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Voters must be notified if election officials are going to reject their mail ballots because of an error such as an incorrect date or missing signature on the return envelope, the Pennsylvania Supreme Court ruled Friday.
In a 4-3 decision, the court ruled that Washington County erred in not notifying 2024 presidential primary voters that their mail ballots would be rejected, leaving them unaware their votes would go uncounted.
“We must interpret the Election Code and its statutory procedures in a way that ‘favors the fundamental right to vote and enfranchises, rather than disenfranchises, the electorate,’ Justice Kevin Dougherty said, writing for the majority. “Reading the Code as allowing county boards to withhold readily available information from voters does not serve that goal.”
The decision, in combination with another ruling last year from the high court, means that voters across the state will have at least some rights to be notified and have some recourse if their mail ballots are at risk of being rejected because of mistakes.
Before the 2024 primary, the Republican majority on Washington County’s board of elections opted not to notify voters of mistakes with their mail ballots that would cause their votes to be disqualified, such as a missing date or signature, or being returned without a secrecy envelope. That left voters with no way to know about those errors or fix them to ensure their vote could be counted.
The Pennsylvania Supreme Court had previously ruled that state law doesn’t require counties to give voters a chance to fix errors with their ballots, but it also doesn’t prohibit the practice either. As a result, many counties adopted such a process to tell voters of their mistakes and give them another chance, referred to as “notice and cure.”
More than half of counties do this, according to a Votebeat and Spotlight PA analysis.
During the primary, Washington County gave voters no warning if their ballot had an error that would result in it being rejected, even though it acknowledged receiving them. When Washington County received a mail ballot back from a voter, it used only generic codes in the state’s ballot tracking system to indicate the ballot had been received, rather than more specific codes that could indicate whether there is a problem that prevents the ballot from being counted. These codes generate distinct emails to voters, and the more specific codes would have generated emails that informed voters their ballots were at risk of rejection.
Ultimately, Washington County rejected 259 mail ballots during the primary for issues with a signature or date on the outer envelope, or for being returned without an inner secrecy envelope. That was roughly 2.2% of mail ballots returned to the county.
Statewide, roughly 8,500 ballots in the 2024 primary, or 1.22% of those returned, were rejected for one or more of those errors, according to an analysis of Pennsylvania Department of State data.
Some counties, including Allegheny, send the defective ballot back to the voter with instructions on how to fix the error, as well as a new return envelope. That method enabled voters there to fix nearly 62% of the defective mail ballots in the spring primary. Chester County tells voters to come into the elections office with ID and fix it in person. Delaware County cancels the defective ballot and issues a new one.
The ACLU and Public Interest Law Center sued Washington County — on behalf of seven voters, the local NAACP branch, and the Center for Coalfield Justice — arguing that by not informing the voters that their ballots were at risk of rejection, the Washington County had violated the voters’ constitutional due process rights and denied them the opportunity to challenge the decision or cast provisional ballots.
Washington County Court of Common Pleas Judge Brandon Neuman agreed with the organizations, writing that under the state Election Code, voters have a right to challenge the decision by a county board of elections to reject their ballot, and to cast a provisional ballot. If they don’t know their ballot was rejected, he wrote, they can’t exercise those rights.
He ordered the county to change its process for what codes it uses when receiving ballots, so voters better understand that their ballot is at risk of rejection.
Washington County appealed the decision to Commonwealth Court, joined by state and national Republican groups that had intervened in the case. Last September, Commonwealth Court upheld the lower court ruling 2-1 that the county had to provide notice so that the voters’ due process rights could be maintained.
Shortly before the 2024 presidential election, the state Supreme Court also ruled that if a county rejects a voter’s mail ballot, they must count a valid provisional ballot if the voter casts one on Election Day.
In combination, the two rulings mean some version of “notice and cure” will exist in all 67 counties
The case was one of the last remaining major pieces of litigation stemming from Act 77, the 2020 law that enacted no-excuse mail-in voting in Pennsylvania.
Another case pending before the state Supreme Court, which has yet to be decided on, deals with whether ballots should be rejected if voters fail to write a date on the ballot return envelope.
Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.
