What Pennsylvania Supreme Court's recent rulings mean for voters ahead of Election Day

The Pennsylvania Supreme Court late Saturday ruled that it won't take up two lawsuits over mail ballots because it's too close to the Nov. 5 presidential election and tens of thousands of people are already casting votes.

In one decision, the court said it would not hear the request of the Republican National Committee and the Pennsylvania Republican Party, which not only sought to prohibit county boards of elections from allowing voters to fix mistakes on their mail ballots, a practice known as notice-and-cure, but also to bar them from voting by provisional ballot on election day if that mail ballot was defective.

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The court also dealt a blow to a coalition of civil rights organizations represented by the American Civil Liberties Union of Pennsylvania and the Public Interest Law Center, which in late August scored a short-lived victory in appellate court over undated or improperly dated mail ballots.

Pennsylvania Commonwealth Court ruled Aug. 31 that rejecting mail ballots received before the submission deadline because they contain dating errors on the outer envelope is a violation of a voter's rights under the state constitution.

On Sept. 13, however, the state Supreme Court dismissed the case on a technicality: Plaintiffs sued only the state's two largest counties, Philadelphia and Allegheny, and not all 67.

In both lawsuits, the plaintiffs asked the high court for "extraordinary relief" under the court's King's Bench rule, which allows justices to consider cases of great public importance without the case being heard by a lower court first.

Yet another mail-in ballot question remains pending before the Pennsylvania Supreme Court. In that case, brought by the Center for Coalfield Justice and the Washington County branch of the NAACP, the lower courts have held that officials must notify people who make mail-in ballot errors. That way, these voters can cast a provisional ballot on Election Day or contest the decision to disqualify their mail-in ballot.

The case was filed after the Washington County elections board’s Republican majority decided they would not tell voters if their mail-in ballots were rejected for technical errors.

What do the rulings mean for voters?

With the court choosing to punt on two of the mail-in ballot cases, county boards of elections will still be permitted to notify voters if they've made a mistake on their ballot envelope and provide them an opportunity to fix that mistake. However, it also means that those boards of elections cannot count mail ballots that have the wrong date or no date on the outer envelope, even if those ballots are received before the deadline and are postmarked or time-stamped.

The ACLU of Pennsylvania fears that the latter could disenfranchise tens of thousands of voters.

"Voters should not be disqualified over an irrelevant human mistake," the group said in a statement after the decision.

The ACLU of Pennsylvania said the court should not waste time considering the case on its merits. The voting rights groups it has represented have argued — and the Commonwealth Court has agreed — that the envelope dates serve no important purpose. Election officials don't use the handwritten dates to make sure a ballot arrives on time or for any other voting security reason, according to these groups.

The dating requirement appears to be a "legislative artifact" from an earlier era, said Marian Schneider, senior counsel for voting rights at the ACLU of Pennsylvania.

The mail-in ballots of about 10,000 Pennsylvanians were excluded from the tally in the 2022 general election because of a dating problem, according to the ACLU of Pennsylvania.

Which Pa. counties let voters fix ballot errors?

In its statement, the group also lauded the court for rejecting the RNC's plea to prohibit notice-and-cure practices, saying "county election officials should be helping people vote, not finding ways to disqualify them."

If the RNC had prevailed in its push to disqualify ballots for mistakes without giving voters the opportunity to correct the, "a lot of voters would not have their ballots counted," she said.

To this point, Pennsylvania counties have exercised their own discretion when it comes to notice-and-cure policies; in some places, officials give voters the opportunity to fix errors, and in others, they don’t.

At least 36 counties, or more than half of Pennsylvania’s 67, notify voters of errors on their mail ballots and provide an opportunity to fix them, according to a recent analysis by the ACLU of Pennsylvania. Ten others let people know that their ballots are defective and allow them to vote provisionally on Election Day.

But at least 16 counties don’t tell people about problems with their mail-in ballot or give them a chance to fix mistakes. The ACLU of Pennsylvania is unsure about the policies in the remaining five counties.

Even in counties that allow curing, the process looks different depending on where you are in the Keystone State, Schneider said.

Some counties mail the entire ballot packet back to a voter to correct the error, she said. Others call voters into the office to, for instance, fix a missing or incorrect date, and still others might issue a replacement ballot, she said.

This patchwork of different rules results from the commonwealth’s decentralized election system, Schneider said.

The ACLU of Pennsylvania questions the motives of county officials who support rejecting misdated ballots with no opportunity for voters to correct them.

"In the five years since Pennsylvanians’ voting rights expanded to include no-excuse voting by mail, we’ve seen counties try to skirt the expansion in voting access by applying needless rules and harsh punishments for meaningless errors," Mike Lee, executive director of ACLU of Pennsylvania, said in a news release. "These policies have real impact on real voters, and we know that thousands have been disenfranchised because of them."

Bethany Rodgers and Matthew Rink are a USA TODAY Network Pennsylvania bureau investigative journalists.

This article originally appeared on Erie Times-News: Too close to Election Day: PA Supreme Court won't weigh in on 2 cases