Butler County, Pennsylvania Must Count Provisional Votes From Those Who Submitted ‘Naked’ Mail-in Ballots, Court Rules
This morning, the Pennsylvania Commonwealth Court ruled that Butler County must count provisional ballots cast at a polling place from voters who inadvertently submitted mail-in ballots without an inner secrecy envelope — also known as “naked ballots.”
Today’s 2-1 ruling reverses a lower court’s Aug. 16 dismissal of a lawsuit from two voters for whom the Butler County Board of Elections refused to count provisional ballots cast in the state’s 2024 primary. Although the county allows voters to cure defective mail-in ballots with errors, such as a date or signature deficiency, it does not provide such a remedy for naked ballots.
There are nearly 50 ongoing mail-in voting lawsuits from both pro- and anti-voting forces, eight of which are in Pennsylvania.
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Pennsylvania is among a few states that require individuals who vote by mail to place their ballots in an inner secrecy envelope before then putting them in an outer envelope. In 2020, the issue of naked ballots prompted litigation that culminated in the Pennsylvania Supreme Court holding that naked ballots are “invalid” and concluding that counties do not have to offer curing opportunities for defective mail-in ballots.
However, the Butler County voters — who were represented by the ACLU of Pennsylvania and others — alleged that the board’s rejection of their provisional ballots amounted to a violation of state election law and a misinterpretation of Pennsylvania Supreme Court precedent.
The lawsuit averred that although a 2020 Pennsylvania Supreme Court’s decision deemed naked ballots invalid and concluded that counties are not required to offer ballot curing, the ruling did not preclude county boards of elections from counting provisional ballots — the relevant issue in the Butler County case.
State officials chimed into the lawsuit in support of the Butler County voters, emphasizing that ballot curing is discretionary, but that county boards of elections are bound by state laws governing provisional voting. According to Pennsylvania Secretary of the Commonwealth Al Schmidt (R), the trial court wrongly conflated ballot curing with provisional voting.
Thursday’s ruling grappled with varying interpretations of Pennsylvania election law regarding provisional ballots, but ultimately concluded that the court must “resolve any ambiguity in favor of protecting the franchise and to avoid discarding an elector’s vote.”
The two-judge majority soundly rejected arguments from the Republican National Committee (RNC) and Pennsylvania GOP, which maintained that provisional ballots should not be counted even if a voters’ naked mail-in ballot would otherwise be disqualified.
The RNC’s interpretation “disenfranchises Electors,” “fails to make voting more convenient for qualified mail-in electors…and in actuality, renders it impossible for them to have voted,” the Commonwealth Court’s ruling stated.
Marian Schneider, senior policy counsel for voting rights at the ACLU of Pennsylvania, said in a press release that “today’s decision ensures that if you make a paperwork mistake that will keep your mail-in ballot from counting, you can fix the problem by going to your polling place on Election Day and filling out a provisional ballot. This is an important safety net that protects the right to vote for Pennsylvania citizens.”
Per a recently-announced policy concerning 2024 election-related cases, the RNC and Pennsylvania GOP have three days to appeal today’s ruling to the Pennsylvania Supreme Court.
Original post, Aug. 19
As a result of a ruling issued last Friday by a Pennsylvania judge, Butler County voters will not be able to cure defective mail-in ballots that are missing inner secrecy envelopes — also known as “naked ballots.”
The ruling, which is expected to be appealed, upholds a prior decision from the Butler County Board of Elections refusing to allow two voters to cure their “naked” mail-in ballots cast in the state’s 2024 primary election.
“It is the voter’s burden to ensure they have completed the steps necessary for their mail-in ballot to be included in the tabulation,” last week’s order reads. The judge added that it is the task of the Pennsylvania Legislature, not the court, to implement a new set of curing procedures to remedy defective mail-in ballots.
Pennsylvania is among a few states that require individuals who vote by mail to place their ballots in an inner secrecy envelope before then putting them in an outer envelope. The issue of naked ballots became particularly contentious in the Keystone State ahead of the 2020 election, which spurred litigation that culminated in the Pennsylvania Supreme Court holding that naked ballots are “invalid.”
Friday’s ruling out of Butler County originates from a lawsuit filed in April by the ACLU of Pennsylvania on behalf of two voters who — in an effort to cure their naked ballots — cast provisional ballots on Election Day, which the county subsequently refused to count.
The voters alleged that the board’s rejection of their provisional ballots amounted to a violation of state election law and a misinterpretation of Pennsylvania Supreme Court precedent. According to the lawsuit, the Pennsylvania Supreme Court’s 2020 decision deemed naked ballots invalid, but it did not hold that voters are precluded from curing naked ballots.
The Republican National Committee and Pennsylvania GOP sought involvement in the lawsuit to prevent the board of elections from counting the voters’ provisional ballots. “[T]here is no right under Pennsylvania law to cure mail-in ballots which lack a secrecy envelope,” the Republicans argued in a court filing.
Meanwhile, the voters maintained that since the county allows voters to cure mail-in ballots with other errors, such as a date or signature deficiency, it should similarly permit voters to fix naked ballots in order to prevent “unnecessary and arbitrary” disenfranchisement. The Pennsylvania Democratic Party intervened in the litigation in support of the voters’ arguments.
But the judge concluded in Friday’s opinion that the board, in refusing to count the plaintiffs’ ballots, did not violate state law nor the state constitution.
Mimi McKenzie, legal director of the Public Interest Law Center, called the decision “disappointing,” noting in a statement that the “provisional ballot process has existed for more than two decades for scenarios just like this, and the county has an obligation to utilize it.”
McKenzie, who represents the Butler County voters alongside other attorneys, said she and her clients “are considering…options for appellate review.”