Pennsylvania Mail-In Ballots Explained
The controversy and court cases around “misdated” and “undated” ballots
As Pennsylvania finishes vote counting and starts a statewide recount, you may have heard about the controversy over whether certain mail-in ballots should be included in the final count. This controversy originates from a lack of clear statutory law about how to deal with these ballots and a long history in Pennsylvania of local discretion in election administration.
Unlike many states where the state's chief election officer can engage in administrative rule-making or issue legally binding guidance, in Pennsylvania this is not the case. Instead, where there are open questions of law that the legislature has not explicitly filled via statute, local officials hold the primary discretion to interpret the law and create their own local procedures. This is one reason you commonly see variations between county election operations in the state — such as if and how they deal with cure and notice for provisional ballots. On important issues where uniformity is important, state and federal courts can and sometimes do intervene. However, as can be seen in this situation, the tradition of local discretion runs deep enough that even a general court decision does not always put the matter fully to rest. Counties typically do and should continue to respect explicit court orders that direct or prohibit them from taking or refraining from specific actions.
In the hotly contested U.S. Senate race, these “misdated” and “undated” mail-in ballots could have whittled down the margin between the two candidates. However, given that the number of affected ballots is less than the margin of victory, pending the recount, it’s unlikely their inclusion would have affected the outcome
For this election, the Pennsylvania Supreme Court expeditiously addressed this issue on Monday, November 18, ordering counties not to count misdated and undated mail-in ballots even though they were cast on time by eligible Pennsylvania voters. While this ruling was based on a key legal principle not to change election laws and procedures in the middle of an election, the underlying constitutionality of this issue has not been fully addressed. Pennsylvania courts will likely take it up again after the dust from the 2024 General Election settles and the governor has also called on the legislature to clarify the current ambiguity in election law for future elections.
What Are These Ballots?
When voters receive a mail-in ballot they also receive an inner yellow envelope, to preserve anonymity, and a pre-addressed outer return envelope (see fig. 1). The voter must fill out the declaration on the outer envelope and sign and date it. Some voters mistakenly write an incorrect date. For example, they might put the date of the election, write their birthdate, swap the day with the month, misremember the date, or forget to include a date altogether.
Are These Eligible Voters?
Yes. The vast majority of these voters do not have other issues with their ballots. County Boards of Elections receive these voters’ mail-in ballots and confirm their eligibility to vote but ultimately do not count their votes solely because of a proforma error.1
It's important to note that the date filled out by voters has no bearing on whether a ballot is timely received. Only mail-in ballots that arrive by poll close on Election Day, including those with dating issues, are reviewed. All late-received mail-in ballots will not be reviewed or counted.
Genser Ballots
What complicates matters further is that many counties do not notify voters that their ballot has a deficiency. If the dating issue is caught before Election Day and the voter is aware of the issue, they have the option to cast a provisional ballot in person on Election Day. This means that even though their misdated or undated mail-in ballot would be rejected, their in-person cast provisional ballot would be counted. Genser v. Butler Cnty. Bd. of Elections, 2024 Pa. LEXIS 1546. These ballots are sometimes referred to as Genser ballots after the court case that confirmed counties’ authority to follow this process and accept these provisionals as a means of “curing” this defect in their mail-in ballot. However, voters who found out too late or were never notified have no recourse.
What Happens with These Ballots?
As of this Monday, November 18, the Pennsylvania Supreme Court has clearly confirmed and issued a direct court order requiring that counties not count these ballots for the November 5th election. However, the path to getting here was not without controversy and confusion.2
This fall, most counties were already not counting misdated and undated ballots. They were operating based on the most recent case law on the matter, going back to November 2022, where the Pennsylvania Supreme Court affirmed — in a split decision on the basis of textual and precedent grounds — that both misdated and undated ballots should not be counted. Ball v. Chapman, 284 A.3d 1189, 2022 Pa. LEXIS 1625, 2022 WL 16569702.
The litigation history on this issue is complicated, however. The most recent complication being that on October 30, 2024, the Pennsylvania Commonwealth Court held that Philadelphia must count undated and misdated mail ballots from a September special election. The ruling of this case was only ever construed to apply narrowly and not to the November General Election. “Votebeat, Philadelphia Must Count September,” Baxter v. Phila. Bd. of Elections, 2024 Pa. Commw. Unpub. LEXIS 582. However, the holding included a finding that not counting these ballots violated the Pennsylvania State Constitution under a provision protecting voters from being unfairly disenfranchised. This led voting rights groups to ask the Pennsylvania Supreme Court to again review its 2022 decision. The Supreme Court officially refused to review their previous decision on October 5 of this year on the grounds that “substantial alterations to existing laws and procedures” should not be made “during the pendency of an ongoing election.” For many observers, this largely resolved the issue of how these ballots were to be treated for the 2024 election, but notably did not resolve the underlying state constitutional issue.
Following this October 5 litigation, the Pennsylvania Department of State also issued guidance to counties advising them to keep these misdated and undated ballots segregated from other ballots in anticipation that there might be further litigation on this issue, but interestingly did not advise counties one way or the other on whether to count the ballots. Rather the Department of State advised counties to consult their solicitor to ensure their decisions on how to treat these ballots were consistent with current law. The Department of State also submitted an amicus brief to the Court arguing in favor of maintaining the appeal process for each Board of Elections’ fact-specific canvassing decisions rather than issuing a blanket ruling with regard to these ballots.
This complex litigation history, somewhat ambiguous guidance from the Pennsylvania Department of State, and a long history of local discretion on election procedure matters led three County Boards of Elections — Bucks, Montgomery, and Philadelphia — to the conclusion that they were empowered to make a local decision on the status of these ballots. These three counties followed the Department of State’s guidance to segregate these ballots but also voted to count these ballots. These County Boards of Election did so in an effort to ensure those voters were not disenfranchised and likely also based their decisions in part on the earlier finding by the Pennsylvania Commonwealth Court that not counting these ballots violates the Pennsylvania State Constitution.
These counties’ actions were quickly challenged in court and this past Monday, the Pennsylvania Supreme Court found their actions to be in violation of the Court’s October 5 decision. The Pennsylvania Supreme Court has now issued a court order requiring Bucks, Montgomery, and Philadelphia to not count these ballots which means counties must both stop counting these ballots and remove any already counted ballots from official totals. Now that a court order has been issued, if any of these Boards of Election attempt to count or certify vote totals that include these ballots they will clearly be breaking Pennsylvania law and could be subject to civil and possible criminal penalties, including being held in contempt. Informing Democracy will continue to monitor and publicly report any developments in our Post-Vote Tracker.
Note on the Statewide Recount
On Wednesday, November 13 the Secretary of State ordered a statewide recount of the U.S. Senate race based on unofficial results showing the margin within .5%. As of November 19 at 2 p.m. EST, the top two candidates are separated by .25% or roughly 17.3K votes. Absent an additional court order, counties will not revisit rejected misdated and undated mail-in ballots during the recount.
A Complicated History of Local Discretion
If we look back further, this is not the first time counties have taken the initiative to interpret the law on this issue of misdated and undated ballots. Following the May 2022 primary election, despite Pennsylvania Department of State guidance and a federal ruling at the time saying that counties must count these ballots, Butler, Fayette, and Lancaster Counties wielded their local discretionary power to not count these ballots and initially certified vote totals without them. “Philly Inquirer Lai Breaks Standoff” & “DOS Guidance on Civilian VBM.” Just like this year, in that case, it also took further litigation and a court order to compel these counties to comply and include these ballots in their certified totals. “Philly Inquirer Lai Breaks Standoff.” Many pro-democracy and voting rights access groups decried these actions at the time. However, these counties in 2022 were tapping into the same precedent of local decision-making and power that Bucks, Montgomery, and Philadelphia Counties referenced this fall in their attempt to count these same ballots, also in contravention of the now controlling court decision on the matter. While the Court has now explicitly directed these counties to follow their prior ruling and not count those ballots, the issue of county discretion, nonetheless, plays deeply into the way Pennsylvania election administration system is structured.
Looking Forward
While the status of these misdated and undated ballots is now settled for the November 5 election, there remain open questions both about the long-term status of these ballots and about what the contours and limits of local election administration discretion are and should be in the state.
The Pennsylvania Supreme Court's October 5 refusal to decide the case of whether to count misdated and undated ballots on its merits (meaning those ballots would not count) was based on an application of the Purcell principle. The Court expressed concern over altering election law and procedures during an ongoing election, absent a powerful reason. They have yet to address the core legal question of whether it is constitutional under state law to reject these ballots.
As was raised by the Pennsylvania Commonwealth Court in its short-lived ruling regarding the Philadelphia September special election, the Pennsylvania State Constitution provides protections for voters from being unfairly disenfranchised. State law raises basic issues of fairness — any decision to disqualify a vote for minor nonmaterial defects should be weighed against the fundamental right to vote. Importantly, if a state's high court only rules on matters of state law then that decision is considered a final judgment not appealable to the U.S. Supreme Court.
U.S. constitutional issues are also at stake in counting some eligible voters’ ballots while rejecting others, potentially running amiss of the Equal Protection and Due Process Clauses of the Fourteenth Amendment. Notable equal protection issues may revolve around historic voting patterns showing that Democratic voters rely more heavily on mail-in voting as well as rejection rates of mail-in ballots that disproportionately affect lower-income and minority communities. Moreover, there are inherent due process concerns, especially following the Genser decision (see Genser Ballots above) where voters who were notified of deficiencies in their mail-in ballots and were permitted to cast an in-person provisional ballot on Election Day while other voters were not notified due to a county board's policy or due to ballots being reviewed too late for voters to have recourse.
The Civil Rights Act of 1964 also raises the issue of materiality, i.e. voters should not be disenfranchised due to small errors or omissions. In 2023, a federal judge in Western Pennsylvania invoked the materiality provision and ruled that misdated and undated ballots should be counted because the date is not consequential in determining the voter's eligibility or whether the ballot was timely received. "Dem Docket, 3rd Circuit Mail-In Voting," This ruling was overturned earlier this year by the 3rd U.S. Circuit Court of Appeals, in a contrary holding asserted that the materiality provision "only applies when the State is determining who may vote" and not “to rules, like the date requirement, that govern how a qualified voter must cast his ballot for it to be counted." “NPR, Undated Ballots Ruling.”
Additionally, the Pennsylvania legislature could decide to weigh in to further clarify their intent to either have these misdated and undated ballots count, or not, or perhaps even to remove the date requirement from the declaration. However, given the recent deadlock on election administration matters in the state such action is perhaps unlikely to come forth quickly.
Regardless of whether and how this specific issue of misdated and undated ballots continues to evolve in the state, we should expect to see further examples of controversy over local discretion in election administration in the state. Pennsylvania remains one of the most decentralized states for election administration, where a combination of historical precedent and gaps in state law, exacerbated by political deadlock, combine to empower County Boards of Elections with significant decision-making power. This is just one reason why Informing Democracy is focused on not just the how behind our elections, but also the who. We created a central repository of election officials responsible for administering and certifying elections across 10 states, including Pennsylvania. These reviews of election officials are aimed at surfacing any who may pose a threat to fair election administration this November, including those who expressed support for disenfranchising voters. Until there is clarity over the issue, decisions on which votes will count are left in the hands of county election officials who our research indicated have drastically different interpretations on the fundamental right to vote.
In contrast with the genuine disagreement over the limits and proper use of local discretion in Pennsylvania, in Michigan we recently saw a bad faith effort to shut down the uncontroversial use of such discretion by the Board of County Canvassers. In Calhoun County, the Board of County Canvassers re-tabulated absentee ballots because of a programming error that prevented valid ballots from being included in the unofficial results. This basic correction in tabulation should have been uncontroversial. However, the Republican candidate for the state House district sued the Board of County Canvassers, arguing that the Board was acting outside of the law by re-tabulating votes. A Circuit Court judge denied the request to halt re-tabulation as a bad faith effort to stop the Board from acting within its duties to correct errors it finds during canvassing.
Pennsylvania Department of State (DOS) numbers from the 2023 primary show that nearly 3 out of 10 rejected mail-in ballots were due to problems in dating the outer return envelope. DOS Redesigned Ballot Materials.
Interestingly while McCormick argued against counting these ballots this year, he argued in favor of these ballots being counted during litigation following the 2022 primary, when those ballots would have likely favored him in the close contest against Mehmet Oz. ”The Philadelphia Inquirer, Undated Mail Ballots.”