In a pair of legal cases on the validity of Pa. mail-in ballots, the voices of voters must prevail

Pennsylvania is widely considered the tipping point state for the 2024 election. That is true both at the ballot box and in the courts. With court decisions in two consequential cases near, and still more litigation on the horizon, the state’s legal system will once again have the opportunity to play a pivotal role in ensuring every vote cast by eligible voters is counted. Much like in 2020, we are confident the legal system will rise to the occasion.

Pennsylvania’s mail-in voting law is the center of this legal war. When the Republican-controlled legislature enacted a no-excuse mail-in voting law in 2019 to enhance voter participation, Pennsylvania voters surely never imagined that extremist forces would try to advance a web of procedural traps that defeat its purpose. Pennsylvania’s judiciary has been flooded with litigation tactics designed to obscure election integrity and clarity.

Though many of these cases have now been declined by the Pennsylvania Supreme Court to be decided in advance of Election Day, two cases remain active on appeal that could help shape the 2024 election and the future of voting in Pennsylvania: Genser v. Butler County Board of Elections and Center for Coalfield Justice v. Washington County Board of Elections.

Both cases ultimately turn on a weighting of justice — how we balance the right to vote by eligible voters vs. statutory ambiguity over minor envelope errors.

As a principle of fundamental fairness, eligible voters should be informed regarding procedural mistakes with their ballots and given an opportunity to resolve them.

We allow this practice for in-person voting — for example, if you vote in person and forget to sign your name in the polling place’s book, the clerk will point it out. If you mistakenly vote for too many candidates, you’re entitled to a replacement ballot. That’s easy and fair, and there is no reason mail-in voters should be treated differently.

And yet, the two remaining pending cases dispute this notion of fundamental fairness. Both address the use of provisional ballots for mail voters who have made minor envelope errors.

In Genser, the Republican National Committee and the Republican Party of Pennsylvania are appealing the appellate court’s determination that counties must count provisional ballots for voters whose mail ballots won’t be counted because of inconsequential procedural errors like omitting their secrecy envelope when they mail their ballot.

In Coalfield, the appellate court went even further, holding that a county’s failure to inform a voter of a disqualifying error violates the voter’s due process rights, and that counties must notify voters of such errors and provide them the opportunity to cast a provisional ballot.

It is important to note that provisional ballots were created for just this purpose — as a built-in safety net for democracy, designed to make sure no eligible vote slips through the cracks. Pennsylvania law allows for provisional ballots in multiple circumstances when a voter’s eligibility cannot be immediately confirmed.

Provisional ballots are segregated from regular ballots, and after Election Day, are individually adjudicated. If the voter is determined to be eligible and did not already vote in that election, then the provisional ballot is counted.

As the Commonwealth Court explained eloquently in Genser, “The purpose of provisional voting is to act as a fail-safe to ensure that voters can vote exactly once — not zero times and not twice.”

It’s also important to note that the impact of these two decisions will likely be consequential. In Pennsylvania’s April primary, just over 1% of mail-in ballots were tossed out because of date, signature, or envelope issues.

Pennsylvania’s two prior presidential elections in 2016 and 2020 were decided by just 0.73 and 1.17 percentage points, respectively. In a state where elections can be decided by razor-thin margins, even a small number of rejected ballots matter.

Requiring officials to give voters notice of rejection of their ballot and enabling them to vote by provisional ballot could dramatically reduce these disqualifications — and follow the principle of fundamental fairness.

The Pennsylvania Supreme Court will likely decide both these appeals before Election Day. In the meantime, however, the noise of the back-and-forth court decisions over mail-in ballots and envelope requirements over the last several years has been extremely confusing for voters.

In the end, the most important message for voters is simple: Ignore the noise. Just remember three things you must do to have your vote counted: 1) Put your marked ballot inside the inner yellow secrecy envelope and insert the secrecy envelope into the outer addressed envelope. 2) Sign the outer envelope. 3) Put today’s date on the outer envelope. Not your birth date. Write the date you completed your ballot.

Pennsylvania must prioritize the votes of eligible voters over immaterial mistakes — mistakes that may very well decide who occupies the Oval Office next year.

But the decisions in these cases are even more consequential than a single presidential election. They may set the course for our democracy, the very foundation of our nation.

Let’s honor that history and validate that in the balance, the principle of fundamental fairness requires that respect for the will and voice of the voter must prevail.

Norman Eisen is a retired U.S. ambassador and cofounder and board member of State Democracy Defenders Action, a nonpartisan group dedicated to free, fair, and secure elections. Kathy Boockvar is president of Athena Strategies and former secretary of the Commonwealth of Pennsylvania.