As political parties continue court arguments over Pennsylvania election laws, two high courts have made last-minute decisions in two cases that examined how mail-in ballots are counted when the voter does not follow the rules.

The U.S. Supreme Court issued a decision favorable to Democrat requests, and a Pennsylvania Supreme Court decision pleased Republicans. But both decisions are likely to be challenged in the future.

‘Naked’ Mail-In Ballots

The U.S. Supreme Court declined to stay a controversial recent decision the Pennsylvania Supreme Court made granting voters who improperly cast a “naked” mail-in ballot permission to cast a provisional ballot at their polling place.

The term “naked ballot” refers to a situation in which the voter returns the ballot in only one envelope, the envelope he is required to sign and date.

Pennsylvania provides a second, inner envelope, that remains blank. This so-called secrecy envelope preserves the voter’s privacy. It is improper to send a naked ballot, that is, a ballot without a privacy envelope.

Pennsylvania legislative rule says a provisional ballot shall not be counted if “the elector’s absentee ballot or mail-in ballot is timely received by a county board of elections.”

The ballots arrived on time. But they were not eligible to be counted because they were naked. That same section of law says even a provisional ballot without a secrecy envelope shall not be counted.

On Pennsylvania’s Primary Election Day, April 23, two voters in Butler County who voted by mail received notice that their votes would not be counted because they sent naked ballots. Each of them went to their polling place on Election Day to cast provisional ballots but were told their provisional ballots would not be counted.

They jointly took the matter to court, saying they were unlawfully disenfranchised by the rejection of their provisional ballots.

Despite Pennsylvania’s law, both the Pennsylvania and U.S. Supreme Courts allowed provisional ballots to be cast and counted for voters who mail in naked ballots.

Improperly Dated Mail-in Ballots

In the other case, the Pennsylvania Supreme Court ordered that mail-in ballots that arrive in an envelope with no date or the wrong date should not be counted for the 2024 election. The issue, which has been argued in multiple cases since 2020, all looking for a definitive answer on the question of counting, or not counting, mail-in ballots with no date or an improper date, can still be brought back to court after the election.

The court stayed an Oct. 30 decision by the Commonwealth Court of Pennsylvania that ordered the improperly dated ballots to be counted. Two Pennsylvania voters whose special election votes were not counted because they did not properly date their mail-in ballots originally brought the case, suing the Philadelphia Board of Elections. They were represented by the American Civil Liberties Union of Pennsylvania and the Public Interest Law Center. The Republican National Committee (RNC), together with the Republican Party of Pennsylvania, filed an emergency petition appealing the Commonwealth Court’s decision.

The Pennsylvania Supreme Court apparently determined that it is too close to the election to handle such cases.

“As I have previously observed, ‘election litigation has exploded in recent years,’” Justice Kevin Dougherty wrote in his concurring statement. “Of particular concern are those cases that seek to change election rules shortly before or during an election. Regrettably, this election season has seen its fair share of litigants who have sought to do exactly that. Even more unfortunate, lower courts repeatedly have taken the bait.”

“Moving forward, lower courts should think twice — maybe even three times — before granting relief that could arguably be construed as imposing ‘substantial alterations to existing laws and procedures during the pendency of an ongoing election.’”

In a statement, RNC Chairman Michael Whatley called the decision “another big win for election integrity and Pennsylvania voters. For the fifth time, we have successfully defended the state’s dated ballot requirement. … Democrats have repeatedly tried to eliminate this important ballot safeguard, and we have stopped them each time.”