The Washington County Election Commission allegedly mishandled absentee ballots during the April primary and withheld information from 259 voters, preventing them from correcting errors before Election Day. according to the lawsuit filed Monday by the American Civil Liberties Union of Pennsylvania and local civil rights groups.
“The board’s decision to conceal the true status of returned absentee ballots with minor but disqualifying errors led to unnecessary disenfranchisement,” said ACLU-PA Legal Director Witold Walczak. “No government official or agency should knowingly disenfranchise its voters.”
The votes, which came from both Republican and Democratic voters, were not counted in the April primary, according to the lawsuit. Several plaintiffs in the lawsuit are voters who claim their votes were rejected because of errors on the outer envelope of the “declaration,” such as writing “incomplete date” or not signing and dating the envelope in the proper place.
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.
Instead, the lawsuit alleges, Washington County election officials “determined which absentee ballots would not be counted and then implemented a systematic process to conceal that information from voters and the public, in many cases misleading voters into believing their absentee ballots would be counted.”
Voter Bruce Jacobs, 65, of Venetia, said Monday during a news conference that his mail-in ballots were not counted because he did not sign and date the outer envelope. If he had known, Jacobs said, he would have voted with a provisional ballot.
“I thought I did everything correctly, but I made a mistake, apparently I forgot to sign and date the envelope,” Jacobs said. “Washington County election officials knew I made a mistake. When they received my vote, they knew it would be rejected because of that mistake, but they never notified me, and my vote was not counted. I didn’t find out until months later when I got a call from the Public Interest Law Center.”
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In addition to the ACLU-PA and the Public Interest Law Center, the lawsuit also includes the Center for Coalfield Justice and the Washington County branch of the NAACP, as well as seven voters.
The Washington County attorney’s office did not respond Monday to a request for comment.
The question of whether absentee ballots with missing or incorrect dates should be counted has dogged Pennsylvania elections since the no-excuse-mail-in-the-vote law took effect in 2020. The law, known as Act 77, made voting by mail a popular option this year, largely due to pandemic-related lockdowns and social distancing measures in place at the time.
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But since then, there have been a number of challenges and disputes over how to handle ballots with incorrectly filled-out return envelopes. The requirement to include a date on the return envelope has caused particular confusion and consternation among voting rights groups and the courts.
In response to a lawsuit filed by the Republican National Committee, the 2022 Pennsylvania Supreme Court ruled that more than 10,000 mail-in ballots on which voters failed to date the outer envelope or wrote the wrong date should be thrown out.
In November 2023, U.S. District Judge Susan Paradise Baxter of Erie ruled that ballots with incorrect or missing return envelope states must be counted if they are received by Election Day. But in March, the 3rd U.S. Circuit Court of Appeals overturned that decision, ruling that ballots undated on the outer envelope by the voter should not be counted even if they reach the county elections office by Election Day.
Senior U.S. District Judge Thomas Ambro noted that the date requirement “has no apparent purpose.” A provision of the Civil Rights Act of 1964 prohibits officials from denying someone the right to vote because of an error or omission “in any record or document relating to any application, registration, or other act required to vote” unless it is material to the person’s qualifications to vote.
However, Ambro wrote in the district court ruling that this provision applies only when the state establishes Who can vote, Ambro added, “and this does not concern the rules, such as the date requirement, that govern How “For a vote to be counted, it must be cast by an eligible voter.”
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In the case of Washington County, County commissioners voted in Aprilshortly before the primary election to change the county’s practices for handling mail-in votes, Walczak said. “And not only would they not tell voters who had sent in their ballots with one of those disqualifying errors, but they actively hid that information so that voters would not know and could not know that their vote did not count, and they had no way to fix it.”
He added that in other Pennsylvania counties, voters notified of an error on their ballot can correct it and keep their vote.
Walczak added that since Pennsylvania implemented no-excuse mail-in voting, the ACLU has observed a significant number of people having difficulty completing the process due to technical errors, such as forgetting to sign, providing the wrong date or forgetting the inner security envelope.
“And one of the things we’ve seen in the data collection since then is that it’s been largely and disproportionately affecting our seniors,” he said. “It’s now about 1% of mail-in votes. And that may not seem like a lot, but in the 2022 general election, for example, it was about 22,000 votes. And if you think about it, a difference of half a percent in the vote is enough to trigger a mandatory recount.”
Indeed, in the 2022 Republican primary for U.S. Senate in Pennsylvania, Mehmet Oz and David McCormick were up 1,000 votes, triggering an automatic statewide recount. Oz won the primary but lost to Democrat John Fetterman in the general election.
The Pennsylvania Department of State even changed the look of ballots in November 2023, a few weeks after the midterm elections. It changed the rules for filling out and returning absentee ballots, introduced easier-to-identify secrecy envelopes with a yellow background, and colored them to make it easier to distinguish the inner from the outer envelope.
In the modern ballot papers, The outer envelopes are prefilled with a “20” at the beginning of the year field so voters can fill in the current year — not their birth year, a common mistake in past elections. And the ballots come with full-page, illustrated instructions that show how to insert the envelopes before mailing them.
David Gatling, president of the Washington County NAACP, which is a plaintiff in the case, said Monday that the county’s actions amount to voter suppression. “Election officials who run elections should be doing everything they can to encourage voting and counting, not looking for underhanded ways to prevent voters from counting their votes,” he said.
The lawsuit, filed in Washington County Common Pleas Court, seeks a court declaration that the Board of Elections’ “policy and practice of concealing information and misleading voters about their absentee voting status is unconstitutional and void.”
Additionally, the plaintiffs want the court to order the board to “provide voters with accurate and timely information about mail-in ballots that contain disqualifying errors.”
Mimi McKenzie, legal director of the Public Interest Law Center, said Monday that the plaintiffs will ask the court to speed up the proceedings in the coming days.
There are just over four months left until Election Day.
