Jul 14, 2022 5 min read

Fed up with recent changes in how Pennsylvania’s elections operate – especially with mail-in voting – the Fayette County Board of Elections is refusing to certify results from the May primary that include ballots that were left undated on the exterior envelopes.

“The bottom line is, we’re just tired of everything changing,” Fayette County Commissioner Scott Dunn said during a brief phone interview Wednesday. “You change how you count. It’s not just this election. It’s every election. It’s after the fact.”

The state Department of State filed a lawsuit Tuesday in Commonwealth Court against Fayette, Berks and Lancaster counties claiming their boards are not providing certified results that include mail-in votes with undated envelopes from the May 17 primary.

Counties were required to count such ballots after the 3rd U.S. Circuit Court of Appeals ruled shortly after the primary that they should be included in the vote tallies following a lawsuit contesting a judicial election in Lehigh County last year.

But Dunn, who is a member of the county’s elections board, said they feel “strongly” that there have been too many revisions following the bipartisan Act 77 of 2019 that expanded mail-in voting, with subsequent court rulings that have changed the process.

“There should be no ambiguity, interpretation or uncertainty as to which ballots to count,” Dunn said in a written statement sent after his phone interview with a reporter.

The state Supreme Court ruled in 2020 that ballots postmarked no later than Election Day could still be counted for that year’s general election as long as they arrived no later than the end of the week. That is no longer allowed, but Dunn noted that the court required the date to be filled out on the exterior envelope only to now be overruled by the federal courts.

“Changing the rules after the votes have been cast and are actually being counted is unfair to the candidates, the political parties, the election officials, and most importantly, the voters,” Dunn said in his written statement. “The rules must be clearly established and then kept in place for the entire election including the counting of the votes. The chaos surrounding our elections must stop.”

Fayette County Elections Director MaryBeth Kuznik previously said that the county received 52 undated mail-in ballots in the primary, which included 46 from Democrats and six from Republicans. They have not been counted and are being stored in a locked vault. Kuznik politely declined comment Wednesday due to the ongoing lawsuit and referred questions to the elections board.

The other two members of the county’s elections board, Commission Chairman Dave Lohr and Uniontown attorney Mark Mehalov, did not respond to phone messages seeking comment on the lawsuit. County solicitor Jack Purcell also did not return a phone call on the issue. Commissioner Vince Vicites would normally be on the elections board, but he recused himself this year because he was a candidate for the Democratic State Committee.

The battle over counting mail-in ballots stems from the specific language in Act 77 that requires the ballot itself being inserted in a blank privacy envelope within the outer mailing envelope, which must be signed and dated.

“The elector shall then fill out, date and sign the declaration printed on such envelope,” the law states about the outside envelope.

But state officials pointed out in their lawsuit that the Election Code states a voter “shall retire to one of the voting compartments, and draw the curtain or shut the screen door.” With no current voting machines that include curtains or doors, the state contends in its lawsuit that the use of “shall” when describing a date on the envelope does not mean the ballot should be discarded.

“The General Assembly could not have meant to use ‘shall’ in each case to indicate that voters who do not satisfactorily draw their curtain or who do not fold their ballot properly before returning it must have their ballot excluded,” the lawsuit states.

The state is arguing that a handwritten date is not needed to satisfy the ballot requirements because all mail-in votes must be received by 8 p.m. on Election Day or they will not be counted. County elections workers immediately scan and timestamp ballots upon receipt in the run-up to the election so it is clear they were received before the deadline. No mail-in ballots are opened until Election Day.

“Because in all cases counties independently verify if a ballot was received by Election Day’s 8 p.m. deadline without reference to the date handwritten on the return envelope, the handwritten date is not a tool for preventing fraudulently back-dated votes,” the lawsuit states. “In any event, because Pennsylvania employs only a received-by deadline, back-dating is not a way to fraudulently convert an ineligible ballot into a seemingly eligible one. A ballot is received by the deadline or it is not.”

Fayette County officials notified the state on June 26 that they would not be including the undated mail-in ballots from the May primary in their certified results.