A sign directs voters in State College, Pennsylvania, on Tuesday, May 16, 2023. (Capital-Star photo)
Pennsylvania election officials must count provisional ballots cast by voters who find out or suspect that their mail-in ballots have been rejected, Commonwealth Court ruled Thursday.
The 2-1 decision, which is likely to be appealed to the state Supreme Court, reverses a ruling by a Butler County judge who ruled election officials did not have to count provisional votes cast by two voters whose “naked” mail-in ballots were rejected because they lacked secrecy envelopes inside the return envelopes.
In an opinion for the Commonwealth Court majority, Judge Matthew S. Wolf found the Butler County Board of Elections did not have a legal basis to refuse to count the voters’ provisional ballots. Judge Lori Dumas cast the dissenting vote but did not issue a separate opinion.
“Today’s decision ensures that if you make a paperwork mistake that will keep your mail-in ballot from counting, you can fix the problem by going to your polling place on Election Day and filling out a provisional ballot. This is an important safety net that protects the right to vote for Pennsylvania citizens,” said Ben Geffen, senior attorney at the Public Interest Law Center. The center, a Philadelphia nonprofit, and the American Civil Liberties Union of Pennsylvania, represented Faith Genser and Frank Matis, the voters in the case.
Lawyers for the state Republican Party and the Butler County Board of Elections argued in Commonwealth Court that the Election Code does not allow a voter to cast a provisional ballot if their mail-in ballot is received on time, even if it turns out to be fatally flawed and rejected. They did not return calls Thursday.
Thursday’s Commonwealth Court decision is the latest in a series of cases interpreting changes to the state Election Code that allowed Pennsylvania voters to cast ballots by mail without an excuse for the first time in 2020. So-called naked ballots are among the flaws that have caused thousands of mail-in ballots to be rejected in recent elections.
Voting rights groups and political parties have been engaged in litigation over the vote-by-mail amendments for much of the last four years. The Butler County case is one of at least two the state Supreme Court is expected to resolve before the Nov. 5 presidential election, ACLU of Pennsylvania Legal Director Vic Walczak told the Capital-Star.
The Supreme Court has also received briefs Wednesday and Thursday in a Republican Party appeal of another Commonwealth Court decision last week. In a 4-1 decision, the Commonwealth Court ruled disqualifying mail-in ballots over missing or incorrect dates violates the fair and equal elections clause of the Pennsylvania Constitution.
In that case, the AFL-CIO, a group of nearly three dozen county officials, and legal scholars have weighed in on the side of the ACLU and Democratic Party arguing that the date requirement is immaterial and serves only to disenfranchise voters.
The Butler County court found that election officials are not required to count provisional ballots cast by voters whose mail-in ballots have already been received. Butler County President Judge S. Michael Yeager wrote that allowing the provisional ballots to be counted amounts to “ballot curing” or allowing voters to fix errors on mail in ballots.
The state Supreme Court ruled in 2020 that county election officials are not required to allow voters to fix errors on mail-in ballots.
Wolf, the author of the Commonwealth Court opinion, noted that the question of whether the Election Code prohibits counting provisional ballots when a voter’s fatally flawed mail-in ballot has been received is separate from whether a voter can cure an error on a mail-in ballot.
The Butler County director of elections testified in a hearing in Butler County court that while the county’s policy allows voters to correct errors in the voter declaration on the outer envelope of a mail-in ballot, it has no policy regarding naked ballots.
Wolf said the majority interpreted the Election Code to give it the legislature’s intent that provisional ballots serve as a safeguard against voters being denied their votes or casting more than one vote.
“The General Assembly did not intend for those authorized provisional ballots to be rendered meaningless … whenever the elector has made an earlier but unsuccessful attempt to cast or vote a ballot,” Wolf said.