A Constitutional Crisis Is Brewing in Pennsylvania Over Mail-In Ballots

AP Photo/Patrick Semansky

With just two weeks left before the mid-terms, Pennsylvania has become ground zero, with perhaps the most hotly contested and important US senate race in the nation occurring. But while both sides are eagerly attempting to garner as many votes as possible, a major constitutional crisis is brewing that almost no one is talking about.


As RedState previously reported, the Supreme Court vacated a state court decision requiring Pennsylvania to count un-dated mail-in ballots. The plain letter of the law requires that a mail-in ballot must be filled, signed, and dated in order to be counted. Despite that, Democrat state officials have pledged to defy the law, giving guidance to counties that they not only should un-dated ballots be counted, but they aren’t even required to be sequestered pending further legal action.

Their reasoning? That voters shouldn’t be disenfranchised based on a “technical violation.”

These ballots have been subject to years of litigation in Pennsylvania — much of it highly partisan. Republicans officials and politicians have generally argued that undated mail ballots do not comply with state law and should be thrown out. Democrats have countered that a minor technical violation should not disenfranchise a voter, and pushed for the ballots to be counted. Democratic voters have been more likely to vote by mail in recent years.

Who gets to decide what “technical violations” can be ignored? That would seem to be a dangerous road to go down in regards to simply shunning the law based on an arbitrary judgment by a partisan state official. Pennsylvania’s mail-in voting law isn’t ambiguous. It pointedly says that ballots must be dated to be counted.

It’s incredibly revealing (and somewhat shocking) that Democrats in the state don’t even try to pretend they have a real legal case. Instead, they simply claim that a technical violation of the law shouldn’t matter, which is an emotional argument if anything.


They make their claim by suggesting the existence of a legal gray area based on a non-binding ruling delivered by a single judge.

Joshua Voss, an attorney who frequently argues election cases on Republicans’ behalf, said he thinks Chapman’s new guidance is legally shaky.

Chapman’s guidance is based on May Commonwealth Court decisions made by a Republican judge. But the rulings are unpublished, meaning they are considered “persuasive” but not binding. This means that while courts can refer to these decisions in future mail ballot cases, they don’t have to.

The Wolf administration basing guidance on an “unpublished single-judge opinion,” Voss said, is “a remarkable position.”

That’s led to Republicans filing yet another lawsuit in an attempt to see the law enforced while counties splinter in different directions. Right now, five counties have voluntarily decided to separate off the un-dated ballots, though they will still be counted on election night so as to not defy the state’s guidance.

Ask yourself this, though. What happens when Republicans win the lawsuit and Pennsylvania’s defiance of the Supreme Court is struck down? With so many counties, including the bluest ones, having already counted and destroyed the un-dated ballots, there will be no way to right whatever wrongs occurred. That’s going to set off a firestorm of discussion over whether the election was stolen, assuming Democrats end up victorious, and that discussion would be completely justified.


On the other hand, what if Republicans win the night? Do they continue to push the ballot issue, running the risk of reversing their gains if those ballots actually helped them over the finish line? It’s an interesting question, and I bet the GOP itself doesn’t have an answer yet as to how it would handle such a situation.

Regardless, these are not issues that should exist. It is disturbing that Democrat officials in Pennsylvania would so brazenly violate the law, essentially trying to run out the clock on the court system. If un-dated ballots end up being counted and the election is close on November 8th, the nation will be staring at a constitutional crisis. The courts must step in and put a stop to this before things get any further.


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