Pennsylvania counties must not count mail-in ballots from voters who did not date their envelopes, the state supreme court ruled on Monday, ending a simmering issue in which some Democratic counties were ignoring prior court rulings and counting the ballots anyway.
“[W]e have clarified that mail-in and absentee ballots that fail to comply with the requirements of the Pennsylvania Election Code, shall not be counted for purposes of the election held on November 5, 2024,” the majority wrote.
Democrats hold a 5-2 majority on the Pennsylvania supreme court and Monday’s decision was 4-3. Three of the five Democrats on the court dissented because they said it was premature for the court to intervene.
The decision came after at least three counties in the state – Philadelphia, Montgomery and Bucks – all voted in recent days to count the undated ballots. While the state supreme court had ruled as recently as 1 November that undated mail-in ballots should not count for the 2024 election, Democrats in those counties had claimed there was some ambiguity and they should be counted.
Though Donald Trump won Pennsylvania, helping him secure a second term, the US senate race between Democrat Robert Casey and Republican Dave McCormick is heading to a recount. McCormick leads Casey in the race by a little under 18,000 votes as of Monday afternoon. The Associated Press has already called the race for McCormick, but the margin between the two is less than the 0.5% that triggers an automatic recount under state law.
Several justices wrote concurring statements criticizing county officials for ignoring their prior rulings saying undated ballots cannot be counted.
“It is critical to the rule of law that individual counties and municipalities and their elected and appointed officials, like any other parties, obey orders of this Court,” Justice David Wecht, a Democrat, wrote in a statement.
“I write separately to disabuse local elections officials of the notion that they have the authority to ignore Election Code provisions that they believe are unconstitutional,” wrote Justice Kevin Brobson, a Republican.
Lower courts in Pennsylvania twice this year have said the requirement to only count ballots if they are correctly dated violates the Pennsylvania constitution’s guarantee of free and fair elections. But in each of those cases, the state supreme court has stepped in to say the ballots should not be counted.
The state’s highest court dismissed one case on technical grounds this summer, and overturned another on the eve of the election because it was too close to election day. The court has never directly said whether the requirement violates the state constitution.
In Philadelphia, the city’s two Democratic commissioners voted to count more than 600 undated ballots. In Montgomery county, a Democratic-leaning county outside Philadelphia, the two Democratic county commissioners also voted to count the ballots.
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“The court has not yet reached the merits of whether the dating requirement in the election code is in fact unconstitutional,” Neil Makhija, a Democrat who serves as the chair of the county board of elections, told the New York Times. “They explicitly say they did not reach the merits, and as a county official and voter, frankly I cannot make a decision to throw out ballots that I know were cast by lawfully eligible registered voters over a requirement that is immaterial and serves no purpose.”
Makhija said on Monday that he would accept the court’s decision.
“I must respect the Pennsylvania Supreme Court’s opinion, which unfortunately, means that thousands of votes cast by lawfully registered citizens will be thrown out in this election,” he said in a text message. He remained hopeful that the court would rule that not counting ballots over dating issues was not constitutional for future elections.
In nearby Bucks county, Democrats also voted to count 405 undated mail-in ballots. “It is a pretty stupid thing to not count someone’s vote simply because they didn’t date an envelope for a ballot,” Robert Harvie Jr, the board’s chair, said last week.
Diane Ellis-Marseglia, the other Democrat on the board, has also drawn widespread criticism for voting to count provisional ballots when voters did not sign in the correct place, ignoring court rulings stating otherwise. “I think we all know that precedent by a court doesn’t matter anymore in this country,” she said, according to the Philadelphia Inquirer. “People violate laws anytime they want. So, for me, if I violate this law, it’s because I want a court to pay attention. There’s nothing more important than counting votes.”
Chris LaCivita, one of the co-chairs of the Trump campaign, suggested that commissioners would be punished for counting undated ballots. “They will go to jail count on it,” he said in a post on X.
