In the last days of a campaign, a lot of the coverage focuses on polls and trying to predict the outcome. But the winners and losers will not be decided by a poll; they will be decided by counting votes. And Republicans are engaged in an aggressive effort to invalidate ballots in key states from legal voters. 

This is what is happening in Pennsylvania, where a close race between Lt. Governor John Fetterman (D) and celebrity doctor Mehmet Oz (R) could determine which party controls the U.S. Senate. The Republican National Committee (RNC) filed a petition directly with the Pennsylvania Supreme Court to prevent county election officials in Pennsylvania from counting mail-in ballots received on time from legal voters. 

Pennsylvania allows anyone to vote by mail. But a "voter seeking to vote by mail must complete an application and have their identity and qualifications verified." This can include "a Pennsylvania driver’s license number or the last four digits of the voter’s social security number." After the county board determines a voter is eligible, "it sends a mail-ballot package that contains a ballot, a 'secrecy envelope' marked with the words 'Official Election Ballot,' and the pre-addressed outer return envelope, on which a voter declaration form is printed."

Voters who receive a mail-in ballot can return it, by mail or in person, up until 8 PM on Election Day. To return a ballot, voters are instructed to "fill out, date and sign the declaration" printed on the return envelope. The RNC is suing to prevent county election officials from counting ballots from voters that: 1. Applied for a ballot and were deemed eligible, 2. Fills out the ballot, 3. Signs the declaration, 4. Returns the ballot on time, 5. Does not include a handwritten date on the outer envelope. 

The RNC does not claim that voters that do not write a date on the ballot are ineligible. Rather, in its filing, known as a King's Bench petition, the RNC admits that the "date requirement has nothing to do with whether the individual satisfies the four qualifications to vote in Pennsylvania."

The date itself is meaningless because whether or not the ballot is received on time is established by an official date stamp by the local election board. The RNC says these ballots must be disregarded anyway because they fail to meet the technical requirements of the mail-in voting law. 

Voting rights advocates counter that discarding ballots that lack a superfluous handwritten date violates the Materiality Provision of the Civil Rights Act. That provision states: "No person acting under color of law shall… deny the right of any individual to vote in any election because of an error or omission… if such error or omission is not material in determining whether such individual is qualified." 

The Pennsylvania Supreme Court considered the arguments and could not reach a final decision on the merits. Three Justices said that counting the ballots would violate the Materiality Provision, and three Justices said it would not. (The Pennsylvania Supreme Court currently has six Justices because Chief Justice Max Baer died last month.) Nevertheless, the court ordered county board of elections "to refrain from counting any absentee and mail-in ballots received for the November 8, 2022 general election that are contained in undated or incorrectly dated outer envelopes." Instead, the court ordered county officials to "segregate and preserve" such ballots.

About 7,000 ballots statewide have been already been flagged for missing a date or similar issues. That's not a huge number, but it could grow and it could be enough to swing a close election. (One polling average has Oz leading Fetterman by 0.1%.)

The NAACP, the League of Women Voters, and Common Cause filed a complaint last Friday in federal court requesting "declaratory and injunctive relief" to ensure "qualified Pennsylvania voters are not disenfranchised based on an immaterial paperwork error." They note that, in litigation related to a local election in 2021, the federal appeals court that oversees Pennsylvania "concluded that disenfranchising voters based on the envelope-dating provision would violate the Materiality Provision." That ruling was eventually vacated by the Supreme Court because the election was finalized before the litigation could conclude. But the Supreme Court did not make a decision on the Materiality Provision itself. 

While the litigation continues, "voting rights groups and others have launched a full-court press to notify voters across Pennsylvania whose ballots had been rejected and needed to be fixed or replaced." Philadelphia, for example, is asking voters who did not date their ballot to come into City Hall to correct the error. Of course, many people chose to vote by mail because traveling is difficult for them. 

Republicans, in a revealing move, "also sued to block counties from notifying voters who neglected to date their ballots to give them the chance to fix them." On Monday, a Pennsylvania court rejected a request for an injunction from the Monroe County Republican Committee, seeking to stop the Monroe County Board of Election from notifying voters about issues with their mail-in ballots. So the status quo is that it is up to each county, which means not all voters will be given notice of the error and an opportunity to fix their ballots.

Targeting absentee voters in Detroit

Republicans in Pennsylvania are not the only ones trying to invalidate votes before the election. In Michigan, Secretary of State candidate Kristina Karamo (R) filed a lawsuit on October 26, attempting to throw out absentee ballots in Detroit. Karamo, who is endorsed by former President Donald Trump, filed the lawsuit along with the conservative nonprofit “the Election Integrity Fund and Force, two poll challengers, a poll watcher, a poll worker and a voter.” 

The lawsuit asks the court to “require all Detroit voters to vote in person or obtain their ballots in person at the clerk’s office,” arguing that this is necessary to check the identification of the voter properly, and to “halt the counting of ballots cast through ballot boxes that are not effectively monitored.” 

The lawsuit cites the “documentary” 2000 Mules, a film based on unsupported claims that there was election fraud in the 2020 election, arguing that the film “demonstrated with video” that people in Detroit “violated the law by dropping off multiple ballots in the 2020 election.” 

During a news conference after the court hearing for the lawsuit, Karamo claimed that she was “simply requesting the court’s ‘guidance’ on the allegations,” but also alleged that Detroit was “plagued by systemic election corruption.” Karamo further “said she didn’t know if or how many purportedly illegally absentee ballots had been cast, nor did she explain how they knew election fraud was ongoing in the city,” according to MLive. 

According to MLive, one of Karamo’s attorneys, Daniel Harman, is “also representing the Macomb County Republican Party” in a suit “that’s seeking to de-certify the 2020 election.” 

During the hearing, attorney David Fink, who is representing Detroit, said, “They seek to disenfranchise every voter who voted by mail but only in the city of Detroit — the largest African-American city in Michigan. It’s no accident.” He continued to say, “This case was intended to do one thing and only one thing, which is to disenfranchise tens of thousands of voters in Detroit who mailed in their vote.” 

A judge dismissed the lawsuit on Monday, citing that Karamo presented “no evidence of election law violations.” The order said that “approximately 60,000 absentee ballots have been returned” in Detroit as of November 3, and that the “injunction would serve to disenfranchise tens of thousands of eligible voters.” The order also stated that, if issued, the harm created by the injunction, “is not only unprecedented, it is intolerable.”