Count every vote: Provisional ballots in Delaware County

An initiative of the Jeffrey Golan & Frances Vilella-Vélez Voting Justice Project.

May 25, 2023 – The right to vote is fundamental, and every eligible citizen’s vote should be counted. Provisional ballots are a crucial safety net in our electoral system. If pollworkers cannot confirm a voter’s eligibility at the polling place on Election Day—for example, if the voter’s name is not present in the poll book—the voter can fill out and submit a provisional ballot, which can be counted if election officials later determine that the voter is, in fact, eligible.

In Pennsylvania’s November 2022 general election, 16,000 mail-in ballots were rejected due to mistakes on voter declarations—a missing secrecy envelope, a missing signature, or a missing date. Provisional ballots provide an option for these voters to have their voice heard. Act 77, Pennsylvania’s 2019 law establishing that any voter may choose to vote by mail, is clear: a voter whose mail-in ballot was rejected can submit a provisional ballot, which “shall be counted” if county election officials confirm that the voter’s mail-in ballot was not counted.

Our clients—three long-time senior voters in Delaware County—each submitted provisional ballots at the polls during the May 16, 2023 primary election, after receiving notice that their mail-in ballots had been rejected less than a week before Election Day. Pennsylvania Department of State guidance states that voters may submit provisional ballots if their mail-in ballot was rejected and will not count.

On May 23, our clients were disenfranchised when the Delaware County Board of Elections decided not to count their provisional ballots. In rejecting their ballots, the Board indicated that it felt bound by an unpublished and nonprecedential Commonwealth Court decision. Board members hoped that the courts would reconsider, with one calling the decision the Board felt compelled to make “a travesty of justice.”

On May 25, we sued the Delaware County Board of Elections, asking them to count our clients’ votes in accordance with Pennsylvania election laws and the State Constitution’s guarantee of “free and equal” elections. We were joined by co-counsel from the ACLU-PA.

Read our petition for review here.

In our petition, we argue that the nonprecedential Commonwealth Court opinion cited by the board did not properly interpret the Election Code and should not be applied. Pennsylvania’s rules for provisional ballots, we assert, are clear and consistent. Contrary to the Board’s misinterpretation, our clients followed these rules, and their votes should count.

“The Board cannot demonstrate a compelling interest that justifies its complete disenfranchisement of voters, especially when a procedure already exists to prevent the loss of the fundamental right to vote,” we write.

Delaware County’s board of elections did provide a novel “cure” process allowing voters to correct defects in their mail-in ballot declarations, but it required voters to either travel to their office in Media or return a replacement ballot by mail. Neither option was feasible for our clients. And voting by provisional ballot remains a valid option under the Election Code for a voter to correct a defect in their mail in ballot.

On June 12, the Delaware County Board of Elections filed an answer to our petition for review. They confirm that a majority of the Board agrees that, in all fairness, our clients’ provisional ballots should have been counted. However, the Board again referred to the 2020 Commonwealth Court decision, though they agree that the decision was not correctly reasoned and should be reconsidered.

Spotlight PA covered the case on June 8.

September 21, 2023
The Delaware County Court of Common Pleas ruled that our clients' provisional ballots must be counted

July 7, 2023
We ask a judge to order the Delaware County Board of Elections to count our clients' votes in a motion for judgement on the pleadings