A Centre County judge on Friday dismissed a Republican petition that challenged the validity of 95 mail-in ballots from last month’s primary, ruling that the appeal was filed too late.
Judge Julia Rater wrote that the appeal, which was filed on May 7, was made well past the two-day deadline to dispute the decision by the Centre County Board of Elections to accept the ballots, and so could not be considered on its merits.
Centre County Republican Committee Chair Michelle Schellberg and 18 other voters, with the support of state Sen. Cris Dush, argued none of the contested ballots should have been counted and so the county’s election results should not be certified.
The county, and consequently, the commonwealth, have been unable to certify primary election results because of the challenge. Earlier this week, the Pennsylvania Department of State, which oversees elections in the commonwealth, filed an amicus brief in support of the county election board’s motion to dismiss the petition as untimely and not a challenge to the legality of the election.
Elections staff flagged 95 mail ballots from the April 23 primary for further review because of issues with the dates on the outer envelopes. Among them, 57 were missing the last two digits of the year, 13 were missing the month and 23 had “the wrong date altogether.” The board concluded two other ballots were inadvertently flagged.
During canvassing at a public meeting on April 25, the board — which is composed of Centre County’s three commissioners (two Democrats and one Republican) — voted unanimously to accept all 95 ballots. On April 30, Schellberg and attorney Louis Glantz appeared at a public meeting of the board to offer comments and a written memorandum on why the ballots were invalid under Pennsylvania law.
At the April 30 meeting, the board voted unanimously to pre-certify the unofficial results of the election, including the 95 disputed ballots, to the Department of State.
An hour before the board was scheduled to certify the election results on May 7, Glantz filed the appeal seeking to prevent certification and an order that for all future elections the board “will reject all mail-in ballots not in compliance with Pennsylvania law,” specifically those where the voter does not properly fill out, date and sign the declaration printed” on the outer envelope.
The Third U.S. Circuit Court of Appeals in a split decision in March upheld Pennsylvania’s rules for mail-in voting, finding that the requirement for mail-in voters to write the date on the ballot return envelope does not violate the 1964 Civil Rights Act, and rejecting an improperly dated or undated ballot does not take away the right to vote.
The petitioners did not argue that the outcome of the primary would have changed, but contended the board knew the ballots were not valid and that accepting those that were not properly completed could be harmful in future elections.
“If allowed to continue, the unlawful actions of the [board] will deprive future Pennsylvania voters from having their vote count against only those who properly voted,” Glantz wrote.
Pennsylvania law requires appeals to be filed within two days of a decision by an elections board. Whether the appeal was for the decision to accept the ballots on April 25 or to pre-certify on April 30, the filing of the petition on May 7 was untimely, Rater wrote in her ruling on Friday.
The petitioners argued that the submission of Glantz’s memorandum on April 30 triggered the appeal, but, Rater wrote, the law is clear the petition must be filed with the Court of Common Pleas.
Rater also rejected the contention that the appeal challenged not the decision of the board, but the legality of the election, which would be subject to a 21-day deadline. The petitioners did not allege fraud or misconduct or that the outcome of the election would be altered by prohibiting the 95 ballots.
“Petitioners’ desire for the Board to comply with the Pennsylvania Election Code and case law regarding canvassing mail-in ballots is certainly understood by this Court,” Rater wrote. “The Court must require that same compliance with the Pennsylvania Election Code and case law in examining the timeliness and nature of the Appeal filed by Petitioners.”
Rater also denied both parties’ requests for the opposing side to pay their legal fees and court costs.
The Board of Elections is expected to meet next week to certify the primary results.
