Pennsylvania’s highest court said Wednesday that people whose mail-in ballots were rejected because they didn’t follow technical procedures under state law can cast provisional ballots, a decision that is sure to impact some of the thousands of mail-in ballots cast this fall will likely be rejected.
The Supreme Court ruled 4-3 that the Republican-majority election board in Butler County must count provisional ballots cast by two voters after they learned their mail-in ballots had been declared invalid because they arrived without required secrecy envelopes.
The decision was a legal defeat for the Republican National Committee and the Republican Party, which had argued that Butler County had correctly rejected provisional ballots cast during the April primary.
Secrecy envelopes keep the ballots hidden while election workers open the stamped outer envelopes used to return the entire packages. Voters must also sign and date the outer envelopes. Pennsylvania voters have requested more than 1.9 million ballots so far.
The two voters had received emails notifying them of the “naked ballot” problem, and they both went to their polling place on the day of the primary and cast provisional ballots. They filed a lawsuit after learning that the Butler County Board of Elections had also rejected their provisional ballots, and a county judge upheld election officials’ decisions.
The rules for mail-in ballots in Pennsylvania changed dramatically under a 2019 law, widely expanding their use and spawning a series of lawsuits. Pennsylvania’s status as the swing state with the most electoral votes in the tight presidential election, now in its final two weeks, puts the court’s ruling under intense scrutiny as the parties battle for votes.
Most counties — but not all — help inform voters before Election Day that their mail-in ballot will be rejected, giving them a chance to cast a provisional ballot at their polling place, according to the American Civil Liberties Union of Pennsylvania .
“The General Assembly wrote the Elections Act for the purpose of enabling citizens to exercise their right to vote, 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 cast their votes by mail, so the provisional ballots they also cast should not be counted.
He said voters must follow election laws, whether that means using the secrecy envelope or coming to the polls during the time they are open. State lawmakers could have told election boards to count provisional ballots under such circumstances, Brobson wrote.
“However, the General Assembly clearly did not do that, and the Court does not have the discretion to make additions or changes to the unambiguous statutory language to achieve that result,” Brobson said.
An ACLU attorney involved in the case, Witold Walczak, said Wednesday that the decision applies across the state, allowing all voters whose ballots are disqualified for any reason to cast valid provisional ballots.
“At the end of the day, it’s not about two votes counting or zero votes counting, it’s about one vote counting,” Walczak said. “If your first vote does not count, as with these disqualified ballots, the provisional ballot must count. You have the right to have one vote counted.”
Walczak expects the number of disqualified ballots in this year’s election to number in the tens of thousands.
