Aug 9, 2024 By Mike Jones 6 min read

The state Department of State is pushing back against Washington County’s decision not to count any provisional ballots filled out at the polls by voters whose mail-in ballots were rejected due to fatal flaws.

In a statement released Thursday, state elections officials said “Washington County’s position is inconsistent with the Department’s guidance” from a March memo asking counties to tabulate such last-chance provisional ballots in specific instances when a mail-in ballot was not counted due to missing a signature or date on the outer envelope.

Many surrounding counties have adopted “notice and cure” policies that allow voters to correct errors made on the outer envelope of a mail-in ballot or vote using a provisional ballot at the polls on Election Day.

However, the Washington County elections board decided against ballot curing ahead of the April 23 primary, and it was revealed during a court hearing Monday that officials are not counting provisional votes when filled out at the precinct if the elections office already received a mail-in ballot from a voter.

“The Department understands that Washington County has not adopted the interpretation included in the Department’s guidance,” said Geoff Morrow, who is deputy communications director for the state Department of State. “Our guidance remains the most accurate source of information regarding the rules for voting in Pennsylvania.”

Morrow cited a March 11 department memo sent to all 67 elections offices offering guidance on how to handle provisional ballots in a variety of situations.

“If a voter cast an Election Day ballot or successfully voted an absentee or mail-in ballot, the provisional ballot shall not be counted,” the memo states.

The memo then cites a September ruling in Delaware County Court of Common Pleas that if a mail-in or absentee ballot won’t be counted due to an error, the person should have the option to vote provisionally at the polls.

“If a voter’s mail‐in or absentee ballot was rejected for a reason unrelated to the voter’s qualifications, and the voter submitted a provisional ballot and meets other provisional ballot requirements, the provisional ballot shall be counted if the county determines that the voter is eligible to vote,” the memo states.

But the memo issuing “guidance” is not the same as a “directive” that would require a county elections office to follow such instructions. Washington County Commission Chairman Nick Sherman, who also chairs the elections board, blasted the department’s guidance memo and said they would not follow it.

“The Department of State needs to realize we’re not following their guidelines. We’re following state law (and) state law trumps their guidelines,” Sherman said. “They had every opportunity to get these changes through the state Legislature, and they haven’t done that.”

The election code states that one reason a provisional ballot should not be counted is if “the elector’s absentee ballot or mail-in ballot is timely received by a county board of elections.” The county is arguing that the mail-in ballots are considered “received” once they are accepted by the elections office, regardless of whether there are fatal flaws.

Another section regarding Act 77 of 2019, which expanded mail-in voting to everyone beginning in 2020, states that “(a)ny elector who receives and votes an absentee ballot pursuant to section 1301 shall not be eligible to vote at a polling place on election day.” The county and ACLU are arguing in court over whether a person actually voted if the mail-in ballot they sent is never counted.

“It’s not the law being vague. The law is crystal clear,” Sherman said. “It’s judges and the State Department saying, ‘Here’s our guidelines and follow these.’ … The state Legislature needs to come in and simplify this.”

No one whose mail-in ballot was rejected due to fatal flaws attempted to vote provisionally at their precinct in Washington County during the April primary, most likely because they were never informed if there was an issue. But if they had, the canvass board would not have counted the vote since the mail-in ballot had already been received by the elections office.

Seven voters being represented by the ACLU of Pennsylvania are suing the county claiming the policy violated their constitutional rights because their ballots were some of the 259 rejected due to flaws, but they were never informed.

As part of the lawsuit, Washington County Elections Director Melanie Ostrander testified during a nearly eight-hour deposition in Pittsburgh on July 18 in which she explained that the elections board decided not to count such provisional votes because that would be considered ballot curing.

“If a voter who returned a ballot with a disqualifying error went to their polling place on Election Day in April of 2024 and asked to vote a provisional ballot, what would they have been told?” asked Mimi McKenzie, who is legal director of the Philadelphia-based Public Interest Law Center that is also a part in the lawsuit.

“All voters or anyone can vote a provisional ballot,” Ostrander answered, according to the deposition’s 220-page transcript.

“If a voter returned a ballot with a disqualifying error in April of 2024 and they went to the polling place and voted a provisional ballot, would that ballot be counted?” McKenzie asked.

“The canvass board would make the decision, but according to the election law, if the voter had already returned their mail ballot regardless if there was a disqualifying error and then voted a provisional ballot, that provisional ballot would not be counted because they already returned a mail ballot,” Ostrander said.

Other neighboring counties are handling the situation much differently, although elections directors in Fayette and Greene said no mail-in voters attempted to use a provisional ballot since they had other options to fix their mistakes on the envelopes.

“If for some reason they can’t come in (to cure a mail-in ballot), we’ve been telling them they can go and vote a provisional ballot, unless something else is wrong,” Fayette County Elections Director MaryBeth Kuznik said. “But the (canvass) board has been counting.”

“We’re following the guidelines the Department of State provides and any local decision would have to be made by the elections board here,” Greene County Elections Director Joe Lemley said.