Elections officials in 鈥榣imbo鈥� after dueling court rulings on undated mail-in ballots
news@greenecountymessenger.com
A recent ruling by the U.S. Supreme Court over undated mail-in ballots from a Lehigh County judge鈥檚 race last year is throwing a curveball to county elections officials who are unsure whether such ballots that arrive ahead of next month鈥檚 midterm election should be counted.
County elections directors across Pennsylvania thought the question had been resolved over the summer when a state appellate judge ruled that mail-in ballots should be recorded even if the voter did not write the date on the outside envelope.
But the U.S. Supreme Court declared Tuesday that a 3rd Circuit Court of Appeals鈥� ruling in last year鈥檚 Lehigh County judicial race 鈥渕oot,鈥� although the outcome of that election was not changed. Acting Secretary of the Commonwealth Leigh Chapman issued a statement afterward that her department鈥檚 guidance is for counties to still count undated ballots. In her statement, she cited an August ruling by Commonwealth Court Judge Renee Cohn Jubelirer that requires undated ballots to be counted after Fayette, Berks and Lancaster counties refused to do so following the May primary.
鈥淚t provides no justification for counties to exclude ballots based on a minor omission, and we expect that counties will continue to comply with their obligation to count all legal votes,鈥� Chapman said of the U.S. Supreme Court ruling.
The judicial whiplash has been confusing, to the say the least, with more litigation expected to follow, meaning the issue doesn鈥檛 appear to be settled.
鈥淭he bottom line is we鈥檙e following this back and forth 鈥� but on the eighth of November we will conform to the latest Department of State guidance,鈥� said Greene County Commission Chairman Mike Belding, who also is a member of the county鈥檚 elections board.
But county elections officials are also being cautious with how they approach the issue and are planning to 鈥渟egregate鈥� undated mail-in and absentee ballots from the rest of the allotment in the event there is a court challenge before or after the Nov. 8 election.
Washington County Elections Director Melanie Ostrander said the county鈥檚 solicitor is reviewing the court rulings to understand what to do with the undated ballots.
鈥淲e鈥檙e segregating everything. We鈥檙e segregating the ones without dates so that when we make our determination we can put them back in the population,鈥� Ostrander said.
鈥淏ins with no signatures, bins for no dates, we鈥檙e just keeping everything separate,鈥� Ostrander added, while noting that they have not received any undated ballots as of Thursday. 鈥淣o matter what counties decide what to do, I just feel like there will litigation, because that鈥檚 what happens now.鈥�
While Act 77 of 2019, which expanded the use of mail-in and absentee ballots, expressly states that voters 鈥渟hall鈥� sign and date the envelopes, there are numerous quirks in the state鈥檚 Election Code with similar mandatory requirements that would be shocking if strictly enforced today. For example, elections directors are required to send lanterns to each precinct, according to portions of the code written in 1937, while voters must close a curtain behind them when casting a ballot. No electronic voting machines used in today鈥檚 elections have curtains to offer privacy, and it would be preposterous to invalidate every in-person vote on Election Day.
However, there are some requirements that state courts have ruled must be followed. All ballots must be sealed in a 鈥渟ecrecy envelope鈥� before being placed in an outer envelope, which must be signed by the voter to count. If a ballot is 鈥渘aked鈥� and not in the secrecy envelope, the vote will automatically be discarded. Mail-in ballots must also either be delivered through mail or turned in personally by the voter at their county鈥檚 elections office no later than 8 p.m. Nov. 8.
Fayette County Commission Chairman Dave Lohr, who also leads the county鈥檚 elections board, said they plan to segregate undated ballots, but they鈥檙e unsure whether they鈥檒l decide to count them. Fayette County was one of three counties in Pennsylvania that withheld counting its undated ballots 鈥� there were only 52 of them 鈥� following the May primary until Cohn Jubelirer鈥檚 ruling forced them to do so in order for state officials to certify the election.
鈥淲e haven鈥檛 made any formal decision yet. That will go before the election board when we see what鈥檚 going on with the ballots themselves,鈥� Lohr said. 鈥淚t鈥檚 one of those things, it鈥檚 sitting in limbo at this point. And then we鈥檒l make the decision when we make it.鈥�
He said the elections board may have to convene a special meeting before the election, although he鈥檚 hopeful they will get a concrete answer, which could come in the form of new court rulings. But he added that he thinks the state legislature needs to re-examine Act 77 and fix problems with the original legislation that raised so many legal questions over the past three years.
鈥淲e鈥檙e definitely on top of this and going to make sure we do it the right way, the legal way,鈥� Lohr said.
Belding said Greene County won鈥檛 segregate undated mail-in ballots before the election because they鈥檙e filed alphabetically by precinct. By then, he鈥檚 hopeful a final decision will be made on how the county should proceed in canvassing the votes.
鈥淩ight now there is a huge back and forth in court cases,鈥� Belding said. 鈥淚 just want a final decision. Just tell me what to do.鈥�
The last day to request a mail-in ballot is Nov. 1, while the final day to register for the midterm election is Oct. 24.