Pennsylvania counties can help voters fix problems with their mail ballots, state court rules

A state judge cleared the way Thursday for Pennsylvania counties to continue helping voters correct small mistakes on their submitted mail ballots, saying nothing in the law prohibits the practice.

The decision was a loss, at least temporarily, for Republicans who have tried in recent years to stop local elections officials from offering voters the opportunity to fix errors like missing signatures that would otherwise cause their ballots to be thrown out.

“Petitioners have not proven that there is a clear violation of the Election Code or the law interpreting the Election Code,” Pennsylvania Commonwealth Court Judge Ellen Ceisler wrote in her 58-page opinion.

The ruling came in response to a lawsuit brought by the Republican National Committee, which had asked the judge to bar the practice — known as “ballot curing” — before the November election. They cited the fact that there is no consistent curing policy across the state, and that some counties allow voters to fix errors while others do not.

But barring all 67 counties from doing so, Ceisler wrote, “would clearly cause greater injury than refusing the injunction, precisely because it would seriously harm the public interest and orderly administration of the 2022 General Election, which is already well underway.”

The RNC called Ceisler’s decision “flawed” and said it was weighing its options for appeal to the state Supreme Court.

“Voters in Pittsburgh should have the same election rules as voters in Philadelphia, and Pennsylvania’s Constitution is clear that voting laws should be set by the legislature, not unelected bureaucrats,” RNC chair Ronna McDaniel said in a statement. “Allowing some counties to operate differently than others undermines the rule of law. Republicans will continue fighting to ensure that Pennsylvania’s voters are treated equally regardless of where they live.”

» READ MORE: Pennsylvania struggles with how — or if — to help voters fix their mail ballots

The question of how to handle clearly flawed ballots has dogged counties since Pennsylvania’s massive expansion of mail voting in 2020. Voters inevitably make mistakes, and when they submit ballots with what are considered “fatal flaws” — the kind that require the ballots be rejected — some counties try to fix it.

Fatally flawed ballots include those without the voter’s signature on the outer envelope, which is required under state law, or so-called “naked ballots” — those returned without the inner secrecy envelope.

Depending on the error, some counties undertake “notice and cure” procedures to try to alert voters of the problem and help them resolve it so their vote can be counted. For example, a county might call, email, or send a postcard to a voter telling them know to visit their local elections office to sign an unsigned ballot.

Some counties leave contacting such voters to political parties. Others don’t do anything at all, rejecting the ballot outright.

» READ MORE: How to make sure your vote still counts if you think you submitted a ‘naked ballot’ in Pennsylvania

In Thursday’s ruling, Ceisler, who was elected as a Democrat, said counties‘ notice and cure procedures “have generally been accepted in order to fulfill the long-standing and overriding policy in this Commonwealth to protect the elective franchise.”

State law, she wrote, “does not specifically prohibit [elections officials] from implementing notice and cure procedures.” Instead, they “enjoy broad authority … to implement such procedures at their discretion to ensure that the electoral franchise is protected.”

In its lawsuit, the RNC argued that the lack of uniformity leads to inequities in whose votes get counted. Voters who live in counties that allow ballot curing get an extra chance to correct their mistake, while those who don’t and submit flawed ballots won’t have their votes counted simply because of where they live.

Democrats and state elections officials argued that all counties have the option to implement curing policies, and that banning curing will disenfranchise lawfully registered voters.

“It’s about votes, not counting. … The outcomes of elections can be affected if people are disenfranchised,” Cliff Levine, a Democratic lawyer, said in a hearing last week.

Though many states have very clearly defined procedures for ballot curing, Pennsylvania doesn’t. It’s not clear how many ballots are cured statewide in any given election, in part because the lack of standard procedures means there isn’t standard data collection.

But Republicans argue that any kind of “notice and cure” processes — no matter what they may be — are illegal. State election law doesn’t address the issue, other than to specifically allow voters who were missing identification when voting by mail to provide it after Election Day.

And in 2020, the Pennsylvania Supreme Court declined a request by Democrats to require all counties to adopt notice and cure procedures.

“The decision to provide a ‘notice and opportunity to cure’ procedure … is one best suited for the Legislature,” the court wrote.

But disputes over how to interpret that ruling have emerged since.

Republicans say the court found that only the legislature had the power to implement curing policies. Democrats and elections officials who support curing say the ruling only means that the court declined to implement a statewide curing process on its own, not that counties can’t implement local policies.

At a hearing last week, Ceisler appeared to frame her thinking about the case as a choice between two less than ideal outcomes — barring curing and potentially disenfranchising legal voters or allowing the current patchwork of practices to continue, potentially giving room for the type of uncertainty in the results that the RNC claims the current patchwork of policies engenders.

“I don’t remember in my 65 years on this Earth that we’ve had this much public rancor and entire blocs of the population saying election results are fraudulent,” she said. “We’ve got to weigh the loss of a couple thousand votes [here] with the times that we’re in right now.”

On Thursday, Ceisler acknowledged the Pennsylvania Supreme Court’s 2020 decision to leave any attempt at a statewide curing policy to the state legislature. But the 2020 case, she ruled, only said state law doesn’t require notice and cure procedure. It doesn’t forbid them.

Republicans are likely to appeal, and the ongoing litigation may deter some counties from curing ballots. That could mean some number of voters who might previously have been able to fix their ballots might miss out.

And whatever happens with the legal fight, the political one will continue.

A strong partisan divide over voting methods has existed since Donald Trump’s lies about voter fraud in the 2020 election, and Democrats continue to be much more likely to vote by mail than Republicans. So any ruling that results in more rejected mail ballots is likely to help Republicans and hurt Democrats. Some of the counties that do the most to help voters cure ballots are large and heavily Democratic ones, which are also the counties with the highest numbers of mail ballots.

And mail voting has a higher error rate than voting in person — usually about 1% or 2% of votes cast by mail are rejected — in part because it can be more complicated, and poll workers help with in-person voting.