HARRISBURG, Pa. — The Pennsylvania Supreme Court announced Friday that it will consider whether counties must accept provisional ballots cast at polling places on Election Day by voters whose mail-in ballots were rejected because they lacked secrecy envelopes or had other deficiencies.
Pennsylvania is seen as a key state in the presidential election, and the outcome could determine the fate of thousands of votes that may be invalidated in the Nov. 5 election.
The Supreme Court was hearing an appeal from a Commonwealth Court ruling just two weeks ago that found Butler County must count the provisional ballots of two voters who received automated mailings before the April primary election informing them their mail-in ballots had been rejected because they were so-called “naked ballots” that were not in designated secrecy envelopes.
When the two voters tried to cast provisional ballots, election officials in Republican-majority Butler County rejected them, leading to a lawsuit. The voters lost their case in Butler County court, but on September 5, a panel of state court judges overturned the ruling and said the two votes must be counted.
The suit is one of several over the fate of mail-in ballots cast in Pennsylvania by voters who didn’t follow rules when mailing their ballots — most notably a much-litigated requirement that the correct date be handwritten on the outside of the envelope. Democrats have been much more open to voting by mail than Republicans since the Pennsylvania General Assembly significantly expanded it on the eve of the pandemic five years ago.
The decision to take the case came a week after the Pennsylvania Supreme Court overturned a state court ruling in a separate mail-in voting case, effectively allowing counties to enforce the requirement to write the date on the outside of the envelope.
The order issued Friday said the Supreme Court would consider whether counties must count provisional ballots from voters who didn’t submit their ballots in secrecy envelopes — an issue that has troubled two Butler County voters — but it also signaled it could rule on the broader issue of whether to allow provisional ballots from voters whose mail-in ballots were rejected for other reasons.
The appeal was filed by the Republican National Committee and the Pennsylvania Republican Party, which argued that state courts were enacting court-ordered vote corrections that are not permitted by state election law.
The Supreme Court set a deadline next week for Republican groups, the two Butler County voters who filed the lawsuit, the state Democratic Party lining up with them and anyone else who wants to comment.
Provisional ballots are typically cast at polling places on Election Day and are kept separate from regular ballots in case election officials need more time to determine a voter’s eligibility to vote.
County officials run Pennsylvania’s elections. It’s unclear how many of the state’s 67 counties don’t allow voters to replace rejected mail-in ballots with provisional ballots, but the plaintiffs have suggested at least nine others may have done so in the April primary.
According to the State Board of Elections, about 21,800 of the roughly 2.7 million mail-in ballots cast in the state in the 2020 presidential election were invalidated.
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