The ACLU of Pennsylvania and the Public Interest Law Center filed a lawsuit in Delaware County when the Board of Elections decided not to count the provisional ballots cast by voters whose mail-in ballots had been previously rejected. Our clients-- three longtime voters in Delaware County -- had submitted mail-in ballots that were deemed defective by county election officials. On Election Day, the voters cast a provisional ballot at their polling place, rather than going to the county seat to "cure" the mail-in ballots. Those provisional ballots were also rejected by the Board of Elections, because the Board believed that it was bound by an unpublished and nonprecedential Commonwealth Court decision.
On September 21, 2023, Judge John J. Whelan ruled that the Delaware County Board of Elections had to count the Petitioners' provisional ballots. The courts adopted a commonsense interpretation of the Election Code to conclude that a voter whose attempt to vote by mail was canceled due to an error on the outer return envelope has not “cast” any other ballot in the same election and their provisional ballot must be counted.
