Lawsuit says Washington County deliberately hid decisions to invalidate some mail-in ballots
Washington County's elected commissioners were sued Monday over a policy adopted for this year's primary in which people whose mail-in ballots were disqualified for technical violations say they were purposely not informed in time to fix errors.
Seven disqualified primary voters, the local NAACP branch and the Center for Coalfield Justice sued Washington County's election board over what they called "systematic and deliberate efforts" to conceal the policy by directing elections office staff not to tell voters who called that they had made errors that prevented their votes from being counted.
The lawsuit filed in county common pleas court said the policy resulted in 259 voters being disenfranchised and many of those voters still do not realize it. The seven voters who are suing, ages 45 to 85, all had their mail-in ballots invalidated because of incomplete or missing dates, the lawsuit stated. One also failed to sign the exterior envelope and another signed in the wrong place.
"Because of the board's actions, voters had no way of learning that their ballot would not be counted, and were deprived of the opportunity to protect their right to vote by taking advantage of an existing statutory process: voting by provisional ballot," the lawsuit claimed.
The lawsuit seeks to have Washington County's current policy declared unconstitutional as a violation of due process rights and to prevent the elections board from concealing information from voters and misleading them. It was filed by lawyers with the American Civil Liberties Union of Pennsylvania, Public Interest Law Center and the Philadelphia-based law firm Dechert.
Washington County had notified voters their ballots were filled out incorrectly and gave those voters a chance to fix them until this year's April 23 primary. For this year's primary, the Washington commissioners voted 2-1 to not allow voters to cure improper ballots and had staff mark them in the statewide elections software as "received," a status that does not tell voters their ballots won't be counted. The two Republican commissioners were in favor, the Democrat opposed.
Washington County Commissioner Nick Sherman, a Republican who chairs the election board, says the board is just following the law.
"The law states that once we receive the ballot that it has to be locked in pre-canvass. From pre-canvass, you are only allowed to open, scan and review at 7 a.m. on Election Day," said Sherman.
But Democratic Commissioner Larry Maggi said most of the counties in the Pittsburgh area allow notice and curing.
"Now someone's hearing this publicity about their vote not counting and they call our election office and say, 'hey, I did a mail-in ballot, does my vote count?' We're not allowed to tell them that they made a mistake," Maggi said. "All we can say is, 'your vote's been received.' The average person is going to assume that that means it's being counted when, in fact, it's not."
What does the lawsuit say?
The lawsuit says no other county in Pennsylvania "actively conceals the insufficiency of a voter's mail-in ballot submission, especially when a voter calls their county elections' office to inquire whether their mail-in ballot meets the requirements and will be counted."
"No government official or agency should knowingly disenfranchise its voters," Witold Walczak, the legal director of the ACLU of Pennsylvania, said in a news release. "The board's decision to conceal the true status of returned mail ballots with minor but disqualifying errors resulted in needless disenfranchisement. If Washington County provided accurate and timely information about voters' mail-in ballot status, many of the 259 disenfranchised voters likely could have preserved their votes."
Retired occupational therapist Bruce Jacobs, 65, one of the plaintiffs, said in a video news conference that the primary was long over by the time he learned his vote had been invalidated because he failed to sign and date the return envelope. He said he felt deceived and his rights were denied.
"County officials have eroded people's rights to the dignity of our elections," Jacobs said. "And I believe that this must change."
Pennsylvania made access to mail-in ballots universal, a Democratic priority, under a 2019 law that also eliminated straight-party ticket voting, a Republican goal. The pandemic followed a few months later, fueling participation in mail-in voting. In the subsequent elections, Pennsylvania Democrats have been far more likely than Republicans to vote by mail.
The process has drawn a series of lawsuits, most notably over whether errors in filling out the exterior of the return envelope can invalidate the ballot. Earlier this year, the 3rd U.S. Circuit Court of Appeals upheld a mandate that the envelopes contain accurate, handwritten dates.
During the April primary, redesigned exterior envelopes reduced the rate of rejected ballots, according to state elections officials.
Older voters are disproportionately more likely to send in ballot envelopes with incorrect or missing dates, advocates have said.