For more than a century the commonwealth’s Supreme Court has followed a presumption that voting rules passed by the legislature don’t violate the state constitution’s free and equal elections guarantee unless they make voting so difficult they amount to a disenfranchisement.

An attorney for the Republican Party of Pennsylvania and the Republican National Committee argued before the high court Wednesday that opponents of the commonwealth’s troublesome requirement to put the date on mail-in ballots can’t make that claim.

“There’s nothing objectively difficult about completing the declaration or filling in the pre-printed date boxes on the ballot return envelope,” John Gore said, adding that in the 2024 presidential election, compliance with the date requirement neared 100%.

“If a voter wants to avoid the requirement entirely, the voter can simply vote in person, which is the most popular method of voting here in Pennsylvania. That’s the end of this case,” Gore said.

Chief Justice Debra Todd noted the trouble with the date requirement is that it’s not usually a question of whether a voter wants to comply, but a mistake that leads to the voter’s ballot being set aside.

In the 2022 election for governor, that caused about 10,000 mail-in ballots not to be counted, the American Civil Liberties Union of Pennsylvania said. Even after the state redesigned ballot envelopes to prompt voters to write the month, day and last two digits of the year, 4,500 ballots were thrown out because of missing or incorrect dates in 2024.

“Even if this date requirement was not intended as a disenfranchisement trap. We now know that that’s what it has become,” ACLU of Pennsylvania lawyer Stephen Loney said.

An amendment to the Pennsylvania Election Code made voting by mail without an excuse an option for voters for the first time in 2020, during the COVID-19 pandemic. Since then, the question of whether the requirement to write the date on a mail ballot’s return envelope has been an issue in every election.

It has been challenged in several courts without a conclusive decision. Most recently, the Philadelphia-based U.S. 3rd Circuit Court of Appeals ruled last month that the requirement violates the U.S. Constitution’s First Amendment right to vote and the 14th Amendment right to equal treatment under the law.

Gore said the GOP filed a petition Tuesday asking the federal appeals court to rehear the case en banc, in hopes that a larger panel of judges would reach a different conclusion.

The case before the Supreme Court stems from a special election for the state House in September 2024, when the Philadelphia Board of Elections disqualified 69 ballots because of missing dates.

“Two of those voters, Miss [Susan] Kinniry and Mr. [Brian] Baxter, were eligible lifelong voters whose most fundamental rights as Pennsylvania citizens are at stake,” Loney said, noting the state constitution clearly bars interference with the right to vote.

“However you try to slice it, a practice of disqualifying votes for non-compliance with a meaningless handwritten date requirement … it diminishes the right of suffrage, and it’s untied to any government interest,” Loney said.

The ACLU sued on their behalf and days before the 2024 election, the Commonwealth Court ruled that all mail-in ballots must be counted regardless of errors in the date. The Supreme Court granted a GOP request to stay the ruling, meaning that missing or incorrect dates would cause mail ballots to be set aside in the presidential election.

In analyzing whether the requirement is constitutional, the Supreme Court also asked lawyers for their thoughts on the level of scrutiny they should apply to determine whether some infringement on voting rights is permissible because it serves a clear governmental purpose.

In this and past cases on the date requirement, the GOP has argued the handwritten date serves purposes ranging from preventing election fraud to preserving the solemnity of voting.

Election officials have said the date serves no purpose because every mail-in ballot is stamped with the date and time when it is returned to the election office. The state’s Statewide Uniform Registry of Voters system also allows officials to track each ballot with a bar code.

“So given that we have two procedures to determine the actual date that it was received, what purpose can it possibly achieve for the voter to insert that date?” Todd asked Deputy Attorney General Brett Graham.

Graham described the requirement as part of a “belt and suspenders” approach to protecting the election system.

Ben Fabens-Lassen, who represented the Philadelphia Board of Elections, said election officials have a process to segregate untimely ballots and said he disagreed with the “belt and suspenders” metaphor.

“The hand written date is more like this tie. It has no functional purpose and it serves no purpose in holding up my pants at all,” Fabens-Lassen said, drawing laughter from the court. “The date on a ballot declaration doesn’t serve any purpose and it doesn’t solve any actual or imagined problem.”