Pennsylvania's Supreme Court heard arguments Wednesday about whether requiring voters to correctly add a date to their mail-in ballot-return envelopes is a constitutional violation or a reasonable burden.
In Pennsylvania, any registered voter can request a mail-in ballot, thanks to Act 77, the bipartisan 2019 law establishing universal mail-in voting. But that law has been the focus of near-constant litigation, with one of the main disagreements involving a rule that counties should reject ballots where the voter forgot to write the date of their signature or entered an incorrect date, like the voter's birthday.
Just 4,724 mail-in ballots out of the almost two million cast in the 2024 general election were rejected because of a missing or incorrect date, according to Department of State elections data. Still, major civil liberties advocacy and partisan groups have joined the case challenging the rule.
The American Civil Liberties Union of Pennsylvania brought the lawsuit, saying to deny an opportunity to vote over a provision with no clear purpose violates the free and equal clause in the state constitution. The ACLU of PA sued the Philadelphia Board of Elections on behalf of two voters, Brian Baxter and Susan Kinniry, who had their mail ballots rejected in a 2024 special election for state representative.
Even the nominal defendant in the case agrees the rule is unnecessary. Ben Fabens-Lassen, lawyer for the Philadelphia board of elections, said the board doesn't use the date for anything, and having it on the return envelope doesn't solve any problems or help with mail-in voting.
"It does not and cannot use the date for purposes of verifying a voter's eligibility, assessing the timeliness of a ballot, or detecting fraud in the electoral process," Fabens-Lassen said during the 3-hour oral arguments.
Counties already know when ballots are sent out and returned, yet voters who incorrectly date their ballots are automatically disenfranchised, even when they return them ahead of the election night deadline, Fabens-Lassen argued.
The Democratic Party of Pennsylvania joined the case in support of the position that counties should not be able to reject mail-in ballots due to errors or omissions in the date field.
The Republican Party of Pennsylvania and the Republican National Committee want to keep the rule in place. Their argument is that the date requirement is not burdensome and does not disadvantage any specific group of people.
To allow the court to review the neutral provision of election administration would "open the litigation floodgates" and would position the courts to "become an election superlegislature," said John Gore, arguing on behalf of the RNC.
Republican litigants at Wednesday's hearing also argued that, due to a clause in Act 77 stating if one part of the act is struck down in the courts, the entire act would be invalidated. That position is a challenge to the Commonwealth Court's October 2024 decision on this case, which stated the "nonseverability clause" was not triggered by its ruling to allow ballots without proper dates to be counted.
Judges had mixed responses to the arguments. Justice Christine Donohue, one of three Democratic justices up for retention in November, asked how an election could be free if the state was allowed to apply rules that served no purpose. Gore answered by pointing to one case where elections officials and law enforcement used the envelope date as one of several pieces of evidence to determine a mail ballot had been submitted fraudulently.
Justice P. Kevin Brobson, a Republican, asked about the line between a burden imposed by the state and the responsibility of a voter to follow all the voting rules, stating his view that filling in the date is a low bar to clear.
In a separate federal case, Eakin v. Adams County Board of Elections, a three-judge panel for the 3rd Circuit Court of Appeals ruled in August that the mail date requirement was impermissible under the U.S. Constitution. The RNC and Republican Party of Pennsylvania, also part of that case, appealed that ruling to the entire circuit, and Gore signaled during Wednesday's arguments they may appeal the case to the U.S. Supreme Court if the full 3rd Circuit rules against them.
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