Pennsylvania’s top court reaffirms mail ballots with missing, improper dates can’t be counted 

The Pennsylvania Supreme Court on Friday accepted Republicans’ request to again declare that mail ballots returned with a missing or incorrect date cannot be counted this election. 

The Republican National Committee (RNC) filed an emergency appeal to ensure that election officials do not leverage a lower court’s ruling handed down Wednesday finding such disqualification violates the state constitution. 

That 3-2 ruling concerned 69 misdated and undated ballots in a September special election, where the outcome was not in doubt either way. 

But Republicans raised concerns the decision injects new uncertainty in the days leading to the presidential election, where potentially thousands of ballots are at stake in the battleground that both campaigns see as a must-win. 

The court’s unsigned order states the lower ruling “shall not be applied to the November 5, 2024 General Election.”

In a concurring opinion, Justice Kevin Dougherty condemned lower courts for intervening too close to an election in recent cases, saying they “repeatedly have taken the bait” despite past warnings. 

“To reiterate the point once more: we said what we meant, and we meant what we said. Moving forward, lower courts should think twice — maybe even three times — before granting relief that could arguably be construed as imposing ‘substantial alterations to existing laws and procedures during the pendency of an ongoing election,’” Dougherty wrote. 

Justice Christine Donohue, joined by Chief Justice Debra Todd, critiqued their colleague, saying there was no need to “berate” lower courts.

“In my view, chastising both interested parties for bringing challenges to the application of the Election Code in a completed election and the courts of common pleas and intermediate appellate court for deciding such cases is unwarranted and blind to the recurring nature of election cycles in our Commonwealth,” Donohue wrote in a concurring opinion.

The Pennsylvania Supreme Court is a majority Democratic panel.

Republicans have fought to prevent undated and misdated ballots from being counted in Pennsylvania, contending a correct date is required under state law.

The Democratic National Committee (DNC) has argued the requirement is meaningless because mail ballots are time stamped upon their receipt by election officials, a position backed by Pennsylvania’s Republican secretary of state. 

The Pennsylvania Supreme Court’s ruling marks no change in the status quo. The court previously rejected on procedural grounds another bid to count such ballots. 

But the DNC and the two voters who filed the latest lawsuit warned the issue could still return to the court in post-election litigation. They asked the court use the latest vehicle to conclusively decide ahead of Election Day whether the ballot disqualification is constitutional, but the justices declined to do so.