Pennsylvania Supreme Court Punts Two High-Profile Cases Over Mail-in Voting

On Saturday, the Pennsylvania Supreme Court declined to weigh in on two consequential election lawsuits — one from Republicans seeking to prohibit voters from fixing their defective mail-in ballots and the other from voting rights groups hoping to stop mail-in ballots from being disqualified on the basis of an incorrect or missing handwritten date. 

In both orders pertaining to mail-in voting in the battleground state, the court reasoned that it is too late to alter existing rules ahead of the Nov. 5 general election.

Counties that offer mail-in ballot notice and cure procedures may continue to do so.

With the Nov. 5 general election less than a month away, the justices unanimously rejected a petition from the Republican National Committee (RNC) and Pennsylvania GOP to abolish “notice and cure” procedures offered by many counties, which allow voters to fix disqualifying mistakes on their mail-in ballots. 

Pro-voting groups lauded the ruling as a victory for Pennsylvania voters, who will still have a means of remedying issues with their timely cast mail-in ballots, such as a missing secrecy envelope or signature error. 

Although the Pennsylvania Supreme Court has previously held that counties are not required to implement notice and cure procedures, over half do so on a discretionary basis. At least 36 of Pennsylvania’s 67 counties provide voters the opportunity to cure their mail-in ballots according to an analysis by the ACLU of Pennsylvania. 

Aside from asking the state’s highest court to ban cure procedures, the RNC went even further so as to request that voters be barred from casting a provisional ballot in person on Election Day if their mail-in ballot is deemed defective. But Democrats and voting rights groups argue that the RNC wrongly conflates the distinct practices of provisional voting and ballot curing.

The state Supreme Court has already agreed to weigh in on a separate case concerning the question of whether in-person provisional voting is tantamount to curing. A final ruling on the matter remains pending. 

Election officials must continue to reject wrongly dated and undated mail-in ballots.

In a second order issued on Saturday, six out of seven justices agreed to deny a petition from voting and civil rights organizations arguing that mail-in ballots with missing or incorrect outer envelope dates should be counted under the state constitution’s Free and Equal Elections Clause. 

Accordingly, Pennsylvania voters will continue to be disenfranchised on the basis of handwritten date issues, despite the fact that multiple courts, state election officials and advocates alike have confirmed that handwritten dates are not relied upon when determining the timeliness of a mail-in ballot. 

Pennsylvania’s controversial handwritten date requirement — which has spurred at least 12 lawsuits over the past few years — resulted in the disqualification of approximately 10,000 mail-in ballots during the 2022 midterm elections alone. 

As with its denial of the RNC’s petition, the court’s order noted that it is too close to the upcoming election to “countenance substantial alterations to existing laws and procedures.” 

In August, the Pennsylvania Commonwealth Court blocked the strict enforcement of the date requirement for violating the fundamental right to vote, but the State Supreme Court later vacated that decision on jurisdictional grounds.  

The ACLU of Pennsylvania responded to the court’s most recent move in a release saying that “while it’s disappointing that our motion for review was denied, the Pennsylvania Supreme Court still has not ruled on the merits of our argument that enforcing the handwritten date rule violates voters’ constitutional rights.” 

“We hope that, when the next case is before them on this issue, they’ll consider the important constitutional issue at stake. Make no mistake: That day could and should come very soon. The next appeal raising this issue is already working its way up from the Philadelphia Court of Common Pleas.” 

Decisions currently remain pending in a duo of federal lawsuits alleging the rejection of mail-in ballots for incorrect or missing dates contravenes the U.S. Constitution, although it is unclear whether these challenges will be resolved before the Nov. 5 general election. 

Meanwhile, a case out of Philadelphia regarding the counting of undated or wrongly dated mail-in ballots in on appeal in the Commonwealth Court.

Read the order denying the RNC’s petition here.

Read the order denying voting rights organizations’ petition here.