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Civil rights groups allege 'disenfranchisement' in suit over Washington County mail-in ballot policy

A courthouse building with a flag.
Gene J. Puskar
This is the Washington County Courthhouse in Washington, Pa., on Thursday, Oct. 22.

The ACLU of Pennsylvania and allied groups filed suit against Washington County’s Board of Elections on Monday over its handling of mail-in ballots with problems that include incorrect or missing dates — the latest court fight about mail-in voting.

The 41-page complaint was brought on half of seven voters and two nonprofit groups, and alleges that the county has “deliberately concealed information about which voters had made disqualifying errors on their mail-in ballot envelopes." That, it contends, prevents voters from correcting those errors by election day.

As a result, the suit says some 259 eligible voters, both Democrats and Republicans, did not have their ballots counted in the April 2024 primary.

“The board’s decision to conceal the true status of returned mail ballots with minor but disqualifying errors resulted in needless disenfranchisement,” said ACLU-PA legal director Witold Walczak in a statement. “No government official or agency should knowingly disenfranchise its voters.”

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ACLU attorneys joined those with the Public Interest Center and the law firm Dechert LLP to file the case on behalf of seven Washington County voters who say their ballots were rejected without their knowledge. The plaintiffs also included the Washington branch of the NAACP and the Center for Coalfield Justice, an environmental advocacy group.

"Our voting rights are under attack here in Washington County," said David Gatling, Sr., the president of the NAACP chapter, during a Monday-afternoon conference call with reporters.

"in an ideal world we wouldn't have to be part of this lawsuit at all," said Sarah Martik, who heads the Center for Coalfield Justice. "But the reality is our democratic systems are being undermined."

At the heart of the dispute is a requirement that voters must place a date on the envelopes in which ballots are returned. Federal courts have ruled that ballots can be rejected for having a defective or missing date, even while acknowledging that the requirement serves little apparent purpose. But Allegheny and other counties — including Beaver, Fayette, and Greene — have procedures to notify voters of such problems and offer a chance to “cure” the error by election day.

By contrast, the complaint argues, Washington County election officials “determined which mail-in ballots would not be counted, and then implemented a systematic process to keep that information from voters and the public, in many cases affirmatively misleading voters into thinking that their mail-in ballots would be counted.”

The suit alleges that county officials did so by incorrectly coding mail-in ballots in a state database, effectively concealing problems with the ballots.

Pennsylvania’s SURE voting database, which tracks the status of ballots, allows election workers to attach a code to ballots that are deficient in some way — including an incorrect or absent date on the envelope. When ballots are flagged for such problems, the system can send voters an email notification, alerting them to the problem and offering them the chance to correct it. Voters can also check the status of their ballots online.

But Washington County records deficient ballots merely as being “received,” a status that doesn’t prompt an email alert nor reflect any concerns should voters check their ballot status online. The suit says that doing so "made it appear as if the Board had accepted the defective mail ballots, when in fact the Board had already set them aside."

The suit also alleges that county election staff were told not to inform voters about such problems, or the status of their ballots generally.

"Generally, when voters call their county elections office and ask about their ballots, [staff] give out information," Marian Schneider, ACLU-PA's senior voting rights policy counsel, told reporters Monday. "That's a distinctive characteristic of this particular case."

Filed In Washington County’s Court of Common Pleas, the suit asks that the court declare the county’s handling of mail-in ballots unconstitutional and compel it to “provide accurate, timely information to voters about mail-in ballots containing disqualifying errors.”

While the matter will be taken up by a county judge initially, "We very much hope that this case will have statewide implications," said Mimi McKenzie, legal director for the Public Interest Law Center. "Experience tells us that one way or another this case will go up on appeal."

She added that the plaintiffs would ask the court to expedite its handling of the case, given the fast-approaching presidential election this fall.

One of those voters, Bruce Jacobs, said in a statement announcing the suit that “Washington County election officials knew I made a mistake when they received my ballot [and] that they would reject my ballot because of this mistake. I wish county officials had respected me, as an American with a fundamental right to vote, and given me a chance to address my error.”

Jacobs told reporters that he wasn't aware that his ballot had been set aside until he was notified by the Public Interest Law Center, well after the primary itself.

A county spokesman did not immediately respond to a request for comment. But county officials have previously said their policy was prompted by a recent federal appeals court ruling, which said that it is permissible to toss out ballots in undated envelopes under a provision in a 2019 state law.

The ACLU and other voting-rights groups, who challenged that law under the federal Civil Rights Act, have appealed the decision to the U.S. Supreme Court. But in any case, the ruling does not seem to address notification procedures at all, let alone prevent counties from taking steps to help voters ensure their votes are counted.

Passed in 2019, the law that expanded mail-in voting statewide has been the subject of numerous lawsuits in state and federal courts. But Monday’s suit comes as little surprise. County officials publicly stated that they expected to get sued by one side or the other when they voted for the policy this spring. And the ACLU fired a shot across the county’s board in April, sending officials a letter that warned the county’s handling of badly dated ballots “not only risks needlessly disenfranchising potentially hundreds of eligible Washington County voters, but could ensnare the [elections board] in litigation.”

Walczak told reporters Monday that the county essentially ignored that letter.

"We tried to talk to the [county's attorney], but essentially got no response," he said.

Nearly three decades after leaving home for college, Chris Potter now lives four miles from the house he grew up in -- a testament either to the charm of the South Hills or to a simple lack of ambition. In the intervening years, Potter held a variety of jobs, including asbestos abatement engineer and ice-cream truck driver. He has also worked for a number of local media outlets, only some of which then went out of business. After serving as the editor of Pittsburgh City Paper for a decade, he covered politics and government at the Pittsburgh Post-Gazette. He has won some awards during the course of his quarter-century journalistic career, but then even a blind squirrel sometimes digs up an acorn.