Pennsylvania election officials must count provisional ballots cast by voters who discover or suspect their mail-in ballots have been rejected, a state court ruled Thursday.
The 2-1 decision, which is likely to be appealed to the state Supreme Court, reverses a Butler County judge who found that election officials did not have to count provisional votes cast by two voters whose bare absentee ballots were rejected because the return envelopes did not contain ballot protection envelopes.
In the majority opinion, Commonwealth Court Judge Matthew S. Wolf found that the Butler County Board of Elections had no legal basis to refuse to count the electors’ provisional votes. Judge Lori Dumas dissented but did not issue a separate opinion.
“Today’s decision ensures that if you make a mistake on your paperwork that prevents your mail-in vote from being counted, you can correct 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 of Pennsylvanians to vote,” said Ben Geffen, senior staff 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, 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 his or her mailed ballot is received on time, even if it turns out to be defective and rejected. They did not return calls Thursday.
The Commonwealth Court decision on Thursday is the latest in a series of cases interpreting changes to the state Election Code that allowed Pennsylvania voters to cast mail-in ballots without an excuse for the first time in 2020. So-called no-excuse ballots are among the flaws that have caused thousands of postal votes will be rejected in the last elections.
Voting rights groups and political parties have been engaged in litigation over absentee ballot amendments for most of the past four years. The Butler County case is one of at least two that the state Supreme Court is expected to decide before the Nov. 5 presidential election, ACLU of Pennsylvania Legal Director Vic Walczak told the Capital-Star.
The Supreme Court also received briefs Wednesday and Thursday in the Republican Party’s appeal of another Commonwealth Court decision last week. In a 4-1 decision, the Commonwealth Court ruled that disqualifying mail-in votes because of missing or incorrect dates violates the Fair and Equal Elections Clause of the Pennsylvania Constitution.
In this case, the AFL-CIO, a nearly three-member advocacy group, and legal experts sided with the ACLU and the Democratic Party, saying the date requirement was irrelevant and served only to disenfranchise voters.
Butler County Circuit Court ruled that election officials are not required to count provisional votes cast by voters whose mailed ballots have already been received. Butler County Circuit Judge S. Michael Yeager wrote that allowing provisional votes to be counted amounts to “ballot fixing,” or allowing voters to correct errors on mailed ballots.
The state Supreme Court ruled in 2020 that county elections officials have no obligation to allow voters to correct errors on their absentee ballots.
Wolf, the author of the Commonwealth Court opinion, noted that the issue of whether the Election Code prohibits counting provisionally cast votes in a situation where a voter received a defective absentee ballot is separate from the issue of whether a voter may correct an error on an absentee ballot.
Butler County’s elections director testified at a Butler County Superior Court hearing that while county policy allows voters to correct errors in the voter declaration on their absentee ballot envelope, there is no policy regarding unenrolled ballots.
Wolf said the majority interpreted the Election Code to mean that the legislature intended provisional ballots to provide a safeguard against voters being disenfranchised or casting more than one vote.
“The General Assembly did not intend to render meaningless those authorized provisional votes … each time a voter had made a prior unsuccessful attempt to cast or vote,” Wolf said.
