As Pennsylvania voters begin casting perhaps two million-plus mail ballots, Democrats and Republicans are in furious legal combat over a once-overlooked aspect of voting remotely: which ballots are counted, which are rejected as defective and which ones voters are allowed to correct.
Simple math explains why. In the 2020 presidential contest, Pennsylvania election officials rejected more than 34,000 mail ballots. In a tight 2024 election in the most coveted swing state, even a fraction of that many rejections could spell the difference between victory and defeat — not just in the presidential race, but also in any number of others.
What’s true in Pennsylvania is true, to varying degrees, in other battleground states. Michigan rejected more than 20,000 mail ballots in 2020 and even more in 2022; Arizona turned down 7,700; Nevada 5,600; and Wisconsin about 3,000.
But those states have relatively hard and fast rules governing the counting of mail ballots. Pennsylvania is an outlier: It lets partisan election boards in 67 counties interpret many already murky laws on accepting mail ballots, and even lets them decide whether voters should be allowed to fix mistakes.
Pennsylvanians cast more than 6.9 million ballots in the 2020 presidential contest. Experts predict that about a third of ballots in this year’s general election — 2.3 million or so — will be cast by mail.
“It’s quite possible that the election will come down to Pennsylvania, and, if it does, it could be a couple thousand votes,” said Charles Stewart III, who leads the Election Data and Science Lab at the Massachusetts Institute of Technology. “It could come down to a recount where the two parties are arguing one ballot at a time.”
That underscores a downside to mail-in voting, which has become a standard in eight states and is increasingly common in most others. Filling out a ballot at home and dropping it in a mailbox or drop box is convenient, and may even increase turnout.
But it markedly raises the number of ballots that are rejected on technicalities, compared with votes cast in person at the polls.
About two-thirds of Pennsylvania counties have begun mail voting. But the legal war over those votes has long been raging on multiple fronts.
One of the most consequential battles, over whether counties should throw out thousands of misdated mail ballots, ended last week when the state Supreme Court declined to hear an argument that such ballots should be counted. A legal quarrel over where voters can drop off mail ballots was decided in late September (efforts to limit drop-off points were batted down).
The state and national Republican parties are appealing yet another court order instructing officials in Washington County, near Pittsburgh, to tell voters when their ballots are rejected. And just last week, five G.O.P. state legislators asked a federal court to invalidate a state policy easing the rules for accepting ballots from American citizens living overseas.
Not least, the state Supreme Court declined last week to hear a request from the state G.O.P. and the Republican National Committee to ban counties outright from offering voters a chance to fix errors in defective ballots.
Pennsylvania is not alone in the legal battles. In Michigan, the Republican National Committee won a court battle last week to block a state policy that delayed rejecting some defective mail ballots. In North Carolina, the R.N.C. is suing to disqualify mail ballots that aren’t sealed in a second privacy envelope, a comparatively common oversight. And it sued last week to strike down a state law that makes more North Carolinians living overseas eligible to vote remotely.
The suits seeking to limit voters’ ability to fix defective ballots are consistently filed by Republicans, for a simple reason: The ballots most affected are predominantly cast by Democrats.
In Pennsylvania, Democrats are requesting more than twice as many mail ballots as Republican voters are, according to the secretary of state’s office, despite a $10 million campaign by Republicans to boost early and mail voting.
That said, whether a mail ballot is accepted or rejected — or whether a voter has a chance to correct a mistake — is anything but consistent, even when the rules are clear.
In the 2022 midterms, Arizona, which votes almost entirely by mail, rejected just 0.4 percent of mail ballots. But Nevada, which is sending every voter a mail ballot this fall, rejected 2 percent.
In a recent Florida study, researchers calculated the percent of voters who fixed errors in defective mail ballots in six statewide elections. Then they compared the percentages of ballots that were fixed in different counties. One result: A voter in Pinellas County, home to St. Petersburg, was 30 percent more likely to fix a ballot than a demographically identical voter in Fort Myers, about 100 miles south in Lee County.
That was true even though both counties followed the same law — buttressed by a federal court order — that required voters be notified of rejected ballots.
“If you screw up your ballot in a voting booth, you get a mulligan,” said Daniel A. Smith, a University of Florida professor and an elections expert who co-wrote the study. “That’s not often the case with mail ballots, particularly when you have a huge volume and not much time.”
Pennsylvania doesn’t even have a statewide rule on fixing errors in ballots. “If you mess up a mail ballot, whether you get a second bite of the apple is going to depend on where you live,” said Jerry Feaser, who oversaw elections until this year in Dauphin County, which includes the state capital, Harrisburg.
Pennsylvania’s State Legislature passed a law in 2019 allowing any voter to cast a mail ballot simply by requesting one. But which ballots are ultimately counted is less straightforward.
Some county election officials have been generous, choosing, for instance, to count a ballot that wasn’t sheathed in a privacy sleeve. (Experts say the sleeves are no longer needed in an age when ballots are opened by machine, not by hand.)
Others have been tougher. In Washington County, near Pittsburgh, election officials and the state and national Republican parties have argued twice in court against being required to tell voters with rejected ballots that they can cast a second provisional ballot.
Some rulings hew to the law even when critics say they defy common sense. Last month, the State Supreme Court required election officials statewide to reject any ballot with a missing or incorrect date on the outer envelope. (The court refused last week to reconsider the case.)
Election officials say the dates, like privacy sleeves, are redundant when modern ballot envelopes have bar codes and are tracked from the election office to voters and back.
“There is no purpose whatever to that handwritten date,” said Forrest Lehman, the elections director in Lycoming County, whose main city is Williamsport. “The only reason we look at it is because we have to.”
Both the state and some county election offices have committed to minimizing rejected ballots. A state ballot-tracking system automatically notifies most voters if their ballots are ruled defective. Secretary of State Al Schmidt ordered a redesign of mail ballot envelopes last year to reduce date and signature errors.
Montgomery County, a Philadelphia suburb, goes further. Noting that only about one in 10 voters bothers to fix an erroneous ballot, the county doubled the number of satellite election offices where voters can go to fix errors. It is also planning a mobile elections unit.
Neil Makhija, a Montgomery County commissioner and chairman of the Board of Elections, practiced and taught election law for seven years. “Think about the voter,” he said, adding: “They shouldn’t have to work to make their vote count.”
It is difficult to estimate how many Pennsylvania mail voters might be disqualified in November. If turnout matches 2020 levels and mail balloting holds steady, the number of rejected ballots that are not later counted could range as high as 43,000 if rejections match the rate logged in 2022. Or they could be as few as 29,000, if the slightly lower rejection rate in 2020 rules.
Telling more voters about mistakes, and giving them time to fix them, would surely reduce rejections. But that is a gray legal area too.
Some counties examine mail ballot envelopes as they arrive and flag obvious mistakes, like missing signatures, for voters. But state law says none of the two million-plus ballots expected to arrive this fall can be processed until Election Day — and whether the law permits such early inspections is now before a judge.
Even then, some mistakes, like missing privacy sleeves, can only be seen when ballot envelopes are opened on Election Day. Voters are unlikely to ever learn of those mistakes.
In that sense, the very popularity of mail ballots is a liability. Before 2020, “if we got an absentee ballot that didn’t have a signature, we called the voter,” said Mr. Feaser of Dauphin County.
That changed after the 2020 and 2022 elections began burying election offices in mail ballots. Worried about lawsuits and unable to spare workers to look for mistakes, Mr. Feaser said he stopped notifying voters of mistakes in mail ballots altogether.
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