Pennsylvania counties experienced a substantial uptick in provisional ballots during the 2020 primary, an unintended consequence of the vote-by-mail surge and deadlines for mailed ballots applications and return. Election directors are concerned about implications for November's higher turnout presidential primary, given the extra time provisionals take at the polls and while counting.
Submitted by Bradford County Office of Elections
Submitted by Bradford County Office of Elections
Pennsylvania counties experienced a substantial uptick in provisional ballots during the 2020 primary, an unintended consequence of the vote-by-mail surge and deadlines for mailed ballots applications and return. Election directors are concerned about implications for November's higher turnout presidential primary, given the extra time provisionals take at the polls and while counting.
Voting rights groups are hoping the Commonwealth Court adds protections to mail-in voting ahead of the November election.
The court is deciding whether to guarantee that voters can cast provisional ballots if they’ve made an error with their mail ballot.
In April, Butler County rejected mail ballots from Faith Genser and Frank Matis. They forgot the secrecy envelope. Genser and Matis went to their polling places to vote provisional ballots, and were rejected again.
Under Butler County’s rules, making a mistake while voting by mail meant voters lost their chance to vote.
So Genser and Matis sued, supported by civil rights lawyers like Benjamin Geffen, Senior Attorney at the Public Interest Law Center.
On Tuesday, Geffen notified the Commonwealth Court of an intent to appeal. The court then set an aggressively accelerated schedule for all parties to submit briefings by noon Friday. The court also said it may decide based on the filings and not require oral arguments.
As it stands, policies on what to do when voters make so-called “fatal errors” requiring mail ballots to be rejected differ county by county.
“Other counties would allow a voter to fix that mistake by completing a provisional ballot on Election Day,” Geffen said. “The Commonwealth Court’s decision will hopefully clear this up once and for all and ensure that voters statewide have the opportunity to fix that mistake.”
A lower court’s ruling said it’s the legislature’s responsibility to deal with the issue, and Genser and Matis appealed that decision to Commonwealth Court. The court could make a narrow decision focused on Butler County, or could make a decision that sets a broader precedent for the entire state, Geffen said. The appeal argues for the latter.
The Republican National Committee and Pennsylvania Republican Party intervened in the case and argued against the courts setting rules currently under county discretion. They did not respond to questions or interview requests for this article.
The Butler County case is one of at least five active lawsuits in state courts about mail voting, with more in federal court, all with the possibility of changing rules before Election Day.
The cases are focused on a relatively narrow band of voters, those who vote by mail and have their ballots rejected. In April’s primary, that was 1.22% of mail ballots, according to reporting by Votebeat and Spotlight PA.
Many of the legal arguments grow out of problems elections officials and county commissioners have faced since Pennsylvania started universal mail voting in 2019.
Since the legislature has not passed revisions to the law, counties are left to decide how to set policy one by one.
To Sarah Niebler, associate professor of political science at Dickinson College, that creates confusion and mistrust in how elections are run, and raises bigger questions about participating in a democracy.
“That’s a problem for democracy and it’s a problem for elections because it undermines that concept of one person, one vote,” Niebler said.
Voters can request to vote by mail now, with ballots likely to be sent out in early October. They must be returned by 8 p.m. on Election Day.
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