Sep 24, 2024 By Mike Jones 6 min read

The state Commonwealth Court has upheld a Washington County judge’s ruling requiring the county’s elections board to notify voters about disqualifying errors on their mail-in ballot packets and allowing them the opportunity to vote with a provisional ballot as a “failsafe” measure.

In a 2-1 decision released Tuesday, the appellate court affirmed Court of Common Pleas Judge Brandon Neuman’s decision last month that voters have a constitutional right of due process to challenge election officials and have an option to ensure their vote is counted.

A lawsuit was filed July 1 by seven Washington County voters who claimed they were disenfranchised since their ballots weren’t counted in the April primary, and took exception with a decision by the county’s Board of Elections to not notify them of mistakes with their mail-in ballots.

“Electors suffered sufficient harm under the Policy to confer standing as they were not afforded notice of any disqualifying error such that they were not provided a meaningful opportunity to cast a provisional ballot or contest their disqualification,” the Commonwealth Court’s opinion states.

The opinion was written by Judge Michael Wojcik, who alongside President Judge Renee Cohn Jubelirer affirmed Neuman’s ruling. Judge Lori Dumas dissented, although she did not write an opinion.

The ruling was hailed as a victory by the ACLU of Pennsylvania, which sued the Washington County Board of Elections on behalf of those seven voters whose mail-in ballots were not counted in the April 23 primary. They were some of the 259 voters who were never notified of fatal flaws with their mail-in ballots – such as missing dates or signatures on the outer envelopes as required by state law – meaning they had no chance to correct them or vote with a provisional ballot at their polling place on Election Day.

“Washington County election officials needlessly concealed information from voters, knowing that their ballots wouldn’t be counted,” said Witold “Vic” Walczak, who is legal director of the ACLU of Pennsylvania. “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.”

Neuman’s order on Aug. 23 does not require ballot curing – each county can decide on its own how to handle that with several neighboring ones allowing it – but his ruling determined that voters must have the ability to challenge the canvass board’s decision to not count a mail-in ballot. His order stated the most logical way to notify a voter of an error is to list the accurate status of the ballot rather than informing the person that it has been “accepted,” which seemingly misled voters that their ballots were being counted.

But central to Neuman’s order and the Commonwealth Court’s opinion is that the voter has a right to cast a provisional ballot that is counted in the event there is a disqualifying issue with the mail-in ballot. The appellate court concluded “the Election Code created a statutory right to cast a provisional ballot as a ‘failsafe’ to ensure otherwise qualified electors may cast their vote and have it counted,” which does not amount to ballot curing.

“Presently, the General Assembly has directed that electors aggrieved by a county board of elections may seek redress for an injury done to them in the process of exercising the fundamental right to vote. Thus, we conclude that electors possess a liberty interest to contest the disqualification, as to hold otherwise would render Section 1407 perfunctory in contravention of the above discussed provisions of the Pennsylvania Constitution,” the Commonwealth Court’s opinion states. “Indeed, here, none of the Electors were aware that their ballots had not been counted until after election day. In fact, at least two of the Electors were unaware that their ballots had not been counted for months after the Primary. We do not believe our Constitution countenances such a deprivation without notice and an opportunity to be heard; thus, we conclude the Policy contravenes due process.”

The Public Interest Law Center in Philadelphia, which partnered with the ACLU representing the seven voters, along with the NAACP in Washington and Center for Coalfield Justice, called the Commonwealth Court’s decision a victory for voting rights.

“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,” said Claudia De Palma, senior attorney at the Public Interest Law Center. “That’s a win for voters.”

The county’s elections board, which consists of the three commissioners, voted 2-1 on April 11 to not allow ballot-curing beginning with this year’s primary despite offering options in the past. Republican Commissioners Nick Sherman and Electra Janis voted to not offer a ballot-curing option, while Democratic Commissioner Larry Maggi was in favor of allowing it. But the courts determined that policy went beyond that issue by refusing to notify voters of flaws with their mail-in ballots and not counting provisional ballots cast by those individuals.

It was not immediately known if Washington County and the two intervenors on its behalf – the Republican National Committee and the Pennsylvania GOP – would appeal the Commonwealth Court’s decision to the state Supreme Court. Neither Sherman nor Kathleen Gallagher, the RNC attorney who appealed Neuman’s ruling, could be reached for comment Tuesday. The RNC and state GOP last week requested the high court to decide the larger issue of ballot curing to set statewide standards, and the lawsuit involving Washington County was mentioned in those court filings.

It’s not clear what impact the Commonwealth Court’s ruling on Neuman’s order will have statewide for future elections, or if it will eventually be rendered moot with a final decision by the state Supreme Court. However, differing court opinions involving Act 77 of 2019 – which expanded mail-in voting beyond just absentee ballots – have created confusion across the state.

Center for Coalfield Justice Director Sarah Martik applauded Tuesday’s ruling because it ensures people have a chance to cast a provisional ballot if they are notified there are fatal flaws with their mail-in ballots.

“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. 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,” Martik said. “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.”

David Gatling Sr., who is president of the Washington Branch of the NAACP, said the decision was “gratifying” since the organization is working to support voting rights.

“Everyone who wants to participate in an election should have that opportunity,” Gatling said. “And election officials should do their best to assist their constituents to make sure their votes count.”