Appeals court: Washington County must notify mail-in voters of errors

Tuesday’s decision upholds a county court ruling on a lawsuit in August.

A county court decision last month finding that Washington County violated state law when election workers refused to tell voters that their mail-in ballots had been rejected and wouldn’t be counted in April’s primary has been upheld.

The ruling was issued Tuesday by a three-judge panel of Pennsylvania’s Commonwealth Court.

Writing for the 2-1 majority, Judge Michael Wojcik stated, “the current Policy emasculates the Election Code’s guarantees by depriving voters … the opportunity to contest their Disqualification or to avail themselves of the statutory failsafe of casting a provisional ballot.”

The ruling stems from a suit filed in July by seven Washington County voters who challenged the Board of Elections’ new policy to conceal information about which voters made disqualifying errors on their mail-in ballot envelopes.

The suit claimed the board’s policy violated their right to vote. The policy was approved in a 2-1 vote ahead of April’s primary election. It was a reversal of a prior policy that alerted voters to errors on their mail-in ballots and provided the opportunity to fix them.

The change led to 259 voters being disenfranchised in the recent primary election, the suit contended.

Commissioners serve as the county’s board of elections. Republicans Nick Sherman and Electra Janis voted in favor of the new policy, with Democrat Larry Maggi casting the lone no vote.

The lawsuit was filed in Washington County Court by the voters, the Center for Coalfield Justice and the Washington branch of the NAACP. They are represented by the American Civil Liberties Union of Pennsylvania, Public Interest Law Center, and Dechert LLP.

The suit alleged due process violations and sought an injunction requiring the Wash- MAIL-IN VOTERS •A2

“Election officials should do their best to assist their constituents to make sure their votes count.”

DAVID GATLING SR.

NAACP, WASHINGTON BRANCH ington County Board of Elections to properly input voters’ data into the statewide system so they can learn of any mistakes made on their ballots.

An injunction was granted by Washington County Judge Brandon P. Neuman Aug. 24 upholding the suit’s claim.

Per Neuman’s ruling, election officials in Washington County must provide voters who vote by mail notice if their ballot will not be counted because of a paperwork error and allow them to cast a provisional ballot on Election Day.

In his 28-page opinion, Neuman found that the Pennsylvania Legislature included in the state Election Code the ability for voters to challenge a decision by the canvass board that determines whether mail-in ballots can be counted.

Witold Walczak, legal director of the ACLU of Pennsylvania, said Washington County election officials “needlessly concealed information from voters knowing their ballots would not be counted.”

“We’re grateful that the court saw the important constitutional principle that government agencies cannot withdraw or cancel fundamental rights, especially something as important as voting, without telling people beforehand and sided with the voters,” Walczak said.

Claudia De Palma, senior attorney at the Public Interest Law Center, said Washington County voters now have reassurance at the polls.

“Voters in Washington County can be assured that, if they make a mistake with their mail ballot, they’ll be notified and have a chance to rescue their vote. That’s a win for voters,” she said.

David Gatling Sr., president of the Washington branch of the NAACP, said having the injunction upheld is important to the election process.

“Our NAACP branch is in this work to support voters, so it is gratifying that this court has upheld the rights of voters,” Gatling said. “Everyone who wants to participate in an election should have that opportunity.

“And election officials should do their best to assist their constituents to make sure their votes count.”

Sarah Martik, executive director of Center for Coalfield Justice, praised Wojcik’s opinion.

“This decision upholds the integrity of our electoral system, ensuring that voters who choose to vote by mail are given the same protections as those voting in person,” Martik said. “The law was always meant to expand the right to vote, not restrict it and today the court has confirmed that politically motivated attempts to silence voters won’t stand.

“When your vote is your voice, there’s always someone who would rather not hear it. But today, the Commonwealth Court has made it clear that Pennsylvanians will not be silenced. And to those who tried to suppress our voices, take that.”