November 5 is just 39 days away. But the fate of some mail in ballots remains embroiled in legal battles at the Pennsylvania Supreme Court.
Since the state introduced no excuse mail in ballots in 2019, there are always around 1-2% of the population that returns their mail in ballot with a mistake.
“That seems like not a lot, but you’re talking about tens of thousands of voters in big elections,” said Witold Walczak, legal director for ACLU of Pennsylvania. "Mail balloting in Pennsylvania is certainly safe and secure. Its not really user friendly,"
There are three common mistakes that voters might make on their mail in ballot: a mistake with dating the outer envelope, a missing signature, or a missing secrecy envelope.
Do these mistakes matter, and if they do, how should counties respond to mail in ballot mistakes?
This is the question explored in 4 different cases before Pennsylvania’s Supreme Court, that could be decided in time to impact the 2024 election.
1. New PA Project et al v. Schmidt et al
This is the most recently filed case. It is also the only case on this list that deals with if a mistake on a mail in ballot should determine if the ballot is eligible.
On September 25, the ACLU of Pennsylvania, along with other petitioners, sued Secretary of the Commonwealth Al Schmidt and all 67 county boards of elections in the state.
The lawsuit deals with if a missing or incorrect date on the outer envelope should disqualify a ballot from being counted.
When an election office gets a mail in ballot, they stamp the ballot with the date of when it was received. The received date is what is referenced for if the ballot can be counted. As long as the ballot is received before 8pm on election night, it has met the deadline threshold to be counted.
However, Pennsylvania law currently dictates that the outer envelope be dated. This is a remnant of Pennsylvania’s prior absentee voting law. County offices stopped referencing the outer date decades ago.
With the advent of no excuse mail in ballots, more people used mail in ballots (around 2.7 million in the 2020 presidential election). Thus, more mistakes were made. Counties were left to determine how strictly they enforced the date requirement from the state.
and the lawsuits poured in.
Over the past four years, Pennsylvania lawmakers have done nothing legislatively to clarify the requirements. Meanwhile, the courts have not made any final, unappealable precedent on if dates should affect a ballots eligibility.
The ACLUPA and others had fought a court case through to the Commonwealth Court, arguing that disqualifying ballots over the date breaks Pennsylvania’s Free Elections Constitutional Clause. A majority in that court agreed that the dates should NOT disqualify a vote.
However, last week, the Supreme Court dismissed the case on a technical issue— not addressing the Constitutional legal argument.
In lieu of the dismissal, many of the same voter rights groups filed a new lawsuit (New PA Project et al v. Schmidt et al) with the Pennsylvania Supreme Court, requesting they use King’s Bench privilege (the right to skip the appeals process and hear the case directly if the issue at hand has prominent impact on many citizens).
Response to Mistakes
While the importance of the date on mail in ballots remains in courts, the other two common mistakes made on mail in ballots (missing signature or secrecy ballot) have been determined by courts to be legitimately important and enough to disqualify a ballot from being counted.
Both of these mistakes can be identified as soon as an election office receives the ballots. This has lead to another significant legal question arising in the past four years.
If an election office sees there is a mistake on a mail in ballot, can they notify the voter of the mistake? Then, should that voter have the opportunity to ‘cure’ (fix) their ballot?
Current law in Pennsylvania has no mention of the ’notice and cure’ process. With no legal guidance, counties have each taken a personalized approach.
The other three major Supreme Court cases that could impact Pennsylvanians this election year all deal with this ’notice and cure’ issue.
2. The CCJ et al v. Washington County
The Center for Coalfield Justice, along with the ACLUPA and others, filed a lawsuit against Washington County in July.
During the April 2024 Primaries, Washington County’s Board of Elections mandated that their employees could NOT do any form of notice-and-cure for mail in ballots.
The CCJ sued, saying there should be a mandate on ALL counties to notify voters if their mail in ballot has a mistake.
Most recently in the appeals process, the Commonwealth Court agreed with CCJ in a 2-1 ruling announced this week. An appeal is expected, to take the case to the Supreme Court.
3. Genser and Matis v. Butler County Board of Elections
The ACLUPA helped represent voters who, in a past election, were notified that their mail in ballot had an issue. They then voted with a provisional ballot on election day.
This suit was filed in April of this year, the ACLUPA arguing that a voter should get one vote; and if their mail in ballot will not be counted due to a mistake, they should be allowed to cast a provisional ballot to ‘cure’ the problem.
A recent commonwealth court ruling agreed with the ACLUPA.
4. RNC RPP et al v. Schmidt et al
The Republican National Committee filed a King’s Bench request (the same legal approach described in the New PA Project case) on September 18. The suit says that all counties should be mandated to NOT do any notice-and-cure process.