GOP asks Pa. Supreme Court to bar counties from letting voters fix mail-in ballot errors

The Republican Party is asking the Pennsylvania Supreme Court to find it illegal for county boards of elections to alert voters to defective mail-in ballots and give them the chance to correct any errors.

Voters' rights groups called the petition filed Wednesday by the Republican National Committee and state Republican Party "a brazen voter suppression lawsuit."

"This effort is a very dangerous attempt to needlessly disenfranchise tens of thousands of eligible voters in the upcoming election," Witold "Vic" Walczak, legal director of the American Civil Liberties Union of Pennsylvania, said Thursday.

The GOP filed the petition against Secretary of the Commonwealth Al Schmidt and all 67 county boards of elections.

It asks the high court to exercise its King's Bench authority and take the case immediately, bypassing lower courts.

Doing so, the Republicans said, would ensure clarity and uniformity across the battleground state just 47 days before Pennsylvanians are expected to play an outsize role in the presidential election.

The Republicans allege that the way mail-in ballots are handled in Pennsylvania is "causing confusion for electors and threaten[s] to unleash disuniformity, uncertainty, chaos and an erosion of public confidence in the imminent 2024 general election."

In 2020, the state Supreme Court ruled that there is no law in Pennsylvania requiring individual county boards of elections to provide what is called "notice-and-cure" opportunities to voters who make mistakes on their mail-in ballots.

Instead, the court found that the issue is best left to the legislature, which has not taken action.

Across the state, individual county boards of elections determine how to handle the issue. More than half notify voters of a problem and then allow them to cure it, Walczak said.

In Allegheny, Beaver, Fayette and Greene counties, voters are notified of errors and given the chance to cure their ballots.

Westmoreland and Washington counties lack a curing process.

In Butler County, although there is a curing process, the elections board there did not permit voters who returned their mail-in ballots without secrecy envelopes to cast provisional ballots.

Individual lawsuits were filed against Butler and Washington counties regarding their policies, and those cases are still being appealed.

The new petition alleges that the 67 individual county boards of election have adopted "a patchwork of notice-and-cure policies," with some allowing corrections on signatures, dating and secrecy envelopes, and others not permitting any notice or curing at all.

The piecemeal policies, the Republicans said, violate the constitution's Equal Protection Clause and state laws requiring uniformity in elections.

But Walczak said that the petition is not based on concerns over ballot or voter-integrity issues and does not allege that notice-and-cure policies cause any problems.

"It is a voter suppression ploy, pure and simple," he said.

If the court were to grant the request, Walczak said, it could impact anywhere from 10,000 to 30,000 voters in Pennsylvania.

Studies have shown that the ballot errors are disproportionately made by older voters.

The Republicans allege that the state legislature has never given individual county boards of elections the authority to adopt notice-and-cure procedures.

It also argues that Pennsylvania's Election Code bars officials from inspecting or opening mail ballots prior to Election Day.

The petition criticizes instructions issued at least twice this year by the secretary of the commonwealth advising counties on how to record returned, defective ballots in a database called the Statewide Uniform Registry of Electors.

That step automatically triggers an email from the state notifying voters of the right to cast a provisional ballot while their eligibility is determined.

"The secretary's automated emails — which county boards cannot alter or control — are sent to every voter whose ballot is recorded as defective in SURE, including voters whose county boards do not offer curing," the petition said.

The filing urges the state Supreme Court to exercise its powerful King's Bench authority to immediately take the case.

"The 2024 general election is rapidly approaching," they wrote. "The court therefore should resolve the questions presented now and eliminate the 'confusion for electors.'"

Election Day is Nov. 5.