(Photo by George Frey/Getty Images)
A Pennsylvania county’s policy preventing voters from finding out that their mail-in ballots had been rejected violated the state constitution and denied them the right to take action to ensure their votes were counted, a state court found Tuesday.
In a 2-1 decision, a Commonwealth Court panel said the Washington County Board of Elections policy denied hundreds of voters in the April 23 primary election the right to cast a ballot and have it counted.
Upholding a Washington County Court of Common Pleas decision, the panel found the Pennsylvania Election Code provides voters the right to challenge a decision by an elections board.
By preventing voters from learning that their ballots were rejected and exercising that right, the Washington County policy “emasculates the Election Code’s guarantees” and violates the due process provisions of the state constitution, Judge Michael Wojcik said in an opinion for the majority. Judge Lori Dumas cast the dissenting vote but did not issue a separate opinion.
“Washington County election officials needlessly concealed information from voters, knowing that their ballots wouldn’t be counted,” said Vic Walczak, legal director of the American Civil Liberties Union of Pennsylvania, which with the Public Interest Law Center represented seven voters, the Center for Coalfield Justice and the Washington Branch NAACP in the case.
“We’re grateful that the court saw the important constitutional principle that government agencies cannot withdraw or cancel fundamental rights, especially something as important as voting, without telling people beforehand and sided with the voters,” Walczak said.
Sarah Martik, executive director of Center for Coalfield Justice, said the decision upholds the integrity of the electoral system by ensuring that those who vote by mail have the same protections as those voting in person.
“The law was always meant to expand the right to vote, not restrict it, and today the court has confirmed that politically-motivated attempts to silence voters won’t stand. When your vote is your voice, there’s always someone who would rather not hear it. But today, the Commonwealth Court has made it clear that Pennsylvanians will not be silenced,” Martik said.
The Republican National Committee, the Pennsylvania Republican Party, and a spokesperson for Washington County, which all appealed the Washington County Court’s decision, did not respond to the Capital-Star’s requests for comment.
Tuesday’s ruling is the latest in a series of cases on how election officials should handle mail-in ballots when voters make errors filling them out and what voters can do to fix their mistakes. Each has been closely watched for its potential to affect how votes are counted in the Nov. 5 presidential election, in which Pennsylvania is considered a must-win state.
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On Friday, the state Supreme Court agreed to hear an appeal in another case involving provisional ballots cast by voters whose mail-in ballots were rejected because they had disqualifying mistakes.
Indeed, the Commonwealth Court’s earlier decision in Genser v. Butler County Board of Elections serves as a jumping off point for the court in the Washington County case, Wojcik wrote, because it dispenses with many of the RNC, state GOP and board of elections’ arguments.
In the Butler County case, Judge Matthew S. Wolf found provisional ballots are intended to serve as a safeguard against voters being denied their votes or casting more than one vote and that the board of elections did not have a legal basis to refuse to count the voters’ provisional ballots.
Wojcik wrote in Tuesday’s Washington County decision the remaining issue was whether the board of elections is required to notify voters that their mail-in ballots have been rejected.
Under the free and equal elections clause of the state constitution, voting is a fundamental right and voters have an interest in contesting any decision depriving them of that right, Wojcik wrote.
The decision notes that none of the voters involved in the case were aware their ballots had not been counted until after Election Day and at least two did not find out until months after the primary.
“We do not believe our Constitution countenances such a deprivation without notice and an opportunity to be heard; thus, we conclude the Policy contravenes due process,” Wojcik wrote.
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