement. “They completed their mail ballots, signed the return envelope, and got their ballots in on time. Their votes should count. We strongly disagree with the panel majority’s conclusion that voters may be disenfranchised for a minor paperwork error like forgetting to write an irrelevant date on the return envelope of their mail ballot. We are considering all of our options at this time. And we will not stop fighting for voters.”

“If this ruling stands, thousands of Pennsylvania voters could lose their vote over a meaningless paperwork error,” said Mike Lee, executive director of the ACLU of Pennsylvania, in a statement. “The ballots in question in this case come from voters who are eligible and who met the submission deadline. In passing the Civil Rights Act, Congress put a guardrail in place to be sure that states don’t erect unnecessary barriers that disenfranchise voters. It’s unfortunate that the court failed to recognize that principle. Voters lose as a result of this ruling.”

Steve Ulrich is the managing editor of PoliticsPA.

This article was originally published in PoliticsPA.

4 thoughts on “Federal Court of Appeals bans counting of undated mail ballots”

  1. The very first paragraph of the judicial opinion says: “The date requirement, it turns out,
    serves little apparent purpose. It is not used to confirm timely receipt of the ballot or to determine when the voter completed it. But the Supreme Court of Pennsylvania ruled that dating the envelope is mandatory, and undated or misdated ballots are invalid under its state law and must be set aside.”
    The entire mail-in ballot voting process is nonsense and is a farce. The judgment even says that in their very first paragraph. It is just as ridiculous as insane men claiming they are not actually men. It is fake, everyone knows it is fake, and the emperor has no clothes. The fact anyone listens to this, or gives it any air, is the very problem.

  2. The long period within which mail-in ballots can be utilized is more of a problem. A one-week period is sufficient.

  3. Let’s just have election day not election weeks. And if you do mail it in, FOLLOW THE DAM DIRECTIONS!

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