Court backs ballot dating rule that affected local race
Kofi-Marino contest tied after misdated ballots were counted
A requirement for Pennsylvania voters to put accurate handwritten dates on the outside envelopes of their mail-in ballots does not run afoul of a civil rights law, a federal appeals court panel said Wednesday, overturning a lower court ruling that affected the outcome of a local race in Montgomery County.
A divided 3rd U.S. Circuit Court of Appeals ruled to uphold enforcement of the required date on return envelopes, a technical mandate that caused thousands of votes to be declared invalid in the 2022 election.
The total number is a small fraction of the large state’s electorate, but the court’s ruling puts additional attention on Pennsylvania’s election procedures ahead of a presidential election in which its Electoral College votes are up for grabs.
A lower court judge had ruled in November that even without the proper dates, mail-in ballots should be counted if they are received in time. That ruling was cited in Montgomery County to allow ballots to be counted that led to a tie in the 2023 Towamencin Township supervisor race between incumbent Republican Rich Marino and Democrat challenger Kofi Osei.
Early results from election day in November had Marino narrowly winning their race, before the court ruling in mid-November allowing misdated ballots led to an updated count with both candidates tied. The two drew lots in a process administered by county officials on Nov. 30, with Osei drawing the winning number.
Marino and his backers subsequently filed a series of challenges to that process ahead of the first supervisors meeting of the new year in January, when Osei was sworn in.
In the November ruling, U.S. District Judge Susan Paradise Baxter said the envelope date is irrelevant in helping elections officials decide whether a ballot was received in time or if a voter is qualified.
In this week’s court opinion, Judge Thomas Ambro said the section of the 1964 Civil Rights Act that the lower court relied upon does not pertain to ballot-casting rules broadly, such as dates on envelopes, but “is concerned only with
the process of determining a voter’s eligibility to cast a ballot.”
“The Pennsylvania General Assembly has decided that mail-in voters must date the declaration on the return envelope of their ballot to make their vote effective,” Ambro wrote. “The Supreme Court of Pennsylvania unanimously held this ballot-casting rule is mandatory; thus, failure to comply renders a ballot invalid under Pennsylvania law.”
Montgomery County Commissioner Neil Makhija, who also serves as chairman of the county election board, took to social media late Wednesday, expressing his reaction to the latest legal development.
“Today’s 3rd Circuit opinion on undated ballots in Pennsylvania is a
terrible decision weakening the Civil Rights Act and potentially disenfranchising *tens of thousands* of duly registered, eligible PA voters in 2024,” Makhija said in a post on X, formally known as Twitter.
“This decision warrants revisiting of state law by the PA Supreme Court,” he continued. “As chair of Board of Elections in PA’s third largest county — we will take every step to reach voters for notice and cure and ensure their ballots are counted.”
Neither Marino nor Osei immediately replied Thursday to requests for comment.
The American Civil Liberties Union of Pennsylvania, which helped represent groups and voters who challenged the date mandate, said the ruling could mean thousands of votes won’t be counted over what it called a meaningless error.
“We strongly disagree with the panel majority’s conclusion that voters may be disenfranchised for a minor paperwork error like forgetting to write an irrelevant date on the return envelope of their mail ballot,” Ari Savitzky, a lawyer with the ACLU’s Voting Rights Project who argued the appeal, said in a statement.
“We are considering all of our options at this time.”
State and national Republican groups defended the date requirement, and the Republican National Committee called the decision a “crucial victory for election integrity and voter confidence.”
In Pennsylvania, Democrats have been far more likely to vote by mail than Republicans under an expansion of mail-in ballots enacted in 2019.