The Pennsylvania chapter of the American Civil Liberties Union is urging Washington County to reverse a move that would cast aside mail-in ballots returned inside envelopes that are not filled out completely: Election officials, the civil rights group contends, are silencing voters based on a flawed understanding of a recent federal court decision.
“These are eligible voters. Their ballots are fine,” said ACLU Pennsylvania legal director Vic Walczak. “The county knows there’s an error. It should give them an opportunity to correct it.”
The dispute is the latest in a long-running fight about the state’s mail-in ballot provisions — a battle in which each court ruling seemingly opens the door for another legal challenge.
At issue is a recent decision by Washington County officials not to notify voters who submit mail-in ballots in envelopes that are missing a signature or a date, or are misdated. Several dozen voters in the county have submitted such ballots already. But the county's two Republican county commissioners voted not to notify voters of the defects or offer them opportunities to “cure” them. Instead, the county will send an email notification merely advising them that their ballot has been received. (The lone Democratic county commissioner, Larry Maggi, voted to let voters resolve the defects.)
County officials say that policy is required by a recent federal appeals court ruling, which said that it is permissible to toss out ballots in undated envelopes under a provision in a 2019 state law. The ACLU and other voting-rights groups, who challenged that law under the federal Civil Rights Act, have appealed the decision to the U.S. Supreme Court.
In a statement to WESA, Washington County Commissioner and Board of Elections member Nick Sherman said the county wanted “to abide by the majority ruling of the [Third Circuit of the U.S. Court of Appeals] in Philadelphia. Accordingly, we will not provide an opportunity to ‘cure’ or amend ballots after they have been submitted.”
The appeals court’s ruling focused on whether casting aside ballots sent in undated envelopes violates the Constitution. Two judges on the three-judge panel agreed that it did not, writing that “we know no authority that the ‘right to vote’ encompasses the right to have a ballot counted that is defective under state law,” and that their ruling “lets States decide the rules that must be followed to cast a valid ballot.”
Such rules could pass constitutional muster, the judges said, if they focused on how a vote was cast, not on creating pretexts to discriminate against the person who cast it.
But in a letter e-mailed to Washington County officials Tuesday, the ACLU said the county was “misreading the decision, which in no way prevents the election office from either notifying voters that their return envelopes are deficient or allowing them to cure.” The “decision to discontinue notice-and-cure practices not only risks needlessly disenfranchising potentially hundreds of eligible Washington County voters, but could ensnare the [county elections board] in litigation.”
Some counties, including Allegheny County next door, have taken active steps to advise voters of problems with their ballots. In 2022, Allegheny County published lists of voters whose ballots were at risk of being set aside: Both political parties began reaching out to voters on the list to help them address the issue, as did labor unions and others. This year, too, Allegheny County is making an effort to notify voters of defective ballots, 170 of which had been “cured” of defects as of this week.
The Third Circuit ruling did nothing to address whether election officials could engage in such efforts. Words such as “curing” don’t appear in its ruling at all. And Walczak said, “The issue here is whether the county Board of Elections, which is the only entity that knows that somebody has returned a defective ballot, will let the voter know that there’s a problem and give them an opportunity to fix whatever the problem was.”
At a minimum, the ACLU letter says the county should code a ballot as “pending” or “canceled” in the state voter database. That would prompt an email notification that would notify voters of a potential problem — a step the letter says “is the least the Board could do to protect its residents right to vote.”
But as it stands, the ACLU says, officials had “chosen not to notify [voters] while they still have an opportunity to remedy the loss of their right to vote. That determination raises serious constitutional procedural due process concerns.”
The ACLU letter likely came as little surprise to Sherman or other county officials. An April 12 Washington Observer-Reporter story about the county’s move quoted Sherman as predicting that any decision would land officials in court: “The ACLU will come in on one side, and the Trump campaign will come in on the other. … No matter what we do today, I’ll bet dollars to doughnuts that we’ll get sued.”
In fact, there already have been repeated courtroom fights over differing county approaches to ballot curing.
The issue cast a shadow on the 2020 election, when supporters of Donald Trump argued that heavily Democratic counties were more likely to give voters a chance to cure ballots than Republican counties. Democrats noted that state election officials gave the same guidance about curing to all counties, but red parts of the state passed up the opportunity to take it.
The state Supreme Court declined to prevent counties from making such efforts in 2022, and a Commonwealth Court judge punted on the issue the following year, leaving in place a patchwork system in which counties set their own rules.
So far, at least, Walczak said the ACLU has only sent a letter to Washington County about its policy, and he said he is optimistic the matter stemmed from a “good-faith” misreading of the law and could be resolved. But if the past is any indication, things may not end there.
“This issue has been bouncing around in the courts,” Walczak said. And while counties have chosen their own paths so far, “there may be legal arguments left to make [notifying voters[ mandatory," he said. "No county should willingly disenfranchise voters.”
