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Why 'undated' ballots have sparked a new election lawsuit in Pennsylvania

Election workers scan mail-in ballots at the Allegheny County Election Division warehouse in Pittsburgh on Thursday. The Pennsylvania Supreme Court has ordered local officials to hold off on counting ballots that arrive on time in envelopes without handwritten dates or with incorrect dates.
Gene J. Puskar
Election workers scan mail-in ballots at the Allegheny County Election Division warehouse in Pittsburgh on Thursday. The Pennsylvania Supreme Court has ordered local officials to hold off on counting ballots that arrive on time in envelopes without handwritten dates or with incorrect dates.

Updated November 7, 2022 at 10:11 AM ET

In the key swing state of Pennsylvania, there's been a tangle of litigation over mailed ballots that arrive on time to be counted but in envelopes that are missing dates handwritten by voters.

A new federal lawsuit — filed by the American Civil Liberties Union of Pennsylvania on behalf of the Pennsylvania State Conference of the NAACP and other groups — is now trying to stop local election officials from rejecting what are often called "undated ballots."

The fate of these hotly contested ballots may affect the state's final midterm results, including for a closely watched race for an open U.S. Senate seat.

Here's what you need to know about undated ballots in Pennsylvania:

Why do voters in Pennsylvania have to write a date on a ballot's envelope when voting by mail?

Pennsylvania state law requires voters to "fill out, date and sign" a declaration that's printed on the official return envelope.

But it's an open legal question whether a vote can be disqualified for missing that handwritten date, which election officials have not used to verify whether a person is allowed to vote. In past elections, counties have also included mailed ballots with incorrect dates in their final vote tallies.

Can undated ballots be counted in Pennsylvania's midterm elections?

For now, no, according to a ruling the Pennsylvania Supreme Court issued on Nov. 1.

After the Republican National Committee and other GOP groups filed a special lawsuit that bypassed the state's lower courts, Pennsylvania's deadlocked high court decided that for this year's general elections, local election officials in the state should hold off on counting any ballots mailed inside envelopes without dates.

Mail-in ballots in envelopes with handwritten dates outside the range of Sept. 19 through Nov. 8, as well as absentee ballots in envelopes dated outside of Aug. 30 through Nov. 8, should also not be counted, the state's Supreme Court clarified in a Nov. 5 order.

Instead, the court ordered all of those kinds of ballots to be set aside.

On Nov. 4, the Pennsylvania State Conference of the NAACP, League of Women Voters of Pennsylvania and other groups filed a federal lawsuit asking a judge to stop election officials from rejecting any ballots in undated or incorrectly dated envelopes and to ensure those votes are included in the final tallies.

In their complaint, the groups argue that not counting these kinds of ballots would violate the Civil Rights Act of 1964, a federal law that prohibits denying a person's right to vote for a reason that is "not material" in determining voting eligibility.

More federal lawsuits may be coming, especially if there are any tight races that may ultimately be determined by small margins of votes.

What can voters do if they're worried their mailed ballot's envelope doesn't have a handwritten date or has an incorrect date?

Some Pennsylvania counties are urging voters who have mailed in their ballots to check with their local election office. The state's two most populous counties — Philadelphia and Allegheny — have posted lists of more than 3,300 voters whose ballots were received on time but have issues with the handwritten-date requirement. Affected voters can try to get a replacement ballot or vote at the polls on Tuesday with a provisional ballot.

Why is it not clear yet whether it's legal to count undated ballots?

There's been a lot of legal back-and-forth in the courts over undated ballots, which were also caught up in the 2020 election legal fights after a surge of voting by mail during the first year of the COVID-19 pandemic.

This May, a federal court ordered undated ballots to be included in the final count of a 2021 race for a judge position in Pennsylvania's Lehigh County. A panel of the 3rd U.S. Circuit Court of Appeals ruled that not counting undated ballots would be a violation of the Civil Rights Act.

But last month, the U.S. Supreme Court legally voided that lower court ruling after David Ritter, the Republican candidate who brought the lawsuit over undated ballots, conceded the county judge's race.

So far this year, registered Democrats have turned in far more mail ballots than Republicans, according to the United States Elections Project's analysis of data from Pennsylvania and other states. Many Republicans have been pushing back on the expansion of voting by mail since the 2020 elections, driven in part by misinformation about the security of mail ballots.

If this new federal lawsuit over undated ballots is appealed to the U.S. Supreme Court, any signs of how the justices would rule?

Three of the Supreme Court's conservative justices have signaled they're not convinced that not counting undated ballots would violate federal law.

In a dissenting opinion related to an effort to block the 3rd Circuit panel's ruling in Ritter's case, Justice Samuel Alito — who was joined by Justices Clarence Thomas and Neil Gorsuch — wrote that it appears to him that the lower court's interpretation of the Civil Rights Act is "very likely wrong."

When the Supreme Court issued its decision to void the 3rd Circuit panel's ruling in Ritter's case, two liberal justices — Sonia Sotomayor and Ketanji Brown Jackson — said they would have denied Ritter's request for the high court to review the lower court's ruling.

Copyright 2022 NPR. To see more, visit https://www.npr.org.

Hansi Lo Wang (he/him) is a national correspondent for NPR reporting on the people, power and money behind the U.S. census.