Pa. voters can cast provisional ballot if mail ballot is rejected

That was the ruling of a Commonwealth Court panel in a case brought by Butler County.

A state court ruled Thursday that Pennsylvania voters will be able to submit a provisional ballot for Election Day if their mail-in ballot was rejected due to a mistake.

A three-member Commonwealth Court panel determined that nothing in state law prevents Butler County from counting two voters’ provisional ballots that were cast during the April 23 primary election.

The court case originated from a lawsuit by those two voters, who got notified before the primary that their ballots had been rejected because they didn’t put them in a blank “secrecy” envelope that comes with the ballot.

A provisional ballot can be submitted on Election Day and can be separated from regular ballots by poll workers if they determine its eligibility needs to be checked. The voters attempted to submit provisional ballots afterward, but they were rejected by the county.

Butler County, along with the local and national Republican Party, contested the lawsuit, contending that state law doesn’t give voters the opportunity to submit provisional ballots if their mail-in ballot gets rejected.

The two voters were represented by the ACLU of Pennsylvania, with the state Democratic Party and Gov. Josh Shapiro’s administration also taking their side in the case. The decision will apply to all 67 Pennsylvania counties.

According to the state elections office, 21,800 mail ballots were rejected in Pennsylvania in the 2020 election out of 2.7 million.

Washington County mail-in ballot issues

The Butler County case is just one of many in the state, and Washington County has also experienced issues with mail-in ballots.

Washington County Judge Brandon P. Neuman blocked a policy adopted by the county board of elections of not informing voters if their mail-in ballots are rejected.

Neuman’s decision means Washington County officials must inform voters if their mail-in ballot is rejected because of an error. They must also allow voters who had a mail-in ballot rejected to cast a provisional ballot.

Representatives from the ACLU of Pennsylvania and the Center of Coalfield Justice have supported Neuman’s decision.

“Washington County’s policy of concealing minor but disqualifying errors on mail-ballot return envelopes needlessly disenfranchised 259 Washington County voters,” Witold Walczak, legal director of the ACLU of Pennsylvania, said. “The court was right to rule that constitutional due process requires governments to notify people before taking away their fundamental rights, like voting, so they can contest the decision.”

Washington County Commissioners Chairman Nick Sherman, a Republican, disagrees with Neuman’s decision.

“This is a page out of the national Democratic Party handbook,” Sherman said. “When they don’t agree with a state law, they weaponize the ACLU and find a liberal judge to rule in their favor. It’s unconstitutional and un-American.”

Neuman found that based on the Pennsylvania Election Code, voters have the right to challenge whether a mail-in ballot can be counted.

“The policy adopted by the Washington County Board of Elections clearly did not give notice to any elector whose mail-in packet had an error and that their ballot would not be counted,” Neuman’s decision states. “The elector has a statutory right to challenge the decision of the canvass board. This challenge may not ultimately be successful; however, the elector still has a right to be heard by a fair and impartial tribunal.”

Neuman’s ruling also requires Washington County to enter the status of mail-in ballots in the Statewide Uniform Registry of Electors.

It adds that if voters request the status of their ballot, the county must provide it to them and allow them to cast a provisional ballot on Election Day.

“The Washington County Board of Elections shall indicate in each district poll register a person whose mail-in packet is being segregated as a person who has not voted, allowing the individual to submit a provisional ballot at the polls,” Neuman wrote.

The Associated Press and TribLive/Pennsylvania Capital- Star contributed to this story.