We also agree with Petitioners’ assertion that the dating provisions cannot survive strict scrutiny, as they serve no compelling government interest. As has been determined in prior litigation involving the dating provisions, the date on the outer absentee and mail-in ballot envelopes is not used to determine the timeliness of a ballot, a voter’s qualifications/eligibility to vote, or fraud. It is therefore apparent that the dating provisions are virtually meaningless and, thus, serve no compelling government interest. See, e.g., NAACP III, 97 F.4th at 125, 127, 137 (recognizing that the dating provisions “serve[] little apparent purpose” because the date is “not used to confirm timely receipt of the ballot or to determine when the voter completed it[,]” as timeliness is instead “established both by a receipt stamp placed on the envelope by the county board and separately through scanning of the unique barcode on the envelope”; and the date does not determine voter qualifications); see id. at 140, 155 n.31 (Shwartz, C.J., dissenting) (observing, based on the evidence, that the date is also not used to detect fraud, and that no county board in NAACP identified any fraud concern due to an undated or incorrectly dated mail ballot declaration).
At the en banc oral argument before this Court, counsel for the Secretary confirmed that none of the county boards of elections use the handwritten date for any purpose, and he further relayed that the only reason the date is included on absentee and mail-in ballot envelope declarations is because such requirement is in the Election Code...
To look at a mail ballot that substantially follows the requirements of the Election Code, save for including a handwritten date on the outer envelope declaration, and which also includes a barcode unique to that ballot as well as a timestamped date indicating its timely receipt by the voter’s respective county board of elections by 8:00 p.m. on Election Day, and say that such voter is not entitled to vote for whomever candidates he or she has chosen therein due to a minor irregularity thereon “is to negate the whole genius of our electoral machinery.” Appeal of James, 105 A.2d at 66. Simply put, the “practical” regulation of requiring voters to date their mail ballot declarations “obstructs and hampers the independent voter” and places voters on unequal playing fields where voters timely submit their mail ballots, but one voter may inadvertently include what has been coined an “incorrect” date, or a birthdate, or forgets to include the date altogether or the correct or full year, and another may include the date on which they filled out the declaration.