Pa. Supreme Court tosses ACLU-backed mail-in ballot lawsuit

By Adam Babetski / Pittsburgh Post-Gazette

The State Supreme Court on Thursday dismissed a lawsuit filed by one of the country’s foremost civil rights organizations that sought to prevent ballots from being disqualified due to simple formatting errors.

The American Civil Liberties Union (ACLU) of Pennsylvania filed a lawsuit against Secretary of State Al Schmidt as well as Philadelphia and Allegheny counties in May that argued to end a requirement that voters handwrite a date on the envelope containing their ballot. Under the current law, ballots with incorrect or missing dates will not be counted.

More than 10,000 Pennsylvania votes were disqualified in the 2022 election due to this policy, the ACLU wrote in its lawsuit. 

The case was about “trying to find ways to make sure that all eligible voters who cast timely ballots have their votes counted,” said Stephen Loney, the senior supervising attorney at the ACLU of Pennsylvania, during a press briefing on Thursday afternoon prior to the court decision.

Voters over the age of 65 are disproportionately likely to make errors with mail-in ballots, said Vic Walczak, the legal director of the ACLU of Pennsylvania.

After passing through the Commonwealth Court in August, the case was vacated, or set aside, by the Pennsylvania Supreme Court earlier this month because of a procedural issue, said Mr. Loney. The original case only addressed Philadelphia and Allegheny counties, but the court wanted all 67 of the state’s counties to be included to proceed since they were “indispensable,” he said.

The Pennsylvania Supreme Court issued an order just after Thursday’s briefing clarifying that it had not just vacated the case, but dismissed it, on the grounds that Mr. Schmidt was not an “indispensable” part of the case and the court therefore had no jurisdiction to hear it.

“This is not the end of the road on this issue,” wrote Andy Hoover, director of Communications for the ACLU of Pennsylvania, in an email addressing the court’s decision.

The case received support from state Democrats but was vigorously opposed by the Republican National Committee, which attempted to block its progress every step of the way.

The ACLU is a nonpartisan organization that, on its website, refers to itself as “our nation’s guardian of liberty.”

Republicans argued to the high court in September that the Commonwealth Court’s decision ignored that the ACLU had only included Mr. Schmidt as a defendant to move the case up the judicial chain. The decision, they wrote, threatened to unleash “chaos, uncertainty, and an erosion of public confidence in the imminent 2024 general election.”

The Republicans’ lawsuit was a “voter suppression ploy,” Mr. Walczak said during the briefing.

“This effort is a very dangerous attempt to needlessly disenfranchise tens of thousands of eligible voters in the upcoming election,” he said.

The legal feud over mail-in voting hasn’t been the only court action that could affect Pennsylvania in the election: both the Democrats and Republicans have been busy all summer trying to prevent potential spoiler candidates from appearing on ballots. The State Supreme Court denied independent candidate Cornel West’s bid on Monday, resolving the cases and allowing Mr. Schmidt to finalize the ballots for distribution. Pennsylvania voters can apply for mail-in ballots and will receive them as soon as they can be printed.