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Blue State’s Move To Count Undated Mail-In Ballots In 2022 Midterms Could Spark ‘A Heck Of A Mess,’ Experts Say

  • Pennsylvania’s decision to count undated mail-in ballots in the upcoming midterm elections, which Republicans have recently sued over, could spur legal turmoil around key races, legal experts told The Daily Caller News Foundation.
  • Recently amended Pennsylvania State Department guidance instructs election officials to count mail-in ballots without handwritten dates on their return envelopes.
  • The Republican National Committee, National Republican Congressional Committee and Republican Party of Pennsylvania sued the Pennsylvania State Department late Sunday over guidance. 
  • “If the Senate race is close and there are enough undated ballots to potentially affect the outcome, the undated ballot question will almost certainly be litigated,” Honest Elections Project Executive Director Jason Snead said.

Pennsylvania’s move to count undated mail-in ballots, which Republicans sued the state over late Sunday, could spark significant legal turmoil around the looming 2022 midterms, according to legal experts.

The Pennsylvania State Department under Democratic Gov. Tom Wolf released guidance in May calling for counting mail-in ballots without a handwritten date on their return envelopes, in light of the recent Third U.S. Circuit Court of Appeals ruling that mail-in ballots lacking a handwritten date be counted in a local county judge election. An updated version of that guidance ahead of the midterm elections was sent out Sept. 26.

Heritage Foundation Senior Legal Fellow Hans von Spakovsky predicted “a heck of a mess” if Acting Pennsylvania Secretary of State Leigh Chapman’s actions taint the election.

“Then what the court would want to look at is, well how many ballots were counted illegally under the statute and under these court rulings, and were those less than or more than the margin of error,” Spakovsky told the DCNF. He argued law-defying election officials hurt voter confidence in the election process.

A Sunday Republican National Committee, National Republican Congressional Committee and Republican Party of Pennsylvania lawsuit filed in the state’s Supreme Court says the department’s guidance violates state law requiring ballot dating along with a high court opinion.

“Pennsylvania Democrats have a history of election integrity failures and Pennsylvanians deserve better: this lawsuit is the latest step in Republican efforts to promote free, fair, and transparent elections in the Keystone State,” the statement from Republican leaders said.

The U.S. Supreme Court found the 3rd Circuit Court’s ruling moot earlier this month, according to The Associated Press. Chapman subsequently claimed the Supreme Court ruling did not change a state Commonwealth Court ruling supporting the counting of ballots with outer envelopes that were not dated properly.

“It provides no justification for counties to exclude ballots based on a minor omission, and we expect that counties will continue to comply with their obligation to count all legal votes,” she said of the Supreme Court’s decision.

The American Civil Liberties Union (ACLU) celebrated the circuit court decision the day it was made.

ACLU of Pennsylvania Reggie Shuford said it vindicated Lehigh County voters “who would have been disenfranchised for a simple mistake on their mail ballots.”

A state elections official told county officials via email that a June court decision determined that “both Pennsylvania and federal law prohibit excluding legal votes because the voter omitted an irrelevant date on the ballot return envelope, and that decision remains good law,” the AP reported. Democrats have contended that counties are supposed to postmark and time-stamp mail-in ballots, making the handwritten dating rule useless.

Honest Elections Project Executive Director Jason Snead said undated ballots could be a legal flashpoint in the looming midterms, referencing the upcoming Senate election between Republican Republican Mehmet Oz and Democrat John Fetterman.

“If the Senate race is close and there are enough undated ballots to potentially affect the outcome, the undated ballot question will almost certainly be litigated,” he told the DCNF. Fetterman led Oz by a narrow 2.4% in an Oct. 8-11 Trafalgar Group poll.

Public Interest Legal Foundation election lawyer J. Christian Adams said the Voting Rights Act forbids invalidating votes based on “non-material omission,” but courts have not currently determined whether this will impact the fight over counting undated mail-in ballots.

“I very much doubt that a court will want to get to the heart of a matter when a material omission question will decide an election,” Adams told the DCNF. “I think courts will be highly reluctant to define the ‘material omission’ part of the Voting Rights Act in a context that will decide an outcome.”

Neither the Pennsylvania Democratic Party nor the Pennsylvania State Department immediately responded to the Daily Caller News Foundation’s requests for comment.

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