County election officials across Pennsylvania should “segregate and preserve” undated or incorrectly dated mail-in ballots and not count them, the state Supreme Court said Tuesday.
In the order, the court said it deadlocked 3-3 on whether not counting the ballots would violate the federal Voting Rights Act. Written opinions detailing the judges’ reasoning were pending.
The ruling comes just days before the Nov. 8 general election. A spokesman for Gov. Tom Wolf’s administration said officials were reviewing the decision and stressed to voters who vote by mail that they should make sure to properly follow all procedures, including signing and dating their envelopes.
Further litigation is possible. Last month U.S. Supreme Court vacated an appeals court’s ruling that mail-in ballots should be counted, but did so on procedural grounds. The court’s 6-3 majority is strongly conservative and has tended to favor Republican positions in voting rights cases.
Pennsylvania’s data shows that voters have requested 1.4 million mail-in ballots and returned about 850,000 of them. Party affiliation skews about 70% Democratic to 20% Republican, with the remainder being third-party members and independents, reports the Associated Press.
The vast majority of envelopes are dated correctly, but races are sometimes close enough that a small number of disallowed ballots could change the outcome.
The Supreme Court’s decision came in response to a petition filed by state and national Republicans. They asked the court to rule right away, bypassing the normal appellate process, because of the potential impact on the imminent midterms.
Republicans say requiring dated envelopes is a valid election security measure. Democrats say it’s an immaterial technicality, and that therefore requiring it is a violation of voting rights.
In Lancaster County, Commissioners Josh Parsons and Ray D’Agostino have strongly defended the requirement. Lancaster County was one of three that did not count undated ballots in the May primary until sued by the Department of State and ordered to do so.