Pennsylvania Supreme Court Says Provisional Ballots Cast by Voters Whose Mail-Ballots Were Invalid Must Be Counted

UPDATE: On November 1, the U.S. Supreme Court denied the Republican National Committee’s request that the Court review and stay the Pennsylvania Supreme Court’s Genser decision. The Court also refused the committee’s alternate request that the Court order any provisional ballots cast as a result of the decision be segregated and excluded from the vote total.

Also on November 1, the Pennsylvania Supreme Court weighed in on a pending state case involving the requirement that mail voters handwrite the date on their ballot envelopes. The court clarified that the requirement remains in effect for the general election. Its order paused an appellate court ruling that refusing to count undated or misdated ballots in a September special election violated the state constitution.

With less than two weeks until Election Day and mail-in ballots already in circulation, Pennsylvania’s supreme court ruled citizens have a right to vote by provisional ballot if their mail-in ballot is disqualified for a failure to return it in the required secrecy envelope. The decision will allow Pennsylvanians to make sure their vote is counted in the battleground state, even if their mail-in ballot is not.

Since 2020, the Republican National Committee and Republican politicians have repeatedly challenged laws and policies that expand access to vote-by-mail or sought to disqualify ballots that have some sort of procedural error. In this election cycle, Republicans or Republican-affiliated organizations have filed more than 20 lawsuits in state or federal court relating to voting by mail, according to the New York Times. 

They have also intervened in such cases, as they did in the case decided Wednesday, Genser v. Butler County Board of Elections, as well as a case still pending in the Pennsylvania Supreme Court, Center for Coalfield Justice v. Washington County Board of Elections. At the heart of both cases is what rights citizens have when they return their mail-in ballot to the elections office on time, but it has an error that makes it invalid. 

Nearly 40 percent of Pennsylvanians who voted in the 2020 presidential election did so by mail. The state had received more than 1.7 million requests for ballots for the 2024 election as of October 16. In Philadelphia, more than 1,200 mail ballots so far this year are likely to be rejected due to disqualifying errors, officials said.

The issue in Genser was whether the appellate court erred in interpreting the state’s election code when it held that voters in Butler County, north of Pittsburgh, were entitled to submit a provisional ballot and have that ballot count if they had submitted a timely but defective mail-in ballot. The defect at issue in the case was failing to insert their completed ballot into the secrecy envelope, which then must be put into the outer envelope for mailing. Failing to include the secrecy envelope disqualifies the ballot as “naked.” (The Pennsylvania Democratic Party also intervened in Genser, in support of counting the provisional ballots.)

Reading the relevant election statutes to be ambiguous, the Genser appellate court had said the law should be interpreted to ensure “voters can vote exactly once—not zero times and not twice,” consistent with the legislature’s goal of promoting fair and honest elections.

In a 4–3 opinion upholding that decision, the Pennsylvania Supreme Court said the state’s election code was written “with the purpose of enabling citizens to exercise their right to vote, not for the purpose of creating obstacles to voting.” The court was critical of several arguments made by the Republican National Committee, calling them “hollow” and "difficult to follow.” The group “manufactures an absurdity” by claiming the court should accept the state legislature “intended to wholly disenfranchise a voter on account of a mistake with their Return Packet for no discernable purpose,” the court wrote.

The court specifically addressed claims made by the Republican-affiliated parties and some amicus briefs that the policy of allowing provisional ballots could compromise the integrity of the election or allow voters to vote twice. “They offer no reason related to election integrity or otherwise to support the idea that a defective attempt to vote by mail dooms a voter to disenfranchisement,” the court wrote. “We are at a loss to identify what honest voting principle is violated by recognizing the validity of one ballot cast by one voter.” 

Two dissents both disagreed with the majority’s statutory interpretation. The majority opinion “is too far divorced from the legislature’s clear directives regarding mail-in voting to withstand any scrutiny,” Justice Sallie Mundy wrote.

Though the holding only specifically addresses Butler County and the plaintiff voters, the analysis may be read broadly to encompass other disqualifying errors beyond forgetting the secrecy envelope, including failing properly to sign or write the date on the mail-ballot’s outer envelope. Pennsylvania’s requirement that by-mail voters handwrite the date, even though voting rights groups argue it plays no role in establishing a ballot’s timeliness, is the subject of ongoing state and federal litigation. The Pennsylvania Supreme Court refused to take up the issue earlier this month.

In 2020 numerous social media and advertising campaigns, including by cast members of The Sopranos, warned voters of the then-new rule requiring the secrecy envelope. This year, the state made additional efforts to help voters— a new design includes a yellow secrecy envelope, which officials hope will stand out. Some counties are putting hole punches through ballot envelopes to help election officials spot naked ballots as they come in.

A decision is also expected in Washington County, the other mail-in ballot case still pending. There, the specific question involves a policy instituted by the election board for Washington County, part of the Greater Pittsburgh area, before the 2024 primary elections. The county election board entered all mail-in ballots received into the statewide system as simply “returned,” meaning voters whose ballots were disqualified received no notification that their vote wouldn’t count, leaving them unable to contest the decision or know to cast a provisional ballot. 

The same appellate court as in Genser upheld an injunction against the policy. Under the injunction, the Washington County board is required to notify those whose ballots were segregated on suspicion of a disqualifying error and document that the citizen had not successfully voted to ensure they could cast a provisional ballot if they chose to. A unique issue in Washington County is whether the appellate court erred in ruling that voters have a due process right to challenge the disqualification of their mail-in ballots.

Despite the somewhat small percentage of mail-in ballots likely to be disqualified, the stakes of these lawsuits are high given the narrow margins on which this election could be decided. 

Erin Geiger Smith is a writer and editor at the Brennan Center for Justice.

Sarah Kessler is an advisor to State Court Report.

Suggested Citation: Erin Geiger Smith & Sarah Kessler, Pennsylvania Supreme Court Says Provisional Ballots Cast by Voters Whose Mail-Ballots Were Invalid Must Be Counted, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Oct. 24, 2024, updated Nov. 4, 2024), https://statecourtreport.org/our-work/analysis-opinion/pennsylvania-supreme-court-says-provisional-ballots-cast-voters-whose