Pennsylvania Appeals Court Affirms Washington County Must Notify Voters of Mail-in Ballot Errors and Allow for Provisional Voting

The Pennsylvania Commonwealth Court affirmed a lower court’s decision requiring Washington County to notify voters of errors on their mail-in ballots and afford them an opportunity to cast provisional ballots at the polls this November. 

In a 2-1 ruling issued today, the majority held that Washington County’s current policy “emasculates the Election Code’s guarantees by depriving voters – like Electors herein – the opportunity to contest their disqualification or to avail themselves of the statutory failsafe of casting a provisional ballot.” 

The opinion stems from a lawsuit brought by the Center for Coalfield Justice, Washington Branch NAACP and several voters alleging that a new county board of elections’ policy conceals errors on mail-in ballot envelopes from voters and denies them the chance to fix disqualifying mistakes.

Prior to the implementation of the new policy, the board notified voters of mistakes and allowed them to cure their mail-in ballots. 

The challenged policy, according to the lawsuit, disenfranchised 259 otherwise eligible voters who cast mail-in ballots during the county’s April 2024 primary elections — amounting to the disqualification of 2% of all timely-received mail-in ballots. Many of those ballots were tossed due to technical errors, such as an incorrect date or a missing signature. 

At the end of August, a lower court judge sided with the plaintiffs, concluding that the county board’s lack of notice to voters regarding mail-in ballot errors violates their due process rights and lawful right to challenge alleged ballot defects before a canvassing board. 

The August ruling affirmed by today’s decision made clear that county election officials must enter proper data into a statewide database — known as the SURE system — to ensure voters are notified about mail-in ballot mistakes and informed about the status of their ballots. 

Additionally, the judge ordered the county to allow voters to cast a provisional ballot at the polls on Election Day if their mail-in ballots were segregated from the vote total due to a defect. 

Washington County — along with the Republican National Committee (RNC) and Pennsylvania Republican Party — appealed the decision to the Commonwealth Court. On appeal, the RNC and state GOP argued that the lower court’s decision unlawfully imposed notice and cure procedures on Washington County.

But as the plaintiffs and Pennsylvania Democratic Party underscored, the trial court merely required Washington County to allow voters with defective ballots to vote provisionally — a process that is protected by state law and is manifestly distinct from permitting a voter to cure their mail-in ballot.  

The Commonwealth Court agreed with this reasoning, concluding that Pennsylvania law creates a “statutory right to cast a provisional ballot as a ‘failsafe’ to ensure otherwise qualified electors may cast their vote and have it counted” and that voting provisionally “does not amount to ‘curing’ a defective mail-in ballot.”

In reaching today’s decision, the majority cited a recent Commonwealth Court ruling in a separate case allowing voters who forget to place their mail-in ballots in an inner secrecy envelope to vote provisionally. 

Claudia De Palma, senior attorney at the Public Interest Law Center, said that in light of the ruling, “[v]oters 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.”

The RNC and state GOP have not yet indicated whether they plan to appeal today’s ruling to the Pennsylvania Supreme Court. 

Just last week, the RNC filed a petition in the state Supreme Court seeking to ban cure procedures across the commonwealth and to prevent voters from casting provisional ballots at the polls if their mail-in ballots are rejected. 

Read the ruling here.

Learn more about the case here.