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In Pennsylvania, voting is underway—the first voters are already completing their mail ballots. However, there are still significant legal questions that remain unsettled in courts, which could significantly influence the upcoming presidential election. More than a hundred lawsuits have been filed in 26 states this election cycle, many of them aimed at delegitimizing the election and setting the stage for election challenges. Bad actors are targeting issues like ballot curing and provisional ballots to infringe on voters’ rights, reduce participation, and influence the election, and Pennsylvania—with hotly contested races all over the ballot—is no exception.
Dating ballots
At least twelve lawsuits filed in recent years in state and federal courts involve Pennsylvania’s handwritten date requirement for absentee ballots. In 2022 alone, over 10,000 ballots were rejected because they didn’t have a correct date on the return envelope.
Earlier this summer, a Pennsylvania Commonwealth Court ruled 4-1 to block the enforcement of the handwritten date requirement. However, this decision was overturned by the state Supreme Court this month, stating the lower court lacked jurisdiction. Voting rights supporters have refiled with the state Supreme Court.
Voting rights organizations, including the American Civil Liberties Union and the Pennsylvania chapter of the NAACP, have also requested that the U.S. Supreme Court decide if the Pennsylvania state law requiring election officials to reject mail-in ballots that are undated or are incorrectly dated by voters violates the Civil Rights Act.
Provisional ballots
When two Butler County, Pennsylvania voters—Frank Matis and Faith Genser— were notified via an automated email that their absentee ballots were rejected because they forgot to use an inner secrecy envelope in the April primary, they went to their polling place on Election Day to cast a provisional ballot instead. But their provisional ballots were rejected too. Local election officials argued that they couldn’t count the provisional ballots because the voters had already “cast” a ballot in the election.
On behalf of the two voters, the state American Civil Liberties Union and the Public Interest Law Center sued the county, arguing that Matis and Genser were wrongly disenfranchised and that their provisional ballots should have been counted. Originally, a county Common Pleas Judge ruled on behalf of the county. However, the decision was overturned by the Pennsylvania Commonwealth Court, which decided that Pennsylvania voters can cast a provisional ballot on Election Day if their absentee ballots have been rejected for voter error.
According to voting rights advocates, this decision helps reduce “unnecessary barriers” for voters. Ben Geffen, a senior attorney at the Public Interest Law Center said the 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.”
While this decision is a win for voters, the Republican National Committee and the Republican Party of Pennsylvania filed a lawsuit against Pennsylvania’s Secretary of the Commonwealth’s office and the state’s 67 county boards of elections, challenging the notification and curing policy guidance issued from Secretary Al Schmidt. Schmidt instructed county boards to records potentially defective absentee ballots into the Pennsylvania’s Statewide Uniform Registry of Electors (SURE) system so an automated email notifying the voters about the status of their ballot and about the opportunity to cast a provisional ballot. Given that Democrats are more likely to vote by mail by a 3:1 ratio in Pennsylvania, this lawsuit has a clear partisan impact.
Similarly, the Pennsylvania Commonwealth Court upheld a lower court decision that requires that election officials in Washington County must notify voters of mistakes on their mail ballots and allow them to vote with provisional ballots. According to the plaintiffs, Washington County disenfranchised nearly 260 voters in the 2024 primary elections.
Unlike many other states, Pennsylvania doesn’t have a statewide ballot-curing policy, so counties have the authority to decide if they permit voters to fix errors on their absentee ballots. The RNC and their co-plaintiffs argue that recent guidance from Secretary of State Schmidt could force counties that didn’t want to permit curing to give voters a chance to fix errors on their ballots, and they’re suing to stop the guidance from going into effect. In the 2020 election, nearly 22,000 absentee ballots were rejected. If the court rules against the guidance, it could result in thousands of voters not being aware that their absentee ballot won’t be counted and they can cast a provisional ballot.
Every voter should have the chance to be counted
As we outlined in our election data transparency policy report and fact sheet, ballot-curing policies should be expansive and cover a range of common voter mistakes. Moreover, election officials should notify voters about their right to cure in various ways, including via email, phone, and mail.
Free and fair elections are the cornerstone of a healthy democracy and one of the institutions that stands between the country and authoritarianism. Anti-curing and anti-voting lawsuits have nothing to do with election integrity or security. Policies that seek to make minor voter errors like forgetting to use a secrecy envelope or writing the wrong date on the ballot don’t make our elections more secure or fair—they just mean a smaller and less representative electorate.
As of now, incorrectly dated or undated ballots will not be counted, while voters who are notified that their mail ballot was rejected due to a minor error will be able to vote on Election Day using a provisional ballot.
But with lawsuits flying, the status quo isn’t guaranteed. In a close election, bad-faith lawsuits pushing election officials to discard more votes could have a big impact. We’ll be watching closely to see what happens in the coming weeks—and pushing election officials across the country to adopt science-based practices for fair elections in the years ahead.
