In what Republicans are hailing as a “milestone” decision, Pennsylvania’s Supreme Court on Tuesday ordered state election officials not to count general election mail-in ballots that arrive in undated or incorrectly dated envelopes.
Those ballots must be set aside and left uncounted, according to the court decision.
“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 decision by the six-judge court read.
The judges were split on whether the move violated federal election law, an impasse caused by the recent death of Chief Justice Max Baer, which left a vacancy on the court that has not yet been filled.
“The case is the result of the lawsuit brought by state and national Republicans last month that alleged Pennsylvania’s acting secretary of commonwealth was circumventing the General Assembly by telling county boards to count ballots returned in a timely manner, but without a dated envelope,” CNN reported.
While the decision obviously applies equally to all ballots, regardless of the party affiliation of the voter who completed it, the result of the decision is likely to help Republicans. According to The Wall Street Journal, Democrats accounted for roughly 70 percent of the 1.4 million mail-in ballot requests this year.
Assuming that Republicans and Democrats fill out their ballot envelopes with equal accuracy — and equal inaccuracy — the decision should result in two Democrat ballots set aside for every one from a Republican, more or less.
That could make a difference in the closely contested Senate race between Dr. Mehmet Oz and Lt. Gov. John Fetterman. The RealClearPolitics average of polls has Fetterman 1.2 points ahead of Oz, and the results of all five of the most recent polls fell within each poll’s respective margin of error. The most recent poll, by Muhlenberg College and the Morning Call newspaper of Allentown, resulted in a literal tie, with each candidate getting 47 percent of the responses.
FiveThirtyEight, which uses a somewhat different methodology in its forecasts, gives Fetterman a 57 percent chance of beating Oz next week, but rates the race a “toss up.”
The Journal theorized that the ruling could impact “thousands of ballots.”
It wouldn’t take a lot of ballots being disqualified to impact the results of that race, at least as things look right now.
The Pennsylvania governor’s race, in which Attorney General Josh Shapiro is running against Trump-endorsed state Sen. Doug Mastriano, looks less likely to be impacted, as Shapiro currently is currently up by 9.4 points, according to the RealClearPolitics average, and has beaten Mastriano by differences outside the margins of error in the four most recent polls listed. A few ballots discarded due to bad dates are unlikely to make enough difference to matter in this race.
According to the Journal, four of the current justices on the court were elected as Democrats and only two as Republicans, making the order bipartisan.
“This is a milestone in Republicans’ ongoing efforts to make it easier to vote and harder to cheat in Pennsylvania and nationwide,” Republican National Committee Chairwoman Ronna McDaniel said in a statement cited by CNN.
“Republicans went to court, and now Democrats and all counties have to follow the law,” she said.
Pennsylvania’s election workers will not be counting mail-in ballots until Tuesday, according to CNN.
The entire decision appears here:
The justices did not explain the thinking behind the decision, but wrote in the order that opinions would be forthcoming.
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