Pennsylvania’s Commonwealth Court on Thursday dismissed a Republican Party lawsuit seeking to prevent counties from “curing” mail-in ballots that contain mistakes.
The GOP national and state committees who sued insisted state law does not outline procedures for local election boards to inform absentee voters they made mistakes filling out their vote envelopes or to let those voters fix their errors. In recent elections, various counties did so anyway, prompting Republicans to object that the rules aren’t being followed in certain jurisdictions across the commonwealth.
Judge Ellen Ceisler (D) ruled in favor of Acting Secretary of State Al Schmidt, a liberal Republican appointed by Governor Josh Shapiro to succeed Democrat Leigh Chapman, against whom the litigation was initially filed last autumn. The judge determined that her court did not have authority over the matter and that the party would instead need to sue the county governments in local venues to seek relief.
“…Although the subject matter of this litigation implicates elections, both local and statewide, which are governed by the Election Code, all signs point to the County Boards falling under the designation of ‘political subdivision,’ suits against which are excluded from this Court’s original jurisdiction under Section 761(a)(1) of the Judicial Code…,” Ceisler wrote. “As a result, jurisdiction for an action challenging a County Board’s development and implementation of notice and cure procedures properly lies in the respective County’s court of common pleas.”
GOP attorneys contended that the Commonwealth Court, the judicial panel that decides cases involving public entities, could address the issue because county election boards are local components of state government.
In practical terms, allowing counties to take their own initiatives to cure ballots could give statewide candidates from one major party an advantage over candidates from the other, depending on which counties embrace curing. Numerous Pennsylvania counties with a preponderance of Democrats have adopted the practice since the state enacted a law in 2019 allowing no-excuse absentee voting, while Republicans have demanded that curing stops in the absence of statewide legislation permitting it.
In court filings, Republican petitioners noted that the commonwealth’s Election Code only provides for curing in cases when the voter did not submit adequate identification. The code does not advise that county election boards contact voters to address compliance problems with a signature, a date, or a secrecy envelope.
Current state law also does not permit county election boards to inspect ballots they receive before Election Day until that very date, rendering any curing a violation of state law, the plaintiffs argued.
“The Election Code is explicit that the only thing Boards are allowed to do with absentee and mail-in ballots before Election Day is to ‘safely keep the ballots in sealed or locked containers,’” Republican counsel Kathleen Gallagher wrote in a brief earlier this month. “By inspecting the ballots and notifying voters about discovered defects, Boards are vastly exceeding their authority.”
Gallagher’s filing implicated the Department of State in this alleged breach of authority by observing that Chapman issued a guidance document to county election offices last November instructing them to “[e]xamine all mail-in ballots received to determine if the return envelopes for those ballots are signed and dated.” The attorney further noted that Chapman also urged the election boards to “contact voters whose ballots have been cancelled due to an error on the outside envelope so that voters may have the opportunity to have their vote count.”
This, the Republicans declared, is why the Secretary of State, and not just the allegedly errant counties, is an “indispensable party” in the lawsuit.
“…The Acting Secretary has now directed Boards to directly violate the Election Code,” Gallagher wrote.
Advocates of left-wing election policy celebrated Ceisler’s ruling.
“Today’s decision is a victory for Pennsylvania voters as the Republicans’ claims were dismissed and Pennsylvania counties will be permitted to carry out their current cure procedure policies,” the liberal organization Democracy Docket said in an online posting.
Neither the Republican National Committee nor its state affiliate returned calls regarding the party’s reaction to the ruling or the next legal steps Republicans may be considering.
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