Since Pennsylvania introduced no-conviction mail-in voting in 2020, thousands of ballots have been rejected due to missing dates, signatures or other mistakes. A successful legal challenge can have a huge impact.
Posted by Carter Walker, Votebeat
This article was originally published let him voteA nonprofit news organization covering local election administration and voting access.
The ACLU of Pennsylvania has sued one county and may file more lawsuits to challenge its policy of disenfranchising voters who make mistakes when voting by mail.
The lawsuit against Butler County, filed after the April primary, is the group's statewide effort targeting the “notice and cure” process, a major gray area in state law that results in uneven rules for voters across Pennsylvania. It appears to be the beginning of. .
Along with that lawsuit, the organization announced that it is considering another lawsuit and asked the public to identify more counties that do not allow voters to fix defective mail-in ballots or provide notice to voters that their ballots will be rejected. We have submitted a records request. These records requests are often a precursor to litigation.
Legal efforts to change the courts' stance on notice and cure policies could have a major impact. Since Pennsylvania enacted a no-conviction mail-in voting law in 2020, counties have rejected thousands of ballots because voters failed to sign or date the outer envelope or made another technical error. County officials and an analysis of available data from Votebeat and Spotlight PA show that notifying voters and allowing them to correct or cure errors significantly lowers rejection rates.
“This shouldn’t be a hodgepodge game,” said Vic Walczak, legal director of the ACLU of Pennsylvania. “‘Here’s your ballot. You are given one chance. If you mess it up it won't matter.' It shouldn’t work that way.”
State law is silent on whether counties must allow voters to modify their ballots, and courts have interpreted the lack of a rule to mean it's up to counties to choose whether to allow it. The result is a patchwork of rules across the state.
Methods vary, but at least 17 counties allow some form of curing. Others say they have no obligation to do so, citing election laws and court rulings.
The ACLU's lawsuit aimed at remediation represents a shift in voting rights strategy after a failed federal challenge to state requirements that voters write dates on ballot envelopes.
In March, the U.S. Court of Appeals for the Third Circuit ruled against the ACLU and other plaintiffs in a two-year lawsuit claiming that Pennsylvania's requirement that voters write the exact date on their ballot return envelopes violates the Civil Rights Act of 1964. I got off. The ACLU has not said whether it will appeal the decision to the U.S. Supreme Court.
What is ‘Notice and Cure’?
Since Pennsylvania implemented Act 77, the no-excuse vote-by-mail law, in 2020, counties have received thousands of ballots for each election, which election officials can reject. Some voters do not sign or date their return envelopes as required by law, or do not place their ballots in confidentiality envelopes designed to protect the privacy of their selections.
Some counties notify voters of errors and allow them to correct them so their votes can be counted. This “notice and cure” process soon became controversial.
In September 2020, the Pennsylvania Supreme Court rejected a request from Democrats to require all counties to contact voters to correct errors. The court ruled that Democrats' appeal of the free and equal elections clause of the state constitution alone was not enough to overcome the law's lack of precise language directing counties to allow the treatment.
The state Supreme Court also rejected a Republican effort to ban counties from allowing ballot treatments, citing a lack of precise language in the law. Just before the 2022 election, the court upheld a lower court's decision that a Republican group seeking to block the county's implementation of the treatment failed to show how it specifically violated election laws.
Practices vary among counties that allow the treatment.
Some, like Allegheny County, return defective mail-in ballots to voters with an explanation of the error and a new return envelope. In nearby Fayette County, voters can come to the elections office and correct mistakes in person. Philadelphia posts a list of voters with defective ballots online and allows them to request replacement ballots directly from elections offices. Erie County publishes the list and allows voters to correct mistakes themselves.
The success of curing also depends on the method. A spokeswoman for Allegheny said nearly 62% of defective mail-in ballots were fixed using this method in last month's primary election. Data from Fayette County shows a cure rate of about 50% in the last election. In Chester County, about 66% of at-risk ballots were corrected and counted, county officials said.
Jeff Greenburg, senior counsel for election administration at the Committee of Seventy, a good government group, said the various policies are a reminder that the Legislature needs to sort out this and other gray areas in Proposition 77.
“If I were to grade the General Assembly on Act 77, I would rate it incomplete,” he said.
Greenberg said counties are acting in good faith to interpret the law and court cases, but there is a risk that inconsistencies will shake voters' confidence in elections.
“Voters see it, they understand it, and they start to question why,” he said. “That’s a valid question.”
Where the ACLU is heading
The ACLU's lawsuit against Butler County was filed on behalf of two voters who failed to place their mail-in ballots in secrecy envelopes before returning them for the April 23 primary election. Mail-in ballots were rejected, and when voters cast provisional ballots in person on Election Day, the county also rejected those ballots. Provisional ballots are used by voters whose eligibility is questionable but who still want to vote. The ballot will be counted only after the voter's eligibility has been confirmed.
The ACLU filed a similar challenge against Delaware County last year and won. However, because the case ended in county court, it did not set a precedent for the entire state.
In the Butler County case, the judge recently granted a request from the state and national Republican Party to intervene in the case to support the county. If a judge rules against the county, the partisan organization can appeal to federal court. A ruling there could impact the case statewide.
Even if a case reaches that level, the decision is limited to one type of voting scenario. That means determining whether voters can cast a provisional ballot in person if their original mail-in ballot was rejected.
But more lawsuits regarding the treatment are likely on the horizon. In late March, the ACLU of Pennsylvania began sending identical public records requests to all counties. The request, a copy of which Votebeat and Spotlight PA obtained through separate records requests, sought information about the county's written policy to cure or notify voters of errors, or information about documents reflecting the county's decision not to allow cure .
“We believe that the Pennsylvania and United States Constitutions require counties to ensure that voters are not disenfranchised due to mistakes in their mail-in ballot envelopes,” Walczak said. He added that the organization was “looking into” its notification and remediation procedures.
The ACLU declined to discuss specific legal strategies, but its recent actions suggest what its approach might be.
Last April, Washington County officials decided to cancel ballots and no longer notify voters of ballot errors or allow them to correct them. In a letter before the April 23 primary, the ACLU advised Southwestern County that the decision raises “serious constitutional and procedural due process concerns,” pointing to the U.S. Supreme Court case.
Letters like this are often sent ahead of lawsuits, as is the case in Butler County, and Washington County leaders said they expect this decision to lead to litigation.
County elections directors have anticipated more lawsuits over ballot curing procedures and have often expressed frustration that no matter what policy they adopt (allow or disallow curingLa), some groups will become disgruntled and file lawsuits.
“Having groups suing over parts of the rules that have already been litigated is not going to increase public confidence in our elections,” said Mercer County Elections Director Thad Hall.
Counties that do not allow treatment, like Mercer, typically base their decisions on county prosecutors' legal findings that state election law does not grant a clearly defined mandate.
“It’s not malicious,” Hall said. “It’s just that we don’t have a cure.”
Hall said people who want to change policy should lobby the legislature to clarify the law. He said he believes a lawsuit aimed at forcing counties to adopt notice-and-cure procedures could have an unintended adverse effect if there are groups that oppose certain kinds of cure policies.
“The county might say, ‘Well, we’re not going to do any treatment because it’s not going to allow for the treatment we want,’” he said.
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