Voting Victory: Counties Ordered to Count Undated Ballots

In the ongoing battle over the right to cast a ballot by mail in Pennsylvania, a court required three counties to certify mail ballots without a date.  

Acting Secretary of State Leigh Chapman sued Berks, Fayette, and Lancaster County Boards of Elections in Commonwealth Court over their refusal to include 780 undated mail ballots in their certified election results. The commonwealth argued that an earlier decision in federal court required the counties to include mail ballots without a handwritten signature on the outer envelope in their certified election results. The counties argued that counting these ballots was at the county’s discretion. On August 19, 2022, President Judge Renée Cohn Jubelirer issued an order requiring these counties to include these ballots in their certified results.  

Here’s how we got here:  

• The counties argued that they had discretion over whether to certify mail ballots that lacked a handwritten date on the outer mailing envelope.  
• The Commonwealth argued that the ruling by the third circuit court in another case, Migliori vs. Lehigh County Board of Elections, required the counties to include these ballots in their official counts, as the court found that failing to date a ballot did not invalidate otherwise valid mail ballots.  
• The court determined that the Election Code specifically invalidates ballots for other mistakes such as identifying marks but is silent on the matter of handwritten dates on mailing envelopes. 

After the case was filed, it was discovered that Butler County had also failed to certify undated mail ballots, but their election had already been certified by the state. The Commonwealth decided not to amend their suit because it would prolong the case and further delay the statewide certification of the primary election.   

The official statewide certification of the May primary election was on hold until the Chapman v Berks case was decided. The court gave these counties until August 24 to properly certify their primary election results but at least one county – Berks – has not decided if they are going to appeal the Commonwealth Court’s ruling. 

The Fight to Protect the Freedom to Vote by Mail 

Chapman v Berks is yet another front in the battle to preserve the right to vote by mail. Pennsylvania voters have had the right to vote by mail without an excuse since the passage of Act 77 in 2019. This bill, the first major update to Pennsylvania’s Election Code in over 80 years, passed with strong bipartisan support, yet immediately after the 2020 election, challenges to its provisions began to flood the courts.   

Anti-voter extremists have made unfounded claims of voter fraud to bolster their efforts to repeal our freedom to vote by mail. They have even gone so far as to argue that the Migliori decision completely invalidates Act 77 and therefore it should be declared unconstitutional. 

Pro-voter advocates argue that the Migliori case’s ruling does not invalidate Act 77 because the case was not about the constitutionality of the law. The rule requiring a handwritten date on mail ballots is unenforceable because it would unduly disenfranchise voters.  

Common Cause PA believes that every voter deserves a flexible, safe, and accessible way to cast a ballot and that’s why we support vote-by-mail. We strongly oppose any efforts to repeal our right to vote by mail entirely because of an undated mailing envelope. We will continue our work to protect and strengthen our freedom to vote and ensure that every Pennsylvanian can make their voice heard at the polls this November and every election after.  

To learn more about how you can help protect the vote in Pennsylvania, click here.