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June 15, 2024 8:59 am

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ACLU signals effort to target disparate ‘notice and cure’ policies for flawed mail ballots

Ken Smith is the first to arrive to cast his ballot in Pennsylvania’s primary election on Tues., April 23, 2024 in Paxtonville in Snyder County, Pennsylvania. (Credit: Sue Dorfman/Votebeat)

Carter Walker, Votebeat

This article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access.

The ACLU of Pennsylvania is suing one county, and may file more cases, in an effort to challenge a policy that it says disenfranchises voters who make an error when casting ballots by mail.

The case against Butler County, filed after the April primary, appears to be the start of a broader statewide effort by the group targeting the “notice and cure” process, a major gray area in state law that leads to uneven rules for voters across Pennsylvania.

Along with that lawsuit, the organization has signaled it is considering another lawsuit, and has been filing public records requests to identify more counties that don’t allow voters to correct flawed mail ballots or provide notice to voters that their ballot will be rejected. Such records requests are often a precursor to a lawsuit.

A legal effort that changes where the courts stand on notice and cure policies could have a profound impact. Since Pennsylvania enacted its no-excuse mail voting law in 2020, counties have rejected thousands of ballots because voters failed to sign or date the outer envelopes, or made another technical error. The rejection rate goes down significantly when a county notifies voters and allows them to fix, or cure, the error, according to county officials and a Votebeat and Spotlight PA analysis of available data.

“This should not be a game of gotcha,” said Vic Walczak, legal director of the ACLU of Pennsylvania. “‘Here is your ballot. You got one shot. If you mess it up, it won’t count.’ That’s not how this should work.”

State law is silent on whether counties must allow voters to correct their ballots, and courts have interpreted the absence of rules to mean that it’s up to the counties to choose whether to allow it. The result is a patchwork of rules across the state.

At least 17 counties allow some form of curing, though the methods vary. Others say they’re not obligated to do so, citing the election code and court rulings.

The ACLU’s lawsuit targeting curing marks a shift in its voting rights strategy following a failed challenge at the federal level to the state’s requirements that voters put a date on ballot envelopes.

In March, the 3rd U.S. Circuit Court of Appeals ruled against the ACLU and other plaintiffs in a two-year case arguing that Pennsylvania’s requirement that voters correctly date their ballot return envelopes violates the 1964 Civil Rights Act. The ACLU has not said whether it will appeal that decision to the U.S. Supreme Court.

What is ‘notice and cure’?

Since Pennsylvania implemented Act 77, the no-excuse mail voting law, in 2020, counties have received thousands of ballots each election with errors that could cause them to be rejected by election officials. Some voters fail to sign or date the return envelope, as required by law, or don’t place the ballot in a secrecy envelope designed to protect the privacy of their selections.

Some counties inform voters of the errors, and allow them to correct them, so their votes are counted. This “notice and cure” process quickly became a point of contention.

In September 2020, the Pennsylvania Supreme Court rejected a request from Democrats that all counties be required to contact voters and allow them to fix errors. The Democrats’ appeal to the free and equal elections clause in the state constitution, the court ruled, was not enough to surmount the lack of precise language in the law directing counties to allow curing.

The state Supreme Court has also turned away an effort by Republicans to bar counties from allowing ballot curing, citing the same lack of precise language in the law. Just before the 2022 election, the court upheld a lower court decision that said Republican groups that were seeking to block counties from implementing curing had failed to show how it specifically violated the election code.

Among counties that allow curing, practices vary.

Some, like Allegheny County, return defective mail ballots to voters with an explanation of the error and a new return envelope. Nearby Fayette County allows voters to come into the elections office and fix mistakes in person. Philadelphia posts lists of voters with defective ballots online and lets them request a replacement ballot in person at the election office. Erie County posts a list and allows voters to correct mistakes in person.

How successful curing is also depends on the method. A spokesperson for Allegheny said that nearly 62% of defective mail ballots were fixed in last month’s primary using its method. Data from Fayette County shows they saw roughly a 50% cure rate this past election. In Chester County, roughly 66% of ballots at risk were rectified and counted, county officials said.

Jeff Greenburg, a senior adviser on election administration for the good-government group Committee of Seventy, said the varying policies are a reminder that the legislature needs to clear up this and other vague portions of Act 77.

“If I was grading the General Assembly on Act 77, they would get an incomplete,” he said.

Greenburg said counties are acting in good faith to interpret the law and court cases, but the inconsistencies risk shaking voter faith in elections.

“Voters see that, and they understand that and begin to question why,” he said. “It’s a valid question.”

Where the ACLU may be headed

The ACLU’s suit against Butler County was filed on behalf of two voters who didn’t insert their mail ballots into secrecy envelopes before they returned them for the April 23 primary. Their mail ballots were rejected, and when those voters cast in-person provisional ballots on election day, the county rejected those votes, too. Provisional ballots are used by voters whose eligibility is in question but who still want to vote. Those ballots are only counted after the voter’s eligibility is confirmed.

The ACLU brought a similar challenge against Delaware County last year and won. But because the case ended in county court, it did not set a statewide precedent.

In the Butler County case, a judge recently granted the state and national GOP’s request to intervene in the case in support of the county. If a judge rules against the county, the party organizations would have the option to appeal to Commonwealth Court. A ruling there could give the case a statewide impact.

Even if the case reaches that level, a decision would be limited to one type of voting scenario: determining whether a voter can cast a provisional ballot in person if their original mail ballot is rejected.

But more lawsuits on curing appear to be on the horizon. Starting in late March, the ACLU of Pennsylvania began sending identical public records requests to all counties. The requests — copies of which were obtained by Votebeat and Spotlight PA through separate records requests — sought information about the counties’ written policies on curing or notifying voters of errors, or documents reflecting the county’s decision not to allow curing.

“We believe the Pennsylvania and U.S. constitutions require counties to make sure voters are not disenfranchised by mistakes on their mail ballot envelopes,” Walczak said. He added that the organization has been “investigating” notice and cure procedures.

The ACLU declined to discuss its specific legal strategy, but its recent actions hint at what its approach may be.

In April, Washington County officials voted to reverse course and no longer notify voters of errors with ballots or allow them to fix them. In a letter before the April 23 primary election, the ACLU advised the southwestern county that the decision raised “serious constitutional procedural due process concern(s),” pointing to a U.S. Supreme Court case.

Letters such as this one often precede litigation, as was the case in Butler County, and Washington County leadership said they expected the decision would result in a lawsuit.

County election directors have anticipated more litigation on ballot curing procedures, often expressing frustration that it seems as though no matter what policy they adopt — allowing or not allowing curing — some group will be unhappy and sue.

“It’s not going to increase public confidence in elections if we have groups suing over portions of the code which have already been litigated,” Mercer County Elections Director Thad Hall said.

Counties that don’t allow curing, like Mercer, generally have based that decision on their county attorney’s legal finding that the state’s election code gives no clearly defined authority to do so.

“It’s nothing malicious,” Hall said. “It’s just that we don’t have a curing law.”

Hall said that those looking to change policy should lobby the legislature to clarify the law. He said he thinks litigation that aims to force counties to adopt notice and cure procedures may have an unintended, opposite effect if groups object to a certain kind of curing policy.

“Counties may very well say, ‘Well, you won’t allow us to have the curing that we want, so we’re not going to do any curing,’” he said.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

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