U.S. Supreme Court won't consider GOP challenge to Pennsylvania’s mail-in voting procedure
Voters can cast provisional ballots if their mail-in ballots rejected for not following instructions
The U.S. Supreme Court has declined to consider a Republican challenge to Pennsylvania’s mail-in voting procedure, meaning people can vote in person on Election Day if their mail-in ballots are rejected.
The case originated in Butler County more than a year ago when two voters were notified by the state that their mail-in ballots for the April 2024 primary had been disqualified and that they could vote via provisional ballot at the polls on Election Day.
The voters had placed their ballots directly into the mailing envelope, forgetting to first put the ballots into a smaller envelope and then into the mailing envelope. The smaller envelope, called a secrecy envelope, is intended to conceal the voter’s choices.
The court's June 6 action, included in a list of nearly four dozen cases the justices declined to consider without comment, effectively upheld a Pennsylvania Supreme Court decision from October that underscored a person’s right to vote with a provisional ballot on Election Day if their mail-in ballots were rejected.
The two voters, Frank Matis and Faith Genser, had received an email from the state that their mail ballots were rejected and instructed them to vote by a provisional ballot at their polling place on the day of the primary. They did that, but the county election board rejected the provisional ballots, saying the pair had already voted by mail and could not vote twice.
The ACLU of Pennsylvania and the Public Interest Law Center took the case to the county court and lost. They appealed to the state Commonwealth Court and won, after which the Republican National Committee, the Pennsylvania Republican Party and the Butler Election Board appealed the decision to the state Supreme Court.
The legal team that represented the two voters at the time of the state court decision characterized the ruling as a victory for voters' rights.
The decision “sets a precedent that will apply across Pennsylvania,” ACLU-Pennsylvania said in a statement.
Ben Geffen, a senior attorney at the Public Interest Law Center, added that 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.”
The state Supreme Court narrowly agreed — voting 4-3 — with the lawyers for Matis and Genser.
The opinion by Justice Christine Donohue said the county election “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.
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.’ ”
The four judges who formed the majority were 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