An appeals court pauses an order for counting 'undated' Pennsylvania ballots

Updated December 13, 2023 at 4:25 PM ET

A federal appeals court has put a pause on a lower court ruling that calls for the counting of mailed ballots that arrive on time but in envelopes without dates handwritten by Pennsylvania voters.

The 3rd U.S. Circuit Court of Appeals on Wednesday temporarily blocked the lower court ruling while it undergoes a review by a panel of judges. The ruling, by U.S. District Judge Susan Paradise Baxter, was expected to be appealed before it ultimately reaches the U.S. Supreme Court, whose final word on what are often referred to as "undated ballots" may help determine the outcome of the 2024 presidential race and other key upcoming elections in the swing state.

The plaintiffs in this pair of lawsuits — including the Pennsylvania State Conference of the NAACP and the Democratic campaign committees for U.S. House of Representatives and Senate candidates — argue that ballots in return envelopes without any handwritten date or with an incorrect one should not be disqualified from the 2022 midterm elections and future races in Pennsylvania.

While those handwritten dates are required by Pennsylvania state law, they are not used to confirm whether a person is allowed to vote. Counties have included ballots arriving in undated or misdated return envelopes in final vote tallies for past elections.

Not counting these kinds of ballots, the plaintiffs argue, would violate the Civil Rights Act of 1964, which says a person's right to vote cannot be denied for "an error or omission" that is "not material" in determining voting eligibility.

The Republican National Committee and other GOP groups have joined the case in opposition to counting ballots without handwritten dates or those that are misdated.

For the 2022 midterm elections, registered Democrats outpaced Republicans in voting by mail in Pennsylvania and nationally, according to the United States Elections Project's analysis.

On Wednesday, the 3rd Circuit allowed Richard Marino — a Republican supervisor of Pennsylvania's Towamencin Township, a suburb of Philadelphia — to also join the lawsuit. Marino had lost reelection in November after the lower court ordered the contested ballots to be counted, resulting in a tie that was broken with a random drawing and the local county certifying Marino's Democratic opponent as the winner.

In 2022, the U.S. Supreme Court voided a lower court's ruling in a similar case over ballots for a Pennsylvania county judge's race after the Republican candidate conceded. Three of the high court's conservative justices — Justices Samuel Alito, Clarence Thomas and Neil Gorsuch — have indicated that they're not convinced that disqualifying ballots for missing handwritten dates violates the Civil Rights Act.

Edited by Benjamin Swasey

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