Three legal disputes over mail ballots in Pennsylvania are in line for possible rulings from statewide appellate courts ahead of November’s election. That could mean late-in-the-game changes to the rules that govern vote counting in a crucial swing state.
In Washington County, a Court of Common Pleas judge ruled Friday that the county must notify voters if their mail ballot is at risk of being rejected, so they have a chance to challenge the decision or cast a provisional ballot.
The county and Republican groups involved in the case are currently deciding whether to appeal the ruling to the state’s Commonwealth Court, which is one step below the Pennsylvania Supreme Court.
Another case, in Butler County, featured a conflict between the county and voters represented by civil rights groups. Their disagreement is over whether voters whose mail ballots are rejected can still cast provisional ballots and have them counted.
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A common pleas judge ruled that the county did not have to accept provisional ballots cast in these situations. The plaintiffs’ legal team has already appealed the case to Commonwealth Court.
“We want [all voters’] votes to count, we want their voices to be heard, and we don’t think that minor technical mistakes on mail-in ballot envelopes should prevent access to voting,” said Mimi McKenzie, legal director at the Public Interest Law Center, which along with the American Civil Liberties Union of Pennsylvania is representing plaintiffs in both cases.
A third case — which deals with whether voters will have to date their mail ballot return envelopes at all this November — is awaiting a decision from the state Commonwealth Court. That ruling could come any day.
All three cases could have broad implications for how Pennsylvania and its counties treat the thousands of ballots that are rejected each election for technical errors made by voters.
Pennsylvania law requires that voters sign and date the outer return envelope of their mail ballots, and return the ballot in a secrecy envelope, in order for them to be counted.
During the April primary, roughly 8,500 ballots, or 1.22% of those returned, were rejected for failing to meet one or more of these standards, according to an analysis of Pennsylvania Department of State data.
Those numbers are expected to be higher this fall, as more voters will turn out to vote in the presidential election and opt to cast their ballots by mail. Election experts note that general-election voters can be more prone to errors, since they are often not as up to date on the latest requirements as more-engaged primary voters.
Butler County case deals with a question about provisional ballots
The issue in the Butler County case is whether voters who make an error with their mail ballot are entitled to a second chance to have their vote counted.
The ACLU and the Public Interest Law Center sued Butler County in late April following the primary election on behalf of two voters whose provisional ballots were rejected by the county.
The voters had tried to vote by mail, but neglected to put their ballots in a secrecy envelope before placing it in the outer return envelope. After they returned their ballots, they were notified by the county that the ballots would not be counted.
The voters then attempted to cast provisional ballots in person at their polling places on election day, but the county declined to count them. Provisional ballots are used by voters at polling places whose eligibility is in question but who still want to vote. Those ballots are counted only after the voter’s eligibility is confirmed, including a check to make sure no mail ballot from that same voter has already been counted.
The ACLU and Public Interest Law Center argued that by refusing to let the two voters cast provisional ballots, the county had misinterpreted a section of the state’s election code that says a provisional ballot should not be counted if the voter’s absentee or mail ballot has been received by the county on time.
The organizations argued that when that section is read in context, it is clear that the law’s intent is to prevent multiple ballots being cast by the same voter. A rejected mail ballot, they argued, should not be considered cast, because it was never tabulated.
The argument is similar to one made by the ACLU in Delaware County in 2023. There, the organization ultimately succeeded in getting a local court ruling in its favor, which directed the county to count the provisional ballots of its clients. The case was not appealed to the Commonwealth Court, and thus did not set precedent for the entire state.
But in Butler County, Court of Common Pleas Judge S. Michael Yeager ruled earlier this month that the organizations’ argument was “simply not persuasive.” He added that while he was sympathetic to the voters’ argument, ultimately it was an issue the legislature should address.
“The court would urge the legislature to consider the situation of the petitioners, to develop and implement a procedure for those who returned effective ballots to correct same to ensure full participation as possible in the voting franchise,” he wrote.
In other words, he believes state law would need to change to explicitly allow voters who cast a provisional ballot in this situation to have that ballot counted.
After the ACLU and Public Interest Law Center appealed the decision, the Commonwealth Court ordered all parties to submit their written arguments by Aug. 23.
“I think the Commonwealth Court is very much aware of the various cases that have great importance for the November election,” McKenzie said. “It’s all but guaranteed in this [case] that no matter which way they rule at the appellate court, the case will be appealed to the Pennsylvania Supreme Court. Obviously it’s really important to have this issue resolved prior to the November election.”
A definitive decision from the Commonwealth Court or state Supreme Court could dictate how these kinds of provisional ballots are treated statewide in November, regardless of how individual counties have decided to count them in the past.
Washington County case involves voters’ right to know they made an error
The Washington County case also involves what happens after a voter submits a faulty mail ballot, but the dispute is over the county’s duty to tell them about it.
Before the primary election, the Republican majority on Washington County’s board of elections opted not to notify voters of mistakes with their mail ballot that would cause their votes to be disqualified, such as a missing date or signature, or being returned without a secrecy envelope.
Pennsylvania’s Supreme Court has already ruled that it’s up to counties to decide whether they reach out to voters to let them know their ballot has an error and give them an opportunity to fix it, a process called “notice and cure”; some do this, and some, like Washington, don’t.
But unlike other counties without notice and cure policies, when Washington County received a mail ballot back from a voter, it used only generic codes in the state’s ballot tracking system to indicate the ballot had been received, rather than more specific codes that could indicate whether there is an issue that prevents the ballot from being counted. These codes generate distinct emails to voters, and the more specific codes would have generated emails that informed voters their ballots were at risk of rejection.
Ultimately, 259 ballots were rejected by the county during the primary for issues with a signature or date on the outer envelope, or being returned without an inner secrecy envelope.
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The ACLU and Public Interest Law Center sued the county — on behalf of seven voters, the local NAACP branch and the Center for Coalfield Justice — arguing that by not informing the voters that their ballots were at risk of rejection, the county had violated the voters’ constitutional due process rights and denied them the opportunity to challenge the decision or cast provisional ballots.
The Court of Common Pleas judge hearing the case, Judge Brandon Neuman, ultimately agreed with the organizations, writing that under the state Election Code, voters have a right to challenge the decision by a county board of elections to reject their ballot.
And if voters don’t know that their ballot is at risk of being rejected — as was the case under the county’s policy — they would not have the opportunity to challenge the decision or cast a provisional ballot, Neuman wrote.
He ordered the county to change its process for what codes the county uses when receiving ballots, so voters better understand that their ballot is at risk of rejection.
It’s now up to the county and Republican groups intervening in the case to decide whether to appeal to Commonwealth Court — where a ruling could have statewide impact.
Nick Sherman, the Republican chair of the county’s board of commissioners, did not return calls or emails seeking comment, but told the Associated Press earlier this week that he disagreed with the ruling and that the county hadn’t yet decided whether to appeal. No appeal had been filed as of Thursday morning.
The Pennsylvania GOP and the Republican National Committee did not reply to a request for comment.
Conflict over date requirement on envelopes continues
Most counties already allow voters to cast provisional ballots in person if their mail ballots are rejected, so any new statewide precedent that emerges from the Butler County case would likely not affect as many voters as other pending mail ballot cases.
A ruling with broader statewide impact is more likely in the Washington County case, as other counties also do not provide notice to voters when their ballots are flagged for rejection.
But perhaps the one that could have the widest potential impact is due for a ruling any day now.
That’s the third case brought by the ACLU and Public Interest Law Center, and it seeks to end enforcement of the requirement that voters write the date when they complete their mail ballot return envelope.
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More than 4,400 of the 8,500 ballots rejected during the April primary were for dating errors. So if the plaintiffs succeed in getting the date requirement waived in time for the November election, it would sharply reduce the number of ballots at risk of rejection, and decrease the need for the “notice and cure” procedures and provisional-ballot voting that are at issue in the Washington and Butler county cases.
Oral arguments in the ballot dating case were heard by Commonwealth Court earlier this month.
“Voting is not supposed to be a gotcha kind of game where, oh, you make a mistake, too bad, you only get one shot at this,” McKenzie said. “That doesn’t make sense.”
Supreme Court seeks to speed up resolution of election cases
After years of complaints that the courts have not taken enough notice of how their case schedules affect the election calendar, the Pennsylvania Supreme Court issued an order that would tighten deadlines and speed up election cases this fall.
A temporary order issued Tuesday shortens the appeal period for Election Code issues from 10 days to three days, including weekends. It also orders that briefs be submitted within 24 hours, bars litigants from submitting replies to those initial briefs without a court order, and expedites the process for transmitting court records from lower courts to upper courts.
Susan Gobreski, president of the League of Women Voters of Pennsylvania, said the legislature needs to do its part to ensure that the state meets election deadlines, while courts need to resolve disputes in a timely manner.
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The state’s split legislature has been unable to pass legislation that would help the state avoid conflicts with federal election deadlines this fall. While a bipartisan bill passed the state House earlier this summer, the Republican-controlled state Senate has yet to vote on the measure.
“So it’s very understandable the Supreme Court took this step to ensure we are compliant” with federal deadlines, Gobreski said. “We really can’t afford a mess this fall.”
This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access. Sign up for their free newsletters here.
