"For decades the Pennsylvania Supreme Court has ruled that if there is any uncertainty at all as to whether a ballot should count, the tie goes to the voter," says the ACLU legal director.By Jon Delano

PITTSBURGH (KDKA) – An Allegheny County judge ruled on Wednesday that 2,349 mail-in ballots can be counted because they were received by Election Day even though the voters failed to date the outside envelope of their ballot.

It’s one of several technicalities that election officials and the courts are sorting through in this election.

Should your mail-in ballot count if your forget to date it, or if you use a red pen instead of a black or blue one? How about if you fail to sign the outside envelope, or forget to use the secrecy envelope?

These are among the questions that the courts are now considering.

“We think, the General Assembly thinks, that those requirements are not negotiable, are not waivable,” attorney Matt Haverstick told KDKA political editor Jon Delano on Wednesday.

Haverstick represents Republican state Senate candidate Nicole Ziccarelli who is 28 votes behind Pennsylvania Sen. Jim Brewster, a Democrat, with some mail-in and provisional ballots to be counted in Allegheny and Westmoreland counties.

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Ziccarelli wants to invalidate 2,349 mail-in ballots and 300 provisional ballots because voters did not date their ballots, while Brewster and the Allegheny County Election Board want to count them.

On Wednesday, Allegheny County Common Pleas Judge Joseph James said, absent any evidence of fraud, count them all.

“We don’t agree with it. We think we have the better of the argument, of course,” said Haverstick. “Those votes shouldn’t be counted. But we’re going to appeal, and we think we’ll end up on the right side in the end.”

ACLU legal director Vic Walczak said, “Judge James today in his opinion got it exactly right, said there was not even an allegation that these 2,300 voters were improper. Clearly these ballots arrived on time, and there’s absolutely no reason they shouldn’t be counted.”

While Haverstick says all the legislature’s requirements for mail-in ballots must be followed, Walczak says, in his view, the only necessary requirement is a signature.

“For decades the Pennsylvania Supreme Court has ruled that if there is any uncertainty at all as to whether a ballot should count, the tie goes to the voter,” says Walczak.

Whether you have to date the outside envelope, as Ziccarelli insists, will now be decided by the state Supreme Court.

The Court has already accepted a similar case out of Philadelphia.