PHILADELPHIA — Pennsylvania elections officials were prepared for the state Supreme Court’s ruling this week not to count mail ballots without handwritten dates.
They weren’t ready for the other part of the decision: “Incorrectly dated” ballots are also to be set aside.
That’s a new wrinkle, with potentially far-reaching implications. And since the court didn’t define a wrongly dated ballot — opinions explaining Tuesday’s order are coming later — counties are now scrambling to figure out how to identify them just days before the midterm elections.
“At a minimum, it has the potential to slow down (the vote counting) considerably. And at worst, it could lead to more errors,” said Forrest Lehman, the elections director in Lycoming County. “If they’re engaging in activity like comparing dates on ballots to dates on a report or something like that, you could have a much slower process overall.”
The court’s decision also means more ballots will be rejected than under previous rules. It’s hard to forecast how many wrongly dated ballots could get rejected, since counties haven’t tracked them in the past.
And unless the court provides more clarity, each county faces new questions about which ballots to count. For example, should an illegible date be considered correctly or incorrectly dated?
Here’s what to know now:
—Counties can’t count undated and wrongly dated ballots
Tuesday’s order makes clear there are two categories of ballots that counties have to set aside and not count.
“The Pennsylvania county boards of elections are hereby ordered to refrain from counting any absentee and mail-in ballots received for the November 8, 2022, general election that are contained in undated or incorrectly dated outer envelopes,” the order reads.
As for what to do with those ballots: “We hereby direct that the Pennsylvania county boards of elections segregate and preserve any ballots contained in undated or incorrectly dated outer envelopes.”
But the court said it would issue opinions later, leaving many questions unanswered.
—Counties used to count wrongly dated ballots, so this increases the number of votes thrown out
Pennsylvania election law says that after filling out their mail ballots and placing them in an inner secrecy envelope, voters “shall then fill out, date and sign” the outer mailing envelope.
Until now, the political and legal fights had been over undated ballots — ones that arrived on time but lacked a handwritten date. A four-justice majority of the state Supreme Court said in 2020 that undated ballots must be rejected.
But as counties rejected those ballots last year, they continued to count ballots that had any date on them. That dynamic helped form the basis of the federal law argument that led to undated ballots being counted in the 2022 primary. Because all dates were accepted, the date was a technicality — and throwing out votes on that technicality would violate civil rights law, a federal appeals court said in May. That decision was vacated last month by the U.S. Supreme Court, which opened the door to the GOP lawsuit that resulted in Tuesday’s order.
Now counties have to reject wrongly dated ballots they previously had accepted.
—We don’t know how many additional votes will now be rejected
While counties track data on rejections, they usually don’t track as much about votes that are accepted.
Several county elections officials said they had no idea how many wrongly dated ballots there are. The percentage of ballots returned with incorrect dates could vary across counties and elections. It could be just a few hundred votes, though it’s more likely to number in the thousands.
We also don’t know which voters are most likely to submit an incorrectly dated ballot. In general, voters who have more experience with mail ballots are the least likely to make an error. But that can vary: Younger voters tend to have their ballots rejected at higher rates than older voters, but the opposite is true for “naked ballots,” those submitted without the inner envelope.
There can be other factors, too. Now that wrongly dated ballots are to be rejected, it’s possible that outreach efforts can still help drive down the rejection rate. Counties can also undertake aggressive “ballot curing” procedures that help voters fix flawed ballots.
—Rejecting ‘incorrectly dated’ ballots will slow down the vote count
Elections officials now have to adjust their vote-counting procedures to identify wrongly dated ballots. Previously, workers just checked whether ballots were dated at all, requiring only a quick glance at the envelope. Now they’ll need to read and interpret the date and evaluate it in some way.
Exactly how “incorrectly dated” is defined will determine whether it’s a small change to the vote counting process — or a massive administrative nightmare that significantly slows things down.
The Republican groups that filed the lawsuit offered one definition: The handwritten date on a ballot can’t be before that ballot was mailed to a voter or after it was received back by an elections office.
If the court adopts that definition, county elections officials said, it would create a huge burden. The vote count would slow significantly if they have to read the date on each ballot and check whether it’s within that window.
There are other definitions that would slow the count less dramatically.
For example, if all ballots are allowed using a window that starts when the first ballots went out and ends on Election Day, workers would still have to read the date on each ballot, but they wouldn’t need to compare it with individual records.
“There’s this trade-off between being very thorough and being really quick,” said Thad Hall, the elections director in Mercer County.
“It does slow it down,” he said of the ruling, “and we’re not sure by how much.”
—And there’s a whole new set of questions to figure out
Now that counties have to read the handwritten dates, there are questions about how to do that.
There will be scenarios in which a date is potentially wrong, or could be read either way, and counties will have to decide whether a date is assumed by default to be accurate or wrong. Is the burden on proving or disproving the accuracy of the date?
For example, if the date is illegible, should workers count or reject it? What should they do if part of the date is missing — is “10/25″ counted as Oct. 25, 2022, or rejected as October 2025?
The more such decisions counties have to make, the more opportunities there are for them to come to different conclusions. And with each disparity, there’s a new window for lawsuits over whether a vote is being counted that should be rejected — or is being thrown out that should be counted.
“Right now we’re left erring on the side of caution, and that is: Separate anything that might fall in the category of improper,” said Delaware County elections director Jim Allen.
But not every county will do the same thing, and some elections officials have already expressed different views on how to handle the issue.
“The bigger question,” Allen said, “is how many lawsuits is this gonna trigger? It’s like an invitation to sue.”
———
