PHILADELPHIA — Pennsylvania counties can notify voters who submit mail ballots with mistakes such as missing dates or signatures and help those voters resolve the issues, a state judge ruled Thursday.
The decision was a loss, at least temporarily, for Republicans who have tried in recent years to stop local elections officials from helping voters fix errors with their ballots, arguing that state law hasn’t been updated to allow it.
“Such sweeping relief against the 67 County Boards 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,” Pennsylvania Commonwealth Court Judge Ellen Ceisler wrote in her ruling.
But the ruling in the lawsuit led by the Republican National Committee will almost certainly be appealed to the state Supreme Court.
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, for example, those without the signature of the voter 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 — but not all of them — 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.
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 longstanding 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 argue that all counties have the option to implement curing policies, and say 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 how to handle ballot curing, Pennsylvania doesn’t, and counties struggled in the 2020 election — and since — with the question of how to handle flawed ballots.
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.
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.
That ruling has led to more disputes. 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 curing can’t be required statewide, not that counties can’t implement policies on their own.
At a hearing last week, Ceisler said the 2020 ruling had largely tied her hands and given her “clear marching orders.”
Still, she 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 continues, potentially giving room for voters to doubt the integrity of election results.
“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 had said in its 2020 decision that notice and cure procedures are best suited for the state Legislature.
“However, this Court does not read that decision ... to stand for the much broader proposition that County (elections) Boards are necessarily prohibited from developing and implementing notice and opportunity to cure procedures.”
The 2020 ruling, she said, only said state law doesn’t require notice and cure procedures. It doesn’t forbid them.
Republicans are very likely to appeal their loss to the Pennsylvania Supreme Court, which is required to take up the case if appealed.
Even if Republicans ultimately lose there, 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.
And mail voting has a higher error rate than voting in person — usually about 1% or2% of votes cast by mail are rejected — in part because it can be more complicated, and poll workers help with in-person voting.
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