Washington County election workers must notify absentee voters if their ballot is not counted because of a paperwork error and allow them to cast a provisional ballot on Election Day, a county judge ruled.
Washington County Judge Brandon P. Neuman issued an injunction sought by voting rights groups to block a policy that failed to notify voters when their ballots were rejected because of an error the county elections board made just before the April primary.
These groups argued that such policies disenfranchise voters because they effectively hide from them the fact that their votes will not be counted and prevent them from casting provisional ballots.
“It should be a given that voters are notified if they make a mistake on their absentee ballot and have the option to cast a provisional ballot. This decision helps ensure that every voter understands their rights and has the opportunity to correct any mistakes,” said Sarah Martik, executive director of the Center for Coalfield Justice, a plaintiff in the case.
Washington County Board Chairman Nick Sherman said in a statement that Neuman’s decision was “the most egregious case of lawmaking from the bench” Sherman has ever seen, adding that state law prevents mail-in ballots from being processed or canvassed before 7 a.m. on Election Day.
“This is a page out of the Democratic Party’s national playbook. When they disagree with state law, they arm the ACLU and find a liberal judge to rule in their favor. It’s unconstitutional and un-American,” Sherman, a Republican, said in a statement. He said county officials are considering their next steps.
The question of whether absentee ballots should be counted if voters make a mistake on the declaration they must fill out on their return envelope has been a perennial election issue in Pennsylvania since the state first allowed no-excuse absentee voting in 2020.
In a series of challenges and decisions in state and federal courts, lawyers have said the law, known as Act 77 is clear that voters must sign and date their ballots. A federal district court judge found last year that the date requirement violates the prohibition in the Civil Rights Act against denying anyone the right to vote because of a inconsequential error in their documents.
U.S. Court of Appeals for the 3rd Circuit overturned this decisionruling that this provision applies only when the State establishes Who they can vote, not according to the rules that govern them How To be counted, your vote must be cast.
Earlier this month, the ACLU filed a motion appeal in the Court of Common Pleas of Pennsylvania arguing that the date requirement violates the state constitution.
In his 28-page opinion, released Friday, Neuman said the Pennsylvania Legislature included in the state Election Code the ability for voters to challenge the board of elections’ decision to determine whether absentee ballots can be counted.
“The policy adopted by the Washington County Board of Elections expressly failed to notify any voter whose mail packet contained an error that his or her vote would not be counted,” Neuman wrote. “A voter has a statutory right to challenge the board’s decision. That challenge may ultimately be unsuccessful; however, the voter still has the right to be heard by a fair and impartial tribunal.”
Neuman’s order directs the Board of Elections to notify voters whose absentee ballots were set aside because of disqualifying errors so they have a chance to challenge the board’s decision. The order also directs the county to accurately record the status of absentee ballots returned to the county in the Statewide Uniform Registry of Electors (SURE) and to inform the voter of the status if they ask.
The election code also allows voters who have applied for an absentee ballot but are listed as not voting on the ballot at their polling place to cast a provisional ballot, Neuman’s decision notes. While the legislature and the law do not define the word “voted,” Neuman said he found, based on the information provided to the court, that the person whose absentee ballot was rejected did not vote.
“The Washington County Board of Elections will designate on each county voter registration form an individual whose mail packet is segregated as having not voted, allowing that individual to cast a provisional ballot at the polling place,” Neuman wrote.
The ruling stems from a complaint filed in July by the American Civil Liberties Union of Pennsylvania on behalf of seven voters and local advocacy groups: the Center for Coalfield Justice and the Washington Branch NAACP.
The lawsuit alleges that the county’s policies disenfranchised 249 voters whose mail-in ballots were rejected because of errors on the outer ballot “declaration” envelope, such as an “incomplete date” or an incorrect signature and date on the envelope.
According to the defendant, had the county properly coded rejected mail-in ballots in the SURE database, voters would have been notified that their ballots had been rejected and would have been able to vote with a provisional ballot.
