Unresolved gray areas in Pa. mail voting law likely to spur fresh confusion, legal challenges

This story originally appeared on Spotlight PA.

As millions of Pennsylvanians once again go to the polls this November, some key questions on mail ballots remain unsettled, opening the door for more legal action and public confusion after the upcoming gubernatorial and U.S. Senate races.

In a recent live event with Spotlight PA, Acting Secretary of State Leigh Chapman stressed that these issues will not affect the accuracy of the vote. But rules on key voting mechanics such as drop boxes or a chance for voters to fix a ballot error could vary by county.

As such, people who plan to vote by mail should brush up on local rules to ensure there aren’t any issues with their ballots, Chapman said.

“I really want people to make a plan to vote,” she said. “Think about it. Do you want to vote by mail?”

Elections in Pennsylvania have become highly political, and the state election law has some gray areas. The patchwork of mail voting rules largely stems from 2019, when the legislature and governor passed a bipartisan overhaul of the commonwealth’s election law and allowed no-excuse mail voting for the first time.

That law, Act 77, doesn’t say, for instance, whether counties should be able to contact voters who have submitted mail ballots with errors and allow them to fix them — a process known as ballot curing. The law also doesn’t mention ballot drop boxes or how they should be regulated. They’re a common tool states use to make it quicker to submit ballots.

Courts have ruled on some of these questions, and the Department of State has also tried to clear up some of the confusion by issuing guidance on still-unsettled areas.

Last month, for instance, the department handed down legal guidance to the counties on how to count mail ballots, policies for drop boxes, and what to do about emails from outside groups asking for unlawful voter roll purges.

That guidance is part of a Department of State effort to keep local officials on top of the evolving precedents and to try to keep rules consistent across the commonwealth. But it isn’t legally binding — and the approach has detractors, mostly in the GOP.

“If there’s a perception that the guidances coming out of the secretary’s office are inconsistent, or not well thought out, or don’t necessarily have the force of law, I think some counties probably ignore them,” said Matt Haverstick, a Philadelphia-based attorney who often works for Republican clients. “And we need clarity right now, in the Election Code and election process.”

But Haverstick also acknowledges these court battles aren’t just happening for want of clarity. They’ve become a political arena of their own.

Both Democrats and Republicans, he said, believe that court is “just another place to go fight battles that maybe people don’t want to believe were settled successfully or conclusively at the ballot box.”

With two major statewide contests on the ballot this November — for governor and U.S. Senate — litigation likely to follow, and little consensus on which practices are best, some county officials say they plan to proceed with caution.

Dauphin County election director Jerry Feaser told Spotlight PA that “when it comes to things subject to litigation,” he said, “we’re going to review the guidance provided in consultation with our solicitor.”

Ballot curing up to counties

Mail ballots offer voters more flexibility and tend to increase turnout. But widespread mail voting also means lots of people are filling out ballots without supervision, and that can lead to eligible voters making minor mistakes that invalidate their ballot.

Voters sometimes forget to sign their outer envelope. Sometimes they make a mark in a place they shouldn’t, or in Pennsylvania, they forget to include their ballot’s inner secrecy envelope.

According to NPR, hundreds of thousands of mail ballots are typically tossed out during big elections due to errors. About half of states work to limit that number by systematically reaching out to voters who made mistakes and giving them a chance to correct their ballot.

Pennsylvania law doesn’t require ballot curing, but it also doesn’t ban it, which has led to a scattershot approach. Some counties routinely contact voters who make mistakes and try to correct them. Some let political parties do that work. Others do nothing.

This led to litigation in 2020. Ahead of that year’s election, Democrats tried unsuccessfully to get the state Supreme Court to mandate the curing of ballots. Lawyers for Republicans filed several, equally unsuccessful lawsuits after the 2020 election challenging the counting of cured ballots.

The issue remains legally unsettled.

Pennsylvania’s Commonwealth Court recently ruled that counties can contact voters to cure ballots, but that they don’t have to. National Republicans who oppose the practice have already appealed the ruling to the state Supreme Court, which hasn’t yet taken up the case.

It’s unclear if the court will act ahead of the midterms, but for now, it’s likely that voters’ ability to fix mistakes on their ballots will depend on where they live.

No guarantee to drop boxes

Drop box availability varies widely among the counties.

A 2020 state Supreme Court ruling OK’d them, and the Wolf administration has given counties a list of rules for the boxes, including making sure they can’t be moved or tampered with, and that they should be monitored by video surveillance “when feasible.”

But drop boxes have also been a major point of contention for Republican lawmakers. Many believe they create opportunities for fraud, though there’s no evidence that drop boxes in Pennsylvania, or in other states, led to fraudulent votes in 2020.

Across the country, about 16% of 2016 voters cast ballots using drop boxes, according to NPR.

“In some cases, counties have already removed drop boxes — as happened in Lancaster ahead of the primary election. Several ongoing lawsuits may still determine whether some counties use the boxes or change how they are monitored, including in Lehigh and Chester.

In other cases county commissioners, who often sit on the boards of election, will simply make the decision.”

“Those decisions are actually happening right now,” Chapman said. “Local county boards of elections are meeting, they’re voting on where the drop boxes are going to be and if they’re going to have drop boxes at all.”

“If you want them in your community,” she added, “go to those board of elections meetings and put that on the record.”

To date or not to date

The Department of State recently issued guidance telling counties to count undated mail ballots — those on which a voter has failed to put a date on the outer envelope — as long as they’re returned before 8 p.m. on Election Day.

Such ballots have been litigated ad nauseam since 2020, the first year when Pennsylvania voters could request no-excuse mail ballots.

State judges at first only allowed such ballots to be counted in the 2020 general election due to the pandemic’s extenuating circumstances, but declared them invalid in future elections.

The Department of State backed that interpretation, until a federal court declared that the date did not help detect fraud, so enforcing the provision violated voters’ civil rights.

A case asking the U.S Supreme Court to rule on the legality of undated ballots is pending and scheduled for a conference in early October. However, it’s unclear whether a final ruling will come down before the November election.

Counties are preparing for the upcoming contest with that uncertainty in mind. Dauphin County, for instance, is segregating undated ballots in case a late court order once again means those ballots shouldn’t be counted, said Feaser, the local election director.

How to vote by mail

Given the looming threat of litigation and the possibility that legal precedents in some areas of Pennsylvania’s election law could change, a voter’s best bet is always to follow the letter of the law.

If you’re 18 or older, live in Pennsylvania, and want to vote by mail, you must:

• Register to vote by Oct. 24.
• Request a mail ballot by Nov. 1, although you should do so much sooner if you can.
• Use the inner secrecy envelope. A ballot without it is known as a “naked ballot” and will be tossed out.
• Sign the voter declaration on the outer envelope.
• Date the outer envelope.
• Return the ballot by 8 p.m. on Election Day.

If you aren’t sure what your particular county’s policy is, you can find contact information for your local county election officials here.