September 21, 2023 – Today, a Delaware County court has ruled that provisional ballots that are submitted after a voter’s mail ballot is rejected due to errors must be counted. The voters and their lawyers responded to the ruling, saying that it affirms that provisional ballots are a critical safety net in Pennsylvania’s electoral system.
“Eligible voters should have every option under the law to make their voice heard, and access to provisional ballots is a crucial part of making this a reality in our commonwealth,” said Ben Geffen, senior attorney at the Public Interest Law Center. “This court decision does not change the winner of any race, but it means something to every Pennsylvania voter.”
During the May 16, 2023 primary election, three long-time senior voters in Delaware County each submitted provisional ballots at the polls, after receiving notice that their mail-in ballots had been rejected less than a week before Election Day. These voters were disenfranchised on May 23 when the Delaware County Board of Elections decided not to count their provisional ballots, stating that they felt bound by an unpublished and non-precedential Commonwealth Court decision.
On May 25, the three voters sued the Delaware County Board of Elections, represented by the ACLU of Pennsylvania and the Public Interest Law Center with assistance from Dechert LLP. They asked the court to order the board to count their votes in accordance with state election laws and the Pennsylvania Constitution’s guarantee of free and equal elections. Today, the Court of Common Pleas of Delaware County ruled in favor of the voters, directing the Board of Elections to add their ballots to the official vote count.
“I take seriously my right to vote, and have voted in almost every primary and general election in the 50 years I have lived in Pennsylvania,” said Barbara Welsh, a plaintiff in the case. “I prefer to vote by mail because I work at the polls and want to be certain my vote will be counted. Because I made a mistake in the date on the envelope, my vote was disallowed. This ruling in the Delaware County Court of Common Pleas allowed my vote to be counted. I am grateful to the ACLU of Pennsylvania and the Public Interest Law Center for representing me and my fellow plaintiffs.”
Resolution of this issue in favor of counting ballots could impact thousands of voters in Pennsylvania. In November 2022, election officials in Pennsylvania rejected 16,000 mail-in ballots due to a missing secrecy envelope, a missing signature, or a missing date.
“Eligible voters should have every option under the law to make their voice heard, and access to provisional ballots is a crucial part of making this a reality in our commonwealth”
“The court’s ruling is a common sense interpretation of the Election Code that protects our clients’ fundamental right to vote,” said Marian K. Schneider, senior policy counsel for voting rights at the ACLU of Pennsylvania and co-counsel for plaintiffs.”
“Today’s ruling affirms that provisional ballots are a vital part of our electoral system, and that voters should not be disenfranchised because of minor clerical mistakes,” said Martin Black, a partner at Dechert LLP.
Pennsylvania Department of State guidance states that voters may submit provisional ballots if their mail-in ballot was rejected and will not count. Act 77, Pennsylvania’s 2019 law establishing that any voter may choose to vote by mail, is also 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.
The court affirmed that provisional ballots remain a valid option for voters under state election law, even when counties have established a “notice and cure” process giving voters other options. In this case, correcting the mistakes on their mail-in ballot declarations was not a feasible option for these voters, as they did not receive notice that their mail-in ballots would not count until shortly before the election, and they would have needed to travel the county office in Media or return a replacement ballot by mail.