This was the outcome of a state appeals court decision on Thursday in a case not involving the Trump or Biden campaigns.  A local Republican candidate had brought suit to invalidate 2349 mail-in ballots in Allegheny Count which the Allegheny County Board of Elections counted even though the voters had failed to put a date on the envelope at the time he/she signed the declaration.

A trial court judge had ruled that the failure by the voter was technical, and the Election Board had it within its discretion to count the ballot which was otherwise appropriate filled out and sent to the Elections Board.

The appeals court reversed and ordered that the ballots not be counted.  Allegheny County voted in favor of Joe Biden 59.4 to 39.1%.  It was not reported how many of the invalidated ballots had votes for Biden and how many had votes for Trump.

Yesterday the Pennsylvania Supreme Court agreed to hear a similar case out of Philadelphia County that was brought by the Trump Campaign.  That case involves over 8000 mail-in ballots where the voter did not properly complete the information required on the outer envelope.  A trial court judge in Philadephia ruled that the Elections Board had the discretion to accept the ballots and count the votes. The Trump Campaign was preparing to appeal that ruling when the Pennsylvania Supreme Court stepped in at the request of the State given the short time remaining before the State must certify the election results in order to name the electors for the Electoral College.

The decision from the appeals court on the missing dates is significant because of the language used by the majority in the opinion.

“It is a myth that all ballots must be counted in the absence of proof of fraud. Ballots, under the law may be set aside for ‘fraud or error.’”

“It is not the judiciary’s role, let alone the role of the elections board, to relax or ignore requirements that the general assembly, with the governor’s approval, chose to include in the election code.  We do not enfranchise voters by absolving them of their responsibility to execute their ballots in accordance with law.

“The danger to our democracy is not that electors who failed to follow the law in casting their ballots will have their ballots set aside due to their own error; rather, the real danger is leaving it to each county board of election to decide what laws much be followed (mandatory) and what laws are optional (directory), providing a patchwork of unwritten and arbitrary rules that will have some defective ballots counted and other discarded, depending on the county in which a voter resides.”

This is the very argument that the Trump campaign was making in the case filed in federal court last week — that the seven County Board of Elections named as defendants in that case had applied standards of their own choosing in deciding how to pre-canvass ballots, and what should be done about ballots which were discovered during the pre-canvass to be defective and would therefore be rejected.

Biden’s margin of victory has now grown to 80,000 votes in Pennsylvania, and it is uncertain if the number of ballots that can be called into question in the litigation underway will ultimately involve enough ballots to potentially reverse the final vote count.  But at this point, it is still not yet known how many ballots might have been rejected in those seven counties had all the requirements for casting a valid mail-in ballot had been strictly enforced.  Most significantly, there has still not been a public statement issued by any of the seven counties as to how many ballots arrived lacking the required inner “security sleeve”, and if all such ballots were rejected.

That is purely an “integrity test” of the election officials in those seven counties.  The Pennsylvania Supreme Court has already ruled that ballots arriving without the security sleeve were invalid and were not to be included in the vote count.  All such ballots should be available for inspection/discovery purposes.  This information is within the hands of the seven counties, and the Trump Campaign has asked the federal court to order the counties to disclose the information.

Both ballots and security sleeves are supposed to be retained for audit purposes.  The question to be answered is a simple one — how many fewer sleeves do the seven counties have than mail-in ballots?  One conclusion you could draw from the difference is that a specific number of mail-in envelopes were received without a security sleeve inside.  That number then becomes the baseline for investigating whether those invalid ballots were counted by election officials who chose to “waive” the security sleeve requirement themselves.  That takes you back to the language used by the Court regarding the Allegheny County Board of Election’s decision to count ballots where the voter failed to date his/her signature on the declaration.

The key is the aggregate number of votes that might be implicated from all these types of cases.  The Pennsylvania Supreme Court will be heard from, and any decision by that Court can be taken straight to the US Supreme Court without a stop in any federal courts in Pennsylvania.