Pennsylvania’s Department of State sued Lancaster County and two other counties in Commonwealth Court on Tuesday, seeking to force them to count mail-in ballots submitted in undated envelopes in their certified vote totals for the May primary.
In a statement responding to the lawsuit Tuesday, the Lancaster County Elections Board said: “The Commonwealth’s demand is contrary to the law or any existing court order,” and pledged to “vigorously defend its position.” The board consists of the three county commissioners, Ray D’Agostino, Josh Parsons and John Trescot.
Act 77, the Pennsylvania law that authorized no-excuse mail-in balloting, explicitly requires voters to sign and date the return envelope containing their ballot.
In two recent court cases, however, judges have held that ballots without a date should be counted if they are otherwise valid. Their reasoning is that the requirement is immaterial to ballot security and that enforcing it would unnecessarily disenfranchise legitimate votes.
Based on those rulings, the State Department ordered all 67 Pennsylvania counties to canvass ballots in undated envelopes and include them in their certified vote totals. To date, 64 counties have complied, but three “outliers” — Lancaster, Fayette and Berks — have not, the state said in its complaint.
The department says allowing the three counties to exclude ballots that their peers have counted “creates impermissible discrepancies in the administration of Pennsylvania’s 2022 primary election.”
One of the cases in question involved a 2021 judicial race in Lehigh County and was heard by the U.S. Third Circuit Court of Appeals. The U.S. Supreme Court subsequently declined to take up the case, although Justices Samuel Alito, Neil Gorsuch and Clarence Thomas disagreed.
In the other, involving David McCormick’s Senate race against Dr. Mehmet Oz, Pennsylvania’s Commonwealth Court issued a preliminary injunction on June 2 ordering counties to report two tallies: One with the disputed ballots, and one excluding them. Because McCormick then withdrew his suit, and the court denied a motion to vacate its order, the injunction remains in effect, the State Department contends.
At stake: 84 ballots
Lancaster County received a total of 84 ballots in undated envelopes in the May primary, Chief Clerk of Elections Christa Miller told the board at its May 26 meeting: 38 Republican ballots and 46 Democratic ones. They are being kept segregated and unopened pending the outcome of election-related litigation, she said.
As of May 26, the Third Circuit Court of Appeals had issued its ruling in the Lehigh County case, but the U.S. Supreme Court had not yet declined to weigh in, and the Commonwealth Court had not yet issued its order in McCormick’s lawsuit.
Given where things stood, the commissioners said at the meeting that it was not yet clear that any court’s holding applied statewide. Therefore, all three agreed, Act 77’s requirement for a signed and dated return envelope remains the controlling law: “If we had an opinion from a court ordering us to count them, obviously we could then do that,” Parsons said.
Parsons and D’Agostino have been vocal opponents of Act 77, saying it dramatically increased election costs and complexity and counties’ administrative workloads. They have called for its repeal and a return to predominantly in-person elections.
In January, a Commonwealth Court panel struck down Act 77, declaring it unconstitutional. Gov. Tom Wolf’s administration appealed to the Pennsylvania Supreme Court, putting a hold on the Commonwealth Court’s decision and keeping Act 77 in effect until the Supreme Court acts.