Court: Voters can cast provisional ballot if mail ballot rejected
Court: Voters can cast provisional ballot if mail ballot rejected
Counties must allow people to vote with a provisional ballot at a polling place if their mail ballots have been rejected, the Pennsylvania Supreme Court ruled Wednesday.
The case originated in Butler County, where two voters, Frank Matis and Faith Genser, forgot to place their ballots into what’s known as a secrecy envelope inside the mailing envelope for the April 23 primary.
The state notified them by email that the county Election Board would not count their provisional ballots because of an error. The email instructed them that they could vote with a provisional ballot at the polling place on the day of the primary, which they did.
However, the county Election Board said it would not count the provisional ballots because Matis and Genser had already voted by mail — even though the ballots had been rejected. The county said people cannot vote twice.
Matis and Genser appealed to the county court, which agreed with the Election Board. They then appealed to the Commonwealth Court, which decided on Sept. 5 that the provisional ballots should have been counted.
The Republican National Committee, the Pennsylvania Republican Party and the Butler Election Board appealed the decision to the state Supreme Court.
They said that any voter who votes by a provisional ballot after filing a mail-in ballot would be making a false statement because “they cast another ballot” in the election.
The Supreme Court, in its 4-3 decision, rejected that reasoning.
“Today’s decision by the state Supreme Court … sets a precedent that will apply across Pennsylvania,” said a statement from the ACLU-Pennsylvania, part of the legal team that represented the two voters.
Ben Geffen, senior attorney at the Public Interest Law Center, which also represented the voters, said if “you make a paperwork mistake that will keep your mail ballot from counting, you have the right to vote by provisional ballot at your polling place on Election Day. This reinforces the right to vote in Pennsylvania.”
The Supreme Court opinion, written by Justice Christine Donohue, said the “Board properly disregarded Electors’ mail-in ballots as void. However, it erred in refusing to count Electors’ provisional ballots. [The Election Code] required that, absent any other disqualifying irregularities, the provisional ballots were to be counted if there were no other ballots attributable to the Electors. There were none.”
Donohue was joined in the majority by Chief Justice Debra Todd and Justices Kevin Dougherty and Daniel McCaffery
Voting no were Justices Kevin Brobson, David Wecht and Sallie Updyke Mundy.
In the minority opinion, Brobson wrote, “On this question, the Election Code is clear and unambiguous. The Board not only lacked the authority to count Electors’ provisional ballots, the Election Code expressly prohibited the Board from counting them: ‘A provisional ballot shall not be counted if . . . the elector’s [mail] ballot is timely received by a county board of elections.’ ”
In a separate dissent, Mundy said, “Regrettably, the Majority has exceeded the bounds of statutory interpretation and supplanted the power vested in our General Assembly to regulate elections.”
The four judges who formed the majority are Democrats. Wecht, the only other Democrat on the bench, joined the two Republicans, Brobson and Mundy, in the dissent.
Previous Armchair Lehigh Valley stories about ballot issues
At least 16 Pa. counties don’t notify or let voters fix errors on mail-in ballots
Pa. Supreme Court: Don't count undated or misdated mail ballots
Pennsylvania not alone when it comes to rejected mail-in ballots
Pa. Supreme Court: Don't count undated or misdated mail ballots