Voters Can Cast Provisional Ballots If Their Mail Ballots Are Rejected: PA Court

County officials recount ballots in Pennsylvania, in a 2022 file photograph. Mark Makela/Getty Images

State law does not prevent election officials from counting provisional ballots from voters whose mail-in ballots were rejected, a Pennsylvania court ruled on Sept. 5.

Two Commonwealth Court judges said election law “does not prohibit counting electors’ provisional ballots,” deciding in favor of two voters in Butler County.

Faith Genser and Frank Matis voted by mail in the 2024 primary election, but their votes were rejected. Genser and Matis then cast provisional ballots in person, but county officials also did not count those ballots.

In their lawsuit, the voters said their provisional ballots should have been counted. They pointed to state law that says a voter who requests a mail-in ballot and who is not shown on a district register as having voted can vote by provisional ballot.

But the same law clearly says a provisional ballot cannot be counted if the voter’s mail-in ballot was “timely received” by county officials, Butler County Court of Common Pleas Judge S. Michael Yeager said in August as he ruled against Genser and Matis.

The ruling sparked an appeal, and the divided Commonwealth Court panel said that some words in the law—including “having voted” and “timely received”—have ambiguous meanings. Judges said that the purpose of the code is to make sure each voter votes once in each election and that legislators included language in the law to enable voters who used mail-in ballots but whose ballots had not been counted to cast provisional ballots.

By adopting the interpretation of the Butler County Board of Elections, Genser and Matis ended up with zero votes in the primary, which “falls short of the object the General Assembly sought to attain by enacting Act 77 and the Election Code as a whole,” Commonwealth Court Judge Matthew Wolf wrote for the majority. “This construction disenfranchises electors.”

That means that as long as a mail-in voter’s vote hasn’t been counted, officials should accept that voter’s provisional ballot, the panel majority said.

Wolf was joined by Judge Renee Cohn Jubelirer. Judge Lori Dumas dissented.

Commissioners on the Butler County Board of Elections did not respond to requests for comment.

The ruling “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,” Ben Geffen, a senior attorney at the Public Interest Law Center, which is helping represent Genser and Matis, said in a statement. “This is an important safety net that protects the right to vote for Pennsylvania citizens.”

The ruling applies to all counties in the state, according to lawyers for the voters.

About a week before the decision, a different Commonwealth Court panel said that election officials in two counties cannot reject mail-in ballots with incorrect or no dates as long as the ballots were submitted before the filing deadline.