Who is affected when Philadelphia rejects mail ballots

This article is made possible through Spotlight PA’s collaboration with Votebeat, a nonpartisan news organization covering local election administration and voting. This article is available for reprint under the terms of Votebeat’s republishing policy.

Mail ballot voters from heavily nonwhite and lower-income communities in Philadelphia are more likely to have their ballots rejected due to simple mistakes, compared with all voters in the city who requested mail ballots, according to a Votebeat and Spotlight PA analysis.

“It should come to no surprise that the voters who are most affected by this are the city’s most vulnerable populations,” said Nick Custodio, deputy Philadelphia commissioner for Chairwoman Lisa Deeley and a spokesperson for the office. “The Legislature must act and stop ticky-tack mistakes… from disenfranchising voters.”

By law, elections officials in Pennsylvania cannot accept mail ballots from voters who do not properly date and sign the outer return envelopes of their mail ballots. Whether to accept those undated and improperly dated ballots — such as those mistakenly using dates of birth or dates with the wrong year — is currently the subject of ongoing federal litigation.

By analyzing Philadelphia’s list of more than 1,800 voters who returned undated or improperly dated ballots for the May 16 primary and sorting them by their home ZIP code, Votebeat and Spotlight PA were able to determine how many of them live in areas where the nonwhite population or population living in poverty was above the city’s average.

To provide a comparison, we repeated the same analysis on a list of all Philadelphia voters who requested mail ballots for the primary.

The results revealed that voters making dating errors on their ballots were significantly more likely to come from ZIP codes with a higher percentage of nonwhite residents or a greater percentage of the population living in poverty than all city voters requesting mail ballots, echoing findings from a similar analysis done by Votebeat and Spotlight PA in 2022.

While roughly 44% of voters requesting mail ballots came from parts of the city with higher levels of nonwhite residents, 56% of voters who made dating errors came from such areas.

When we analyzed voters’ ZIP codes based on income levels, 34% of voters requesting mail ballots live in high-poverty areas, but 44% of voters with dating errors came from those areas.

The analysis also found that older voters are more likely to have their ballot at risk of rejection due to dating errors, similar to the findings in the 2022 analysis. While mail voters already skew older than voters as a whole, the analysis found that voters whose ballots were subject to rejection for dating errors had a median age approximately five years older than the median age of all voters requesting mail ballots.

Philadelphia publishes lists of voters whose ballots have fatal defects ahead of an election so that voters have an opportunity to fix them, a process referred to as “curing” that is not allowed in all counties.

Votebeat used the demographics of these voters’ ZIP codes because Pennsylvania’s voter roll does not contain racial information for voters, making a precise analysis of the race of specific voters in each category impossible.

However, Votebeat and Spotlight PA verified the findings through John Curiel, an assistant professor of political science at Ohio Northern University, who uses a process called Bayesian inference to estimate a person's race based on last name and ZIP code.

Curiel’s analysis found that roughly 59% of all voters requesting mail ballots were nonwhite, while approximately 66% of voters with date errors on their ballots were nonwhite.

One such voter whose ballot was rejected is Sonja Rhett, a 55-year-old Black resident of North Philadelphia.

Rhett said she was unaware there was a dating issue with her ballot, and that if she had known, she would have tried to fix it. Her ZIP code has one of the highest percentages of nonwhite residents in the city.

“I’m upset, because if they had told me, I would have done something,” she said. The city commissioners office in Philadelphia publishes a list of voters who have flawed ballots prior to Election Day. The city notifies voters via email when possible, and political parties often use the published list to reach out as well.

When asked about the finding that voters with ballot-dating issues are more likely to live in majority nonwhite or low-income areas, she said, “I’m not surprised about anything right now.”

Eugene Williamson, a 77-year-old Black resident of Overbrook, also had his ballot flagged for rejection.

Williamson said he got a call alerting him to the problem, so then voted provisionally at his polling place. Provisional ballots are given to voters whose eligibility to vote is in question when they check in at a polling place. Provisional ballots from voters whose mail ballots were canceled are accepted by Philadelphia, but have been an issue in neighboring Delaware County.

When Votebeat shared its findings that voters at risk of having their ballot canceled due to dating issues are more likely to come from areas of the city like his with higher than average nonwhite and low-income populations, Williamson said he was not surprised.

“They try to eliminate minorities from voting, period,” said Williamson. “That’s why I put forth the effort and went to the poll.”

But Dennis Wright, a Black resident of West Oak Lane, said he takes responsibility for his ballot's dating error.

“I’ve been voting my whole life and I’m 79 years old. And I did miss something on my ballot. So I chalk it up to that,” he said.

Legal saga continues

Whether or not to accept mail ballots with no date or improper dates has been fiercely debated in courts since practically the advent of Pennsylvania’s no-excuse mail voting system in 2019. The lengthy progress of various lawsuits and the courts’ decisions mean the rules for counting those ballots have changed from election to election.

During the 2020 presidential election, Pennsylvania’s Supreme Court split evenly on whether to count the ballots. A seventh justice broke the 3-3 split by ordering this universe of ballots to be accepted for the presidential election but rejected in the future. Conservatives balked at the decision and pointed to it as an example of the justices — a majority of which were Democrats at the time of the ruling — overstepping their constitutional authority to influence the contest.

Act 77, the 2019 law that introduced universal no-excuse mail voting, says ballots need to be dated. But Justice David Wecht, the deciding seventh vote in 2020, reasoned at the time that the ballots should be counted only for that election because the law was relatively new and voters may not have been well informed of the rules.

In 2021, voters in Lehigh County challenged the law in federal court under a different line of argument: claiming that the dating requirement was immaterial to a voter's eligibility to vote, and thus those ballots could not be rejected solely on that basis under the 1964 Civil Rights Act.

The 3rd Circuit Court of Appeals sided with that reasoning in May 2022 — leading to these ballots being counted in the spring primary. But less than one month before the November 2022 midterm elections, the U.S. Supreme Court mooted that decision.

Then, with a week to go before the election, the Pennsylvania Supreme Court ruled that the ballots should not be counted, but did not address the issue of whether the dates are immaterial to the voter’s eligibility.

New litigation began almost immediately, with the American Civil Liberties Union of Pennsylvania representing the NAACP and several organizations who are suing in federal court under the same civil rights argument as the 2021 case.

That case is still pending in the Western District of Pennsylvania. As evidence of the outcome’s potentially far-reaching consequences, groups including the state GOP, National Republican Congressional Committee, and Republican National Convention have all intervened as defendants, while the U.S. Department of Justice has released a statement of interest in the case.

Policy advocates and election directors have also pointed out that the legislature could resolve the dispute by clarifying the dating requirement in the state’s election law.

The NAACP case is still making its way through the court, but in a recent opinion rejecting a motion from the Republican interveners to dismiss the case, the court said that the NAACP, the other organizations, and the voters bringing the case had a right to have their concerns about the materiality of the date heard.

Adam Bonin, a Philadelphia-based election law attorney who has represented high-profile Democratic candidates such as Gov. Josh Shapiro, said he wasn’t very surprised by the results of the analysis.

“Ballots with errors skew Black, Latino, and older,” he said. “There's no doubt about that.”

Bonin is litigating a similar case in the same federal district as the NAACP case, and the cases are being jointly managed. He said an expert witness submitted an analysis for his case reaching a similar conclusion.

It is unclear when a decision will come in the NAACP case, though the ACLU has said it hopes for a ruling this year.

Correction: A pervious version of this story misstated who the plaintiff was in the 2021 Lehigh County case.

This article is a part of Every Voice, Every Vote, a collaborative project managed by The Lenfest Institute for Journalism. Lead support is provided by the William Penn Foundation with additional funding from The Lenfest Institute, Peter and Judy Leone, the John S. and James L. Knight Foundation, Harriet and Larry Weiss, and the Wyncote Foundation, among others. To learn more about the project and view a full list of supporters, visit everyvoice-everyvote.org. Editorial content is created independently of the project’s donors.