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A local election official organizes mail-in ballots to be sorted for the 2020 general election in West Chester, Pa.

Matt Slocum/AP

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Matt Slocum/AP

A local election official organizes mail-in ballots to be sorted for the 2020 general election in West Chester, Pa.

Matt Slocum/AP

A federal appeals panel has set up a potential U.S. Supreme Court battle about Pennsylvania’s mail-in ballots that could play a role in determining who wins this year’s presidential election and other races in the key swing state.

Mailed ballots that arrive on time but in envelopes without dates handwritten by Pennsylvania voters or with incorrect dates should not be counted, a three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled Wednesday. Their 2-1 decision strikes down a lower court ruling.

The main legal issue surrounding what are often called “undated ballots” is whether not tallying them violates the Civil Rights Act of 1964, which says a person’s right to vote cannot be denied for “an error or omission” that is “not material” in determining voting eligibility.

A current, handwritten date on the return envelope is required by Pennsylvania state law, but that date is not used to confirm if a person is eligible to vote. For past elections, the final vote tallies by county election officials have included ballots arriving in undated or misdated return envelopes.

In the 2022 general election, officials rejected more than 10,000 ballots because the voter did not handwrite a correct date on the return envelope, according to Pennsylvania’s secretary of the commonwealth. Many of those voters are elderly, including a group of them who joined this lawsuit led by the Pennsylvania State Conference of the NAACP.

Attorneys for the Republican National Committee led this appeal to the 3rd Circuit and have signaled they expect this legal battle to ultimately reach the Supreme Court.

In recent elections, higher shares of Democrats have used mail voting than Republicans, according to the MIT Election Data and Science Lab.

Pennsylvania officials recently redesigned the outer envelopes for the mail-in ballots to try to remind voters to write the current date under their signatures.

Edited by Benjamin Swasey