Black Political Empowerment Project v. Schmidt

In Pennsylvania, thousands of voters have their mail-in ballots rejected each year solely because of a common trivial mistake: writing an incorrect date, or no date at all, on their ballot envelope. Election officials do not use the date to determine whether the ballot was returned on time—ballots must be received by county boards of election by 8 p.m. on Election Day, regardless of the date handwritten on the envelope—and the date is not used to determine voter eligibility. Nonetheless, this essentially meaningless requirement caused the rejection of at least 10,000 ballots from voters who had submitted their mail-in ballots on time in the 2022 general election.

The petitioners—Black Political Empowerment Project, POWER Interfaith, Make the Road Pennsylvania, OnePA Activists United, New PA Project Education Fund, Casa San José, Pittsburgh United, League of Women Voters of Pennsylvania, and Common Cause Pennsylvania—are represented by attorneys from the Public Interest Law Center, the ACLU Voting Rights Project, and the ACLU of Pennsylvania, joined by pro bono co-counsel from Arnold & Porter.

Several voters supported the complaint as witnesses by submitting sworn declarations describing their experience having their ballots rejected. Joanne Sowell, an Allegheny County voter who rarely misses an election, received an email notifying her that her ballot in this year’s primary election would be rejected for an incorrect date. She was already aboard an airplane to leave Pennsylvania for a cruise vacation when she saw the message, and thus had no opportunity to cure the mistake or vote provisionally.

On August 30, 2024, a panel of the Pennsylvania Commonwealth Court ruled in favor of the petitioners, finding that the refusal to count undated or incorrectly dated but timely mail ballots violates voters' fundamental rights under the state's constitution. Intervenors the Republican National Committee and Republican Party of Pennsylvania appealed that decision to the state supreme court.

Update: On September 13, 2024, the Pennsylvania Supreme Court vacated the Commonwealth's ruling on procedural grounds, holding that the Court below lacked subject matter jurisdiction over Plaintffs' case.