Former State Officials Call on Pennsylvania Supreme Court to Protect Free and Fair Elections in Undated Ballot Case

PHILADELPHIA and WASHINGTON — A group of former Pennsylvania officials, led by the States United Democracy Center, filed an amicus brief urging the Pennsylvania Supreme Court to uphold a lower court’s decision that the Pennsylvania Constitution prohibits rejecting mail ballots that are undated or misdated.

Baxter v. Philadelphia Board of Elections weighs the constitutionality of rejecting undated and misdated absentee and mail-in ballots in Pennsylvania.

The case centers around voters whose mail-in ballots in a special election were rejected for missing handwritten dates on the outer envelope. Two of the voters, Brian Baxter and Susan Kinniry, challenged this decision, claiming that the Philadelphia Board of Elections violated their state constitutional rights by refusing to count the ballots. The trial court ruled in their favor, which the Commonwealth Court upheld—ordering the Board to count undated and misdated absentee and mail-in ballots—but the Pennsylvania Supreme Court blocked the Commonwealth Court’s decision from applying to the November 2024 general election. The state Supreme Court is now deciding whether to uphold the Commonwealth Court’s decision that throwing out undated and misdated ballots violates the Free and Equal Elections Clause of the Pennsylvania Constitution.

States United, alongside Pennsylvania former secretaries of state, a former state attorney general, and former governors’ general counsels, submitted the amicus brief in support of the appellees. In it, they emphasized that there is no significant reason to reject ballots solely based on whether they are undated or misdated. The requirement is redundant and unnecessary.

The brief urges the Court to follow 155 years of precedent and affirm that rejecting ballots based on dating provisions violates the Free and Equal Elections Clause. It also highlights the practical insights of state officials to show that laws imposing unnecessary barriers to voting can decrease participation and weaken confidence in the electoral process.

“The Pennsylvania Supreme Court has a clear opportunity to uphold the fundamental right to vote,” said Christine P. Sun, Senior Vice President of Legal at the States United Democracy Center. “Requiring voters to date their ballots imposes an unnecessary barrier that serves no purpose other than to burden the voter. The Board of Elections has other ways to determine a ballot’s validity, and in fact, do not even use the handwritten date to confirm when they receive a mail-in ballot. Throwing out undated ballots is a direct affront to the Free and Equal Elections Clause. Our brief underscores the importance of protecting voters and ensuring their voices are heard.”

“The date a voter completes a mail ballot is irrelevant to determining whether they cast their ballot before the deadline, or if they are an eligible voter,” said Kathy Boockvar, former Secretary of the Commonwealth of Pennsylvania. “There are reliable processes in place for determining when a ballot is timely received by the county and whether a voter is eligible to vote. Disenfranchising thousands of voters over an unnecessary technicality imposes an unjustifiable hurdle. The Court should reject this baseless barrier and uphold the fundamental promise of free and equal elections in Pennsylvania.”

“Voting is a fundamental right in Pennsylvania and has been enshrined in our state’s constitution since the very beginning,” said Gregory Schwab, former General Counsel of the Commonwealth of Pennsylvania. “The government should not be permitted to infringe on this right with needless dating or other requirements that would chip away at that right. The Free and Equal Elections Clause in our state constitution requires courts to reject rules that serve no purpose other than to trip up voters and invalidate their votes.”

Key excerpts from the brief are included below.

• …no one is more aware than Amici that, for elections to be free and equal, they must be “conducted in a manner which guarantees, to the greatest degree possible, a voter’s right to equal participation in the electoral process for the selection of his or her representatives in government.”
• It is inescapable that enforcement of the dating provisions is a burden on the proper administration of elections, serves no necessary purpose, and has resulted in the disenfranchisement of thousands of Pennsylvanians.
• Because the Commonwealth already can “reach the end desired”—making sure county boards only count ballots received by 8:00 p.m. on Election Day—without using the superfluous voter-provided handwritten date, enforcing the dating provisions is not “necessary” to confirm a ballot’s timeliness.

The list of signatories includes:

• Kathy Boockvar, former Secretary of the Commonwealth of Pennsylvania
• Leigh M. Chapman, former Acting Secretary of the Commonwealth of Pennsylvania
• Walter W. Cohen, former Pennsylvania Attorney General
• Barbara Adams, former General Counsel of the Commonwealth of Pennsylvania
• Gregory Schwab, former General Counsel of the Commonwealth of Pennsylvania

View the amicus brief here.

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About the States United Democracy Center

States United is a nonpartisan organization that helps state officials on the front lines of democracy protect the rule of law and free, fair, secure elections. We connect state officials, law enforcement leaders, and pro-democracy partners across America with the tools and expertise they need to safeguard our democracy. For more information, visit statesunited.org.