Genser v. Butler Brd. of Elec. Appeal of: RNC
Supreme Court of Pennsylvania
Donohue, Christine
Genser v. Butler Brd. of Elec. Appeal of: RNC
Opinion
[J-82A-2024 and J-82B-2024]
IN THE SUPREME COURT OF PENNSYLVANIA
WESTERN DISTRICT
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.
FAITH GENSER AND FRANK MATIS : No. 26 WAP 2024
:
: Appeal from the Order of the
v. : Commonwealth Court entered
: September 5, 2024, at No. 1074 CD
: 2024, Reversing the Order of the
BUTLER COUNTY BOARD OF : Court of Common Pleas of Butler
ELECTIONS, REPUBLICAN NATIONAL : County entered August 16, 2024, at
COMMITTEE, REPUBLICAN PARTY OF : No. MSD-2024-40116.
PENNSYLVANIA, AND THE :
PENNSYLVANIA DEMOCRATIC PARTY : SUBMITTED: September 26, 2024
:
:
APPEAL OF: REPUBLICAN NATIONAL :
COMMITTEE AND REPUBLICAN PARTY :
OF PENNSYLVANIA :
FAITH GENSER AND FRANK MATIS : No. 27 WAP 2024
:
: Appeal from the Order of the
v. : Commonwealth Court entered
: September 5, 2024, at No. 1085 CD
: 2024, Reversing the Order of the
BUTLER COUNTY BOARD OF : Court of Common Pleas of Butler
ELECTIONS, REPUBLICAN NATIONAL : County entered August 16, 2024, at
COMMITTEE, REPUBLICAN PARTY OF : No. MSD-2024-40116.
PENNSYLVANIA, AND THE :
PENNSYLVANIA DEMOCRATIC PARTY : SUBMITTED: September 26, 2024
:
:
APPEAL OF: REPUBLICAN NATIONAL :
COMMITTEE AND REPUBLICAN PARTY :
OF PENNSYLVANIA :
OPINION
JUSTICE DONOHUE DECIDED: OCTOBER 23, 2024
I. Introduction
The Republican National Committee and the Pennsylvania Republican Party
(collectively, “Republican Party” or “Appellants”) challenge the Commonwealth Court’s
decision that the Butler County Board of Elections (“Board”) was required to count
provisional ballots cast by two electors after the electors were notified that their mail
ballots1 would not be counted because of their failure to follow one of the mandatory
requirements for voting by mail. For the reasons discussed in this opinion, we affirm the
judgment of the Commonwealth Court.
Background
The manner in which mail-in ballots are to be submitted by a voter is prescribed in
the Election Code.2 Mail-in ballots are provided to voters in packages that contain not
only the ballot, but two envelopes. One envelope, marked “Official Election Ballot,” has
come to be referred to as the “Secrecy Envelope.” The second envelope, which we refer
to as the “Declaration Envelope” or “Outer Envelope,” bears information including a
declaration to be signed and dated by the voter and the address for the county board of
elections where the ballot will be returned. Once a voter marks the ballot, the voter is
required to place the ballot into the Secrecy Envelope, seal the Secrecy Envelope, and
then place the Secrecy Envelope in the Declaration Envelope. 25 P.S. § 3150.16(a).3
We refer to these three elements of a mail-in ballot so assembled as the “Return Packet.”
1 As pertinent to this appeal, absentee and mail-in ballots are treated similarly under the
Election Code.
2 Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2601-3591.
3 “[T]he mail-in elector shall, in secret, proceed to mark the ballot …, and then fold the
ballot, enclose and securely seal the same in the envelope on which is printed, stamped
or endorsed ‘Official Election Ballot.’ This envelope shall then be placed in the second
one, on which is printed the form of declaration of the elector, and the address of the
elector’s county board of election and the local election district of the elector.” 25 P.S. §
3150.16(a).
[J-82A-2024 and J-82B-2024] - 2
The Declaration Envelope contains a unique bar code that links the Return Packet to the
voter’s registration file contained in the Statewide Uniform Registry of Electors (“SURE”)
System. Return Packets must be received by county boards of election by eight o’clock
P.M. on the day of the election in which they are cast. Id. § 3150.16(c). Upon receipt,
the Return Packet is reviewed for compliance with the signature, dating and Secrecy
Envelope requirements.4 Non-compliant Return Packets are set aside. The Return
Packets are placed in “sealed or locked containers,” where they remain, unopened, until
seven o’clock in the morning on Election Day, which is when pre-canvassing of mail-in
ballots may begin. Id. § 3146.8(a), (g)(1.1).5
The facts underlying this appeal are not in dispute. Two electors, Faith Genser
and Frank Matis (hereinafter, “Electors”), chose to vote in the 2024 Primary Election by
mail-in ballot. When completing their mail-in ballots, Electors failed to enclose their ballots
in the Secrecy Envelopes before mailing their ballots to the Board. Upon receipt by the
Board, both Return Packets were scanned by an Agilis Falcon machine, which measured
their dimensions and predicted that both lacked a Secrecy Envelope.6 The Board logged
the receipt of Electors’ mail-in ballots in the SURE System, noting the lack of a Secrecy
Envelope, which triggered an automatic email (“Notice Email”) to be sent to Electors.
The SURE System was established in 2002 under 25 Pa.C.S. § 1222. In re Doyle,
304 A.3d 1091, 1096 n.3 (Pa. 2023). The “registry is a ‘single, uniform integrated
computer system’ maintained by the Pennsylvania Department of State which is ‘a
4 See, e.g., N.T., 5/7/2024, at 67-68 (Director McCurdy testifying regarding the initial
sorting and scanning of Return Packets).
5 Pre-canvassing involves “the inspection and opening of all envelopes containing official
… mail-in ballots, the removal of such ballots from the envelopes and the counting,
computing and tallying of the votes reflected on the ballots.” 25 P.S. § 2602(q.1).
6 Mail-in ballots that lack a Secrecy Envelope when received by a county board of
elections are often referred to as “naked ballots.”
[J-82A-2024 and J-82B-2024] - 3
database of all registered electors in this Commonwealth.’” Id. (citing 25 Pa.C.S. §
1222(c)(1)). Each county registration commission “shall be required to use the SURE
System as its general register.” 25 Pa.C.S. § 1222(e). The SURE System contains
voters’ identifying information obtained during voter registration, and registrars,
employees, and clerks of a commission who are responsible for voter registration are
required to undergo training to work in the SURE System. Doyle, 304 A.3d at 1096 n.3
(quoting McLinko v. Dep’t of State, 279 A.3d 539, 575 (Pa. 2022)).
All county registration commissioners are required to maintain their registration
records in the SURE System and to “add, modify and delete information in the system as
is necessary and appropriate.” 25 Pa.C.S. § 1222(c) & (c)(4). Both county registration
commissioners and the Department of State of the Commonwealth are permitted “to
review and search the system and to permit the sending of notices to the appropriate
officials regarding death, change of address or other information which could affect the
qualifications of an applicant or the registration of a registered elector.” Id. § 1222(c)(7).
The SURE System must permit “the timely printing and transmission by commissions of
district registers and all other information contained in the system as may be necessary
for the operation of the polling places on Election Days.” Id. § 1222(c)(13). Among other
functions, the SURE System also identifies “registered electors who vote in an election
and the method by which their ballots were cast.” Id. § 1222(c)(20). There are uniform
procedures for entering data into the SURE System, including designations of some
information that must be entered and some information that may be entered. 4 Pa. Code
§ 183.4.
In this matter, when logging its receipt of Electors’ defective Return Packets, the
Board updated the ballot status in the SURE System by selecting the option “CANC – NO
SECRECY ENVELOPE[.]” N.T., 5/7/2024, at 68. Selecting this option indicates that the
[J-82A-2024 and J-82B-2024] - 4
ballot will not be counted due to lack of a Secrecy Envelope. As a result, the Notice Email
generated within the SURE System was sent to Electors and advised them as follows:
After your ballot was received by BUTLER County, it received
a new status.
Your ballot will not be counted because it was not returned in
a [S]ecrecy [E]nvelope. If you do not have time to request a
new ballot before April 16, 2024, or if the deadline has passed,
you can go to your polling place on [E]lection [D]ay and cast
a provisional ballot.
Petition for Review, Ex. 1 (Declaration of Faith Genser); Ex. 2 (Declaration of Frank
Matis).
On April 23, 2024, the date of the 2024 Primary in Pennsylvania, Electors
appeared at their respective election districts and cast provisional ballots, as suggested
by the Notice Email. When subsequently informed that their provisional ballots were not
counted, Electors jointly filed a Petition for Review in the Nature of a Statutory Appeal
(“Petition”) in the Court of Common Pleas of Butler County (“trial court”). See 25 P.S.
§ 3157. In their Petition, Electors argued that the Board was required to count their
provisional ballots pursuant to Section 3050 of the Election Code,7 as well as the Free
7 Electors contended that the Board’s decision ran afoul of the following provisions:
(5)(i) Except as provided in subclause (ii), if it is determined
that the individual was registered and entitled to vote at the
election district where the ballot was cast, the county board of
elections shall compare the signature on the provisional ballot
envelope with the signature on the elector’s registration form
and, if the signatures are determined to be genuine, shall
count the ballot if the county board of elections confirms
that the individual did not cast any other ballot, including
an absentee ballot, in the election.
(ii) A provisional ballot shall not be counted if:
* * *
(continued…)
[J-82A-2024 and J-82B-2024] - 5
and Equal Elections Clause of the Pennsylvania Constitution.8 Electors argued that they
were unlawfully disenfranchised by the Board’s decision to reject their provisional ballots.
In particular, they argued that the Board’s decision violated the Election Code and
misinterpreted this Court’s decision in Pennsylvania Democratic Party v. Boockvar, 238
A.3d 345 (Pa. 2020) (“Pa. Democratic Party”).
A date was set for a hearing on the Petition. On May 7, 2024, prior to the
evidentiary hearing for Electors’ Petition, the trial court granted intervenor status to the
Republican Party and the Pennsylvania Democratic Party (“PDP”).
At the hearing, the court received testimony from Electors and Chantell McCurdy,
Director of Elections for the Board. Director McCurdy testified at length about the Board’s
procedure with regard to the Electors’ Return Packets, including the use of the Agilis
Falcon machine to detect potential defects within Return Packets, and the SURE System.
She acknowledged that suspected defective ballots are flagged for further review upon
receipt. She noted that at that juncture, the Board can only speculate as to whether the
ballot was not enclosed in a Secrecy Envelope because they are prohibited from opening
the Return Packets until pre-canvassing and canvassing.9 N.T., 5/7/2024, at 33-35.
(F) the elector’s absentee ballot or mail-in ballot is timely
received by a county board of elections.
25 P.S. §§ 3050(a.4)(5)(i), (ii)(F) (emphasis added).
8 “Elections shall be free and equal; and no power, civil or military, shall at any time
interfere to prevent the free exercise of the right of suffrage.” PA. CONST. art. I, § 5.
9 As defined by the Election Code, the process of “pre-canvassing” is “the inspection and
opening of all envelopes containing official absentee ballots or mail-in ballots, the removal
of such ballots from the envelopes and the counting, computing and tallying of the votes
reflected on the ballots. The term does not include the recording or publishing of the
votes reflected on the ballots.” 25 P.S. § 2602(q.1). The process of “canvassing” is “the
gathering of ballots after the final pre-canvass meeting and the counting, computing and
tallying of the votes reflected on the ballots.” 25 P.S. § 2602(a.1). We refer to these two
stages broadly as “canvassing,” when the distinction is not relevant.
[J-82A-2024 and J-82B-2024] - 6
Electors’ mail-in ballots were subsequently canvassed (i.e., the ballot was removed from
the Declaration Envelope) and consistent with the Board’s preliminary determination, the
naked ballots were not counted. Id. at 26-27.
The hearing also explored the Board’s “notice and cure” policy, which permits
voters to remedy specific defects detected upon review when the Return Packets are
received by the Board. Director McCurdy testified that while certain errors, such as
missing signatures, may be cured under this policy, no such procedure exists for naked
ballots. She also explained that where an elector submits both a provisional ballot and
an untimely mail-in ballot, the provisional ballot is counted and the late mail-in ballot is
deemed ineligible for counting.10 Director McCurdy’s testimony corroborated that on
occasion, voters were “misinformed” by the automated system that they could submit
provisional ballots if their mail-in ballots were rejected for lack of a Secrecy Envelope.
Electors, for their part, testified that they were advised to cast provisional ballots, as
evidenced by the Notice Email.
On August 16, 2024, the trial court issued a memorandum opinion and order
dismissing Electors’ Petition and upholding the Board’s decision not to count the
provisional ballots. Parsing Subsections (a.4)(5)(i) and (a.4)(5)(ii)(F) of the Election
Code, the court concluded that the statute’s plain language does not support the claim
that a timely received but defective mail-in ballot allows for a provisional ballot to be
counted in its stead. See Trial Court Opinion, 8/16/2024, at 16 (“Subsection
3050(a.4)(5)(ii)(F) does not state a provisional ballot shall not be counted if a mail-in
ballot legally capable of being counted is timely received[.]”) (emphasis in original).
10 According to Director McCurdy, with missing signatures and other errors subject to the
Board’s curing policy, electors are permitted to fix and resubmit the defective ballot or to
vote by provisional ballot. N.T., 5/7/2024, at 50.
[J-82A-2024 and J-82B-2024] - 7
The trial court went on to explain that the Election Code’s prohibition against
opening mail-in ballots before canvassing necessarily requires the Board to treat the
receipt of a Return Packet as the act of casting a ballot, irrespective of what errors might
be discovered within the Return Packet. Id. at 21. This, the trial court concluded, is
consistent with the legislature’s clear intent to place the onus on the voter to properly
complete, enclose, and timely submit their ballot. Id. It emphasized that the Board’s role
is to examine the contents of the mail-in ballots only during canvassing to determine
whether it can be counted.
The court also rejected Electors’ constitutional challenges, finding no infringement
of their right to vote. It reasoned that the procedural requirements of the Election Code,
including those concerning provisional ballots, are designed to maintain electoral integrity
and determined that because receipt of a mail-in ballot does not ensure that it will be
counted, any opportunity to correct a defect—such as casting a provisional ballot—
constitutes an opportunity to “cure.” Citing this Court’s decision in Pa. Democratic Party,
the trial court observed that the Election Code does not mandate a notice-and-cure
process for defective mail-in ballots. As such, the trial court concluded that Electors’
claims did not implicate any fundamental deprivation of equal voting rights. Id. at 27.
Electors appealed to the Commonwealth Court, which consolidated their cases for
its review. In a split decision, the Commonwealth Court held that Electors had not cast
any other ballot within the meaning of Subsection (a.4)(5)(i). Accordingly, it concluded
that Subsection (a.4)(5)(ii)(F) did not preclude the Board from counting their provisional
ballots. Genser v. Butler Cnty. Bd. of Elections, 2024 WL 4051375 (Pa. Commw. Sept.
5, 2024).11
11The majority opinion was authored by Judge Matthew S. Wolf and joined by President
Judge Renée Cohn Jubelirer; Judge Lori A. Dumas dissented without opinion.
[J-82A-2024 and J-82B-2024] - 8
Guided by the Statutory Construction Act,12 the intermediate appellate court began
its analysis with the language of the Election Code. The panel concluded that when
reading Subsections (a.4)(5)(i) and (a.4)(5)(ii)(F) together with Section 3150.16(b)(2),13
ambiguity results.14 In particular, the court found that uses of the terms “vote,” “voted,”
“received,” “cast,” and “ballot” in these provisions—none of which are defined within the
Election Code or the Statutory Construction Act—present a contextual ambiguity within
the broader statutory framework.
The court noted that while “cast” and “voted” are often treated as synonymous in
everyday parlance, they bear distinct implications under the Election Code. A voter can
cast a ballot merely by filling it out or also by delivering it to a location. See 25 P.S.
§ 3050(a.4)(3) (“After the provisional ballot has been cast, the individual shall place it in
a [S]ecrecy [E]nvelope.”); id. § 3050(a.4)(5)(i) (describing a voter “registered and entitled
to vote at the election district where the ballot was cast”). However, the term “cast” does
not consistently differentiate between the mere submission of a ballot and the assurance
that the vote is counted, depending on the specific provision being referenced. For
instance, Subsection (a.4)(4)(vii) explicitly refers to a “vote,” rather than a “ballot,” being
12 1 Pa.C.S. §§ 1501-1991.
13 Pursuant to 25 P.S. § 3150.16(b)(2), an elector who requests a mail-in ballot and who
is “not shown on the district register as having voted may vote by provisional ballot” under
25 P.S. § 3050(a.4)(1).
14 The panel concluded that its prior decision in In re Allegheny County Provisional Ballots
in the 2020 General Election, 1161 C.D. 2020, 2020 WL 6867946(Pa. Commw. Nov. 20, 2020) (non-precedential), appeal denied,242 A.3d 307
(Pa. 2020), did not compel a different result. The panel acknowledged that the decision held that Subsection (a.4)(5)(ii)(F) is unambiguous; however, it found that the Allegheny Court had improperly analyzed the clause in isolation, without addressing the other relevant provisions. Additionally, it noted that the Allegheny Court was not asked to address whether only valid ballots that will count trigger Subsection (a.4)(5)(ii)(F). Genser,2024 WL 4051375
, at *11 (citing Gavin v. Loeffelbein,205 A.3d 1209, 1221
(Pa. 2019)).
[J-82A-2024 and J-82B-2024] - 9
“cast.” Id. (“[T]he votes cast upon the challenged official provisional ballots shall be added
to the other votes cast within the county.”).
The court asserted that the inconsistent use of these undefined terms obfuscates
the determination of when a ballot is deemed “cast” and raises the critical question of
whether exercising the right to vote requires merely submitting a ballot or necessitates a
more comprehensive act that includes the counting and validation of that vote.
Considering these factors, along with the reasonable interpretations posited by the parties
and the divergent decisions rendered by at least three courts of common pleas, the
Commonwealth Court ultimately concluded that “the words of the Code are not explicit.”
Genser, 2024 WL 4051375, at *14 (citing 1 Pa.C.S. § 1921(c)) (brackets omitted).15
Having concluded that there is ambiguity, the intermediate appellate court turned
to consideration of the factors of statutory construction to discern the intent of the General
Assembly. Initially, the court explained that the overarching purpose of the Election Code
is to “obtain freedom of choice, a fair election, and an honest election return” and that its
language should be liberally construed in favor of the election franchise. Genser, 2024
WL 4051375, at *11 (citing Pa. Democratic Party, 238 A.3d at 355). The court further reasoned that this objective is fundamentally realized by safeguarding each qualified elector’s right to vote exactly once in any given election. Pursuant to the court’s rationale, 15 The Commonwealth Court compared the trial court’s opinion with that of two other common pleas court opinions. Genser,2024 WL 4051375
, at *14 (citing Ctr. for Coalfield Just. v. Wash. Cnty. Bd. of Elections, No. 2024-3953, slip op. at 25-27 (Wash. Cnty. Ct. Com. Pl. Aug. 23, 2024) (holding, inter alia, that the Subsection (a.4)(5)(ii)(F) is ambiguous and construing it in favor of counting provisional ballots); Keohane v. Del. Cnty. Bd. of Elections, No. 2023-4458, slip op. at 5 (Del. Cnty. Ct. Com. Pl. Sept. 21, 2023) (ordering provisional ballots under these same circumstances to be counted)). The Commonwealth Court affirmed the order of the common pleas court in Center for Coalfield Justice, and this Court has granted further review of a related issue. Ctr. For Coalfield Justice v. Wash. Cnty. Bd. of Elections,2024 WL 4272040
(Pa. Commw. Sept. 24, 2024), appeal granted,2024 WL 4406776
(Pa. Oct. 5, 2024) (per curiam).
[J-82A-2024 and J-82B-2024] - 10
to allow zero votes would strip away the elector’s freedom of choice and to permit two
votes would compromise the integrity of the election return.
The court also noted that the introduction of Section 3150.16(b)(2) in 2019, along
with Subsections (a.4)(5)(i) and (a.4)(5)(ii)(F), was intended to enhance convenience for
eligible voters through universal mail-in voting while simultaneously preserving the
integrity of the electoral process. It found that the provision allowing mail-in voters to cast
a provisional ballot if they are “not shown on the district register as having voted” reflects
the General Assembly’s intent to permit voters to remedy their circumstances when their
initial mail-in ballot is invalid or incomplete. Consequently, the court interpreted these
provisions as tethering the statutory right to vote to an actual act of voting (i.e., the vote
is valid and counted), rather than merely the act of submitting or mailing a ballot, thereby
defining the term “voted” to encompass the validity of the ballot and the exercise of the
right to vote.
Thus, the court concluded that the General Assembly did not intend for provisional
ballots to be summarily rejected when an elector has previously made an unsuccessful
attempt to cast a ballot. Id. at *16. It reasoned that this interpretation not only aligns with
the text of the Election Code but also ensures that every qualified voter retains the
opportunity to cast their vote precisely once, thereby safeguarding the franchise and
promoting justice. The Commonwealth Court dismissed the suggestion that its ruling
introduced into the Election Code a judicially-created, mandatory ballot-curing procedure,
a proposition rejected by this Court in Pa. Democratic Party. It explained that there is a
fundamental difference between the process of “curing” defects in flawed ballots and the
act of casting a provisional ballot. The court clarified that while county election boards
are under no obligation to establish a “notice and opportunity to cure” procedure for
[J-82A-2024 and J-82B-2024] - 11
defective mail-in ballots, the county boards are nonetheless required to count validly
submitted provisional ballots.
Appellants and the Board filed petitions for allowance of appeal to this Court. We
denied the Board’s petitions for allowance of appeal, and granted review on two questions
presented by Appellants, reworded as follows:
A. Whether, contrary to this Court’s binding precedent in [Pa.]
Democratic Party, [] the Commonwealth Court improperly
usurped the authority of the General Assembly by
effectively rewriting the Election Code to engage in court-
mandated curing when it held that a voter is entitled to
submit a provisional ballot and have that provisional ballot
counted in the election tally after the voter has timely
submitted a defective absentee or mail-in ballot, contrary
to the Election Code.
B. Whether the Commonwealth Court erred in holding that,
due to purported ambiguities in the Election Code, the
Butler County Board of Elections is required to count a
provisional ballot cast by an elector who received a mail-
in ballot and delivered the mail-in ballot to the county board
of elections without the required [S]ecrecy [E]nvelope,
despite the language of 25 P.S. § 3050(a.4)(5)(ii)(F),
which provides that a provisional ballot shall not be
counted if the elector’s absentee ballot or mail-in ballot is
timely received by a county board of elections.
Genser v. Butler Cnty. Bd. of Elections, 2024 WL 4248971 (Pa. 2024) (per curiam).
II. Parties’ Arguments
Appellants’ Arguments
Appellants argue that it is solely the province of the General Assembly to establish
the rules for casting and counting a mail-in vote and to prescribe the consequences for
noncompliance with any of those rules. Appellants’ Brief at 20. Appellants state that the
General Assembly has mandated that mail-in ballots comply with the signature, dating,
and secrecy-envelope requirements, and those mail-in ballots that do not comply are
invalidated and cannot be counted. Id. at 20-21. This notion, they assert, comports with
[J-82A-2024 and J-82B-2024] - 12
our decision in Pa. Democratic Party, which they interpret as holding that courts cannot
mandate the curing of mail-in ballot defects when the General Assembly has not done so.
Id. at 21. They note that since our decision in Pa. Democratic Party, the General
Assembly has not revised the Election Code to include a “notice and cure” procedure. Id.
at 22-23.
Appellants contend that the Commonwealth Court’s conclusion that provisional
voting does not equate to curing presents a “distinction without a difference” because “[i]t
permits a voter to have his ballot counted” despite the errors that the General Assembly
determined would invalidate a voter’s “first (and only) ballot.” Id. at 23-24. Appellants
proceed to argue that even if requiring provisional ballots to be counted when a mail-in
ballot is defective does not constitute curing, the Commonwealth Court’s interpretation is
contrary to the plain language of the Election Code. Id. at 24-25. Specifically, they
highlight the statutory language that “[a] provisional ballot shall not be counted if the
elector’s absentee ballot or mail-in ballot is timely received by a county board of elections.”
Id. at 25 (quoting 25 P.S. § 3050(a.4)(5)(ii)(F)). Appellants interpret this to mean that a
county board of elections cannot count any provisional ballot if the voter also submitted a
“mail-ballot package[]” prior to eight o’clock P.M. on Election Day, even if it is defective
and will not be counted. Id. at 24-26.
Further, they argue that provisional ballots are only permitted in limited
circumstances. Id. at 26-27. Appellants believe that those voters who request a mail-in
ballot but do not return them to their county board by Election Day are the only class of
“would-be mail voters” who are permitted to vote by provisional ballot, pursuant to the
Election Code. Id. at 27. Appellants support their position by looking to the statutorily
prescribed affidavit that a voter who casts a provisional ballot must sign, which includes
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a statement that the provisional ballot “is the only ballot that I cast in this election.”16 Id.
at 27-28 (quoting 25 P.S. § 3050(a.4)(2)). If the Commonwealth Court’s interpretation
was correct, Appellants contend, any voter attempting to vote provisionally due to a
defective mail-in ballot would be making a false statement because “they cast another
ballot” in the election. Id. at 28.
Appellants then challenge the Commonwealth Court’s reading of Subsection
(a.4)(5)(ii)(F). Id. at 29. Specifically, they highlight that the court reasoned that what must
be “timely received” is a mail-in ballot that remains valid and will be counted; however,
Appellants find this reading implausible, because it inserts words that do not appear in
the statutory text. Id. at 29-30. Appellants argue that according to the Commonwealth
Court’s logic, because the validity of a mail-in ballot is not determined until canvassing
after [E]lection [D]ay, a mail-in ballot “can never be timely received and will never be
counted.” Id. at 30-31 (emphasis in original).
Similarly, Appellants argue that the Commonwealth Court’s construction would
permit every voter who requested a mail-in ballot to be eligible to cast a provisional ballot,
because none would be shown in the register as having “already voted[.]” Id. at 34-35
(citing 25 P.S. §§ 3146.6(b)(2), 3150.16(b)(2)). This, they argue, expands provisional
voting beyond what the General Assembly intended. Id. at 35. To Appellants, whether a
mail-in ballot has been “voted” must be determined prior to Election Day, because that
16 The affidavit, in its entirety, provides:
I do solemnly swear or affirm that my name is ____________,
that my date of birth is ____________, and at the time that I
registered I resided at ____________ in the municipality of
____________ in ____________ County of the
Commonwealth of Pennsylvania and that this is the only ballot
that I cast in this election.
25 P.S. § 3050(a.4)(2). The elector must also sign, provide their current address, and
check the reason for casting the provisional ballot. Id.
[J-82A-2024 and J-82B-2024] - 14
conclusion determines whether a voter may cast a provisional ballot. Id. Thus, Appellants
argue that to reconcile the provisional ballot procedure, we must read its plain language
to mean that “a mail voter has completed voting if their [Return Packet]” is timely received
by eight o’clock P.M. on Election Day. Id. at 35-36.
Appellants then proceed to argue that not only is the Commonwealth Court’s
decision unsupported by the statutory language, but also there are provisions of the
Election Code that preclude notice and an opportunity to cast a provisional ballot under
circumstances like those presented here. Id. at 37-38. They note that county boards of
election cannot open or inspect a Return Packet but can only log them into the SURE
System as “received” and keep the ballots secure until pre-canvassing. Id. at 38-39.
According to Appellants, any action beyond that violates the Pennsylvania Constitution’s
requirement that “secrecy in voting … be preserved.” Id. at 41 (citing PA. CONST. art. VII,
§ 4).17
Additionally, Appellants argue that the Commonwealth Court’s decision infringes
on the General Assembly’s authority, thereby violating the separation of powers doctrine.
Id. at 42. They also contend that the Commonwealth Court’s decision violates the Free
and Equal Elections Clause because it creates disparate treatment of voters and ballot-
validity determinations based upon where a voter lives. Id. at 43-44 (citing PA. CONST.
art. I, § 5). Lastly, Appellants argue that affirming the Commonwealth Court’s decision
violates the Elections and Electors Clauses of the United States Constitution, because
federal law requires that state legislatures are responsible for setting the rules for federal
elections, and such an interpretation of our Election Code would go beyond the purview
17 To the extent this argument implicates the use of coding in the SURE System to
indicate the status of the Return Packet after receipt by the Board, we denied allowance
of appeal of that issue. As to maintaining the secrecy of the ballot, the Declaration
Envelopes of the Electors in this case were not opened until canvassing and the naked
ballots were not counted in the canvass.
[J-82A-2024 and J-82B-2024] - 15
of this Court. Id. at 45-46 (citing U.S. CONST. art. I, § 4, cl. 1; U.S. CONST. art. II, § 1, cl.
2).18
Electors’ Arguments
Electors argue that Appellants have conflated “notice and cure” procedures with
Pennsylvania’s “longstanding statutory provisional-ballot process,” which has been in
place for the last “forty-one statewide elections[,]” long before mail-in voting. Electors’
Brief at 16 & 19. The notice and cure procedure, they note, permits voters to cure
deficiencies in the packaging of the actual mail-in ballot they submitted. Id. The
provisional ballot process, they explain, is a federally-required protection to prevent the
disenfranchisement of voters. Id. at 17. To that end, Electors argue that contrary to
Appellants’ arguments, county boards of election are required to allow voters to submit a
provisional ballot pursuant to Help America Vote Act of 2002 (“HAVA”).19 Id. at 18-19
(citing 52 U.S.C. § 21082(a)). The federal law, according to Electors, is intended to
operate as a fail-safe mechanism to ensure that voters may preserve their right to vote.
Id. at 19-20. As Electors emphasize, the provisional ballot process preserves the right to
vote and ensures that voters cast only one ballot, as provisional ballots are not counted
until the county boards of election determine that the voter has not already successfully
voted in the election. Id. at 21.
Electors then contend that the case law relied upon by Appellants is inapposite.
Id. at 23-24. Specifically, Electors argue that Pa. Democratic Party did not involve
18 We did not accept allowance of appeal of the constitutional arguments raised by
Appellants. The issues were not developed within their petition for allowance of
appeal. See Republican Party's Petition for Allowance of Appeal at 19 n.5.
19 HAVA was originally enacted as 42 U.S.C. §§ 15301-15523, then subsequently reclassified in52 U.S.C. §§ 20901-21145
.
[J-82A-2024 and J-82B-2024] - 16
provisional ballots which are separate from the initial ballot. Id.at 24-25 (citing Genser,2024 WL 4051375
).
Electors proceed to argue for this case to be resolved pursuant to our tools of
statutory construction. Id. at 27. Specifically, they assert the language that a provisional
ballot “shall count … if the county board of elections confirms that the individual did not
cast any other ballot” and that “a ballot shall not be counted if … the elector’s absentee
ballot or mail-in ballot is timely received by a county board of elections” can be faithfully
applied in their favor when examining that language in the context of the surrounding
statutory framework. Id. at 27-28 (citing 25 P.S. § 3050(a.4)(5)(i)-(ii)(F)). Following the
Commonwealth Court’s rationale, Electors argue that failure to comply with any of the
requirements set forth in Section 3150.16, including the eligibility, signature, dating,
Secrecy Envelope, and timely delivery requirements renders the submitted document “a
legal nullity.” Id. at 29-30 (25 P.S. § 3150.16(a)-(c)).
In that vein, Electors dispute Appellants’ argument that to “cast”20 a mail-in ballot
that cannot be counted precludes filing of provisional ballots under the Election Code. Id.
at 30-31. Like the Commonwealth Court, Electors note that “cast” is used differently
throughout the Election Code, rendering it ambiguous. Id. at 31-32. Should we agree
that the provisions are ambiguous, Electors assert that we should interpret the statutory
language in a way that “secures the right to vote.” Id. at 32. Further, Electors argue that
where a defective mail-in ballot is “timely received,” this does not preclude the filing of a
provisional ballot. Id. at 32-33. They observe that the meaning of “timely” is defined by
the deadline set forth in Section 3150.16(c), i.e., eight o’clock P.M. on Election Day. Id.
at 33. Further, what is required at that time is a “completed mail-in ballot.” Id. (emphasis
20 The Electors look to contemporaneous dictionary definitions of the word “cast” in
support of their position. Electors’ Brief at 30-31 (citing Cast, BLACK’S LAW DICTIONARY,
230 (8th ed. 2004) (“To formally deposit (a ballot) or signal one’s choice (in a vote).”). To
Electors, a vote cannot be signaled or formally deposited if it ultimately will not be counted.
[J-82A-2024 and J-82B-2024] - 17
in original). This, Electors argue, means a mail-in ballot that satisfies all of the statutory
requirements. Id.
Because Electors view the Election Code as being ambiguous, they argue that in
applying our tools of statutory construction to discern the intention of the General
Assembly, we must favor the interpretation that enfranchises voters. Id. at 39. Electors
explain that their interpretation enfranchises voters while also preventing double voting.
Id. at 41. They argue that Appellants, on the other hand, go too far with their interpretation
by precluding citizens, like themselves, from voting at all. Id. Moreover, Electors argue
that the Appellants’ interpretation would lead to absurd results because it treats the
receipt of a Return Packet—even one that lacks a mail-in ballot—as the return of an
electors’ vote. Id. at 42-43.
Electors then proceed to argue that interpreting the Election Code in their favor will
not subject voters in different counties to different rules, but rather will establish precedent
that will bind every county board of elections to follow the same rules with respect to
provisional voting. Id. at 46-47. Moreover, they believe it would permit provisional votes
to be counted when any defect results in the invalidation of a mail-in ballot, and that to do
otherwise would run counter to the General Assembly’s intent in enacting the provisional
voting process. Id. at 47-48.
Further, Electors insist that their interpretation does not run afoul of the Election
Code’s pre-canvassing rules. Id. at 48. In this respect, Electors argue that Appellants’
focus on the word “inspection” is misguided, as “merely looking” at an envelope or running
it through a sorting machine is not pre-canvassing because it does not involve opening,
counting and computing the ballots, all of which are included in the statutory definition of
pre-canvassing. Id. at 49-50. Rather, they contend that county boards are permitted to
[J-82A-2024 and J-82B-2024] - 18
identify and segregate defective mail-in ballots upon receipt at the election office, as it
does not constitute pre-canvassing. Id. at 50.
Electors also offer, in the alternative, that not counting their provisional ballots
would violate their right to vote under the Free and Equal Elections Clause. Id. at 51-52.
Noting that the government is required to demonstrate a compelling reason when
impinging on the right to vote, Electors argue that there is no reasonable basis to refuse
to count their provisional ballots. Id. at 52-54. Electors view Appellants’ approach as
“essentially punitive in nature[,]” which they consider to be inconsistent with the Free and
Equal Elections Clause’s intent to promote voting. Id. at 54. Without reasonable
justification to impinge upon an individual’s vote, Electors contend that our Charter
requires that a timely and properly completed provisional ballot be counted, “when the
alternative is to disenfranchise the voter.” Id. at 56-57.
Intervenor PDP’s Arguments
PDP argues that Appellants’ interpretation that a mail-in ballot is “voted” whenever
a Return Packet is returned cannot be reconciled “with the text or purpose of the Election
Code, common sense, or the fundamental right to vote protected by the Free and Equal
Elections Clause of the Pennsylvania Constitution.” PDP’s Brief at 17 (citing PA. CONST.
art. I, § 5). PDP recognizes that all parties agree that a voter who has requested a mail
ballot but who has not “voted” that ballot is eligible to cast a provisional ballot and have it
counted. Id. at 17-18 (citing 25 P.S. § 3150.16(b)(2)). It is PDP’s position that a person
has not voted if the mail-in ballot they have submitted will not be counted because of a
defect. Id. at 18. To PDP, that a person is eligible to vote so long as they are “not shown
on the district register as having voted,” is “best read” to mean that they have submitted
a ballot that will be counted, not merely that they have submitted a Return Packet. Id. at
19-20 (emphasis in original) (citing 25 P.S. § 3150.16(b)(2)). According to PDP, this is
[J-82A-2024 and J-82B-2024] - 19
because the other uses of “voted” refer to more than the receipt of a Return Packet. Id.
at 20. In particular, it notes that a provision that previously referred to a person “whose
mail-in ballot is not timely received” was amended to refer to a person “whose voted mail-
in ballot is not timely received.” Id. (citing Act of Mar. 27, 2020, No. 12, P.L. 41, § 9
(emphasis added); see 25 P.S. §§ 3150.13(e), 3146.3(e)). It argues that adding “voted”
would have been a meaningless legislative action if it merely meant timely received, and
instead it must mean that the voters are ineligible “if they timely submit mail ballots that
will actually be counted.” Id.
PDP argues that the rest of the Election Code must be read with this understanding
of “voted” in mind. Id. at 21-22. For instance, PDP contends that “cast,” as it is used in
Subsection (a.4), should be understood to mean “giving a vote.” Id. at 21. Pursuant to
PDP’s understanding of “vote,” this entails that the vote is “validly cast.” Id. This
understanding of “cast,” PDP argues, denotes that a “ballot was counted,” as opposed to
“those that arrived but were discarded.” Id. (citing 25 P.S. § 3050(a.4)). This, PDP
explains, means that a “timely received” ballot, as referenced in 25 P.S. §
3050(a.4)(5)(ii)(F), is one that will be counted. Id. at 23. Only when another ballot is
already going to be counted can a county board refuse to count a provisional ballot,
according to PDP. Id. at 23-24.
If there is any ambiguity found in the Election Code, PDP argues, like Electors,
that it must be interpreted in favor of enfranchising voters. Id. at 26. It contends that
Appellants’ construction achieves the opposite, “disenfranchising voters who attempt to
vote by mail but inadvertently commit an error that is easily discernible by the county
board before pre-canvassing.” Id. at 27. Moreover, PDP argues, the principle of
constitutional avoidance supports the intermediate court’s reading, because even if there
was merit to Appellants’ interpretation of the Election Code, disenfranchising voters would
[J-82A-2024 and J-82B-2024] - 20
raise “a serious doubt” about the constitutionality of those provisions under our Free and
Equal Elections Clause. Id. at 29.
PDP proceeds to challenge Appellants’ arguments that counting provisional ballots
is “irreconcilable” with statutory and constitutional provisions “requiring secrecy in voting,
uniformity in election-administration, and separation of powers.” Id. at 31. To PDP,
because there is no opening of the envelope, the methods employed by county boards to
determine that a Secrecy Envelope is missing are not prohibited by law. Id. Further, it
maintains that notifying voters that their ballots are deficient prior to pre-canvass does not
violate the secrecy requirements because it is the votes on a ballot that must remain
secret, not the existence of a Secrecy Envelope. Id. at 32. As for uniformity, PDP argues
that all counties must comply with the Election Code, and thus a decision interpreting the
Election Code regarding provisional voting will not result in disparate systems across the
Commonwealth.21 Id. at 33. With respect to the separation of powers concerns raised
by Appellants, PDP asserts that the Commonwealth Court’s interpretation aligns with
legislative intent, thus rendering Appellants’ argument on this point meritless. Id.
PDP expands on its argument that the refusal to count the provisional ballots
violates the Pennsylvania Constitution’s Free and Equal Elections Clause. Id. at 34 (citing
PA. CONST. art. I, § 5). It explains that the disparate treatment of any group of voters must
be weighed against the state interest, and that the “magnitude of the state interest
required to uphold a challenged law or practice depends on the severity of the burden it
places on citizens’ exercise of the franchise.” Id. at 35-36. Because not counting a
provisional ballot would “significantly interfere[]” with the fundamental right to vote, PDP
asserts that the challenged law “must be narrowly tailored to promote a compelling state
21 PDP asserts that Appellants failed to make this argument before the lower courts, and
thus it has been waived. PDP’s Brief at 33 (citing Pa.R.A.P. 302(a)). More saliently, and
as noted, this Court did not accept allowance of appeal on this issue.
[J-82A-2024 and J-82B-2024] - 21
purpose.” Id. at 36. PDP finds “no sound reason” to deny the right to vote entirely by
both canceling a voter’s mail-in ballot and refusing to count their provisional ballots as
well, when other “routine errors” (e.g., failure to properly sign or date the Declaration
Envelope) can be corrected or do not prohibit the submission of a provisional ballot. Id.22
III. History of Provisional Voting
It is helpful to contextualize the present controversy by explaining the impetus for
the provisional ballot provisions of the Election Code in Section 3050(a.4)(1) et seq. In
the wake of the 2000 presidential election where the United States Supreme Court
stepped in to resolve a voting controversy in Florida, Bush v. Gore, 531 U.S. 98 (2000),
there was overwhelming bipartisan support to prevent such controversies from recurring.
Brian Kim, Help America Vote Act, 40 HARV.J.LEGIS. 579, 579-82 (2003). Congress
therefore enacted HAVA, which mandated statewide voter registration systems and
provided funds to states to replace voting machines and train poll workers.
22 Multiple amicus briefs have been filed in support of both parties. Republican
Legislative Leaders (House Republican Leader Bryan Cutler, President Pro Tempore of
the Pennsylvania Senate Kim Ward, and Majority Leader of the Pennsylvania Senate Joe
Pittman), Center for Election Confidence and American First Legal Foundation, and
Restoring Integrity and Trust in Elections (“RITE”) all filed amicus briefs in support of
Appellants. Like Appellants, their amici argue that the Commonwealth Court’s decision
violates this Court’s decision in Pa. Democratic Party and usurps legislative authority by
mandating that counties provide curing of defective ballots in the form provisional ballots
that, they assert, should not be counted under these circumstances, pursuant to the
language of the Election Code.
The Secretary of the Commonwealth and Department of State, elections officials from
twenty Pennsylvania counties, AFT Pennsylvania and the Pennsylvania Alliance for
Retired Americans all submitted amicus briefs in support of Electors and PDP. These
amici contend that provisional ballots are distinct from a cure. Further, they argue that
the history of provisional voting supports an elector’s ability to cast a provisional ballot
under these circumstances and the language of the Election Code, construed with an eye
towards its purpose of enfranchising voters, supports counting the provisional ballots
when a mail-in ballot is otherwise invalidated.
[J-82A-2024 and J-82B-2024] - 22
Relevantly, HAVA mandated states to provide provisional voting access as a “fail-
safe” in recognition of the fact that even well-run voter registration lists were not perfectly
up-to-date on Election Day and to address the other irregularities that occurred in 2000.
Orion de Nevers, What Happened to HAVA? The Help America Vote Act Twenty Years
on and Lessons for the Future, 110 GEO. L.J. ONLINE 168, 175 (2021) (citing Daniel P.
Tokaji, Early Returns on Election Reform: Discretion, Disenfranchisement, and the Help
America Vote Act, 73 GEO. WASH. L.R. 1206, 1213 (2005)); 52 U.S.C. § 21082. At the
time, our Election Code in Pennsylvania did not provide for provisional voting, but the
concept was not entirely new. See, e.g., Act of Oct. 7, 1999, ch. 232, 1999 N.J. Sess.
Law 1377 (creating provisional balloting in New Jersey).
HAVA establishes the framework and minimum requirements for provisional
ballots. If an individual declares that she is registered to vote in the jurisdiction in which
she desires to vote, and eligible to vote in an election for federal office, but the individual’s
name either does not appear on the eligible voter list, or an election official asserts that
the voter is ineligible, “such individual shall be permitted to cast a provisional ballot”
following the procedures set forth. Namely, state election officials must provide notice to
specific voters regarding the availability of provisional ballots. 52 U.S.C. § 21082(a)(1) (providing that the election official “shall notify the individual that the individual may cast a provisional ballot in that election” where the official does not find the individual’s name on the eligible voter list or asserts that the individual is not eligible). Further, the individual must execute a written affirmation to cast a provisional ballot.Id.
§ 21082(a)(2)(A) & (B)
(requiring affirmation that the individual is a registered voter in the jurisdiction where they
desire to vote and that they are eligible to vote in that election).
HAVA provides that an election official at the polling place shall “transmit the ballot
… or the voter information contained in the written affirmation … to an appropriate State
[J-82A-2024 and J-82B-2024] - 23
or local election official for prompt verification under paragraph 4.” Id. §
21082(a)(3). Then, if the individual is deemed eligible under State law to vote, the
provisional ballot “shall be counted as a vote in that election in accordance with State
law.” Id. § 21082(a)(4). Therefore, “HAVA creates a right to cast a provisional ballot—
but not to have it counted.” de Nevers, supra, at 186 (emphasis in original). That
question depends entirely on eligibility under State law.23
In 2002, our Election Code was amended to accommodate HAVA’s provisional
voting requirement. Act of Dec. 9, 2002, No. 150, P.L. 1246, as amended 25 P.S. § 3050.
Section 3050 of the Election Code, which in its previous form already enshrined (as titled)
the “Manner of Applying to Vote; Persons Entitled to Vote; Voter’s Certificates; Entries to
Be Made in District Register; Numbered Lists of Voters; Challenges,” was augmented,
though the original language and title were retained. Section 3050 is an expansive
provision, but we focus on Subsection (a.4), where the General Assembly introduced
provisional voting into our Election Code. 25 P.S. § 3050(a.4).
VI. Analysis
A. Whether, contrary to this Court’s binding precedent in Pa.
Democratic Party, the Commonwealth Court improperly
usurped the authority of the General Assembly by
effectively rewriting the Election Code to engage in court-
mandated curing when it held that a voter is entitled to
submit a provisional ballot and have that provisional ballot
counted in the election tally after the voter has timely
submitted a defective absentee or mail-in ballot, contrary
to the Election Code.
23 Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 574 (6th Cir. 2004)
(explaining that because HAVA does not “strip from the states their traditional
responsibility to administer elections[,]” a provisional ballot cast by a voter who was not
registered in the precinct in which the provisional ballot was cast does not count under
Ohio law, which provides that a voter is only eligible to vote in his or her precinct of
residence).
[J-82A-2024 and J-82B-2024] - 24
In Pa. Democratic Party, Petitioner24 filed a petition for review “seeking declaratory
and injunctive relief relating primarily to five issues of statutory interpretation involving Act
77 and the Election Code,” and this Court subsequently “exercised extraordinary
jurisdiction to address these issues and to clarify the law of this Commonwealth in time
for the 2020 General Election.” Pa. Democratic Party, 238 A.3d at 352. Relying on the
Election Code in general and Article I, Section 5 of our Charter, Petitioner sought, inter
alia, “to require that the [county boards] contact qualified electors whose mail-in or
absentee ballots contain minor facial defects resulting from their failure to comply with the
statutory requirements for voting by mail, and provide them with an opportunity to cure
those defects.” Id. at 372. Petitioner argued that “voters should not be disenfranchised
by technical errors or incomplete ballots,” and the proposed notice and cure procedure
would ensure “that all electors who desire to cast a ballot have the opportunity to do so,
and for their ballot to be counted.” Id.
This Court rejected that argument, concluding that Petitioner had “cited no
constitutional or statutory basis that would countenance imposing the procedure
Petitioner seeks to require (i.e., having the [county boards] contact those individuals
whose ballots the [county boards] have reviewed and identified as including ‘minor’ or
‘facial’ defects ... and then afford those individuals the opportunity to cure defects ...).” Id.
at 374 (emphasis added). We explained:
While the Pennsylvania Constitution mandates that elections
be “free and equal,” it leaves the task of effectuating that
mandate to the Legislature. As noted herein, although the
Election Code provides the procedures for casting and
counting a vote by mail, it does not provide for the “notice and
opportunity to cure” procedure sought by Petitioner. To the
extent that a voter is at risk for having his or her ballot rejected
due to minor errors made in contravention of those
24 The Pa. Democratic Party Court collectively referred to multiple aligned entities and
persons as “Petitioner.” Pa. Democratic Party, 238 A.3d 352.
[J-82A-2024 and J-82B-2024] - 25
requirements, we agree that the decision to provide a “notice
and opportunity to cure” procedure to alleviate that risk is one
best suited for the Legislature. We express this agreement
particularly in light of the open policy questions attendant to
that decision, including what the precise contours of the
procedure would be, how the concomitant burdens would be
addressed, and how the procedure would impact the
confidentiality and counting of ballots, all of which are best left
to the legislative branch of Pennsylvania’s government.
Id. (citation omitted).
Our decision in Pa. Democratic Party addressed only “the ‘notice and opportunity
to cure’ procedure sought by Petitioner.” Id. (emphasis added). We were not asked to
nor did we consider provisional voting. Our concern in Pa. Democratic Party was whether
the spirit of the Election Code or Article I, Section 5 of our Constitution mandated a notice
and curing policy for defective mail ballots. We concluded that the Constitution left the
task to the legislature and that the Election Code “does not provide for the ‘notice and
opportunity to cure’ procedure sought by Petitioner.” Id. at 374. Again, Petitioner relied
only on the Free and Equal Elections Clause and the “spirit of the Election Code.” Id. at
373. We rejected Petitioner’s attempt to impose such procedures on county election
boards25 through judicial means. Id.
Here, as the Commonwealth Court correctly discerned, the casting of a provisional
ballot is specifically authorized in the Election Code, wholly unlike the amorphous
proposed notice and cure policy discussed in Pa. Democratic Party. Indeed, as discussed
above, the right to cast a provisional ballot is not just authorized by the Election Code,
our General Assembly implemented HAVA’s mandate in 2002, long before Act 77
amended the code to permit no-excuse mail-in voting. Provisional ballots exist as a fail-
safe to preserve access to the right to vote.
25 We have not spoken to whether or not the Election Code allows individual counties to
utilize notice and cure procedures.
[J-82A-2024 and J-82B-2024] - 26
Nor is there any analogy to be drawn from Pa. Democratic Party to the case before
us. As the Commonwealth Court aptly observed, no ballot is cured when a provisional
ballot is counted after a mail ballot is rejected due to a fatal defect in the Return Packet.
When the Commonwealth Court ordered that Electors’ provisional ballots be counted by
the Board, that did not displace the Board’s decision not to count Electors’ mail-in ballots;
indeed, as required by law, those mail-in ballots were not counted. The propriety of
counting a provisional ballot is a question of statutory interpretation that, unlike the
proposed curing policies at issue in Pa. Democratic Party, flows directly from the text of
the Election Code. See 25 P.S. §§ 3050(a.4)(1) (providing for casting provisional ballots);
3050(a.4)(5)(i) (requiring the counting of provisional ballots).
Appellants’ distinction-without-a-difference argument is hollow. The procedure
advocated by the Petitioners in Pa. Democratic Party contemplates correcting
deficiencies in the Return Packet so that the mail-in ballot can be counted. We consider
here the utilization of a distinct voting mechanism in the Election Code that is triggered
because the mail-in ballot is not counted.
Appellants misstate both non-mandatory notice and cure procedures and statutory
provisional voting rights. They argue that “[c]uring refers to fixing and avoiding the
consequences of the voter’s error on the mail ballot, not necessarily making any
changes to the ‘initial ballot’” and that “counting a provisional ballot in these circumstances
remedies – and therefore cures – the voter’s failure to comply” with the General
Assembly’s mandatory Secrecy Envelope protocol. Appellants’ Brief at 24 (emphasis
added). As developed in the following section of the opinion addressing Appellants’
second issue, counting a provisional ballot occurs only when another ballot attributable
to a voter has not been counted. A provisional ballot is intended to alleviate potential
disenfranchisement for eligible voters. Counting Electors’ provisional ballots, when their
[J-82A-2024 and J-82B-2024] - 27
mail ballots are void for failing to use a Secrecy Envelope, is a statutory right not
contemplated in Pa. Democratic Party.
B. Whether the Commonwealth Court erred in holding that,
due to purported ambiguities in the Election Code, the
Butler County Board of Elections is required to count a
provisional ballot cast by an elector who received a mail-
in ballot and delivered the mail-in ballot to the county board
of elections without the required [S]ecrecy [E]nvelope,
despite the language of 25 P.S. § 3050(a.4)(5)(ii)(F),
which provides that a provisional ballot shall not be
counted if the elector’s absentee ballot or mail-in ballot is
timely received by a county board of elections.
The issue before us is narrow; it asks the Court to consider the effect of a naked
mail-in ballot–that is, a mail-in ballot submitted without the Secrecy Envelope–on the
statutory provisions governing the counting of provisional ballots.26 In answering the
question, the Commonwealth Court considered three provisions of the Election Code that
it viewed as directly impacting the propriety of counting the provisional ballots under the
circumstances. It first considered 25 P.S. 3150.16(b)(2), which defines the eligibility of
mail-in electors to cast a provisional ballot. It states: “An elector who requests a mail-in
ballot and who is not shown on the district register as having voted may vote by
provisional ballot [under the provisional ballot provisions of the Code].” The intermediate
appellate court next interpreted the pertinent provisional ballot sections which provide in
pertinent part:
25 P.S. § 3050(a.4)(5)(i):
Except as provided in Subclause (ii) ... the county
board of elections ... shall count the [provisional] ballot
if [it] confirms that the individual did not cast any other
ballot, including an absentee ballot, in the election.
25 P.S. § 3050(a.4)(5)(ii):
26 Appellants did not challenge Electors’ right to cast provisional ballots.
[J-82A-2024 and J-82B-2024] - 28
A provisional ballot shall not be counted if:
* * *
(F) the elector's absentee ballot or mail-
in ballot is timely received by a county
board of elections.
The Commonwealth Court found that the provisions read together and in context
are ambiguous. The phrase “having voted” as used in Section 3150.16(b)(2) does not
appear in Section 3050(a.4)(5)(i), which refers to “did not cast,” and (5)(ii)(F) is concerned
with a “mail-in ballot [that] is timely received.” Because of the various usage of, in
particular, the terms “cast” and “vote” in the Election Code,27 the Commonwealth Court
found the critical question to be whether exercising the right to vote requires merely
submitting a ballot or necessitates the counting and validation of the vote. Given the
ambiguity, by applying factors of statutory construction to discern the intent of the
Legislature, the Commonwealth Court construed the terms to require “vote” and “ballot”
to mean a valid vote that is counted. According to the intermediate appellate court, any
other reading disenfranchises a voter in a circumstance where there is no possibility of
the voter casting more than one vote.
Appellants see no ambiguity in the Election Code on this point. Their analysis
would begin and end with the language of Section 3050(a.4)(5)(ii)(F), which provides that
“[A] provisional ballot shall not be counted if the elector’s absentee ballot or mail-in ballot
is timely received by a county board of elections.” They submit that the provision
unambiguously means that a Board cannot count any provisional ballot if the voter
submitted an Outer Envelope prior to eight o’clock P.M. on Election Day even if it is
defective and a ballot will not be counted. According to Appellants, if the provisional ballot
27 See supra pp. 8-10.
[J-82A-2024 and J-82B-2024] - 29
cannot be counted, there is no need to look to Section 3050(a.4)(5)(i) which only comes
into play if a ballot is not excluded by Section 3050(a.4)(5)(ii)(F).
We begin and end our analysis with the identified provisional voting provisions set
forth in Section 3050(a.4) and focus more specifically on the term “ballot” which is used
in both provisions.28
This Court has previously addressed the consequences of submitting a naked
ballot in Pa. Democratic Party, where Petitioner unsuccessfully sought a declaration that
under Act 77, the county boards of election must “clothe and count naked ballots,” rather
than invalidate them. Pa. Democratic Party, 238 A.3d at 374. We reviewed the statutory
text to determine whether the Secrecy Envelope requirement was mandatory or directory.
This was a critical inquiry because “[a] mandatory provision is one [for which] the failure
to follow … renders the proceeding to which it relates illegal and void. A directory
provision is one the observance of which is not necessary to the validity of the
proceeding.” In re Nomination Papers of Am. Lab. Party, 44 A.2d 48, 49 (Pa. 1945)
(emphasis added).
28 Much of the ambiguity identified by the Commonwealth Court resulted from its attempt
to reconcile the provisions of the Code defining when a mail-in voter is eligible to
participate in the provisional ballot process. As noted, Appellants have not challenged
Electors’ right to cast a provisional ballot, and reconciling the Sections is unnecessary.
Moreover, the Commonwealth Court struggled mightily to reconcile Section 3050 and
Section 3150.16, and it made a convincing case that it cannot be done. These provisions
were written at different times, and the General Assembly made no attempt to reconcile
them. Whereas the relevant language of Section 3050 was established in the wake of
HAVA, Section 3150.16 was enacted as a part of Act 77 in 2019 and the establishment
of mail-in voting. Aside from tacking on Subsection (a.4)(5)(ii)(F), the General Assembly
made minimal effort to align provisional voting and mail-in voting laws. For instance,
Subsection 3050(a.4)(1) focuses on “casting,” whereas Section 3150.16’s language
focuses on “voting.” The Commonwealth Court’s opinion convincingly demonstrates that
there are differences in the formats and phrases of the provisions. Nonetheless, we need
not resolve these ambiguities in applying the plain text of Subsections (a.4)(5)(i) and
(a.4)(5)(ii)(F) to the facts before us.
[J-82A-2024 and J-82B-2024] - 30
In answering the question in Pa. Democratic Party, we recognized that the Election
Code did not “delineate a remedy narrowly linked to the mail-in elector’s failure to utilize
a [S]ecrecy [E]nvelope[.]” Pa. Democratic Party, 238 A.3d at 374 (citing 25 P.S. §
3150.16(a) (requiring the elector to “in secret, … enclose and securely seal” the ballot in
the Secrecy Envelope)). Therefore, we turned to another provision of the Election Code,
Section 3146.8(g)(4)(ii), which also speaks directly to Secrecy Envelopes and identifies
the appropriate remedy. Id. Under Section 3146.8(g)(4)(ii), if there are extraneous
markings on the Secrecy Envelope “reveal[ing] the identity of the elector, the elector’s
political affiliation or the elector’s candidate preference, the envelopes and the ballots
contained therein shall be set aside and declared void.” Id. (citing 25 P.S. §
3146.8(g)(4)(ii)) (emphasis added). Reading these provisions in pari materia, it became
clear that the General Assembly intended that “during the collection and canvassing
processes,” when the Declaration Envelope is unsealed and the sealed ballot removed,
“it should not be readily apparent who the elector is, with what party he or she affiliates,
or for whom the elector has voted.” Id. The Secrecy Envelope “ensures that
result.” Id. “Whatever the wisdom of the requirement,” we concluded it was “neither
ambiguous nor unreasonable.” Id.
We distinguished the missing Secrecy Envelope from other minor ballot
irregularities. For instance, the Court concluded that failure to place a mail-in ballot in its
Secrecy Envelope is unlike writing in the name of a candidate who is already listed on the
ballot, which is a “mere minor irregularit[y]” and substantially conformed to the statutory
requirements. Id. (distinguishing Shambach v. Bickhart, 845 A.2d 793, 795(Pa. 2004)). We found omitting a Secrecy Envelope to be qualitatively dissimilar from completing a ballot in the wrong color of ink.Id.
(distinguishing In re Luzerne Cnty. Return Bd.,290 A.2d 108, 109
(Pa. 1972) (citing 25 P.S. § 3063)). The Election Code directs
[J-82A-2024 and J-82B-2024] - 31
canvassers that “[a]ny ballot that is marked in blue, black or blue-black ink … shall be
valid and counted” but it does not provide a mandatory direction to electors. Id. at 379.
Moreover, we noted, “the Legislature neither stated nor implied that ballots completed in
a different color must not be counted.” Id. Neither of those irregularities was analogous
to the directive to clothe a ballot in the Secrecy Envelope, a directive of constitutional
magnitude. Id. (citing PA. CONST. art. VII, § 4 (“Methods of Election; Secrecy in Voting”)).
Instead, we deemed the Secrecy Envelope requirement most akin to the Election
Code’s “in-person” ballot delivery requirement for absentee ballots considered in In re
Canvass of Absentee Ballots of Nov. 4, 2003 Gen. Election, 843 A.2d 1223, 1231(Pa. 2004) (“Appeal of Pierce”). In Appeal of Pierce, this Court considered whether absentee ballots could be delivered by third persons rather than the elector himself. The requirement that an elector deliver the absentee ballot was expressed in clear terms in the relevant Election Code provision. It stated that “the elector shall send [the absentee ballot] by mail, postage [prepaid], except where franked, or deliver it in person to [said county] board of election.” Appeal of Pierce,843 A.2d at 1231
(quoting 25 P.S. § 3146.6). Delivery of the absentee ballot by a third party rather than the elector himself was not a “minor irregularity.” Though the provision at issue in Appeal of Pierce “did not expressly provide for voiding a ballot delivered by someone other than the voter,” we found that reading the in-person requirement “as merely directory would render its limitation meaningless[.]” Id. at 1232. In Appeal of Pierce, we emphasized that when dealing with substantive matters, like “how to cast a reliable vote,” the Court does not have a power to remedy the error. Id. The delivery requirement of the absentee ballots was mandatory, and “the absentee ballots of non-disabled persons who had their ballots delivered in contravention of this mandatory provision are void.” Id. (citing Am. Lab. Party Case,44 A.2d at 49
(providing that an act done in violation of a mandatory provision is
[J-82A-2024 and J-82B-2024] - 32
void)) (emphasis added). The in-person delivery requirement, like the Secrecy Envelope
requirement, “served the spirit of the Code.” Pa. Democratic Party, 238 A.3d at 345. As
to both defects, we were equally staunch: any ballot submitted in contravention of the
mandatory statutory provisions is void. Id. at 380. Thus, this Court echoed earlier
declarations of the effect of such defects. The failure to follow a mandatory provision
“renders the proceeding to which it relates illegal and void.” Am. Lab. Party Case, 44
A.2d at 49 (emphasis added).
The import of our holding in Pa. Democratic Party is clear: the failure to follow the
mandatory requirements for voting by mail nullifies the attempt to vote by mail and the
ballot.29 Accordingly, we conduct our analysis with this understanding.
An “issue of statutory interpretation presents a question of law over which our
standard of review is de novo and our scope of review is plenary.” In re Major, 248 A.3d
445, 450 (Pa. 2021). As dictated by our Statutory Construction Act, 30 the object of statutory interpretation “is to ascertain and effectuate the intention of the General Assembly” and, if possible, we construe statutes such as our Election Code “to give effect to all its provisions.” 1 Pa.C.S. § 1921(a). When the words of our Election Code “are clear and free from all ambiguity,” we do not disregard the letter of the law “under the pretext of pursuing its spirit.” Id. § 1921(b). Thus, in ascertaining the General Assembly’s legislative intent in drafting the Election Code, our primary guide is its text. See Sivick v. State Ethics Comm’n,238 A.3d 1250
, 1263 (2020) (stating “we begin with the
presumption that unambiguous statutory language embodies that intent, requiring no
further investigation”). Consequently, before we entertain an argument that the terms of
29 Pursuant to Sections 3150.16(a) and 3146.6(a), signing and dating are likewise
mandatory requirements to effectuate mail and absentee voting.
30 1 Pa.C.S. §§ 1501-1991.
[J-82A-2024 and J-82B-2024] - 33
a statute are ambiguous, we must “consider the statutory language in its full context” and
take care not to “overlabor to detect or manufacture ambiguity where the language
reveals none.” Id. at 1264.
The pertinent facts of this case are undisputed. Electors sent their Return Packets
to the Board without the mandatory Secrecy Envelope. Upon receipt of the Return
Packets, the Board entered the code “CANC – NO SECRECY ENVELOPE”31 into the SURE
System based on a prediction made by the Agilis Falcon machine that Electors’ Return
Packets lacked Secrecy Envelopes. That code triggered the Notice Email to Electors
informing them that their mail-in ballot would not be counted because their Secrecy
Envelopes were missing and informed Electors of their right to cast provisional ballots on
Election Day. Both Electors subsequently cast provisional ballots. During canvassing,
the Electors’ mail-in ballots were not counted due to missing Secrecy Envelopes, as the
Agilis Falcon machine accurately predicted. The mail-in ballots were not counted and the
Board also refused to count their provisional ballots.
1. Subsection (a.4)(5)(i).
We begin with Subsection (a.4)(5)(i):
Except as provided in subclause (ii), if it is determined that the
individual was registered and entitled to vote at the election
district where the ballot was cast, the county board of
elections shall compare the signature on the provisional ballot
envelope with the signature on the elector’s registration form
and, if the signatures are determined to be genuine, shall
count the ballot if the county board of elections confirms that
the individual did not cast any other ballot, including an
absentee ballot, in the election.
25 P.S. § 3050(a.4)(5)(i) (emphasis added).
31 As Director McCurdy testified, this means “canceled, no secrecy envelope.” N.T.,
5/7/2024, at 138.
[J-82A-2024 and J-82B-2024] - 34
This provision demonstrates that when deciding whether to count a provisional
ballot, the county boards must know whether an elector had “cast any other ballot … in
the election.” Id. The process of examining provisional ballots occurs after canvassing
of all other ballots. A provisional ballot is a fail-safe that may be counted only after the
Board determines that there is no other ballot attributable to an elector. Moreover, it is at
that same time that the county boards will know definitively from canvassing whether a
Return Packet contains a ballot and whether the ballot was submitted in contravention of
the mandatory Secrecy Envelope requirements of the Election Code such that it is void.
Assuming the other requirements for casting a provisional ballot are met,
Subsection (a.4)(5) dictates when a provisional ballot must be counted, serving the dual
purpose of preventing a double vote while simultaneously protecting an elector’s right to
have a vote counted. Subsection (a.4)(5)(i) provides the general rule, which is that “the
county board of elections ... shall count the [provisional] ballot if the county board of
elections confirms that the individual did not cast any other ballot ... in the election.” 25
P.S. § 3050(a.4)(5)(i).
In this case, it is undisputed that Electors’ mail-in ballots were naked and therefore
had to be set aside and declared void. Pa. Democratic Party, 238 A.3d at 378. “Void” is
unambiguous. Black’s Law Dictionary defines it succinctly as an adjective expressing
that something has “no legal effect.” Void, BLACK'S LAW DICTIONARY (12th ed. 2024).
Here, Electors’ void mail-in ballots cannot be afforded legal effect. Because Electors
failed to comply with the mandatory Secrecy Envelope requirement, they failed to cast a
ballot.
Under Subsection (a.4)(5)(i), a county board must confirm that the “individual did
not cast any other ballot … in the election.” Stated otherwise, it must confirm that it has
no other ballot attributable to this individual. 25 P.S. § 3050(a.4)(5)(i). If there is no such
[J-82A-2024 and J-82B-2024] - 35
ballot, the Code dictates that the county boards “shall count the [provisional] ballot.” Id.
The Board acknowledged that the naked ballots could not be counted,32 but it also treated
the ballots as though they had legal effect. To construe a void ballot as a “ballot … in the
election” is to give it legal effect, in direct contravention of our holding in Pa. Democratic
Party that a mail ballot lacking a Secrecy Envelope is void. Accordingly, once the Board
confirmed that Electors’ ballots were void, pursuant to Subsection (a.4)(5)(i), the Board
was required to count Electors’ provisional ballots.
2. Subsection (a.4)(5)(ii)(F)
Subsection (a.4)(5)(ii) describes the circumstances under which a provisional
ballot will not be counted. It provides as follows:
(ii) A provisional ballot shall not be counted if:
(A) either the provisional ballot envelope under
clause (3) or the affidavit under clause (2) is not
signed by the individual;
(B) the signature required under clause (3) and
the signature required under clause (2) are
either not genuine or are not executed by the
same individual;
(C) a provisional ballot envelope does not
contain a [S]ecrecy [E]nvelope;
(D) in the case of a provisional ballot that was
cast under subsection (a.2)(1)(i), within six
calendar days following the election the elector
fails to appear before the county board of
elections to execute an affirmation or the county
board of elections does not receive an
electronic, facsimile or paper copy of an
affirmation affirming, under penalty of perjury,
that the elector is the same individual who
personally appeared before the district election
32 N.T., 5/7/2024, at 75 (Director McCurdy testifying that “historically [the computation
board] do[es] not count any ballot that lacks a secrecy envelope”).
[J-82A-2024 and J-82B-2024] - 36
board on the day of the election and cast a
provisional ballot and that the elector is indigent
and unable to obtain proof of identification
without the payment of a fee;
(E) in the case of a provisional ballot that was
cast under subsection (a.2)(1)(ii), within six
calendar days following the election, the elector
fails to appear before the county board of
elections to present proof of identification and
execute an affirmation or the county board of
elections does not receive an electronic,
facsimile or paper copy of the proof of
identification and an affirmation affirming, under
penalty of perjury, that the elector is the same
individual who personally appeared before the
district election board on the day of the election
and cast a provisional ballot; or
(F) the elector’s absentee ballot or mail-in
ballot is timely received by a county board of
elections.
25 P.S. § 3050(a.4)(5)(ii) (emphasis added).
Subsection (a.4)(5)(ii) is the flipside of Subsection 3050(a.4)(5)(i), as Subsection
(a.4)(5)(i) describes when a provisional ballot must be counted and Subsection (a.4)(5)(ii)
describes when it must not be counted. In the circumstances of this case, only Subsection
(a.4)(5)(ii)(F) is implicated.33 Just as a void ballot cannot be given legal effect in
Subsection (a.4)(5)(i), it cannot be given effect in Subsection (a.4)(5)(ii)(F). As a result
of the determination that the Secrecy Envelope was not used, as a matter of law, no ballot
was received by eight o’clock P.M. on Election Day and thus Subsection (a.4)(5)(ii)(F)
was not triggered. Therefore, the Board could not refuse to count Electors’ provisional
ballots.
33 All other subsections address defects in connection with the provisional ballot that will
disqualify it from being counted. See 25 P.S. § 3050(a.4)(5)(ii)(A)-(E).
[J-82A-2024 and J-82B-2024] - 37
Contrary to the suggestion of Appellants, the text of Subsection (a.4)(5)(ii)(F) is
clear that this exception to the counting of provisional ballots is not dependent on a timely-
received Declaration Envelope.34 The text of the provision plainly refers to a “ballot,” not
an envelope. The provisions of Subsection (a.4)(5)(ii) conclusively establish that the
General Assembly knows the distinction between envelopes and ballots. Subsections
(A) and (C) of (a.4)(5)(ii) specifically refer to envelopes. Pursuant to Subsection (a.4)(3),
a provisional ballot must be submitted in a “[S]ecrecy [E]nvelope” and a “provisional ballot
envelope.” These requirements mimic the Secrecy Envelope and Declaration Envelope
used in connection with mail ballots submitted to county boards. If the General Assembly
intended to trigger disqualification of a provisional ballot by the timely receipt of the
Declaration Envelope, it would have said so. Instead, the General Assembly’s language
in Subsection (a.4)(5)(ii)(F) is straightforward—it is triggered by the timely receipt of a
mail ballot. Thus, the county boards can only conclusively determine if a ballot has been
timely received during canvassing when the ballots are separated from the Declaration
Envelopes and Secrecy Envelopes.
Appellants, echoing the trial court, complain that this reading results in an
absurdity, although their rationale is difficult to follow. They observe that at least some
Return Packets will not be opened by county boards until after eight o’clock P.M. on
Election Day (i.e., Return Packets not opened during pre-canvass). Consequently,
Appellants believe that if the operation of Subsection (a.4)(5)(ii)(F) is dependent on the
validity of a ballot, and the validity of some ballots will not be ascertainable until after the
34 In this regard, the Commonwealth Court noted that under Appellants’ interpretation of
this provision, “the provisional ballot’s status as not countable is locked in amber at the
moment the Board receives a mail-in elector’s [Declaration E]nvelope, without regard to
whether [the Declaration Envelope even contains] a ballot[.]” Genser, 2024 WL 4051375,
at *15.
[J-82A-2024 and J-82B-2024] - 38
eight o’clock P.M. deadline, then none of those ballots would be timely received because
their validity is not determined until after eight o’clock P.M. on Election Day. See
Appellants’ Brief at 30-31.
Given the reality of canvassing, the result is not absurd. It is required. The facts
required to decide whether to count mail-in ballots are defined by eight o’clock P.M. on
Election Day. Every mail ballot that is canvassed has necessarily been timely received
because the boards of elections must stop receiving Return Packets at eight o’clock P.M.
on Election Day. 25 P.S. § 3150.16(c). The county boards of election must determine
whether a ballot is timely received during canvassing, because that is when the Return
Packets are opened. Subsection (a.4)(5)(ii)(F) is triggered by a timely-received ballot
and, until pre-canvassing—which cannot begin until seven o’clock A.M. on Election Day
—county boards of election cannot determine whether the Return Packet contains a
ballot, and canvassing may begin as late as the “third day following the election.” 25 P.S.
§ 3146.8(g)(2). Return Packets arriving after eight o’clock P.M. on Election Day will not
be canvassed at all as a mechanical function of the Election Code. Thus, when the county
boards open the Return Packet at canvassing, any ballot contained therein was
necessarily received before the statutory deadline. And, simultaneously, the county
boards will definitively determine whether the Return Packet contains the required
Secrecy Envelope clothing the ballot. Thus, our interpretation of the Election Code is
harmonious with the actual process of canvassing. It is, in fact, Appellants who are
engaging in wordplay to confuse the Code and reach an absurd result whereby a void
mail-in ballot renders a provisional ballot uncountable as well.
The General Assembly wrote the Election Code with the purpose of enabling
citizens to exercise their right to vote, not for the purpose of creating obstacles to voting.
Luzerne Cnty., 290 A.2d at 109. Certainly, the requirements of the Election Code will
[J-82A-2024 and J-82B-2024] - 39
occasionally result in a vote not being counted when an elector fails to follow the rules for
voting by mail ballot.35 But any discernable integrity purpose of the Election Code
regarding Electors’ mail-in ballots was served in this case when the Board refused to
count them. It is undisputed that Electors’ mail-in ballots were void because they lacked
the required Secrecy Envelopes as Pa. Democratic Party requires. Pa. Democratic Party,
238 A.3d at 380. No party challenges that decision and Appellants fail to substantiate
their claim that chaos would ensue if similarly situated voters have their provisional votes
counted after it is determined at canvassing that their mail ballot is void.
The procedures for counting provisional ballots cast by putative mail in voters are
designed to preclude double voting.36 Subsection (a.4)(5)(i) works in tandem with
Subsection (a.4)(5)(ii)(F) to prevent the untenable result of permitting an elector to have
the votes on two ballots counted. No party has identified any other purpose for
Subsection (a.4)(5)(ii)(F). Subsection (a.4)(5)(i) dictates generally when to count a
provisional ballot, and Subsection (a.4)(5)(ii)(F), like Subsections (a.4)(5)(ii)(A)-(E),
fleshes out the negative implications of that rule by stating more specifically when the
county boards must not count a provisional ballot. Subsections (a.4)(5)(ii)(A)-(E) deal
35 See Pa. Democratic Party, 238 A.3d at 380 (“It is clear that the Legislature believed
that an orderly canvass of mail-in ballots required the completion of two discrete steps
before critical identifying information on the ballot could be revealed. The omission of a
secrecy envelope defeats this intention” and leads “to the inescapable conclusion that a
mail-in ballot that is not enclosed in the statutorily-mandated secrecy envelope must be
disqualified.”).
36 This was the integrity concern identified by the Commonwealth Court, and we agree.
See Genser, 2024 WL 4051375, at *7 (“Determinations about whether a provisional ballot can be counted are routinely and necessarily made after canvassing has begun, and the Board considers whether the voter has already cast a valid ballot to prevent double voting.”); see also Election Integrity Project California, Inc. v. Weber,113 F.4th 1072, 1098
(9th Cir. 2024) (recognizing that California’s provisional ballot rules “protect against
double-voting while ensuring that no otherwise eligible vote is turned away from the
polls”).
[J-82A-2024 and J-82B-2024] - 40
with the various defects in the provisional ballot packet that disqualify a provisional ballot.
See, e.g., 25 P.S. §§ 3050(a.4)(5)(ii)(A) (provisional ballot envelope not signed);
3050(a.4)(5)(ii)(C) (provisional ballot envelope does not contain a Secrecy Envelope).
Those subsections establish the mandatory requirements for a provisional ballot, which,
if not met, void the ballot. Only Subsection (a.4)(5)(ii)(F) targets the problem of double
voting.
Appellants contend that “the terms ‘cast’ by a voter and ‘timely received’ by a board
can and should be read in harmony to give Subsection (a.4) full force and effect as the
General Assembly intended.” Appellants’ Brief at 32. This begs the question, give full
force and effect to what? Appellants fail to offer any explanation as to how their
interpretation of Subsection (a.4)(5) is in any way designed to prevent double voting, and
they also fail to explain how their interpretation furthers the broader goal of the Election
Code to enfranchise, rather than disenfranchise, voters. Instead, Appellants’
interpretation ignores the availability of provisional voting and manufactures an absurdity
whereby we must accept that the General Assembly intended to wholly disenfranchise a
voter on account of a mistake with their Return Packet for no discernable purpose. See
1 Pa.C.S. § 1922(1) (“[W]e must in all instances assume the General Assembly does
not intend a statute to be interpreted in a way that leads to an absurd or unreasonable
result.”) (emphasis added). Moreover, it is our responsibility to read and interpret the
Election Code in a manner that does not violate the Constitution. It is difficult to discern
any principled reading of the Free and Fair Election Clause that would allow the
disenfranchisement of voters as punishment for failure to conform to the mail-in voting
requirements when voters properly availed themselves of the provisional voting
mechanism. Our interpretation of Subsection (a.4)(5)(ii)(F) gives effect to its purpose of
preventing double voting, and it averts unnecessary disenfranchisement.
[J-82A-2024 and J-82B-2024] - 41
Nor does our reading render the “timely received” language as surplusage. A mail
voter who completes and mails his Return Packet is not prohibited from having his
provisional ballot counted if his mail ballot does not arrive by eight o’clock P.M. on Election
Day. 25 P.S. § 3150.16(c). Only timely received mail ballots are counted and, therefore,
only timely received mail ballots create a risk of double voting in this context. The timely
received language ensures there is no double vote resulting from the counting of a
provisional ballot.
Our interpretation also dovetails with other provisions of the Election Code that
interact with Subsection (a.4)(5)(ii)(F). For instance, the mail-in ballot provision’s deadline
requirement provides that “a completed mail-in ballot must be received in the office of
the county board of elections no later than eight o’clock P.M. on the day of the primary or
election.” 25 P.S. §3150.16(c) (emphasis added). This provides that a mail-in ballot that
is not “completed” does not satisfy the “deadline” requirement of Section 3150.16(c), and
therefore cannot be timely received. This provision would make little sense if “completed”
were read to mean that the ballot itself does not contain a vote for every office, or even if
it is left blank in protest. An elector’s ballot is not defective merely because he or she
chooses not to cast a vote for every office. In Section 3150.16(c), “completed” must then
mean that the mandatory requirements for voting by mail-in ballot, defined in a provision
preceding the deadline requirement, Section 3150.16(a), have been completed. If those
requirements are not completed, the ballot is void.
Appellants also contend that every voter who seeks to cast a provisional ballot but
has already submitted a mail ballot and signs the affidavit required under Subsection
(a.4)(2) makes a false statement by affirming that “this is the only ballot that I cast in this
election.” 25 P.S. § 3050(a.4)(2). Again, a void ballot is not a “ballot.” Where, as here,
the electors have been advised that their mail ballot will not be counted, they are not
[J-82A-2024 and J-82B-2024] - 42
making a false statement because the act of casting the ballot itself and the ballot have
been nullified. The same is true where an elector is not certain that the Return Packet
will arrive on time.
Appellants argue that this result is untenable or absurd by baldly asserting that our
Election Code envisions one ballot per elector, i.e., the “first (and only) ballot.” Appellants’
Brief at 23-24. They offer no reason related to election integrity or otherwise to support
the idea that a defective attempt to vote by mail dooms a voter to disenfranchisement.
Our interpretation follows the dictates of the Election Code as construed by this Court that
the mandatory requirements for casting a mail ballot must be followed, thus protecting the
integrity of the mail voting process. Here, the naked ballots nullified the attempts at mail
voting and the ballots were voided. Appellants’ reading of the Election Code ignores the
General Assembly’s enactment of provisional voting procedures and disregards the intent
of the General Assembly as articulated by this Court that the “first ballot” was not a ballot.
Our interpretation is not novel to the Election Code, which until 2019, explicitly
allowed for alternative voting methods when an absentee ballot was voided. Prior to
2019, for the absentee voter who did not meet the requirements to cast an absentee ballot
on Election Day, the Election Code stated that the “absentee ballot cast by such elector
shall, upon challenge properly sustained, be declared void.” Act of Aug. 13, 1963, No.
379, P.L. 707, § 22 (Section 1306(b)). The elector was nonetheless permitted to procure
an “Emergency Voting Form” from the court of common pleas and vote at their polling
place. Id. Thus, the law recognized that there are not two “ballots” when the first was
void. We agree that our Election Code only tolerates a “first (and only) ballot” that is
counted. The Election Code offers electors the fail-safe of provisional ballots, and it
contains mechanisms to prevent double voting such as Subsection (a.4)(5)(ii)(F).
[J-82A-2024 and J-82B-2024] - 43
Although our rationale differs from that of the Commonwealth Court, we likewise
conclude that Subsection (a.4)(5)(ii)(F) does not prevent the counting of an elector’s
provisional ballot when the elector’s mail ballot is a nullity. Provisional balloting
procedures, as enacted in the Election Code and incorporating the mandate of HAVA,
are designed in a way to assure access to the right to vote while also preventing double
voting. While Appellants and their amici37 argue that “election integrity” mandates that
Electors’ provisional ballots not be counted, we are at a loss to identify what honest voting
principle is violated by recognizing the validity of one ballot cast by one voter. If
Appellants presume that the General Assembly intended to disqualify the provisional
ballot of a voter who failed to effectively vote by mail in order to punish that voter, we
caution that such a construction is not reconcilable with the right of franchise. PA. CONST.
art. I, § 5. We must presume that the General Assembly did not intend an unconstitutional
interpretation of its enactments.
Conclusion
Following the commands of the Election Code as interpreted by this Court, the
Board properly disregarded Electors’ mail-in ballots as void. However, it erred in refusing
to count Electors’ provisional ballots. Subsection (a.4)(5)(i) required that, 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. Subsection (a.4)(5)(ii)(F)
provides that the provisional ballot “shall not be counted if the elector’s absentee ballot or
mail-in ballot is timely received by a county board of elections.” 25 P.S. §
3050(a.4)(5)(ii)(F). Again, there were no other ballots attributable to Electors, so none
could be timely received. Therefore, Subsection (a.4)(5)(ii)(F) is inapplicable and the
37 See, e.g., Appellants’ Brief at 18; Republican Legislative Leaders’ Amicus Brief at 23-
26.
[J-82A-2024 and J-82B-2024] - 44
command of Subsection (a.4)(5)(i) controls: “the county board of elections … shall count
the [provisional] ballot.” Id. § 3050(a.4)(5)(i). For the reasons stated above, we affirm the
Commonwealth Court’s order directing the Board to count Electors’ provisional ballots.
Chief Justice Todd and Justices Dougherty and McCaffery join the opinion.
Justice Dougherty files a concurring opinion.
Justice Mundy files a dissenting opinion.
Justice Brobson files a dissenting opinion in which Justices Wecht and Mundy join.
[J-82A-2024 and J-82B-2024] - 45
Reference
- Status
- Published