Pennsylvania's high court sides with Republicans on misdated mail ballots

In a new ruling on Monday, the Pennsylvania Supreme Court directed all of the state's county election officials not to count certain mail-in ballots for this year's general election that arrived on time but in envelopes without the correct dates handwritten by voters.

The order, prompted by a request from the Republican National Committee and Pennsylvania's Republican Party, is the latest development in a long-running legal battle over what to do when absentee voters don't follow an artifact of the state's election rules. The provision, which requires a voter to sign and date their ballot's outer return envelope, has drawn a tangle of lawsuits since Pennsylvania started allowing no-excuse voting by mail in 2020.

Despite similar orders by the state's high court leading up to Election Day on what are often called "undated" or misdated ballots, some local election officials had in recent days decided to include these ballots in their official tallies, prompting outcry from Republicans.

While state law requires a handwritten date on the return envelope, it's an open question in the state courts whether rejecting ballots for not having that date violates Pennsylvania's constitution, which says that elections in the state "shall be free and equal" and that "no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage."

The RNC and David McCormick — the Republican candidate whom the Associated Press has declared the winner of Pennsylvania's U.S. Senate race — filed a pair of lawsuits last week against county officials who counted undated or misdated ballots, including in Bucks County, Pa., a suburb north of Philadelphia.

"It is a pretty stupid thing to not count someone's vote simply because they didn't date an envelope for a ballot," Bob Harvie Jr., chair of Buck County's elections board and a Democrat, said last week at a meeting before officials voted 2-1 to tally 405 ballots that did not meet the state's handwritten-date requirement. "The law needs to be changed."

The state's high court, however, rebuked local officials who voted to count these kinds of ballots with an order that the justices said "shall be authoritative and controlling."

"No more excuses," Michael Whatley, the RNC's chair, said in a post on X after the court's ruling. "Election officials in Bucks, Montgomery, Philadelphia, and other counties have absolutely no choice."

The U.S. Senate contest is in a state-mandated recount because McCormick and Democratic Sen. Bob Casey are within 0.5 percentage points of each other. McCormick currently leads Casey by over 17,000 votes, according to the latest unofficial returns compiled by the Pennsylvania Department of State. Casey has not conceded the race.

The final results of the recount are expected on Nov. 27. Recounts very rarely reverse an initial outcome, studies show.

Two years ago, during a Republican primary recount, McCormick took the opposite position on Pennsylvania's date requirement, arguing in court that undated and misdated ballots should be counted.

Edited by Benjamin Swasey