Pennsylvania top court rules provisional ballots must be counted after mail ballot rejections

The Pennsylvania Supreme Court ruled Wednesday in a 4-3 decision that state law provides voters whose mail ballots are rejected an opportunity to vote by provisional ballot. 

More than 1.1 million mail ballots have already been returned in the key swing state with two weeks until Election Day, according to data from the Pennsylvania Department of State. The commonwealth has also approved requests for mail ballots for hundreds of thousands of others. 

Wednesday’s ruling provides those voters a second chance at participating in the upcoming election if their mail ballot is rejected for not being returned with a required secrecy envelope.

Justice Christine Donohue wrote the majority opinion for herself and three other Democrats on the court. Another Democrat dissented alongside the court’s two Republican justices.

“Absent any other disqualifying irregularities, the provisional ballots were to be counted if there were no other ballots attributable to the Electors. There were none,” Donohue wrote for the majority. 

The decision marks a legal loss for the Republican National Committee (RNC) and the Pennsylvania Republican Party, which brought the appeal to the state’s top court. The Hill has reached out to the RNC for comment. 

The case arose after Pennsylvania’s primary in April, when county election officials rejected provisional ballots cast by two voters in Butler County, which is located north of Pittsburgh.  

The voters did not submit their mail ballots with an inner secrecy envelope, an error commonly known as a “naked ballot.” After being notified, the two Pennsylvanians showed up to their polling locations on the day of the primary in an attempt to still vote. 

They sued once the county election board rejected the provisional ballots they cast in person. The RNC and Pennsylvania Republican Party intervened to back the board, while the Pennsylvania Democratic Party intervened to support the voters’ challenge. 

A trial court ruled the provisional ballots were rightly rejected, but an appeals court went the other way, ruling they should’ve been counted. Republicans then appealed that decision to Pennsylvania’s top court. 

Wednesday's decision affirms the appeals court's ruling.

In his dissent, Justice Kevin Brobson noted the state Legislature could always change Pennsylvania’s election laws, but in its current form, the provisional ballots were invalid. 

“The Election Code provisions at issue are clear, and they dictate that the Board shall not count an elector’s provisional ballot if the elector’s mail ballot is timely received by the Board,” wrote Brobson, joined by his two dissenting colleagues. 

Pennsylvania counties may notify voters if their mail ballot is rejected and allow them to fix any errors, known as curing, but they are not obligated to do so. The state’s top court is considering whether notice is required in a separate case but has not issued a decision.

“Just like voters are rejecting Trump’s dark, backward-looking MAGA agenda, judges are rejecting his bogus legal claims,” Harris-Walz campaign spokesperson Charles Lutvak and DNC Rapid Response Director Alex Floyd said in a statement to The Hill praising the ruling.

“While Republicans try to block your vote, Democrats are protecting it and standing up for the principle that every eligible voter has a right to make their voice heard, no matter how they vote. And this ruling reaffirms that principle,” the statement continued.

Updated at 8:52 p.m. EST.