A voter deposits a mail-in ballot at the drop box outside the Chester County Government Center on Tuesday, Nov. 5, 2024. (Capital-Star/Peter Hall)
County election officials are required to accurately report when voters’ mail-in ballots have been set aside because of disqualifying errors and allow their votes to be counted on provisional ballots, Pennsylvania’s highest court ruled.
The state Supreme Court’s 4-3 decision Friday upholds lower court rulings that Washington County election officials violated voters’ rights by misleading them about the status of their mail-in ballots.
This prevented voters from challenging the board’s decision to disqualify 259 vote-by-mail ballots or casting provisional ballots as a backup to ensure their votes were counted, the courts said.
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“We must interpret the Election Code and its statutory procedures in a way that ‘favors the fundamental right to vote and enfranchises, rather than disenfranchises, the electorate,’” Justice Kevin Dougherty wrote for the majority, quoting the court’s 2020 decision resolving issues surrounding the then-new vote-by-mail law.
“Reading the Code as allowing county boards to withhold readily available information from voters does not serve that goal,” Dougherty wrote.
Mimi McKenzie, legal director of the Public Interest Law Center, which represented voters and voting rights advocates in the case, said the right to vote is fundamental and the foundation of the nation’s democracy.
“Yesterday’s decision is a win for voters. Boards of Election cannot segregate mail-in ballots with disqualifying envelope errors and then withhold that information. Voters should be afforded an opportunity to cast a provisional ballot if they make a paperwork mistake on their mail-in ballot envelope,” she said.
The Republican Party of Pennsylvania, which filed the appeal along with the Republican National Committee, and the Pennsylvania Democratic Party did not respond to the Capital-Star’s requests for comment.
The decision stems from a decision by the Washington County Board of Elections days before the 2024 primary to rescind a policy of notifying voters about disqualifying errors on their ballot declarations such as missing signatures or dates.
The policy allowed voters to correct errors, request a fresh mail-in ballot or vote provisionally at their polling places on Election Day.
Poll workers demonstrate how ballots are received, processed, scanned, and securely stored on Election Day at the Philadelphia Election Warehouse during a press tour by the Philadelphia City Commissioners on October 25, 2024, in Philadelphia, Pennsylvania. (Photo by Matthew Hatcher/Getty Images)
Instead, elections office workers were instructed to stamp ballots with the date and time they were received and make a decision whether to set aside ballots with obvious disqualifying errors such as a missing signature or date. All ballots were also scanned into the state’s electronic voting system and recorded as “ballot received,” regardless of whether they were segregated for errors.
This prompted the system to automatically generate an email stating that the ballot had been received, and that if the “election office identifies an issue with your ballot envelopes that prevents the ballot from being counted, you may receive another notification.” Otherwise, the email stated, voters would not receive any further messages and would not be able to vote at their polling locations on Election Day.
It also caused the poll books at voting locations to indicate that a voter had cast a mail ballot, preventing those whose ballots were set aside from casting provisional ballots.
A group of seven disenfranchised voters backed by the Center for Coalfield Justice and the Washington Branch NAACP filed a challenge in July 2024, claiming the board’s new policy violated voters’ constitutional rights to due process of law. A Washington County judge ruled in their favor and a 2-1 Commonwealth Court panel affirmed the decision on appeal.
In his opinion for the Supreme Court majority, Dougherty said the RNC and Pennsylvania Republican Party’s arguments that the board of elections should be allowed to “hide the readily ascertainable status of electors’ mail-in ballots” would punish voters for common errors. He added that their positions are at odds with both the Election Code and the commonwealth’s longstanding practice and policy of protecting the right to vote.
While the courts have affirmed that the Election Code does not provide for voters to “cure” defective ballots, Dougherty scolded the Republican Party for characterizing voters who make minor mistakes as “noncompliant” and “fingerwagging” that the legislature has “forbidden do-overs.”
“But this case is not about do-overs. It is not about correcting a defective mail-in ballot return packet. It is not about a “second bite” at the proverbial apple, and it is not about double-voting,” Dougherty wrote.
“It is about allowing a voter who made a mistake on a mail-in ballot return packet — the kind of mistake that will likely disqualify the ballot and invalidate the elector’s attempt to vote — to avail herself of the remaining “fail-safe” attempt to exercise her fundamental right: completing a provisional ballot on Election Day,” he wrote.
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Dougherty added that in that case, the state voting system is designed to ensure that only the provisional ballot would be counted, or if the mail-in ballot is counted, then the provisional ballot is thrown away.
“In both scenarios, however, the only way the elector gets her single vote counted is to be given the easily accessible information that was intentionally withheld in this case,” he said.
Justice Kevin Brobson issued a dissenting opinion, joined by Justice David Wecht, in which he cited a fundamental disagreement with the majority on whether a mail-in ballot with missing signatures or dates is actually void and whether provisional voting is allowed. He also expressed concerns about a lack of consistency across the state in whether voters should be allowed to correct such errors.
“Like existing county-by-county “notice and cure” practices, the Majority’s decision here provides another data point upon which electors can reasonably question whether our elections meet the promise of equality and uniformity guaranteed by our state charter,” Brobson said.
Justice Sallie Mundy issued a separate dissenting opinion in which she added her concerns about the fairness of the state electronic election system notifying voters their mail ballots are disqualified because providing an email is optional when registering to vote.