Pennsylvania Lawmaker Offers Legislation to Count Provisional Ballots in Cases of Defective Mail-In Votes

Pennsylvania state Senator Lisa Boscola (D-Bethlehem) is drafting a bill to ensure voters have their in-person votes counted in cases when their defective mail-in ballots were tossed. 

Boscola sponsored Act 77, the 2019 law that legalized no-excuse mail-in voting in Pennsylvania, and her emerging bill seeks to clarify a part of that statute. A provision in that law led the Delaware County Board of Elections to vote unanimously on May 23 to throw out six of its eligible voters’ ballots cast in the May 16 primary. Three of those voters are now suing the board in the Delaware County Court of Common Pleas to have their votes tallied and to guarantee those in similar situations have their ballots counted in the future. 

Attorneys from the American Civil Liberties Union (ACLU) of Pennsylvania are representing electors Sonja Keohane, Richard Keohane and Barbara Welsh, all of whose primary ballots got rejected due to errors. Those mistakes included neglecting to sign the outer envelope containing the secrecy envelope holding the ballot itself, forgetting to use the secrecy envelope or failing to write the correct date on the outer envelope. 

When a voter’s mail-in ballot or eligibility to cast a vote is in question, that person can cast an in-person provisional ballot, something Welsh and the Keohanes did once they found out their absentee votes got canceled. Provisional ballots are to be counted if officials determine the voters are eligible and their ballots were correctly cast. 

But the county discounted the in-person ballots in this case because Act 77 states “[a] provisional ballot shall not be counted if… the elector’s absentee ballot or mail-in ballot is timely received by a county board of elections.” All of the above electors’ vote sheets were received on time. 

In their petition, ACLU attorneys draw the court’s attention to another section of Act 77 stating that election officials “shall count the ballot if the county board of elections confirms that the individual did not cast any other ballot, including an absentee ballot, in the election.” 

When deciding to reject the voters’ ballots, the board relied on a 2020 Commonwealth Court ruling, In Re: Allegheny County Provisional Ballots in the 2020 General Election, resolving the conflict between Act 77’s differing provisions by invalidating the provisional ballots. ACLU attorneys opined that the ruling is “nonprecedential,” i.e., that it has no proper bearing on future cases.

Boscola’s change to the commonwealth’s Election Code would explain that election boards must count a provisional voter’s ballot if it was cast to replace an earlier ballot containing an error. In a message emailed to The Pennsylvania Daily Star, she voiced concern about inconsistency with how counties may decide to treat provisional ballots cast in place of canceled mail-in votes. 

“This is just common sense legislation,” she wrote. “If voters are told that their mail-in votes have defects they should be able to correct them as provisional votes. This should not be a matter of interpretation county by county. It should be a certainty.”

In a memorandum describing her bill, the senator added she “will be closely monitoring” actions of the Joint State Government Commission’s Election Law Advisory Board which indicated it may issue recommendations to address this matter. 

While the Delaware County case won’t impact any election results and could only modestly revise this spring’s election tallies, its eventual decision could have a major impact in future elections insofar as absentee voting is becoming increasingly commonplace. Prior to Act 77, a small minority of voters cast absentee ballots which then required an excuse related to either illness, injury or travel. But this May, over 25 percent of the nearly 1.9 million votes cast were executed outside of the voting booth.

Petitioners in the Delaware County suit characterized last month’s invalidations as a threat to voting rights.

“The Board cannot demonstrate a compelling interest that justifies its complete disenfranchisement of voters, especially when a procedure already exists to prevent the loss of the fundamental right to vote,” the brief read.  

While the lawsuit pits the liberal ACLU against the Democrat-run Delaware County Board of Elections, Republicans have signaled their party’s view of how current law should apply in instances like this. Last autumn, attorneys Kathleen Gallagher and Russ Giancola, who represented the Pennsylvania GOP and former President Donald Trump in 2020, wrote to Pennsylvania county governments suggesting they may challenge provisional ballots that were cast to replace spoiled mail-in votes.

“The RNC intends to challenge the provisional ballots cast by voters who also cast an absentee or mail-in ballot, even if such absentee or mail-in ballot has been deemed unable to be counted under applicable law,” they wrote. 

Such litigation reportedly did not take place. Gallagher and Giancola did not respond to a request for comment.

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Bradley Vasoli is managing editor of The Pennsylvania Daily Star. Follow Brad on Twitter at @BVasoli. Email tips to [email protected].
Photo “Lisa Boscola” by Senator Lisa M. Boscola. Background Photo “Pennsylvania State Capitol” by Kumar Appaiah. CC BY-SA 2.0.


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