IE 11 is not supported. For an optimal experience visit our site on another browser.

Legal fight explodes in Pennsylvania over mail-in ballots

Democrats, including John Fetterman's campaign, demanded in a lawsuit that undated or incorrectly dated mail-in ballots be counted in the battleground state.
Get more newsLiveonNBC News Now

On the eve of Election Day, a legal battle has erupted in one of the most closely watched battleground states of the 2022 midterms.

Democrats sued Monday demanding that undated or incorrectly dated mail-in ballots be counted in Pennsylvania's election, which could end up determining which party controls the Senate.

Image: Allegheny County workers scan mail-in and absentee ballots at the Allegheny County Election Division Elections warehouse in Pittsburgh on Nov. 3, 2022.
Allegheny County workers scan mail-in and absentee ballots at the Allegheny County Election Division Elections warehouse in Pittsburgh on Nov. 3, 2022.Gene J. Puskar / AP

The lawsuit, filed in part by Democratic Senate candidate John Fetterman's campaign, argues that a provision in state law requiring that mail-in ballots include the date on the outside of the envelopes violates federal law. The suit names the state’s 67 county election boards as defendants.

The plaintiffs, who also include the campaign arms of House and Senate Democrats, insist that the date requirement is immaterial and that enforcing it would violate the 1964 Civil Rights Act.

The date on a mail ballot envelope "has no bearing on a voter’s qualifications and serves no purpose other than to erect barriers to qualified voters exercising their fundamental constitutional right to vote," they wrote in the 17-page filing.

Any orders disqualifying ballots could end up affecting the election outcome in Pennsylvania, which former President Donald Trump won in 2016 by less than 1 percentage point and President Joe Biden won in 2020 by just over 1 point.

“As we fight this latest Republican attack on Americans’ democratic rights, Pennsylvanians should check their ballot status to ensure their vote is counted. We are committed to using every tool at our disposal to protect Pennsylvanians’ constitutional right to participate in this election, including defeating the GOP in court,” said spokespeople for the Fetterman campaign and the House and Senate Democratic campaign arms.

Civil rights groups, including the American Civil Liberties Union and the NAACP, filed a similar complaint Friday against state election officials.

“Defendants’ failure to count timely-submitted mail-in ballots based solely on a missing or incorrect date on the return envelope will disenfranchise potentially thousands of voters,” the groups wrote in their filing.

The fight exploded after the state’s high court sided with the Republican National Committee by ordering local elections boards not to count the ballots in question. The justices, who wrote that they were “evenly divided” over whether a decision not to count such ballots violated federal law, also told election boards to "segregate and preserve any ballots contained in undated or incorrectly dated outer envelopes."

The U.S. Supreme Court cleared the way in June for election officials in Pennsylvania to count undated mail-in ballots. The justices ruled that undated ballots in a state race last year should be counted.

Pennsylvania is one of several battleground states where Republican officials and candidates have already sued to disqualify absentee ballots in the 2022 election.

In Michigan, Wayne County Circuit Judge Timothy Kenny rejected a lawsuit Monday from Kristina Karamo, the GOP nominee for secretary of state, against Detroit City Clerk Janice Winfrey alleging election law violations regarding the counting of absentee ballots.

In Wisconsin, a judge Monday rejected a request filed by state Rep. Janel Brandtjen, a Republican who chairs the Wisconsin Assembly’s elections committee, and others asking the court to order that military absentee ballots be sequestered after a Milwaukee elections official was fired and charged in connection with mailing Brandtjen absentee ballots that had been fraudulently requested.