Court takes up ‘naked ballot’ case over mail-in voting in Pennsylvania

HARRISBURG, Pa. — Pennsylvania’s highest court said Friday it will consider whether counties must accept provisional ballots cast at polling places on Election Day by voters whose mail-in ballots did not include security envelopes or were rejected for other defects.

It could decide the fate of thousands of votes that otherwise could be invalidated in the November 5 election, when Pennsylvania is considered a key swing state in the presidential race.

» READ MORE: Counting mail-in votes in November could take days in Pennsylvania, even though lawmakers have addressed the issue since 2020.

The Supreme Court has considered an appeal against the verdict Commonwealth Court Decision just two weeks ago, it was reported that Butler County had to count provisional ballots cast by two voters who received automated emails before the April primary informing them that their absentee ballots had been rejected because they were so-called “bare ballots” that were not placed in the provided secrecy envelope.

When two voters tried to cast conditional ballots, election officials in Republican-majority Butler County rejected them, leading to a lawsuit. The voters lost in Butler County Court, but on Sept. 5, a panel of Commonwealth Court judges overturned the ruling, ruling that both ballots must be counted.

The case is one of several lawsuits over the fate of mail-in ballots in Pennsylvania cast by voters who failed to follow rules for sending them in for counting, including an oft-disputed requirement for precise, handwritten postmarks on the outer envelopes. Democrats have embraced mail-in voting far more than Republicans since Pennsylvania lawmakers vastly expanded it five years ago, on the eve of the pandemic.

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The decision to open the case came a week after the Pennsylvania Supreme Court overturned Commonwealth Court in separate case concerning postal voting, which in practice allows counties to enforce requirement to include date on outer envelope.

The order issued Friday said the justices will consider whether counties must count provisional ballots cast by voters who did not submit their ballots in a secrecy envelope — an issue that thwarted the plans of two Butler voters. But the high court indicated it could also rule on the broader issue of allowing provisional ballots for voters whose mail-in ballots were rejected for other reasons.

The Republican National Committee and the Pennsylvania Republican Party appealed, arguing that the Court of Common Pleas established an injunction to correct votes, which is not permitted under state election law.

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The Supreme Court has set dates next week for Republican Party entities, the two Butler voters who filed the lawsuit, the state Democratic Party that sides with them, and others who want to speak.

Votes cast on provisional ballots, which are typically cast at polling stations on election day, are separated from votes cast on regular ballots in cases where election officials need more time to determine whether a voter is eligible to vote.

County officials run elections in Pennsylvania. It’s unclear how many of the state’s 67 counties don’t allow voters to replace a rejected mail-in ballot with a provisional ballot, but plaintiffs have pointed out that at least nine other counties could have done so in the April primary.

About 21,800 absentee ballots were rejected in the 2020 presidential election, representing about 2.7 million absentee ballots cast in the state, according to the state elections office.