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The ACLU of Pennsylvania is suing one county and could potentially file more cases in an effort to challenge a policy it says disenfranchises voters who make a mistake casting mail-in ballots.
The case against Butler County, filed after the April primary, appears to be the start of a broader statewide effort by the group to target the notice and cure process, a major gray area in state law that leads to uneven rules for voters across Pennsylvania. .
Along with that lawsuit, the organization has indicated it is considering another lawsuit, and has filed public records requests to identify more counties that do not allow voters to correct defective ballots or notify voters that their ballot will be rejected. Such requests for data are often a precursor to a lawsuit.
A legal effort that changes the courts’ position on termination and cure policies could have a profound impact. Since Pennsylvania passed its no-excuse mail-in voting law in 2020, counties have rejected thousands of ballots because voters failed to sign or date the outer envelopes or made some other technical error.
The rejection rate drops significantly when a county notifies voters and allows them to correct or cure the mistake, according to county officials and a Votebeat and Spotlight PA analysis of available data.
“This should not be foul play,” said Vic Walczak, legal director of the ACLU of Pennsylvania. “Here’s your ballot. You have one chance. If you mess up, it doesn’t count.’ That’s not how this is supposed to work.”
State law is silent on whether counties must allow voters to correct their ballots, and courts have interpreted the lack of rules to mean that it is up to counties to choose whether or not to allow this. The result is a patchwork of rules across the country.
At least seventeen provinces allow some form of healing, although methods vary. Others say they are not obliged to do so, citing election law and court rulings.
The ACLU’s lawsuit over healing marks a shift in its voting rights strategy after a failed challenge at the federal level to state requirements that voters put a date on ballots.
More: The U.S. Court of Appeals will hear the case over mail-in ballots in Pa. do not repeat. Will SCOTUS take it on?
In March, the 3rd U.S. Circuit Court of Appeals ruled in a two-year case against the ACLU and other plaintiffs, arguing that Pennsylvania’s requirement that voters properly date their ballots violates the Civil Rights Act of 1964. The ACLU has not said whether it will appeal this decision to the U.S. Supreme Court.
What is ‘notice and heal’?
Since Pennsylvania implemented Act 77, the no-excuse voting law, in 2020, counties have received thousands of ballots in each election with errors that could lead to them being rejected by election officials. Some voters do not sign or date the return envelope as required by law, or do not place the ballot in a secrecy envelope designed to protect the privacy of their selection.
Some counties inform voters of the errors and allow them to correct the problems so that their votes are counted. This process of notice and healing quickly became a point of contention.
In September 2020, the Pennsylvania Supreme Court rejected a request from Democrats to require all counties to contact voters and allow them to correct errors. Democrats’ invocation of the free and equal elections clause in the state constitution, the court ruled, was not enough to overcome the lack of precise language in the law requiring counties to allow for healing.
The state Supreme Court also rejected an attempt by Republicans to ban counties from allowing ballot repairs, citing the same lack of precise language in the law. Just before the 2022 election, the court upheld a lower court ruling that found Republican groups seeking to block counties from implementing healing had not shown how they specifically violated election law.
Among the provinces that allow healing, practices vary.
Some, like Allegheny County, return defective ballots to voters with an explanation of the error and a new return envelope. Nearby Fayette County offers voters the option to come to the election office and fix errors in person. Philadelphia and Erie counties post lists of voters with defective ballots online and offer voters the opportunity to correct errors in person. Chester County uses the state’s voter roll management system to send emails to voters, provides lists of defective ballots to political parties in the days leading up to the election, and has the legal department review the ballots to determine if they are actually defective are. .
How successful the curing is also depends on the method. An Allegheny spokesperson said nearly 62% of defective mail-in ballots in the April primary were fixed using this method. Data from Fayette County shows they saw a recovery rate of about 50% in the past primary elections. In Chester County, about 66% of ballots at risk were corrected and counted, county officials said.
Jeff Greenburg, a senior advisor on election administration for the good government committee Committee of Seventy, said the divergent policies are a reminder that the Legislature needs to clarify this and other vague parts of Act 77.
“If I were to judge the General Assembly based on Act 77, they would get an incomplete,” he said.
Greenburg said counties are acting in good faith in interpreting the law and court cases, but the inconsistencies threaten to damage voter confidence in elections.
“Voters see that, understand that and are starting to wonder why,” he said. “It’s a fair question.”
Where the ACLU may be heading
The ACLU’s lawsuit against Butler County was filed on behalf of two voters who failed to place their ballots in secrecy envelopes before returning them for the April 23 primary election.
Their mail-in ballots were rejected, and when those voters cast their provisional ballots in person on Election Day, the county rejected those votes as well. Provisional ballots are used by voters whose eligibility is questionable but who still want to vote. These ballots will not be counted until the voter’s eligibility has been confirmed.
The ACLU brought a similar challenge against Delaware County last year and won. But because the case ended up in County Court, it didn’t set a statewide precedent.
In the Butler County case, a judge recently granted the state and national Republican Party’s request to intervene in the case in support of the county. If a judge rules against the province, the party organizations have the opportunity to appeal to the Commonwealth Court. A ruling there could give the case a national impact.
Even if the case reaches that level, a decision would be limited to one type of voting scenario: determining whether a voter can cast a provisional ballot in person if their original ballot is rejected.
But more lawsuits over healing appear to be on the way. Beginning in late March, the ACLU of Pennsylvania began sending identical public records requests to all counties. The requests — copies of which Votebeat and Spotlight PA obtained through separate records requests — sought information about the counties’ written policies regarding curing or notifying voters of errors, or documents confirming the county’s decision reflected not to allow healing.
“We believe that the Pennsylvania and U.S. Constitutions require counties to ensure that voters are not disenfranchised due to errors on their ballots,” Walczak said. He added that the organization has been “exploring” notification and remediation procedures.
The ACLU declined to discuss its specific legal strategy, but its recent actions indicate what its approach might be.
In April, officials in Washington County voted to reverse course and no longer notify voters of ballot errors or allow them to fix them. In a letter before the April 23 primary, the ACLU told Southwestern County that the decision “raised serious constitutional procedural concern(s),” citing a U.S. Supreme Court case.
Letters like this often precede lawsuits, as was the case in Butler County, and Washington County leadership said they expected the decision would result in a lawsuit.
County election directors have anticipated more lawsuits over ballot-healing procedures, often expressing frustration that it appears that no matter what policy they implement — allowing or not allowing healing — a certain group will be unhappy and file a lawsuit.
“Public confidence in elections will not increase if groups sue over portions of the code that have already been litigated,” said Mercer County Elections Director Thad Hall.
Counties that do not allow cures, like Mercer, have generally based that decision on their county attorney’s legal finding that state election law does not provide clearly defined authority to do so.
“It’s nothing malicious,” Hall said. “It’s just that we don’t have a healing law.”
Hall said those who want to change the policy should lobby the Legislature to clarify the law. He said he thinks lawsuits aimed at forcing counties to implement notice and remediation procedures could have an unintended, adverse effect if groups object to certain types of remediation policies.
“Provinces could very well say, ‘Well, you’re not allowing us to get the healing we want, so we’re not going to do any healing,’” he said.
More: ACLU is suing York County because the public was not allowed to witness the election campaign
Carter Walker is a reporter for Votebeat in association with Spotlight PA. Contact Carter at cwalker@votebeat.org.
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This article originally appeared on Erie Times-News: PA election: ACLU lawsuit tests counties’ vote-by-mail rules
