Ahead of November’s election, voting rights groups are suing to force a Pa. county to tell voters their ballot has issues

The American Civil Liberties Union of Pennsylvania and the Public Interest Law Center are suing to force a Southwest Pennsylvania county to alert voters if their mail ballot is invalid, setting up a fight that could impact election offices across the state and, ultimately, help shape which ballots get counted in the 2024 election.

The suit is the latest in a string of more than a dozen ongoing challenges to Pennsylvania’s election system, nearly all of which aim to have an impact in November. In recent elections, the swing state has been decided by margins smaller than 2% of the vote, meaning any change to which votes are counted carries weight.

The lawsuit filed Monday on behalf of seven Washington County voters, the county’s local NAACP, and the Center for Coalfield Justice, argues that Washington County violated Pennsylvania’s constitution and denied voters due process by refusing to alert them ahead of April’s primary election that their mail ballots could not be counted because of errors with the date, signature, or privacy envelope.

While the suit is directed specifically at Washington County, an eventual ruling could send a signal to county election boards statewide and set new legal precedent over whether counties are obligated to alert voters if their ballot is invalid.

“We very much hope that this case will have statewide implications. Obviously we are in the Washington County Court of Common Pleas at the moment but experience tells us one way or another this case will go up on appeal,” said Mimi McKenzie, legal director at the Public Interest Law Center, which focuses on civil rights law.

A spokesperson for the Washington County Board of Elections did not immediately respond to a request for comment.

The state’s election system is also facing challenges from the right. A far-right legal group filed a lawsuit last month challenging Pennsylvania’s voter registration system with false claims of election fraud and making other allegations without proof. Former Delaware County Council Candidate Joy Schwartz, a Republican, filed a lawsuit last month demanding all votes in the suburban county be hand-counted.

According to the ACLU and Law Center’s suit, Washington County in 2023 alerted voters if their ballots were invalid and helped them remedy the issue, but the county election board changed course this year when it voted against continuing the policy.

Additionally, the lawsuit alleged the election board directed county officials to mark incorrect ballots as “received” in the statewide voter system, rather than following the advice of the Pennsylvania Department of State to mark them with “pending” or “canceled” — which can notify the voter, political parties and voting rights groups of ballot issues.

The break from state guidance meant voters had no way to know their ballots wouldn’t be counted.

Furthermore, the suit said, Washington County was the only county in the state that refused to tell voters who called the office that their ballot was invalid.

Bruce Jacobs, one of the plaintiffs in the lawsuit, said he only learned his vote hadn’t counted when the Law Center contacted him months later.

“I would have done everything I could have done to rectify that error,” Jacobs said. “I joined this case because county officials have eroded people’s rights and the dignity of our elections.”

Statewide, nearly 8,000 ballots were rejected in April’s primary because of issues with the date, signature or privacy envelope. Voting rights advocates, including the ACLU, have pushed counties across the state to adopt “notice and cure” policies to help voters remedy those issues before Election Day — and reduce the number of people disenfranchised due to errors.

The ACLU and Law Center have been involved in numerous other similar suits challenging the state law which requires voters to write the date on their mail ballot and individual county practices regarding which mail ballots are counted.

The suits have generally sought to limit the potential for a voter to make a minor error that ultimately invalidates their ballot. The civil rights groups are arguing in state court that the date requirement should be thrown out, the ACLU is involved in a similar case alongside the NAACP in federal court.

“This isn’t about gaming the system. This is about ensuring that every eligible qualified voter who submits a timely ballot is able to vote and have that voted counted,” said Witold J. Walczak, legal director of the ALCU of Pennsylvania. “Our goal is to get a decision on all of these issues before voting starts in mid-September. This is about clearing away barriers to voting.”

During a news conference Monday, Marian Schneider, senior policy counsel for the ACLU of Pennsylvania, said she wasn’t aware of any other counties that have taken the same approach as Washington County. The ACLU has submitted several right-to-know requests to gain a better understanding of invalid ballot practices statewide.

Counties have historically taken varying approaches, often based on the advice of their own attorneys. Pennsylvania’s election code grants significant power to county officials, and the 2019 law that allowed Pennsylvanians to vote by mail without an excuse left several details open to interpretation.