Pennsylvania’s top court gives voters a stopgap option if their mail-in ballots are rejected

Pennsylvania’s highest court said Wednesday that people whose mail-in ballots are rejected for not following technical procedures under state law can vote provisionally, a decision that is sure to affect some of the thousands of mail-in votes likely to be rejected this year. fall.

The Supreme Court ruled 4-3 that Butler County’s Republican-majority election board must count provisional votes cast by two voters after they learned their mail-in ballots were void because they arrived without required secrecy envelopes.

The decision was a legal defeat for the Republican National Committee and the state Republican Party, which argued that Butler County correctly rejected provisional ballots cast during the April primary.

Secret envelopes keep ballots hidden while election officials open the sealed outer envelopes used to return the packages in one piece. Voters must also sign and date the outer envelopes. Pennsylvania voters have already requested more than 1.9 million mail-in ballots.

Both voters received emails notifying them of the “naked ballot” problem, and both went to their polling places on primary election day and cast provisional ballots. They sued after learning that the Butler County Board of Elections also rejected their provisional ballots, and a county judge upheld election officials’ decisions.

Mail-in voting rules in Pennsylvania changed dramatically under a 2019 law, vastly expanding their use and producing a slew of lawsuits. Pennsylvania’s status as the swing state with the most electoral votes in the upcoming presidential election, now in its final two weeks, puts the court’s decision under heightened scrutiny as the parties fight for votes.

Most counties — but not all — help inform voters before Election Day that their mail-in ballot will be rejected, giving them the opportunity to vote provisionally at their polling place, according to the American Liberties Union Pennsylvania Civilians.

“The General Assembly wrote the Election Code for the purpose of allowing citizens to exercise their right to vote, and not for the purpose of creating obstacles to voting,” Justice Christine Donohue wrote for the majority.

In a dissent joined by the other Republican on the court and one of the five Democratic justices, Justice Kevin Brobson argued that the two voters had already voted by mail, so the provisional ballots they also cast should not be counted.

He said voters have to follow election laws, whether that means using a secrecy envelope or showing up at the polls when they are open. State lawmakers could have told election boards to count provisional ballots under such circumstances, Brobson wrote.

“The General Assembly, however, clearly has not done so, and this Court is not at liberty to make additions or modifications to unambiguous statutory language in order to effect that result,” Brobson said.

An ACLU attorney involved in the case, Witold Walczak, said Wednesday that the ruling applies statewide, that all voters whose mail-in ballots are disqualified for any reason will be allowed to cast valid provisional ballots.

“In the end, it’s not about counting two votes or counting zero votes, it’s about counting one vote,” Walczak said. “If your first vote doesn’t count, as happens with these disqualified mail-in ballots, the provisional ballot should count. You have the right to have one vote counted.”

Walczak expects the number of disqualified mail-in ballots to number in the tens of thousands in this year’s election.