Philadelphia must count mail-in ballots from September’s special election that were submitted with envelopes that voters incorrectly dated or did not return, a state appeals court ruled Wednesday in a decision that it does not explicitly apply to the November general election.

While the ruling applies narrowly, it raises the possibility of further action from the state Supreme Court and gives county officials another ruling to consider when deciding how to handle ballots in November.

In 3-2 decision On Wednesday, the state Commonwealth Court said the city must count ballots from mail-in voters who made appointment errors in the Sept. 17 special election for two legislative vacancies.

The ruling said a local court in Philadelphia was right when it said the rejection of the ballots violated the state constitution.

“We hold that the trial court did not err in ordering the County Board to count the 69 undated and incorrectly dated absentee and mail-in ballots cast in the (special election) on the grounds that failure to count those ballots violates free and fair elections . clause of the Pennsylvania Constitution,” wrote Justice Ellen Ceisler for the majority.

In a footnote, Ciesler wrote that the case “involves a special election that has already taken place, and not the 2024 general election.”

In a dissenting opinion, Justice Matthew Wolf said the majority’s decision risks “causing confusion on the eve of the 2024 general election.” Justice Patricia McCullough expressed the same concern in a separate dissent.

“There was simply no reason to decide this question now, and the Majority certainly did not normally do so,” McCullough wrote. “Both the trial court and this court should have declined to issue new and hasty constitutional rulings that are sure to confound the expectations of voters and county election boards alike.”

The decision leaves unresolved constitutional questions about the counting of undated or undated ballots in the November election, though it does not compel officials to count them.

“Of course we hope they will, because if (their rejection is) unconstitutional in September, it’s unconstitutional in November,” said Andy Hoover, a spokesman for the American Civil Liberties Union of Pennsylvania, which, along with Public Interest Law Center, brought the case on behalf of two voters. “And if they or any county doesn’t, this ruling sets up post-election litigation.”

Although an appeal in the case could prompt the state Supreme Court to intervene further, for now, other counties are not bound by the ruling.

“The order certainly does not expressly apply to all counties,” said Adam Bonin, a Democratic election attorney in Philadelphia who was not part of the case but has been involved in other lawsuits challenging the meeting requirement. But Bonin said all county attorneys should take note that a state court has ruled that disqualifying ballots on those grounds violates the constitution and inform their counties accordingly.

After the September special election, the American Civil Liberties Union of Pennsylvania and the Public Interest Law Center sued Philadelphia on behalf of two voters who neglected to postdate their ballots, which officials dismissed. The groups argued that under a provision in the state constitution, the city could not reject ballots for such a trivial paperwork error.

The argument is identical to one made by the groups in a separate case this summer. Commonwealth Court ruled in favor of the groups in that case in August, but the state Supreme Court annulled the decision on procedural grounds in September. The high court then also denied an ACLU request to exercise its authority to bypass the regular court process and immediately decide the meeting issue.

The ACLU and the Public Interest Law Center hailed Wednesday’s decision as a victory.

“We applaud the Commonwealth Court for its voter rights decision and hope that every county will follow this ruling in processing mail-in ballots next month,” said Mimi McKenzie, legal director of the Public Interest Law Center. “As today’s decision may not be the final word on this matter, we still advise voters to register their return envelope, take advantage of any opportunity they have to correct mistakes, or vote provisionally on Election Day if they have a mistake in the date of the envelope”.

In the Philadelphia case, a local judge ruled that the city erred in not counting the ballots on the grounds that it violated the free and equal elections clause of the state constitution, but the city and Republican groups that intervened in the case appealed that decision at the Commonwealth. Court.

City commissioners appealed on the grounds that they did not want to find themselves in a scenario where Philadelphia would be the only county counting ballots or be required to count ballots for the special election but not the general election in November.

“The board appreciates the Commonwealth Court’s decision in this case, which will allow the board to avoid inconsistency, comply with the Election Code and uphold the voting rights of voters under the Pennsylvania Constitution,” said city spokeswoman Ava Schwemler. . “We are grateful for a resolution on this matter to guide consistent and fair election operations.”

Schwemler said the city will not appeal to the state Supreme Court.

Republican groups that intervened in the case argued that the ACLU and Public Interest Law Center’s case was procedurally flawed and that the Philadelphia court’s decision violated the legal principle of not changing the rules near an election.

An RNC spokesman did not immediately respond to a request for comment.

Amy Gulli, spokeswoman for the Pennsylvania Department of State, said she was “pleased with the result, which will not interfere with future elections and will only serve to free up ballots for voters who would otherwise have cast their ballots for a pointless mistake”.

Bonin said he anticipates the state Supreme Court will take up the issue soon.

“I assume the state Supreme Court will clear this up between now and when the counties count their ballots,” he said. “They’ve had several opportunities to bring this up for good. … The only way this problem goes away is if all the courts close all the doors.”

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