Ballot Bulletin November 16, 2022

Welcome to The Ballot Bulletin, where we track developments in election policy at the federal, state, and local levels. In this month’s issue:

  1. Pennsylvania Supreme Court rules on absentee ballots
  2. New York enacts election administration bill
  3. Legislation update: Legislation activity in October 2022

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Pennsylvania Supreme Court rules on absentee ballots

On Nov. 1, the Pennsylvania Supreme Court issued a ruling ordering local officials not to count any ballots mailed inside undated or incorrectly dated envelopes in this year’s general election. The ruling requires officials to set these ballots aside and retain them pending a review of the date requirement’s validity.  

The law in question

Pennsylvania Code 25 P.S. § 3146.6 regulates procedures for absentee voting. Section § 3146.6 (a) requires voters to place absentee ballots into an envelope “on which is printed the form of declaration of the elector, and the address of the elector’s county board of election and the local election district of the elector.” Voters “shall then fill out, date and sign the declaration printed on such envelope.” 

The parties to the lawsuit and their arguments

The plaintiffs in the case included the Republican National Committee, the National Republican Congressional Committee, and the Republican Party of Pennsylvania. The defendants were Pennsylvania Secretary of State Leigh Chapman (D) and the boards of elections in all 67 Pennsylvania counties. 

In an Oct. 16 filing, the plaintiffs alleged the “straightforward mandate that any voter who uses an absentee or mail-in ballot ‘shall . . . fill out, date and sign the declaration’ is valid under state and federal law.” The plaintiffs asked the court to prohibit county boards of elections from counting any undated or incorrectly dated absentee or mail-in ballot and to segregate these ballots from others. 

The plaintiffs said:

  • The court had already ruled “the date requirement is mandatory, and any ballot that does not comply with it may not be counted in any election after the 2020 general election.”
  • A federal materiality provision, which prevents denial of the right to vote based on errors or omissions if those errors are not material in determining a voter’s eligibility, does not preempt state enforcement of a date requirement. The “[a]pplication of these rules does not deny the right to vote,” is not relevant to whether an elector is qualified to vote, and “casting a ballot constitutes the act of voting, not an application, registration, or other act requisite to voting.”
  • Secretary of State Chapman’s guidelines directing counties to count undated ballots “are not binding on the county boards of elections.”
  • Segregation of undated ballots is necessary because “a county board of elections that counts undated or incorrectly dated ballots cannot remove non-compliant ballots from its certified election results if this Court upholds the General Assembly’s date requirement.”

In an Oct. 19 response to the filing, Chapman said, “Commonwealth and federal courts have held three times that a timely received absentee or mail-in ballot cannot be set aside merely because the voter neglected to hand write an inconsequential date on the return envelope.” Chapman’s attorney said the plaintiffs’ argument was “a position that has no legal support, that has never been considered by any court and that, in any event, would be impossible to implement because county boards have no means of determining the ‘correct’ date.”

Chapman said: 

  • A ruling in favor of the plaintiffs would “upset the interests of all voters” who had already applied for or submitted an absentee ballot.
  • Provisions in the state’s election code “all confirm that omitting a handwritten date from the declaration of a voter’s ballot return envelope is not a disqualifying defect.”
  • Even if the court determined a date was required under state law, “federal law still prohibits county boards from setting aside a ballot on the basis that the voter omitted a date from the return envelope’s declaration.”

How the court ruled

In its Nov. 1 order, the court ordered election officials not to count any undated or incorrectly dated absentee and mail-in ballots. In the unsigned order, the court said: “The Pennsylvania county boards of elections are hereby ORDERED to refrain from counting any absentee and mail-in ballots received for the November 8, 2022 general election that are contained in undated or incorrectly dated outer envelopes.” The court cited § 3146.6(a) of the Pennsylvania code as the basis for the order. 

The court split 3-3 on whether not counting undated absentee ballots would violate federal law. Chief Justice Debra Todd (D) and Justices Christine Donohue (D) and David Wecht (D) considered the exclusion of undated ballots a violation of federal law, while Justices Kevin M. Dougherty (D), Sallie Mundy (R), and Kevin Brobson (R) did not. 

In a supplemental order the court released on Nov. 5, it clarified that “incorrectly dated outer envelopes” are defined as “(1) mail-in ballot outer envelopes with dates that fall outside the date range of September 19, 2022, through November 8, 2022; and (2) absentee ballot outer envelopes with dates that fall outside the date range of August 30, 2022, through

November 8, 2022.”

What comes next

Lt. Gov. John Fetterman (D), the Democratic Senatorial Campaign Committee, and the Democratic Congressional Campaign Committee filed a lawsuit in the U.S. District Court for the Western District of Pennsylvania on Nov. 7 asking the court to overturn the state court’s decision and count undated ballots. The plaintiff’s attorneys said, “The Date Instruction imposes unnecessary hurdles that eligible Pennsylvanians must clear to exercise their most fundamental right, resulting in otherwise valid votes being arbitrarily rejected without any reciprocal benefit to the Commonwealth.”

New York enacts election administration bill

On Oct. 18, Gov.  Kathy Hochul (D) signed into law a bill modifying New York’s election administration laws.

  • A07748: This bill amends Section 5-508 of the state election laws to allow voting registration records for victims of sex offenses and crimes under Article 130 of the penal law to remain confidential. Victims must sign a written statement affirming they were a victim of a crime and that, because of the threat of physical or emotional harm, their registration record needs to be kept confidential.
    • Final state Senate vote (May 31): 63-0 (43 Democrats and 20 Republicans in favor).
    • Final state House vote (May 18): 138-0 (99 Democrats and 39 Republicans in favor).

Legislation update: Legislation activity in October 2022

In October, legislatures in five states took action on 12 election bills.

The chart below identifies the 10 most common policy areas of bills lawmakers addressed in October. The number listed on the blue portion of each bar indicates the number of Democratic-sponsored bills dealing with the subject in question. The number listed on the red portion of the bar indicates the number of Republican-sponsored bills. The purple and gray portions of the bar indicate the number of bipartisan-sponsored bills and bills with unspecified sponsorship, respectively. Note that the total number of bills listed will not equal the total number of enacted bills because some bills deal with multiple subjects.

Democrats sponsored two of the 12 bills acted on in October (17%). Republicans sponsored 4 (33%). Bipartisan groups sponsored six (50%). 

This information comes from Ballotpedia’s Election Administration Legislation Tracker, which went live on June 29. This free and accessible online resource allows you to find easy-to-digest bill tags and summaries—written and curated by our election administration experts! We update our database and bill-tracking daily. Using our powerful interactive search function, you can zero in on more than 2,500 bills (and counting) covering these topics:

  • Absentee/mail-in voting and early voting policies
  • Ballot access requirements for candidates, parties, and ballot initiatives
  • Election dates and deadlines
  • Election oversight protocols
  • In-person voting procedures
  • Post-election procedures (including counting, canvassing, and auditing policies)
  • Voter ID
  • Voter registration and eligibility

To make your search results more precise, we first place bills into one of 22 parent categories. We then apply to each bill one or more of the 88 tags we’ve developed. 

If you don’t want to immerse yourself in the world of election legislation quite that often, we have a free, weekly digest that goes straight to your inbox and keeps you caught up on the week’s developments.