Ballot ‘Curing’ in Pennsylvania

FAN Moderator

Counties in Pennsylvania employed inconsistent policies when it came to “curing” ballots — notifying voters of an error in their mail-in ballot so they could fix it. But contrary to claims by the Trump campaign, that inconsistency didn’t fall strictly along party lines.

It wasn’t only Democratic counties that “cured” ballots, as opposed to Republican ones that didn’t. All counties got the same guidance the night before the election instructing them to notify political parties and update the ballot-tracking online system about ballot errors, thus allowing voters to cast a provisional ballot on Election Day.

Some counties notified voters, and some didn’t.

Republicans have lodged several challenges about the so-called “cured” ballots in court, arguing that counties that refused to “cure” ballots were simply following state law and a state Supreme Court ruling that prohibited it. Democrats say the guidance was clear, and perfectly legal.

But even if the courts were to reject cured ballots, election experts say there were too few of them to make much of a dent in Biden’s slim lead in Pennsylvania anyway. Biden led Trump in Pennsylvania by about 60,000 votes, according to vote tallies as of the morning of Nov. 13.

In a press conference on Nov. 9, White House Press Secretary Kayleigh McEnany, who also serves as senior adviser to the Trump campaign, accused Pennsylvania’s Democratic secretary of the commonwealth, Kathy Boockvar, the top election official in the state, of using ballot curing as a way to “tip the scales of an election to functionally favor the Democrat Party.”

McEnany, Nov. 9: A mere survey of the facts shows that voters in blue counties like Philadelphia County were given certain privileges that voters in red counties were not afforded. The Constitution’s equal protection clause requires uniform standards but Democrat election officials created disparities depending on where citizens lived and where they voted in the state. Some counties set up satellite offices for backdoor early voting, whereas other counties did not. Some counties allowed pre-canvassing where other counties did not. Voters in some counties were allowed to cure their ballots whereas voters in other counties were not. What Pennsylvania has done is provide a case study into how to tip the scales of an election to functionally favor the Democrat Party.

In the “red counties” cited in one Republican lawsuit, however, Biden outperformed Trump in the mail-in ballot vote, often by considerable margins. By not allowing voters to cure ballots, those counties were more likely to hurt Democratic voters than Republicans.

There are all sorts of problems that can arise with mail-in ballots that can lead to their being rejected, everything from mismatched or missing signatures to “naked ballots” that are not put in a proper security envelope. Some states require election officials to notify voters about these inconsistencies so they can “fix” them (often by filing a provisional ballot on Election Day), to allow their vote to count. That’s often referred to as “curing” a ballot.

In Pennsylvania, elections officials were not able to identify most problems with ballots until Election Day when they began pre-canvassing — opening envelopes and preparing the ballots to be counted. (Although pre-canvassing starts well before the election in many states, it cannot start until 7 a.m. on Election Day in Pennsylvania.)

The night before the election, Jonathan Marks, deputy secretary for elections and commissions at the Pennsylvania Department of State, sent an email to all county elections officials clarifying what they should do with ballots set aside due to errors when they began pre-canvassing the following morning. (Exhibit A in this lawsuit.)

Marks, Nov. 2: The Department of State has been asked whether county boards of elections can provide information to authorized representatives and representatives of political parties during the pre-canvass about voters whose absentee and mail-in ballots have been rejected. The Department issued provisional ballot guidance on Oct. 21, 2020, that explains that voters whose completed absentee or mail-in ballots are rejected by the county board for reasons unrelated to voter qualifications may be issued a provisional ballot. To facilitate communication with these voters, the county boards of elections should provide information to party and candidate representatives during the pre-canvass that identifies the voters whose ballots have been rejected and should promptly update the SURE system.

The SURE system is the Statewide Uniform Directory of Electors, which allows Pennsylvania voters to check the status of their mail-in ballots online. So if the system was updated on Election Day to indicate a ballot was rejected, a voter checking the online system could then go to a polling place and cast a provisional ballot.

According to the Oct. 21 guidance referenced in Marks’ email, a provisional ballot should be provided to a voter in the event a “[v]oter returned a completed absentee or mail‐in ballot that was rejected by the county board of elections and the voter believes they are eligible to vote.”

Inconsistent ‘Curing’ Policies

But not all counties followed Marks’ guidelines. In some counties, elections officials directly contacted voters about defective ballots; other counties notified the county’s political parties, who could then in turn contact voters. That allowed some voters to head to the polls and cast provisional ballots (which would count if their original mail-in ballots were rejected for reasons “unrelated to voter qualifications”).

In Bucks County, 1,600 voters were sent notices before Election Day about ballot errors.

“Failure to completely fill out the exterior of the return envelope when people send in their mailing envelopes, they may have forgotten to date it, they may have neglected to sign it,” Larry King, the director of public information for Bucks County, told 6abc News in Philadelphia. Voters were told they could cast a provisional ballot or, King said, “You can come in and we can get it corrected so that your ballot can count.”

Some counties didn’t do any curing at all.

According to a lawsuit filed by Republicans, at least eight counties — Blair, Berks, Lancaster, Carbon, Clinton, Lycoming, Dauphin and Perry — refused to accept the state’s guidance because they believed it violated the state’s election code. In other words, they did not attempt to “cure” any ballots by notifying voters of rejected ballots and simply let the votes be invalidated.

There’s no question the policy around curing was inconsistently applied around the state. The debate is over who’s at fault for that.

The guidance from Boockvar’s office did come “quite close to the election,” Daniel Mallinson, assistant professor of public policy and administration at Penn State, told us via email, “but it is important to bear in mind that counties were barred by state law from starting their review of mail in ballots until 7 am on election day. So the guidance was timely from that standpoint. They had not even reviewed ballots yet.”

“Counties then made different decisions about how they would approach ballot curing,” Mallinson said. “So the long answer to who is to blame for the discrepancy is really county election officials. The guidance was uniform across the Commonwealth.”

“ALL counties could allow notice and cure,” Ray Murphy of the nonpartisan Keystone Votes coalition told us via email. “It was lawful and consistent with the PA Supreme Court’s ruling.”

Lawsuits from Republicans disagreed. In one of the complaints, the GOP argued the guidance from Boockvar’s office to allow ballot curing violated state law and a recent Supreme Court ruling, and that counties that refused to heed her guidance were merely following the law. The lawsuit cites Section 3146.8 of the state’s election code, which states: “No person observing, attending or participating in a pre-canvass meeting may disclose the results of any portion of any pre-canvass meeting prior to the close of the polls.”

The lawsuit also noted that Pennsylvania’s Supreme Court stated last month that “unlike in-person voters, mail-in or absentee voters are not provided any opportunity to cure perceived defects (to their ballot) in a timely manner.”

A fuller reading of the Supreme Court’s ruling, however, shows the court found there was no “requirement” for ballot curing, but went no further than that.

According to the state Supreme Court, “the Election Code contains no requirement that voters whose ballots are deemed inadequately verified be apprised of this fact. Thus, unlike in-person voters, mail-in or absentee voters are not provided any opportunity to cure perceived defects in a timely manner.”

In a hearing in Philadelphia on Nov. 4 on another GOP complaint about curing inconsistencies, U.S. District Court Judge Timothy Savage raised that issue to question the Republican claim.

“I’m not sure about that,” said Savage, an appointee of President George W. Bush, according to a Politico report about the hearing. “Is that exactly what was said or is what was said was that there is no mandatory requirement that the election board do that?… Wasn’t the legislative intent of the statute we are talking about to franchise, not disenfranchise, voters?”

Thomas Breth, an attorney for the Republicans, argued the 2000 U.S. Supreme Court decision in Bush v. Gore established that the Constitution does not allow uneven application of procedures in various state jurisdictions.

“I know it pains people to mention Bush/Gore, but that’s the analysis that would apply to this,” Breth said. “There’s a disparity between those that have submitted defective ballots and those that have been able to ‘cure,’ to use their terminology, and those that have not. … It is creating the same situation that Florida dealt with in 2000.”

Misleading Claims of Partisan Breakdowns

Matt Morgan, the Trump campaign’s general counsel, misleadingly claimed decisions about whether or not to cure ballots fell along partisan lines — with Democratic counties doing it and Republican ones not.

“What this means is if you are a Democrat in Philadelphia, you are allowed to work outside the bounds of the restrictions on fixing defective ballots, sometimes referred to as curing, but if you’re in Republican counties in the state of Pennsylvania, you are not allowed to do that because they are strictly following the text of the statute in Pennsylvania,” Morgan said in a Nov. 9 press conference.

McEnany echoed that in an interview with Sean Hannity on Fox News on Nov. 12.

“We have text messages that I provided your producers, emails that are in our affidavits sworn that show that Democrat voters were being contacted in some cases by Democrat campaigns — it was voters in the Democrat counties that were contacted saying, your ballot has been canceled, you need to come fix it,” McEnany said. “Whereas, we have other affidavits of people in Republican-leaning counties who say, tonight, I voted for 15 years — 15 years absentee, I want to turn in my ballot and was informed after the election, it was canceled, with no opportunity to fix it in advance. This is an equal protection violation.”

It’s not accurate, however, that decisions about whether to cure ballots fell entirely along partisan lines. While it’s true that a number of predominantly Democratic counties — such as Philadelphia, Montgomery and Bucks counties — made efforts to cure ballots, so did predominantly Republican York County. And in Allegheny County (which includes Pittsburgh), where Democrats outnumber Republicans nearly 2-to-1, election officials did not attempt to cure ballots.

But that doesn’t mean ballot curing didn’t help Democrats, since Democrats were more likely to vote by mail.

“The guidance (from the secretary of state) was non-partisan, but we also know that – in large part due to the President’s rhetoric on mail-in-voting and fraud – Democrats were far more likely to vote by mail than Republicans,” Mallinson said.

A Pennsylvania appellate judge on Nov. 6. denied one GOP complaint seeking to block the counting of cured ballots. But the issue lives on in a lawsuit filed on Nov. 9 by the Trump campaign, which claims Pennsylvania created an illegal “two-tiered” voting system. The 86-page federal complaint seeks to prevent the state and counties from “certifying the results of the General Elections which include the tabulation of absentee and mail-in ballots which Defendants improperly permitted to be cured.”

Still, election experts said there were likely far too few “cured” ballots to swing the Pennsylvania results to Trump even if the cured ballots were deemed invalid. In Montgomery County, the total was estimated at just under 100. In Bucks County, about 1,600 voters were sent notices about ballot errors, but it was unclear how many of those voters followed up and cast provisional ballots.

Mallinson said it was “highly unlikely, if not impossible” that cured ballots — even if they were thrown out — would affect the outcome in Pennsylvania.

“My understanding is that we’re talking about no more than a few hundred votes in some counties,” Mallinson said.

“The results in Pennsylvania will not be changed,” Jerry H. Goldfeder, who teaches election law at Fordham Law School, told us via email.

Regardless, G. Terry Madonna, a public affairs professor and director of the Center for Politics and Public Affairs at Franklin & Marshall College in Lancaster, Pennsylvania, said mail-in voting in the state is likely here to stay, and so the governor and state Legislature should try to address this issue for future elections.

“There has to be consistency,” Madonna told us in a phone interview. “The same procedures have to be applied across all 67 counties.”

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