Pa. Supreme Court: Voters' provisional ballots must be counted if mail ballots rejected

County election officials must count provisional ballots cast by voters whose mail ballots are rejected because of errors, the Pennsylvania Supreme Court has ruled.

The 4-3 decision announced Wednesday affirms a Sept. 5 ruling by a Commonwealth Court panel in favor of two voters whose “naked” mail-in ballots were rejected because they lacked secrecy envelopes inside the return envelopes.

More: When are Pa.'s mail ballots counted? Why it's later than 43 other states

In an opinion for the Supreme Court majority, Justice Christine Donohue wrote that the Butler County Board of Elections correctly rejected the voters’ mail-in ballots because they did not comply with the Election Code’s requirement to use a plain envelope to ensure the anonymity of ballots.

But the board erred by refusing to count provisional ballots the voters cast at their polling places after learning their mail ballots were fatally flawed, Donohue said. The Election Code requires county elections officials to count provisional ballots if no other ballot is attributable to the voter.

The Supreme Court decision establishes a statewide precedent that will apply to every county in the Nov. 5 election and beyond.

“Today’s decision affirms that if you make a paperwork mistake that will keep your mail ballot from counting, you have the right to vote by provisional ballot at your polling place on Election Day,” said Ben Geffen, senior attorney at the Public Interest Law Center. “This reinforces the right to vote in Pennsylvania.”

The Public Interest Law Center and the American Civil Liberties Union of Pennsylvania represented the voters, Faith Genser and Frank Matis.

“Our electoral systems must be designed to ensure that all eligible voters are permitted to cast a ballot and have their ballot counted. For two decades, provisional ballots have provided a failsafe so that eligible voters are not disenfranchised for technical errors or unforeseen circumstances at their polling place,” said Richard Ting, senior staff attorney at the ACLU of Pennsylvania.

The Supreme Court decision is the latest involving mail-in ballots, which have been the subject of litigation in every election since 2020, when an amendment to the election code first allowed voters to vote by mail without an excuse.

In a pair of decisions Oct. 5, exactly a month before the election, the court dismissed two cases involving the disqualification of mail-in ballots, saying that deciding the cases so close to the election would risk confusion among voters.

In one case, the court dismissed a request by voting rights groups to block the enforcement of a rule requiring mail-in ballots to bear a handwritten date on the return envelope. In another, it rejected a request by the Republican National Committee and the Republican Party of Pennsylvania to stop county election officials from allowing voters to remedy mistakes on their mail-in ballots that would cause them to be disqualified.

The Supreme Court agreed, however, to decide whether county election officials must inform voters if their mail-in ballots are disqualified so that voters can challenge the decision.

The Pennsylvania Republican Party and the Republican National Committee appealed a Washington County judge’s ruling in August that elections officials must inform voters if their ballot will not be counted because of a paperwork error and allow them to vote provisionally on election day.

Washington County Judge Brandon P. Neuman granted an injunction sought by voting rights groups to block a policy of not informing voters if their ballot was rejected because of an error that the county Board of Elections adopted just before the April primary.

The groups claimed the policy disenfranchised voters by effectively hiding from them the fact that their votes would not be counted and denying them the opportunity to cast provisional ballots. The Supreme Court has yet to rule in the Washington County case.

Peter Hall has been a journalist in Pennsylvania and New Jersey for more than 20 years, most recently covering criminal justice and legal affairs for The Morning Call in Allentown. His career at local newspapers and legal business publications has taken him from school board meetings to the Pennsylvania Supreme Court and many points of interest between. He earned a degree in journalism from Susquehanna University. Pennsylvania Capital-Star is part of States Newsroom, the nation’s largest state-focused nonprofit news organization.

This article originally appeared on Erie Times-News: Pa voters' provisional ballots will count if mail ballots are rejected