Pennsylvania Supreme Court Takes Up GOP Challenge to Defective Mail-In Ballot Curing

Director of the Board of Elections Tyler Burns holds a test ballot during a mail-in ballot processing demonstration at the Board of Elections office in Doylestown, Pa., on Sept. 30, 2024. Hannah Beier/Getty Images

The Pennsylvania Supreme Court has agreed to hear a challenge from the Republican National Committee (RNC) and the Republican Party of Pennsylvania against lower court rulings that require counties to notify voters of defective mail-in ballots and allow them to fix those errors so the votes can be counted.

In an Oct. 5 order, the Pennsylvania Supreme Court granted the RNC’s petition for appeal, agreeing to examine whether the Commonwealth Court was mistaken in its ruling that Washington County’s policy of not notifying voters about defective mail-in ballots violated their due process rights. The appeal will also examine whether the court was correct in affirming that voters who cast defective mail-in ballots should be given the opportunity to fix their ballots or cast provisional ballots on Election Day.

The case, which could significantly impact the administration of mail-in voting in the key battleground state of Pennsylvania ahead of the 2024 general election, hinges on the legality of mail-in ballot curing procedures.

At the heart of the debate are changes to Washington County’s mail-in voting policy adopted in April. The county voted to enter all mail-in ballots, even those flagged as defective, into the state’s voter registration system as “received.” This meant that voters will remain unaware their defective ballots won’t be counted unless they take specific steps to verify the status of their vote.

This policy was challenged in a lawsuit brought in July by the Center for Coalfield Justice, the Washington branch of the NAACP, and several individual voters, who argued that the policy effectively disenfranchises voters by misleading them into believing their defective ballots will be counted, while depriving them of an opportunity to cure those ballots.

“The board’s reversal of their policy and lack of transparency was a deliberate obstruction,” Sarah Martik, executive director at Center for Coalfield Justice, said in a statement at the time. “If this policy remains for the November election, it will cause confusion and disillusionment among voters exercising their constitutional rights.”

A lower court sided with the plaintiffs, ruling that the policy violated voters’ due process rights and ordered the county to provide notice and allow voters to cast provisional ballots if they had submitted a defective mail-in ballot.

The RNC appealed that decision to the Commonwealth Court of Pennsylvania, arguing that the county’s policy complied with election law and that the lower court’s ruling requiring notice-and-cure procedures overstepped judicial authority.

“The Trial Court’s mandating a notice-and-cure procedure usurps the province of the Legislature, and, accordingly, violates the separation of powers doctrine of the Pennsylvania Constitution,” the RNC wrote in the filing.

However, the Commonwealth Court ruled against the RNC and affirmed the lower court’s decision. This prompted the RNC to lodge its appeal before the Pennsylvania Supreme Court, arguing that the lower court rulings are inconsistent with prior decisions, including a 2020 Pennsylvania Supreme Court ruling that held voters have no constitutional or statutory right to notice or an opportunity to cure defective mail-in ballots.

“There is no ‘constitutional or statutory’ right to ‘notice and cure’ of defective mail-in ballots, and the Commonwealth Court lacks authority to order the Board to provide such notice or to permit the ballots to be cured, regardless of method,” the RNC’s petition for appeal reads.

The RNC also argued that the lower court’s decision requires Washington County clerks to inspect mail-in ballots before the official pre-canvass and notify voters of the results of those inspections, which violates provisions of the Pennsylvania election code.

In general, the RNC has argued across multiple filings that practices requiring notification and giving the opportunity to cure defective mail-in ballots are policy decisions that should be left to the state Legislature, not the courts, and that requiring counties to adopt notice-and-cure procedures has the potential to undermine election integrity.

Briefs from both sides are expected to be filed in the coming days, with the Pennsylvania Supreme Court’s ruling likely to play a significant role in shaping election procedures in the state ahead of the fast-approaching November election.