In addition to the ACLU-PA and the Public Interest Law Center, the Center for Coalfield Justice and the Washington County branch of the NAACP, as well as seven voters, are also plaintiffs in the lawsuit.

The Washington County attorney did not respond to a request for comment Monday.

The question of whether absentee ballots with missing or incorrect dates should be counted has dogged Pennsylvania elections since the no-reason absentee ballot law went into effect in 2020. The law, known as Act 77, made voting by mail a popular option that year, largely due to pandemic-related lockdowns and social distancing measures in place at the time.

Pennsylvania's mail-in voting law survives constitutional challenge from GOP lawmakers

But since then, there have been numerous objections and disputes over how to count ballots with incorrectly filled out return envelopes. The requirement for a date on the return envelope has been particularly confusing and consternating to voting rights groups and courts.

In response to a lawsuit filed by the Republican National Committee, the Pennsylvania Supreme Court ruled in 2022 that more than 10,000 mail-in ballots cast on which voters had written no date or an incorrect date should be invalidated.

In November 2023, U.S. District Judge Susan Paradise Baxter of Erie ruled that ballots with incorrect or missing states on the return envelope must be counted if they are received by Election Day. But in March, the U.S. Court of Appeals for the 3rd Circuit overturned that decision, ruling that ballots not dated by the voter on the envelope cannot be counted, even if they arrive at a county election office by Election Day.

Thomas Ambro, the senior U.S. district judge, noted that the date requirement “obviously serves little purpose.” A provision of the Civil Rights Act of 1964 prohibits officials from denying someone a vote because of an error or omission “on any record or paper in connection with an application, registration, or other act required to vote” unless it is relevant to the person's eligibility to vote.

But Ambro wrote in the district court decision that this provision applies only if the state finds WHO may vote, Ambro added, “and does not apply to rules such as the date requirement, which govern How a qualified voter must cast his or her vote for it to be counted.”

Appeals court rules that undated mail-in ballots from Pennsylvania cannot be counted

In the Washington County case The district commissioners voted in Aprilshortly before the primary election to change the county's practices for processing absentee ballots, Walczak said. “And not only did they not tell voters who had mailed in their ballots with one of these disqualifying errors, but they actively withheld the information so that voters could not and did not find out that their vote did not count and they had no way to correct that.”

In other Pennsylvania counties, voters who are notified of an error on their ballot have the opportunity to correct it and keep their vote, he added.

Walczak also said that since Pennsylvania introduced no-claims mail-in voting, the ACLU has found that a significant number of people have had difficulty completing the process because they have made technical errors, such as forgetting the date of their signature, providing the wrong date or forgetting the inner secrecy envelope.

“And one of the things we've seen since then in data collection is that this is primarily and disproportionately affecting our older citizens,” he said. “It's now at about 1% of mail-in votes. And that may not sound like much, but in the 2022 general election, for example, that was about 22,000 ballots. And when you think about it, a half-percent difference in votes is enough to trigger a mandatory recount.”

In fact, in the 2022 Republican primary for U.S. Senate in Pennsylvania, there was a 1,000-vote margin between Mehmet Oz and David McCormick, triggering an automatic recount across the state. Oz won the primary but lost in the general election to Democrat John Fetterman.

The Pennsylvania Department of State even redesigned the ballots in November 2023, a few weeks after the midterm elections. The wording for filling out and returning mail-in ballots was revised, secrecy envelopes on a yellow background were made easier to recognize, and the inner and outer envelopes were color-coordinated to make it easier to distinguish between the inner and outer envelopes.

On the new ballot papers The outer envelopes have a “20” pre-written at the beginning of the year field so voters can write the current year – not their birth year, which was a common mistake in previous elections. And the ballots come with full-page illustrated instructions showing how to place the envelopes before mailing.

David Gatling, president of the Washington County NAACP, which is a plaintiff in the case, said Monday that the county's actions were a form of voter suppression. “Election officials who administer elections should do everything in their power to encourage voters to vote and count votes, not find underhanded ways to prevent voters from having their votes counted,” he said.

The lawsuit was filed in the Washington County Court of Common Pleas and asks the court to declare the Board of Elections' “policy and practice of concealing information and misleading voters regarding their absentee ballot status unconstitutional and invalid.”

In addition, the plaintiffs want the court to order the committee to “provide voters with accurate and timely information about absentee ballots that contain errors responsible for voter disqualification.”

Mimi McKenzie, legal director of the Public Interest Law Center, said Monday that the plaintiffs would ask the court to expedite the proceedings in the coming days.

There are only a little more than four months left until election day.