by Lowman S. Henry | December 07, 2022

Dwight D. Eisenhower was in the White House, Billboard debuted its Top 100 chart with Ricky Nelson’s Poor Little Fool as the number one hit record and Elvis Presley was inducted into the Army. The year was 1958 and it was the last time voters in the Commonwealth of Pennsylvania saw a ballot with open seats for both U.S. Senator and governor.

Voters rendered a split decision that year: Democrat David Lawrence was elected governor and Republican Hugh Scott was elected to the U.S. Senate. This November an unexpected “blue wave” crashed across the state and Republicans lost both statewide races.

In the race for governor Democratic Attorney General Josh Shapiro routed Trump-endorsed state Senator Doug Mastriano by over 14%. He will succeed two-term Governor Tom Wolf marking the first time since the founding of the Republican Party the governor’s office will be held by a Democrat for three consecutive terms.

The retirement of U.S. Senator Patrick J. Toomey created a highly competitive race for his seat in the upper chamber. Lieutenant Governor John Fetterman emerged from the Primary election unscathed, and although he suffered a stroke days before the primary he was able to post a clear win over famed cardiac surgeon and television host Dr. Mehmet Oz. Oz was another Trump-backed candidate who secured the GOP nomination by less than 1,000 votes. Nationwide it was the only seat to flip party control in the 2022 election cycle.

Decisive wins by both Shapiro and Fetterman have, for the moment, eased the urgency of an on-going battle over the counting of undated mail-in ballots. No excuse mail-in voting was permitted in Pennsylvania for the first time in 2020 and played a major role in Joe Biden’s razor-thin margin of victory over former President Donald Trump who had carried the state – also by a razor thin margin – in 2016.

When voting by mail voters must place their ballot in an outer sleeve which must be sealed, signed, and dated. The law requiring the voter to date the sleeve is crystal clear. Failure to do so results in a so-called “naked ballot” which is then invalidated. A significantly higher percentage of Democratic voters have failed to follow instructions therefore more of their votes have not been counted. This has triggered two years of legal battles by Democrats seeking to have the courts strike down the requirement.

The litigation trail over the validity of undated mail-in ballots is a long and winding road. Adding to the confusion just days before the recent General election the acting Secretary of State – the official who administers elections in Pennsylvania – ordered county election bureaus to count such ballots. Reaction from the counties and their method of dealing with undated mail-in ballots varied from county to county largely depending on which party controlled the local courthouse.

The state GOP was successful in getting the issue back before the Pennsylvania Supreme Court which ruled undated ballots could not be counted. However, the court also ordered the ballots to be segregated and preserved pending further legal action.

The decision to follow the letter of the law was significant not only because it gave counties clear direction, but the state Supreme Court in recent years has been highly activist and intensely partisan. Democrats hold a majority on the high court and have displayed a propensity to legislate from the bench. It was out of character for them to uphold the clear language of a law, especially one with such potential electoral impact.

The Fetterman campaign immediately filed a federal lawsuit claiming the Pennsylvania statute requiring the dating of mail-in ballots is a violation of the Voting Rights Act of 1968 which prohibits “needless technical requirements.” Thus, ultimately a federal court or courts will decide whether the provision is needlessly technical or a necessary step to prevent voter fraud.

The number of undated mail-in ballots returned were not a factor in determining the outcome of the 2022 races for U.S. Senator and governor. However, if history is a guide, the 2024 Presidential Election in Pennsylvania will be hard fought and closely decided. It is imperative that the undated issue be finally and conclusively litigated before that balloting begins.

Further, the constantly shifting ground rules have had an impact on public confidence in the electoral process. A pre-election survey of business owners and CEOs by the Lincoln Institute of Public Opinion Research found nearly 75% lacked confidence that the election would be conducted fairly and that the vote count would be accurate.

The requirement to date mail-in ballots is neither “needless” nor “technical,” rather it is a vitally important step in ensuring the integrity of the electoral process. A final judicial resolution upholding the Pennsylvania law is necessary to begin restoring voter confidence in our electoral process.

(Lowman S. Henry is Chairman & CEO of the Lincoln Institute and host of the weekly American Radio Journal and Lincoln Radio Journal. His e-mail address is [email protected])

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