Public Rights Project – on behalf of a coalition of 29 Pennsylvania county commissioners, councilmembers, and election officials – filed an amicus brief in Genser v. Butler County Board of Elections urging the Pennsylvania Supreme Court to uphold the Commonwealth Court’s decision to allow voters to cast a provisional ballot in instances when their mail-in ballot is not going to be counted because of an error in returning their mail-in ballot. In the case of the two voters who initially filed the lawsuit, that error was that they forgot to include the inner secrecy envelope in their mail-in ballot envelope. Signatories represent more than half of all Pennsylvanians.
The brief, which relied on deep expertise from election officials, argues that not only did the lower court interpret Pennsylvania law correctly, but the decision enfranchises voters by giving them an opportunity to vote if their first mail-in ballot is rejected for the mistaken omission of the secrecy envelope – a policy that is already the status quo in many counties. The brief argues that the provisional ballot failsafe helps administrators abide by the law to ensure all eligible voters have the ability to exercise their right to vote.
Opposing parties made unsupported claims that permitting these kinds of provisional ballots to be counted would be an onerous process and would cause confusion and double voting, but the brief raises the local election officials’ expertise to correct those mischaracterizations: provisional ballots are not new to Pennsylvania and the election officials, counting the ballots at issue in this case is not burdensome, and there are numerous safeguards that prevent ballots from being double-counted.
The brief flags the potential for voter and pollworker confusion so close to Election Day if the Supreme Court overturns the lower court’s decision. Because many counties in Pennsylvania permit the use of provisional ballots – and educate voters about the practice – a change to the law with less than two months until the election could confuse and disenfranchise voters.
