New data from Pennsylvania's elections agency shows an early November state court decision that barred mail-in ballots without accurate handwritten dates on their exterior envelopes resulted in otherwise valid votes being thrown out.
The Department of State said this week more than 16,000 mail-in ballots were disqualified by county officials because they lacked secrecy envelopes or proper signatures or dates. Democratic voters, who are much more likely to vote by mail, made up more than two-thirds of the total canceled ballots.
The agency said 8,250 Pennsylvania mail-in ballots were rejected because they were sent in without being contained within a secrecy envelope, making it impossible for them to be tabulated without putting voter privacy at risk.
The remaining 7,904 invalidated ballots were tossed out because the exterior envelopes used to send in those ballots did not have the voters' signatures, or because those exterior envelopes were either undated or improperly dated.
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Many counties, but not all, worked with voters to “cure” undated ballots. Those fixed ballots were counted and are not among the number of rejected ballots now being reported by the Department of State.
Some people whose mail-in ballots were thrown out in the high-stakes November election may not be aware that happened.
“In many counties, voters who provide their email address when applying for a mail ballot automatically receive email notifications with status updates on their ballot, including whether their ballot was canceled,” Department of State spokesperson Ellen Lyon said in an email. “There is no similar automatic notification system for voters who do not provide an email address when applying for a mail ballot.”
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Pennsylvania Democrats flipped Republican U.S. Sen. Pat Toomey's seat this fall, elected Attorney General Josh Shapiro as governor and won just enough state House races to retake majority control by one vote.
But the Democrats' much greater use of mail-in voting also meant they saw far more of their votes disqualified than did Republicans, independents and third party voters combined. Democrats had 10,920 votes thrown out, about half for lacking secrecy envelopes. Republicans saw 3,503 ballots forfeited. Independents and third parties amounted to 1,731 votes that did not count in the fall election.
Negotiations between Democratic Gov. Tom Wolf and Republican legislative leaders about ending the exterior envelope date requirement failed because the sides could not reach agreement on a wider bill to address a host of election procedures and policy changes. The exterior envelope dates are not needed to ensure ballots arrive in time — that occurs when they are received and clocked in by county elections workers.
Republican lawmakers have defended the need for the requirements, saying they are important for security and secrecy.
The 3rd U.S. Circuit Court of Appeals ruled in May that the dates were not required — calling them “immaterial” — but the U.S. Supreme Court then ruled that decision moot.
Other federal litigation against the secretary of state and county elections boards over the inaccurate or missing envelope dates remains pending. It claims enforcing the date requirement has a larger impact on voters who are "significantly older than both other Pennsylvanians who voted by mail and all registered Pennsylvania voters.”
In the governor's race, Shapiro collected just over 1 million mail-in votes, about a third of his total, on his way to a nearly 15-point win over Republican state Sen. Doug Mastriano, whose received more than 187,000 mail-in ballots. There were fewer than 19,000 third-party or independent mail-in votes in the gubernatorial race.
Marian Schneider, senior voting rights policy counsel for the American Civil Liberties Union of Pennsylvania, said state law needs more clarity about the process of curing flawed ballots so more voters’ choices will count. The total number may be a small portion of total votes cast, but they could determine the winner of a close race.
“It's still 16,000 people whose votes didn't count,” Schneider said. “It would be good to avoid that, right?”
The Pennsylvania Supreme Court ruled a week before the November election that mail-in votes may not count if they are “contained in undated or incorrectly dated outer envelopes." Ballots without properly dated envelopes have been the topic of litigation since mail-in voting was greatly expanded in Pennsylvania under a 2019 state law.
The justices had split 3-3 on whether making the envelope dates mandatory under state law would violate provisions of the U.S. Civil Rights Act of 1964, which states that immaterial errors or omissions should not be used to prevent voting. The tie meant the date mandate has remained in place. The court has yet to issue a written opinion laying out its reasoning and explaining why it ordered county officials to “segregate and preserve” the canceled ballots.
