Pennsylvania Mail-in Ballot Notice and Cure Procedures Challenge

Petition filed by the Republican National Committee (RNC) and the Republican Party of Pennsylvania against Pennsylvania Secretary of the Commonwealth Al Schmidt (R) and Pennsylvania’s 67 county boards of elections challenging the authority of county boards to develop mail-in ballot notice-and-cure procedures. Notice-and-cure procedures alert voters of potential errors on their mail-in ballots and provide the opportunity to rectify technical mistakes so their ballot may be counted. In Pennsylvania, each county has discretion over whether it offers voters the opportunity to cure their ballots and what its procedure looks like. While the ability to cure a mail-in ballot varies from county to county, voters across the state are allowed to cast an in-person provisional ballot if they believe their mail-in ballot might be defective. 

The plaintiffs claim that ahead of the November 2024 general election, the secretary issued public guidance on the state’s notice-and-cure procedures that conflict with the current status quo. The secretary released two sets of guidance for county boards in March and August 2024, instructing boards to record potentially defective mail-in ballots in Pennsylvania’s Statewide Uniform Registry of Electors (SURE) system. When a ballot is flagged in the SURE system as defective, an automated email signed by the secretary of the commonwealth is sent to the voter notifying them of the status of their ballot and stating that they have the right to cast a provisional ballot. The secretary also released a public provisional voting guidance in March, stating that voters have a right to cast a provisional ballot if they believe their mail-in ballot is defective. The plaintiffs argue that the secretary’s recent instructions and automated email promising voters the right to cure their ballot has caused confusion among voters and imposes curing procedures onto all counties across the state, including those that have chosen not to offer the opportunity to cure a defective ballot. 

The plaintiffs further argue that the state’s current discretionary system for notice-and-cure procedures violate the Pennsylvania Election Code, which they allege inherently prevents ballot curing by prohibiting mail-in ballots from being inspected or opened until after the polls close on Election Day. They also claim that county boards cannot enact their own curing policies because the Pennsylvania Legislature has not specifically granted them authority over their curing procedures. Finally, they argue that the Pennsylvania Election Code also prohibits Pennsylvania’s current policy allowing voters  whose defective mail-in ballots were returned in a timely manner to cast provisional ballots. 

They ask the court to prohibit county boards from implementing any notice-and-cure procedures for mail-in ballots before the November 2024 general election, including the ability to cure defective mail-in ballots by casting a provisional ballot in-person. They also ask the court to order the secretary to rescind his guidance stating that voters may cure defective mail-in ballots.

STATUS: The Republican plaintiffs filed their petition with the Pennsylvania Supreme Court on Sept. 18, 2024.

Last updated: October 1, 2024 12:00 pm EST