Election workers process ballots at the Arapahoe County Elections Facility in Littleton, Colorado. (Carl Payne, for Colorado Newsline)
Election officials in Washington County must provide voters who vote by mail notice if their ballot will not be counted because of a paperwork error and allow them to cast a provisional ballot on election day, a county judge has ruled.
Washington County Judge Brandon P. Neuman granted an injunction sought by voting rights groups to block a policy of not informing voters if their ballot was rejected because of an error that the county Board of Elections adopted just before the April primary.
The groups claimed the policy disenfranchised voters by effectively hiding from them the fact that their votes would not be counted and denying them the opportunity to cast provisional ballots.
“It should be a no-brainer that voters are notified if they make a mistake on their mail-in ballot packet and have the option to cast a provisional ballot. This decision helps to ensure that every voter understands their rights and has the opportunity to correct any errors,” said Sarah Martik, executive director of the Center for Coalfield Justice, a plaintiff in the case.
Washington County Board of Commissioners Chairman Nick Sherman said in a statement that Neuman’s decision was “the most egregious case of legislating from the bench” Sherman had ever seen. He added that state law precludes the handling or canvassing of mail-in ballots before 7 a.m. on election day.
“This is a page out of the national Democratic Party handbook. When they don’t agree with a state law, they weaponize the ACLU and find a liberal judge to rule in their favor. It’s unconstitutional and un-American,” Sherman, a Republican, said in the statement. He said county officials are considering their next steps.
Whether mail-in ballots should be counted with mistakes on the declaration that voters must complete on the outside of the return envelope has been a perennial issue in Pennsylvania elections since the state first allowed no-excuse voting by mail in 2020.
In a series of challenges and decisions in state and federal court, jurists have found that the law, known as Act 77, is clear that voters must sign and date their ballots. A federal district court judge found last year that the date requirement violated the Civil Rights Act’s ban on denying anyone from voting because of an immaterial paperwork error.
The U.S. 3rd Circuit Court of Appeals struck down that decision , ruling that provision only applies when the state is determining who may vote, and not to rules that govern how a ballot must be cast to be counted.
The ACLU earlier this month filed an appeal in Pennsylvania’s Commonwealth Court asserting that the date requirement violates the state constitution.
In his 28-page opinion Friday, Neuman found that the Pennsylvania Legislature included in the state Election Code the ability for voters to challenge a decision by the canvass board that determines whether mail-in ballots can be counted.
“The policy adopted by the Washington County Board of Elections clearly did not give notice to any elector whose mail-in packet had an error and that their ballot would not be counted,” Neuman wrote. “The elector has a statutory right to challenge the decision of the canvass board. This challenge may not ultimately be successful; however, the elector still has a right to be heard by a fair and impartial tribunal.”
Neuman’s order directs the Board of Elections to notify voters whose mail ballots are set aside for disqualifying errors so that they have a chance to challenge the canvass board’s decision. The order also directs the county to accurately enter the status of mail-in ballots returned to the county in the Statewide Uniform Registry of Electors (SURE) and inform the voter of the status if they inquire.
The Election Code also allows voters who request a mail-in ballot but are listed as having not voted in the register at their polling place to cast a provisional ballot, Neuman’s decision notes. While the legislature and the law do not define the word “voted,” Neuman said based on the information provided to the court, he found that a person whose mail-in ballot is set aside has not voted.
“The Washington County Board of Elections shall indicate in each district poll register a person whose mail-in packet is being segregated as a person who has not voted, allowing the individual to submit a provisional ballot at the polls,” Neuman wrote.
The ruling stems from a complaint filed in July by the American Civil Liberties Union of Pennsylvania on behalf of seven voters and local advocacy groups the Center for Coalfield Justice, and the Washington Branch NAACP.
The suit alleged that the county’s policy had disenfranchised 249 voters whose mail-in ballots had been rejected for errors on the ballot’s outer “declaration” envelope, such as for writing an “incomplete date,” or failing to sign and date the envelope in the correct place.
Had county officials correctly coded the rejected mail-in ballots into the state’s SURE ballot tracking database, the suit alleges, the voters would have been notified their ballots had been rejected, and could have voted by provisional ballot.
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