Federal judge: Undated and wrongly dated Pennsylvania mail ballots must be counted

This article originally appeared in the Morning Call on November 21, 2023 and was written by Daniel Patrick Sheehan.

Undated or wrongly dated mail ballots that are submitted in time for Pennsylvania elections must be counted, a federal judge has ruled.

Disqualifying such ballots is a violation of the federal Civil Rights Act, according to the opinion filed Tuesday in U.S. District Court for the Western District of Pennsylvania.

The ruling is in response to NAACP v. Schmidt, a lawsuit filed in November 2022 by six voting rights advocacy organizations and joined by five individual voters. The plaintiffs are represented by legal counsel from the American Civil Liberties Union of Pennsylvania, ACLU National and the law firm Hogan Lovells.

“Every eligible person who casts a ballot should have their vote counted,” said Witold Walczak, legal director of the ACLU of Pennsylvania. “The handwritten-date requirement is completely irrelevant and unnecessary because elections officials know whether the ballot was received on time.”

The question of whether undated or incorrectly dated ballots should count has been the center of a lengthy legal tug-of-war, including a court case that played a critical role in the victory by Democrat Zachary Cohen over Republican David Ritter in a 2021 Lehigh County judicial contest.

Cohen won by just five votes in a closely watched race in which results were delayed because of a dispute over hundreds of undated mail ballots. The 3rd U.S. Circuit Court of Appeals ruled those ballots should be counted, reversing the decision of a federal judge in Allentown.

The NAACP lawsuit was filed by the group’s Pennsylvania state conference, the Black Political Empowerment Project, Common Cause Pennsylvania, League of Women Voters of Pennsylvania, Make the Road Pennsylvania, and POWER Interfaith.

Ari Savitzky, senior staff attorney with the ACLU’s Voting Rights Project, said the ruling “ensures that Pennsylvanians who vote by mail, including senior citizens and voters with disabilities, will not face disenfranchisement because of a trivial mistake in handwriting an irrelevant date on the outer return envelope … Federal law requires nothing less, as the court’s decision makes crystal clear.”

Diana Robinson, civic engagement director for Make the Road Pennsylvania, said the ruling “affirmed what is already common sense: a minor, meaningless technicality shouldn’t disenfranchise eligible voters. As long as your ballot is received on time, the date written on the paper is irrelevant and your vote counts.”

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