Mail-in ballots: A dated debate

As a fellow columnist, Tom Ferrick, used to say about being a columnist, Often wrong, but always certain.

He said it in Latin, because he went to parochial school, but that’s not important.

To be successful as a columnist, you must have clear, sharp opinions. Some think that makes you controversial, but that’s not true. You are controversial only to those who disagree with those clear, sharp opinions.

Today, I don’t have one and I am interested in what you think.

In a 2-1 decision, the 3rd U.S. Circuit Court of Appeals has ruled that Pennsylvania mail-in ballots that are not dated by the voter should not be counted.

A lower court had previously ruled that as long as the ballot was received before the deadline, it should be counted even if it was not dated by the voter.

“We strongly disagree … that voters may be disenfranchised for a minor paperwork error like forgetting to write an irrelevant date on the return envelope of their mail ballot,” argued a lawyer for the American Civil Liberties Union.

Writing for the court’s majority, Judge Thomas Ambro said the General Assembly had voted “that mail-in voters must date their declaration on their return envelope of their ballot to make their vote effective,” and Pennsylvania’s Supreme Court has unanimously ruled that “this ballot-casting rule is mandatory; thus failure to comply renders a ballot invalid.”

You have heard the two sides.

1- The date is irrelevant. As long as the ballot is received on time, what’s the dif?

2- The law mandates a date. It is Constitutional, so why should a court rewrite the law? Would the requirement for a signature be attacked next?

I can argue this either way. Where do you stand?

32 thoughts on “Mail-in ballots: A dated debate”

  1. I agree with the 3rd Circuit. The law is clear, and being sloppy is your assumption of the risk. You have every opportunity to comply with the clear and quite easy, it onerous requirement for casting a mail in ballot (which, by the way, is already a way to make things easier.) So put the damn date down and deal with it.

    1. I agree with Christine but maybe it’s the parochial school in me to follow the guidelines. The instructions are very clear and there are reminders before you seal the envelope. I am happy to have the opportunity to mail, especially since it’s difficult to get my 98 year old dad out of the house, so now he can participate. It’s my own fault if I fail to date.

  2. I think the date should matter, if the law was written passed and signed to include it. That said, we DO need to revise the voting rules in Pennsylvania to enfranchise Independent and unaffiliated registered voters in the Commonwealth in the Pennsylvania primaries. They are the fastest growing group of voters here, and in most parts of the country. These voters should have a say in the primaries. The last legislation that was passed included a provision, that had to be removed as it would not pass the House. With a new House leadership, regardless of who is in the majority, maybe it’s a viable option. But it should happen.

  3. I’m with #2. Dating your ballot is hardly like requiring a literacy test.

    I miss Ferrick too.

    1. Given that mail-in voting skews older, I suspect this is a “senior moment” penalty. They would have passed, but forgot to sign the literacy test too.

  4. The date, like the voter’s signature, is part of the official ballot. Ergo, failing to date is equivalent to failure to sign. That being said, I think mail-in ballots (except in RARE and specific instances) should be banned. Get off your ass and go to the polls.

    1. As usual, your position makes no sense. Why would you not want as many people as possible to vote? There is literally NO evidence that there is any real voter fraud involved in this. Literally none, and I dare you to prove otherwise. So what is the point in stopping it other than YOU don’t like it? Further, if you want people to go to the polls, MAKE ELECTION DAY A NATIONAL HOLIDAY. Do better at logical thinking, Vince.

      1. I respectfully disagree. Absent voter ID (anathema to liberals), mail-in voting is subject to massive fraud, but almost impossible to prove. E.g., how do you know the mail-in vote came from one eligible to vote (citizen, proper age, proper immigrant status, et cetera)? The open border policy of the left is designed to fatten the voter rolls: bring in illegals, give them lots of benefits and promise them more, and how do you think they will vote, especially when all they have to do is fill out a blank form and mail it in?

  5. I believe mailing in person is the only way to vote ,except for those who are not phyisically able to do so. Or in Philly those who are dead 🙂

      1. Agree, Phil! In person unless a person is physically unable to or will be traveling, and must request the ballot.
        Absentee ballots have been in use for as long as Ive been voting…a long time.

        1. I’d agree if polling places guaranteed that you could vote in 20 minutes or less. If it takes hours, you gotta give people an alternative.

  6. You’re right! Tom Ferrick was often wrong! But, yes, if the laws says you have to date your ballot to be counted, then either date it or change the law.

  7. I agree with Christine. If you make a stupid error on a voting machine and fail to check it, oh, well. How many times has a voter’s young child pushed the wrong button, and the vote is invalidated. Nothing can be done.
    Choosing the right candidate is often an intellectual and emotional struggle. The act of voting is about as easy as it gets. So require the date, the signature, and the voting day deadline. And NO MORE DROPBOXES ! We are weakening the importance of voting by making it unnecessarily easy.
    At least let’s maintain SOME standards.

    1. Actually, such errors are caught, at least where I vote. You are told if you over-voted or under-voted, and given a chance to correct it. I don’t get the whole “game theory” of voting. It is not a game. You are engaged in the act of self-government. This, “oh, well you goofed, too bad” attitude strikes me as undermining and under-valuing this central act of democracy.

      And, I really don’t get the idea that making something easy weakens its importance. Do dishwashers make clean dishes less important because it’s too easy? Toasters devalue toast, because it’s easier than using an oven? Elevators lessen the value of living on a high floor, because you don’t have to use the stairs?

      Voting is a right. Is free speech less valuable because it is easy to exercise on the internet? Is freedom of religion weakened in this country, because people know better than to fire you for it? What other of our rights are being weakened in importance by being too easy exercise?

      I’m serious. I don’t have the slightest clue as to the point you are trying to make. Why should voting be hard?

  8. Putting the date on your ballot is not to much to ask of the voters. It’s easy just date it and follow the rules. They aren’t saying any one party has to date their ballot, everybody has to do it. Whoever is complaining get over it. Oh and Stu is good… He’s better than Pete Dexter but he’s no Larry Fields…lol

      1. Back when our columnists knew the streets of Philadelphia and knew the people and life on the streets. Back when the paper was thick and you looked forward for it to be delivered. Stu you were the last of a dying breed…

  9. Perhaps the issue is not the appropriateness of the requirement of the voter inputting the date (which identifies if the vote is submitted during the appropriate timeframe); but, rather, perhaps better form instruction is required. Requiring better form instructions seems like a minor imposition to assure a citizen’s vote is not discarded because the form doesn’t make inclusion of the date a “must” for the voter and impossible to proceed unless a date is included! I’m sure there is an appropriate Latin expression that puts this in perspective, it just escapes me at this moment.

    1. In a nation where barely 50% of the population show up to vote at all, we need to make it easier, not harder to vote. I don’t disagree on Stu’s article and with most of the folks commenting that the date you filled out the ballot is easy enough to follow. If the courts say it should be included, I’m OK with it. But there are several other arcane features to our elections that need to be added. What is so sacrosanct about holding elections on Tuesday? Why not a Sunday when most people are off? We do so many things online now, even our shopping, I’m sure there’s a way to incorporate that into the process. It would be new, and scary to we older folks, but the benefits may well outweigh the risks. Certainly worthy of serious consideration.

      1. “…we need to make it easier, not harder to vote.” In that sentence fragment lies the problem: we as a nation are lazy and irresponsible, forgetting it seems the life and death struggles to protect our freedom. It’s trite, but freedom is not free; it requires sacrifice. Getting off one’s ass and voting seems little enough to ask to keep our nation free.

        1. Except Vince, the right to vote does not have to be earned. Voting is a right, not a privilege.

          It is not we who owe the government a vote, it is the government that owes us the right to vote.

          So, shouldn’t we figure out a way for a guy with two jobs to be able to vote? Does he have to sacrifice a shift he needs to make ends meet in order to do so? What about parents with young kids who don’t want to wait with them in the rain for three hours in order to vote?

          Heck, on a couple of occasions I waited in line for over 2 hours to vote. It seems to me that there probably are an appreciable number of people who can’t afford to do that on a work day.

          And, you hear horror stories about 4 and 5 hour waits to vote. That should not happen, period.

          The government should WANT to hear from its citizens, and therefore make it easy for them to make their voices heard. Low turnout elections are recipe for disaster. (See Krasner). They are a time when “activists” come out to vote, while folks with lives outside of politics might have other pressing matters for their attention.

          I agree with you that people ought to vote. We have the precious gift of self-government denied to the majority of people on earth. People do not appreciate it enough.

          But the fact is that in everyday life, the urgent or necessary pushes out the important. Hence I think it makes sense for the government to make more room for the important. Voters should not be faced with the need to choose and “sacrifice.” They should be placed in the position to freely give attention to the important.

        1. I, too, vote NO to online voting.

          Why are we voting online against voting online? .🤪

        2. I’m waiting for someone to hack the IRS and pay my taxes for me. So, Russia, if you’re listening…

  10. Mail in voting is convenient and saves time for for people who enjoy reviewing the candidates of view points at home. You can compare and contrast the candidates stance on issues and then decide what best coincides with your outlook. You fill out the ballot while drinking your coffee at home, put ballot in the secret envelope, sign and date the envelope and give the mail in ballot to your mailman or mail women for secure delivery. Simple, easy and convenient process. Additionally the Nick-Namer- in- Chief voted using the mail in voting process. Yet, he condemns mail in voting as fraudulent. Very hypocritical to say one thing and the do the exact opposite.

  11. First let me say that I don’t think this ruling is big deal in the grand scheme of things. Going forward (if the decision holds) I doubt it will be problem because of the publicity and likely change to mail-in ballot instructions. That is, there will be a notice that “If you do not sign and date the envelope, your vote will not be counted.” Big red letters, probably. If that had been included originally, this wouldn’t be a big deal, and I doubt we’d be talking about a lot of ballots.

    But, to steal a phrase, “Nobody knew” leaving off the date would get your vote tossed–including election officials and quite a few judges, along with the ten thousand voters who sent in defective ballots. Ten thousand. No whiff of fraud. (In fact, it is fraudsters who are most likely to dot their i’s and cross their t’s.) Excuse me, but I think that is just wrong.

    What this decision does implicate is some larger questions. Is voting a right or a privilege? Should we try to make it easy to vote, or make it hard? My answers to these questions are that voting is a right, and that we should make it easy (within the constraints of preventing fraud).

    These answers flow from the simple proposition that this country was established as a government “by the people.” On election day, WE are the government. The people decide. And, anything that interferes with or unnecessarily burdens our right to govern ourselves, is contrary to the founding principles of this country.

    I don’t think the above should be at all controversial, and, in fact, state election law across the country (I litigated an election challenge, pro bono, in the 90s) reflects these principles. Here’s the Pennsylvania Supreme Court speaking on the subject from way back in 1954:

    “Election laws will be strictly enforced to prevent fraud, but ordinarily will be construed liberally in favor of the right to vote….Technicalities should not be used to make the right of the voter insecure.” Appeal of James , 377 Pa. 405, 105 A.2d 64, 65-66 (1954).

    So, the legal question in the Pennsylvania courts was whether the failure to include the correct date, or sign the envelope is a “technicality” or not.

    The same law says that the mail-in ballot must be marked “only in black lead pencil, indelible pencil or blue, black or blue-black ink, in fountain pen or ball point pen…” So, do we throw out ballots filled out with a felt-tip or gel pen, or in purple, red or green ink? Any color pencil is allowed, so long as it is indelible, but if it is erasable like allowed lead pencils, well then, it’s illegal.

    And, are election officials remiss in not developing tests to ensure that ink is from a ballpoint instead of a gel pen or making sure non-black pencil is indelible? Should Sharpie-users have their ballots tossed? Raise your hand if you think so.

    So, saying, “well, it’s the law” isn’t very satisfying, because, well, the law says that technical violations aren’t enough to toss a ballot. There’s been fights in the courts for a hundred years over these issues (do you count votes of qualified voters who mistakenly voted and were mistakenly allowed to vote in the wrong precinct–yes, you do!) and there is a whole lot of technical language etc & so forth that’s been developed to decide these issues, all sorts parsing of statutory language, and other things lawyers get paid to do. That’s why there has been so much disagreement among the judges.

    [Whether a statutory provision is “mandatory” is a term of art; the opposite is “directory.” Both are binding law. “Mandatory” means something is a substantive requirement, while “directory” means that something is a procedural requirement. Sometimes tough to tell which is which. For instance, by law, polls must open at 7am. But if a poll doesn’t open until 7:05, you don’t toss out all the votes at that polling place. It is a “directory” requirement, not a “mandatory” requirement. It governs “the how” not “the what”]

    I don’t think that the decision was crazy, illogical or insupportable–the applicable law could go either way–I just think it is wrong. It is a weighty thing to disenfranchise a voter, so, I think, absent fraud, we should count every vote by qualified voters.

    I don’t understand the moral or philosophical reason not to do so. What is the over-riding policy reason for not counting these votes? I get the legal one, but not the moral one.

    The 3rd Circuit opinion was on a much narrower question of federal law, and turned on a very technical interpretation of the statute which prevents states from disqualifying voters for immaterial reasons. The court did not hold that completely filling out the envelope was material, but instead held that the federal statute only prohibited states from refusing voter registration for immaterial errors or omissions in paperwork, and that as far as federal law is concerned, states are free to not count ballots for immaterial errors or omissions in paper work.

    Again, I disagree, though it is not a clear-cut question. On balance, I think it is a misinterpretation of the statute. As it stands, it would seem to create a great big federal loophole for states that want to disenfranchise voters.

    Finally, it ain’t over yet. The case goes back to the district court to rule on the equal protection claim. I haven’t looked at it in detail yet, but my general feeling is that this constitutional claim is not a high percentage shot. If that loses, they can still appeal the whole thing to the Supreme Court.

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