Case Ongoing after Pennsylvania Federal Judge Rules in Favor of Counting Undated Ballots

As disagreements over election rules and procedures expand and intensify nationwide, a major battle has been taking place in the key swing state of Pennsylvania over a basic prescription in state election law. The Pennsylvania Election Code holds that undated or misdated mail-in ballots “shall not be counted.” This simple requirement has faced both federal and state court challenges that are yet to be resolved.

On the federal side, on March 31, 2025, Judge Susan Baxter of the Western District of Pennsylvania issued a controversial ruling that would allow undated or misdated ballots to be counted.¹ Judge Baxter ‘s ruling stemmed from a pair of lawsuits filed after the November 2022 election–by organizations and individuals represented by the ACLU, and by the John Fetterman campaign, DCCC and DSCC.² These lawsuits claimed that voters’ constitutional rights had been violated when their ballots were annulled because of the rule.

The state case relates to ongoing disputes in three individual counties over handling undated or misdated mail-in ballots. The state’s Supreme Court, not known for judicial conservatism, nonetheless issued rulings back in October and November 2024 blocking lower court decisions that would have voided this requirement in the law. The Court has since taken up the matter itself.

The Federal Case

In November 2023, for background, Judge Baxter had ruled in favor of the plaintiffs in response to the original Fetterman campaign lawsuit, that undated or misdated mail-in ballots must be counted.³ Baxter agreed with the plaintiffs’ central argument that the law violated the “materiality clause” of the Civil Rights Act, which prohibits trivial impediments to voting, such as cancelling of votes due to minor errors by the voter.

Of course, what constitutes “minor error” is open to question. The Republicans fought back claiming the rule’s efficacy in preventing voter fraud, but Baxter was unconvinced by this claim.

Baxter’s initial decision in 2023 was overturned on appeal. Specifically, on March 26, 2024, the Court of Appeals found that the date requirement did not violate the materiality provision.⁴

Subsequently, a single voter from the original group of plaintiffs in the 2022 case, joined again by some Democratic Party affiliated groups, returned to Baxter’s court with an amended complaint. This time, they argued that the rejection of undated or misdated ballots in 2022 violated their rights to free expression under the First Amendment and Civil Rights Act, which includes voting rights.

As, noted, on March 31, 2025, Baxter again sided with the plaintiffs. She determined that the dating rule serves no functional рurpose and therefore concurred that the rule deprives people their right to vote, in this case citing said right to “free expression”. She also again dismissed the Republican claim that the dating requirement helps deter fraud, citing lack of evidentiary support. Other Republican arguments, including that the date requirement preserves the “solemnity” of the act of voting, were dismissed as too vague or “nebulous”.

On April 1, the Republican National Committee, Pennsylvania Republican Party and National Republican Congressional Committee filed an appeal with the Third Circuit Court of Appeals, which is currently hearing the case.⁵ If the Republicans lose the appeal, the Supreme Court may end up ultimately ruling on it, which could lead to a national decision on the rule.

The State Case

In May 2024, a group of Pennsylvania voters, claiming that they were disenfranchised in a local election by the ballot dating rule, initiated legal action in the State’s Commonwealth Court.⁶ The plaintiffs argued that the dating requirement violates the Free and Equal elections clause in that it does not have any meaningful application or function, being merely a technicality. Therefore, it is an undue impediment to exercising the right to vote and unenforceable.

The state Republican Party and the RNC, as intervenors, tried to broadly argue that it helps prevent vote fraud, but failed. The Commonwealth Court ruled four-to-one on August 30, 2024 in favor of the plaintiffs–that ballots not marked with the correct date, or any date, could not be rejected for that sole reason.⁷

The opinion of the four Commonwealth justices noted that the statute is unambiguous (must sign and date), but must pass a “functional” test. Accordingly, since the date serves no constitutional or administrative purpose, “disenfranchising voters” violates the Free and Fair Election Clause and therefore is invalid.

Judge Wolf on the Commonwealth Court dissented, stating removing the requirement right before the election could spread confusion and legal uncertainty. In addition, Judge Wolf contended that the constitutional issue should be addressed by the state Supreme Court, not an intermediate appellate court.

On September 13, following an appeal from the state’s Republican Party and the RNC, the Pennsylvania Supreme Court voided the Commonwealth Court decision. However, the Supreme Court ruled only that that the lower court lacked jurisdiction based on certain technicalities; the Court did not address the substance of the lower court decision.⁸

On September 23, 2024, the ACLU of Pennsylvania, Public Interest Law Center, and Arnold & Porter filed a related suit in the Philadelphia Court of Common Pleas on behalf of two voters, challenging their disqualifications in the September 17 special election Philadelphia.⁹ These voters, one of whose names, Brian Baxter (no relation to Judge Baxter), came to be associated with the case, had submitted a ballot on time but it lacked a date. In all, 69 votes had not been counted in due to a missing or improper date. On September 26, Common Pleas Judge Crumlish ruled in the voters’ favor, ordering that those 69 ballots be counted.

Soon after, on October 30, the PA Supreme Court stayed that decision, citing the Purcell principle. This means, as Justices Dougherty and Donohue emphasized in concurrences, that ongoing changes to electoral rules mid-campaign undermine electoral stability, consistent with Judge Wolf’s dissenting view.¹⁰

The Supreme Court ruled separately against Bucks, Montgomery and Рhiladelphia counties, on November 18, after they sought to circumvent their October 30 ruling. These counties had been attempting to include undated or misdated ballots in the final count for the November 5 election, including for the US Senate race which was narrowly won by Republican Dave McCormick.¹¹

On January 17, 2025, the Pennsylvania Supreme Court agreed to hear Baxter v. Philadelphia, where it will ultimately decide the fate of the state court challenges. ¹²

The Unrivaled Politics Perspective

The Supreme Court’s final ruling, expected in the coming months, will either uphold or strike down the lower court’s ruling on enforceability of the date requirement. The questions on constitutionality of the rule which the Court will explore, are:

• Does the date requirement burden voting rights without meaningful purpose?
• Can the will of the legislature in setting this requirement be nullified based on the supposition that the Free and Equal Elections Clause (or similarly, the First Amendment in the context of the federal case) invalidates it?

Plaintiffs in the state cases have argued in their briefs that the Free and Equal Elections clause, which bars any interference with “the free exercise of the right of suffrage,” prevents the enforcement of the ballot date rule. The appellees have argued that the date requirement is purposeful, and that it is the role of the legislature to decide on election rules and protocols, not the courts, so as not to destabilize government or future elections.

The state’s constitution, as well as the United States Constitution, would seem to agree with the latter assertion. The U.S. Constitution delegates the power to implement election law to the state legislature. Act 77 was passed by the Pennsylvania state legislature in September 2019, among it codifying the ballot dating requirement. The Constitution of Pennsylvania also grants to the state legislature, not to state courts, the decision on laws related to statewide elections, including рrocedures, equipment, and roles of рersonnel.

Complicating matters, though, Pennsylvania’s Supreme Court famously “overruled” the legislature shortly before the 2020 election on the key issue of the mail ballot receipt deadline for that election. The U.S. Supreme Court later refused to overturn that ruling, opining that state legislatures do not necessarily have the sole authority (Moore v. Harper). These decisions were met with an outcry from constitutional conservatives, who saw them as undermining the authority granted to state legislatures by the U.S. Constitution.¹³

Even if the U.S. Constitution no longer grants to legislatures sole authority to rule on this issue, the Constitution of Pennsylvania still grants clear authority in-state and the state’s Supreme Court should reinforce this. The “Free and Equal” clause would seem irrelevant in the case of a protocol (the date requirement) in place for many years (originally for traditional absentee ballots and later extended to the new mail-in ballots.) It reflects the lawmakers’ original intuition and will on election integrity and as such should not be subject to the clause.

This segues into a second line of argument, one that the Republican Party has thus far overlooked in its appeals, which relates to the actual purpose and merits of the rule in question. The ballot date requirement is not for naught–it is not a meaningless barrier to the voter, as the plaintiffs argue.

A ballot’s signature date provides an important data point. It is an indicator of when a ballot was filled out and mailed, and hence whether the ballot was likely submitted in time to be counted. It can help validate claims by election officials that certain ballots arrived late and are therefore invalid, wherefore the ballots aren’t counted. In essence, ballot dating serves the purpose of protecting voters.

It is important to note that with few exceptions, election officials and staff, like other government workers or law enforcement officers, are hard-working, fair-minded, and dedicated to their jobs. The mail-in voting process does not always run smoothly, however, as experience demonstrates. Ballots may be delayed in processing due to inadequate resources and resulting backlogs, or to glitches or errors. The possibility of malfeasance cannot be entirely ruled out either.

Therefore, it is imperative that the process be as transparent as possible, and transparency depends on accessible information. Ballot dates in aggregate provide useful, real-time information for assessing the efficiency and timeliness of election officials in processing and recording of mail ballots. Likewise, ballot dating provides information useful for identifying and remediating problems along these lines.

Such information may be particularly valuable in cases of delays that differentially affect one group of people (distinguished, for example, by party affiliation or by ethnicity) or one particular district or county. Ballots signed on the same date can be assumed (on average) to have been mailed around the same time. One group having a larger share of ballots rejected for lateness than others should raise concerns about fair treatment, especially if observed between voters with the same signature dates.

Thus, like the ballot secrecy envelope (which also at times has been deemed a trivial requirement despite its role in ensuring voter privacy), ballot dating can be integral to ensuring the fairness and integrity of the vote. Hence, the Unrivaled Politics view is that the date requirement should remain, not only because it has been duly legislated, but because it helps promote efficient, fair, and trustworthy elections.

Not only that, but because of its potential information value, ideally the signature dates should be digitized and included as a data item in the Statewide Mail Ballot File for each election.¹⁴

In the modern-day age of voting and elections, it seems that the political parties are at each other’s throats in never-ending court battles over election rules and procedures. The left fights fiercely for as little regulation as possible, seeking to increase voter participation even possibly at the expense of legitimacy. The right seeks to preserve traditional rules and regulations intended to ensure security and integrity.

In general, the sensible solution should be to follow the text of the U.S. Constitution, by which the framers intended to delineate and preserve the roles of our government institutions. This requires settling matters on voting via legislation. It is primarily the role of lawmakers, not the judiciary, to decide on the rules that protect voters and guard election integrity while ensuring access to those legally eligible to vote. –but rather a measure that helps secure the integrity of the vote.

1. See Peter Hall, “Federal judge rules Pa. ballot dating rule violates constitutional right to political expression.” Pennsylvania Capital-Star, March 31, 2025 (link). ↩︎
2. The filing of these lawsuits had been preceded by several skirmishes in state courts over the date requirement, culminating in a November 1 order from the Supreme Court of Pennsylvania that undated and misdated ballots should be segregated and not counted. See Ellis Champion, “Voters, Fetterman Campaign, DSCC and DCCC Sue Over Mail-in Ballots in Pennsylvania.” Democracy Docket, November 7, 2022 (link). ↩︎
3. See Sean Kitchen, “Ballots that arrive in time should be counted, Pennsylvania judge rules.” The Keystone, November 22, 2023 (link). ↩︎
4. See Nate Raymond, “Pennsylvania can discard undated mail-in ballots, US appeals court rules.” Reuters, March 27, 2024 (link). ↩︎
5. See Justin Sweitzer, “GOP appeals federal judge’s mail-in ballot decision.” City & State Pennsylvania, April 3, 2025 (link). ↩︎
6. See Carter Walker, “Pennsylvania’s rule on dating mail ballots faces new challenge in state court.” Votebeat, May 29, 2024 (link). ↩︎
7. See Carter Walker, “Mail ballots can’t be rejected over improper date on envelope, Pennsylvania court rules.” Votebeat, August 30, 2024 (link) ↩︎
8. See Carter Walker, “Pennsylvania Supreme Court restores date requirement for mail ballots, voiding lower-court ruling.” Votebeat, September 13, 2024 (link). ↩︎
9. This special election was held to determine representation in state house districts 195 and 201. See “Pennsylvania Philadelphia Undated and Wrongly Dated Mail-in Ballots Challenge”, Democracy Docket, September 23, 2024 (link). ↩︎
10. See Carter Walker, “Philadelphia must count undated and misdated mail ballots from September election, Pa. court rules.” Votebeat, October 30, 2024 (link). ↩︎
11. See Carter Walker, and Sarah Anne Hughes, “Pennsylvania Supreme Court stops 3 counties from counting undated, incorrectly dated ballots.” Votebeat, November 18, 2024 (link). ↩︎
12. See Carter Walker, “Pennsylvania Supreme Court to hear latest case over undated mail ballots.” Votebeat, January 17, 2025 (link) ↩︎
13. Conservative talk show host Mark Levin, for example. ↩︎
14. This file contains point-in-time detailed data pertaining to the processing of absentee and mail-in ballots. It is refreshed daily and made available to the public by the state’s Bureau of Elections for informational purposes during the course of an election. ↩︎