This article is made possible by Spotlight PA‘s collaboration with Votebeat, a non-partisan news organization reporting on local electoral administration and voting. This article is available for reprint under the terms of Votebeat’s Republication Policy.
Pennsylvania’s policy of rejecting undated and misdated mail-in ballots is more likely to impact voters from communities with larger non-white populations, a Votebeat and Spotlight PA analysis of data from three urban counties found.
Earlier this month, a deadlocked Pennsylvania Supreme Court ruled that undated and incorrectly dated mail-in ballots should not be counted in the Nov. 8 midterm election, the latest development in a years-long dispute over those erroneous ballots. State law requires a person casting a mail-in ballot to sign and date a statement on the outside envelope.
In response, some counties released lists of voters who had submitted this type of erroneous ballot, in an attempt to get them to correct the error before the end of Election Day so their vote would be counted.
An analysis of these lists, released between November 4 and November 7 by Philadelphia, Allegheny County, and Erie County, found that the 3,571 voters who submitted the erroneous ballots were more likely to be from communities with above-average nonwhite populations than those eligible to vote total population in the district.
“Even though [the Pennsylvania Department of State] not independently confirmed [this] Analysis, if correct, the data you have compiled takes a step towards empirical evidence, which we have anecdotally taken to be the case,” the agency said in a statement after reviewing the results. “This minor voter error appears to affect certain voting communities more than others, including older voters, low-income voters and voters in communities of color.”
Oprah Means, a 35-year-old African American mother of three from Duquesne, Allegheny County, was one of those voters. Her ballot was rejected because it had an incorrect date — defined by the state Supreme Court as outside September 19 to November 8 — and she couldn’t remember what date she wrote that would have been disqualified. She said she was “not at all” surprised to hear there were racial differences in the rejected ballots.
“It felt like it was made for me on purpose,” Means said, noting that her ballot had been submitted for weeks before she was notified at 7:40 p.m. on Election Day that an error had occurred.
She added that by voting, she is trying to set a good example for her 19-year-old daughter.
“It just felt disappointing,” she said. “The people I voted for won, but I was still upset that my vote wasn’t counted.”
The discrepancy was most pronounced in Philadelphia, where voters who submitted ballots with blank or incorrect dates were nearly 6 percent more likely to be from neighborhoods with more nonwhite residents than average.
Pennsylvania’s official list of registered voters, which Votebeat and Spotlight PA used for this analysis, does not include racial demographics for each person, making it impossible to accurately compare these voters by race. Instead, Votebeat and Spotlight PA used US census data by zip code to identify communities and neighborhoods with a higher-than-average proportion of non-white residents as the district.
Here’s how this data showed the 6-point difference between voters: While 55.2% of all registered voters in Philadelphia live in zip codes with a disproportionately large nonwhite population, 61% of voters who submitted the erroneous ballots live in such zip codes.
Similar racial disparity was also noted in Allegheny County and to a lesser extent in Erie County. In Allegheny, where Pittsburgh is located, voters who submitted incorrect ballots were also about 6 percentage points more likely to come from ZIP codes with above-average minorities. In Erie County, that number was just over 2 percentage points.
John Curiel, assistant professor of political science at Ohio Northern University, verified the results from Votebeat and Spotlight PA using an alternative technique of estimating the races of individual voters in the three counties based on name and zip code.
His analysis similarly found that among those who submitted incorrect ballots, the number of non-white voters in Philadelphia was about 7 percentage points greater than in the county’s total voting population. Curiel’s estimates for Allegheny and Erie counties also found disparities supporting Votebeat and Spotlight PA’s analysis, albeit without as strong a correlation as Philadelphia’s.
Votebeat’s analysis also revealed a discrepancy between the income levels of voters with defective ballots and the overall voting population in Allegheny County but not in Philadelphia and Erie County. In Allegheny, voters who submitted incorrect ballots were about 4 percent more likely to live in ZIP codes with higher-than-average poverty rates than the county’s voting population as a whole.
When universal mail-in voting was introduced in Pennsylvania by Law 77 in 2019, the law required voters to sign and date the outside return envelope.
That portion was challenged in a 2021 Lehigh County case as violating the requirement of the Civil Rights Act of 1964 that a voter’s ballot cannot be rejected for reasons immaterial to the voter’s eligibility to vote.
Marian Schneider, senior voting rights policy counsel at the ACLU of Pennsylvania, said inequalities related to the practice were already known in this case.
“We already know that [rejecting ballots for being undated or having incorrect dates] distorted older,” she said.
She said in the Lehigh County case, both sides agree that the issue has a greater impact on older voters.
An analysis of birth years from the Philadelphia and Allegheny data found that in both counties, the median age of voters who submitted incorrectly dated ballots was slightly older — two to four years — than that of voters who submitted correctly dated ballots.
While the US Third Circuit of Appeals unanimously upheld the moral defects argument in the Lehigh County case, the US Supreme Court brought up the verdict earlier this year after one of the contestants in the race in question conceded.
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That left the question up in the air again ahead of this year’s election, before the Pennsylvania Supreme Court ruled Nov. 1 that counties should not count ballots.
But the matter is once again headed towards the nation’s highest court. The ACLU of Pennsylvania, along with the NAACP and several other organizations, is suing the Pennsylvania State Department in federal court to have those ballots counted. A hearing has not yet taken place.
Similar to the Lehigh County case, the current case advances the argument of immaterial deficiency rather than arguing that the practice violated the Civil Rights Act’s protections of certain classes, including race and age, from discrimination.
But Schneider said the lack of a date or an incorrect date on a ballot shouldn’t affect a ballot’s validity, and when rules are interpreted so strictly, discrimination often ensues.
“Anytime you read the electoral rules strictly, it will disproportionately affect low-income voters and . . . non-white voters,” said Schneider.
Aseem Shukla of the Philadelphia Inquirer contributed to this report. John Curiel of Ohio Northern University provided the Bayesian inferential data analysis. Read more about the methodology of this analysis at Votebeat.
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