PA Supreme Court Effectively Preserves Requirement to Date Mail-Ins
The Pennsylvania Supreme Court recently declined to decide, prior to the November election, issues related to mail-in ballots in the state. It rejected a request by left-leaning groups to force counties to count mail-in ballots that lack a date or have an incorrect date next to the voter signature on the return envelope. That simple date requirement should not be controversial but has had a surprising history of court challenges. Last month, a legal effort to block enforcement of that date requirement was dismissed by the Pennsylvania Supreme Court for lack of jurisdiction. It’s not over yet. The state Supreme Court will eventually rule on this issue.
State Supreme Court Justice Kevin M. Dougherty recognized in a 3-justice concurring and dissenting opinion in In re Canvass of Absentee and Mail-In Ballots (2020) that “there is an unquestionable purpose behind requiring electors to date and sign the declaration” because the date on the ballot envelope provides proof of when the elector actually executed the ballot and a time against which to confirm the voter’s eligibility.
The date of signature is also an important data point for investigating and prosecuting election fraud. In one criminal fraud investigation (Commonwealth v. Mihaliak), the date on the outer envelope certification was after the date of the elector’s death, clearly indicating that someone forged the elector’s signature on the declaration. Without the date requirement, the fraud never would have been detected.
By way of further example, if many outer envelopes from residents in the same nursing home are signed on the same date, that could be a signal that ballot harvesting or improper voter coercion may have occurred on that date and could provide a specific date on which to focus an investigation and prosecution as to illegal ballot harvesting.
Left-leaning groups deny that the date requirement serves any purpose, but their true motive for repeatedly challenging the date requirement in state and federal courts is that they expect undated ballots to contain more Democrat votes than Republican votes. They argued that the date requirement should be held void based on violation of the materiality provision of the federal Civil Rights Act of 1964. The most recent decision of the U.S. Court of Appeals for the Third Circuit in Pa. State Conf. of NAACP Branches v. Sec'y Pa. ruled that the date requirement did not violate federal law. The Secretary of Pennsylvania filed a petition for writ of certiorari to the U.S. Supreme Court in that case last month.
In the most recent challenge to the date requirement, Democrats convinced the Pennsylvania Commonwealth Court in Black Political Empowerment Project, et al. v. Schmidt, et al. to rule the date requirement void as violative of the Pennsylvania Constitution. The Pennsylvania Supreme Court vacated that decision last month for lack of jurisdiction for failure to join the 67 county boards of elections as necessary parties. The Democrats will likely file another challenge to the date requirement on the same basis, this time naming all 67 county boards of elections as parties.
The importance of the date requirement is underscored by its inclusion in the short list of nonseverable provisions in the Pennsylvania mail-in voting law (Act 77), which means if it is held invalid the entire Act 77 becomes void. This nonseverability provision was included in Act 77 to ensure that neither side could be robbed of the full benefit of its bargain in the carefully negotiated legislation.
The Commonwealth Court in Black Political Empowerment Project held that the date requirement was unconstitutional, and yet insisted that doing so did not trigger the nonseverability provision. Legislative compromises are vital to the functioning of our state government but will be much harder to achieve in the future if our courts undermine such deals and ignore the clear applicability of a nonseverability provision. If the date requirement is successfully challenged again, the courts must recognize that holding the date requirement unconstitutional triggers the nonseverability provision and that they must not undermine the clearly stated intent of the law. Better yet, the courts should not repeat the mistake of striking down the date requirement when the next lawsuit arises.
