by Carter Walker, Votebeat
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The ACLU of Pennsylvania is suing one county and may bring more cases in an attempt to challenge a policy it says disenfranchises voters who make a mistake when casting a mail-in ballot.
The Butler County case, filed after the April primary election, appears to be the beginning of a broader statewide effort by the group to target the “notice and redress” process, a major gray area in state law that leads to unequal voter rules in the all of Pennsylvania.
Along with this lawsuit, the organization signaled that it is considering another lawsuit and has filed public records requests to identify more counties that do not allow voters to correct defective mail-in ballots or notify voters when their ballot is rejected. Such requests for documentation are often a precursor to a lawsuit.
Legal efforts to change the courts’ position on notice and treatment could have a profound impact. Since Pennsylvania passed its no-excuse postal voting act in 2020, counties have rejected thousands of ballots because voters failed to sign or date the outer envelopes or made some other technical error. According to county officials and an analysis of available data by Votebeat and Spotlight PA, rejection rates drop significantly when the county notifies voters and gives them the opportunity to correct or remedy the error.
“It shouldn’t be a cash game,” he said Vic Walczak, legal director of the ACLU of Pennsylvania. “Here’s your ballot. You have one shot. If you screw up, it doesn’t count. This is not how it should work.”
State law is mute on whether counties must allow voters to amend their ballots, and courts have interpreted the lack of regulation to mean that it’s up to counties to decide whether to allow it. The result is a patchwork of statewide regulations.
At least 17 counties allow some form of treatment, although methods vary. Others claim that they have no such obligation, citing the Electoral Code and court decisions.
The ACLU’s treatment lawsuit marks a shift in its voting rights strategy in the wake of: failed challenge at the federal level to state requirements that voters date their ballot envelopes.
In March, the Third U.S. Circuit Court of Appeals ruled against the ACLU and other plaintiffs in a two-year-old case, arguing that Pennsylvania’s requirement that voters properly date their ballot return envelopes violates the Civil Rights Act of 1964. The ACLU has not said whether will file an appeal this decision to the US Supreme Court.
What is “spot and fix”?
Since Pennsylvania passed Act 77, or the no-excuse absentee voting law, in 2020, counties have received thousands of ballots in each election that contained errors that could have caused them to be rejected by election officials. Some voters do not sign or date the return envelope, as required by law, or do not place their ballot in a secrecy envelope designed to protect the privacy of their elections.
Some counties inform voters about errors and allow them to correct them, so their votes are counted. The “notice and cure” process quickly became a point of contention.
In September 2020, the Supreme Court of Pennsylvania he rejected the request Demand from Democrats that all counties contact voters and give them the opportunity to correct their mistakes. Democrats’ appeal to the state constitution’s free and equal elections clause, the court ruled, was not enough to overcome the lack of precise language in the law requiring counties to allow the treatment.
State Supreme Court he also turned around Republicans’ attempt to bar counties from allowing ballot hardening, citing the same lack of precise language in the law. Just before the 2022 election, the court upheld a lower court decision that found Republican groups that tried to block districts from implementing the treatment failed to show how they specifically violated the election code.
In counties that allow treatment, practices vary.
Some, like Allegheny County, are returning faulty absentee ballots to voters with an explanation of the error and a up-to-date return envelope. Nearby Fayette County allows voters to come into the elections office and correct errors in person. Philadelphia posts lists of voters with defective ballots online and allows them to request a replacement ballot in person at an elections office. Erie County publishes the list and allows voters to correct errors in person.
The effectiveness of hardening also depends on the method. An Allegheny spokesman said nearly 62% of defective absentee ballots were repaired last month using this method. Data from Fayette County shows the recovery rate was around 50% in previous elections. County officials said that in Chester County, about 66% of at-risk ballots have been corrected and counted.
Jeff Greenburgsenior adviser on election administration at the good governance group Committee of the Seventy, said the differing policies are a reminder that the Legislature needs to clarify this and other unclear parts of Act 77.
“If I were rating the General Assembly under Act 77, it would receive an incomplete rating,” he said.
Greenburg said counties act in good faith when interpreting the law and court decisions, but the inconsistencies that occur could shake voters’ faith in elections.
“Voters see it, understand it and start wondering why,” he said. “That’s an important question.”
Where the ACLU might be headed
The ACLU’s lawsuit against Butler County was filed on behalf of two voters who failed to place their absentee ballots in secrecy envelopes before returning them for the April 23 primary election. Their absentee ballots were rejected, and when those voters cast provisional ballots in person on Election Day, the county rejected those votes as well. Provisional ballots are used by voters whose eligibility is questioned but who still wish to vote. These ballots are only counted after the voter’s eligibility is confirmed.
Last year, the ACLU mounted a similar challenge against Delaware County and won. However, because the case ended in district court, it did not set a statewide precedent.
In the Butler County case, a judge recently granted a request by the state and national Republican Party to intervene in the case to support the county. If a judge rules unfavorably for the county, party organizations will have the option to appeal to the Commonwealth Court. A ruling there could have statewide implications.
Even if the case reaches that level, the decision would be narrow to one type of voting scenario: determining whether a voter can cast a provisional ballot in person if his or her original absentee ballot is rejected.
However, more treatment lawsuits appear to be on the horizon. Beginning in overdue March, the ACLU of Pennsylvania began sending identical public records requests to all counties. The requests – copies of which were obtained by Votebeat and Spotlight PA in separate records requests – sought information about the counties’ written policies on correcting or notifying voters of errors or documents reflecting the county’s decision not to allow treatment.
“We believe that the Pennsylvania and U.S. constitutions require counties to ensure that voters are not disenfranchised as a result of errors in absentee ballot envelopes,” Walczak said. He added that the organization is “exploring” its notification and treatment procedures.
The ACLU declined to discuss its specific legal strategy, but its recent actions indicate what its approach might be.
In April, Washington County clerks voted to reverse course and no longer notify voters about ballot errors or allow them to correct them. In a letter ahead of the April 23 primary election, the ACLU told the southwest county that the decision raised “serious constitutional due process questions,” pointing to the U.S. Supreme Court case.
Letters like this one often precede legal action, as was the case in Butler County, according to Washington County authorities they expected this decision would result in a lawsuit.
County elections directors expect to see more lawsuits over ballot treatment procedures, often expressing frustration that no matter what policy they adopt – allowing treatment or not – some group will be dissatisfied and sue.
“It will not increase public confidence in elections if groups sue sections of the code that have already been litigated” – Mercer County Elections Director Thad Hall he said.
Districts that do not allow treatment, like Mercer, typically base that decision on their district attorneys’ legal findings that the state election code does not provide clear authority for such action.
“It’s nothing malicious,” Hall said. “We just don’t have the law on treatment.”
Hall said those who want to change the policy should lobby the legislature to clarify the law. He said he thinks litigation aimed at forcing counties to adopt notice and treatment procedures could have an unintended, perverse effect if groups oppose a particular type of treatment policy.
“Districts might as well say, ‘Well, you’re not going to let us get the treatment we want, so we’re not going to do any treatment,’” he said.
Carter Walker is a Votebeat reporter with Spotlight PA. Contact Carter at cwalker@votebeat.org.
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