Logan Churchwell: Pennsylvania’s mail-in voting system signals ‘equal protection’ problem

Pennsylvania voters who make paperwork errors when submitting their mail-in ballots could risk having their votes rejected in the coming days, depending on which county they live in. Thanks to mismanagement by Secretary of the Commonwealth Al Schmidt and the General Assembly, “Wild West” voting rights flourish when counties are given the opportunity to develop procedures—often unwritten—for whether and how voters faced with irregular ballots can correct their errors. Now the US Supreme Court is embroiled in a legal tangle that has accumulated in multiple lawsuits since 2020.

Failure to follow instructions for dating and signing return envelopes could result in a significant number of rejected ballots due to “disqualifying errors” across the Commonwealth this year. Some may also forget to return the required voting secrecy covers. Signing a contract or dating incorrectly (or failing altogether) is a quick way to earn rejection. However, some counties give voters the opportunity to correct deficiencies, but how errors are corrected and how voters are notified of the need for correction will vary.

In August, attorneys and researchers from the Public Interest Legal Foundation traveled across the Commonwealth to study practices and policies regarding ballot rectification. We expected some supporters and opponents of the treatment to emerge across the state. But the real surprises came between treatment counties. While some counties allowed treatment but made no positive efforts to inform the affected constituent, other counties were dedicated to exhausting all known means of contact. Next came the differences in the curing process. Some counties that won’t call voters plan to allow treatment only at county election offices. Allegheny County, by contrast, planned to send the defective documents back to voters so they could make corrections without leaving home.

To summarize: the treatment is allowed in some counties and prohibited in others. Even where acceptable, the process may be more complicated or time-consuming depending on where you live in Pennsylvania. You don’t need a law degree to sense the basic injustice in this environment. Anyone with a legal background will tell you that this all sounds like an equal protection violation worthy of the Supreme Court’s attention.

This week, the foundation filed an amicus brief in the U.S. Supreme Court in Genser v. Butler County Board of Elections. The main question is whether provisional ballots are an acceptable defense for voters whose ballots were rejected in some counties. And while key parties are acting on their partisan interests on whether to allow treatment this November, we instead hope the court will look to the equal protection guarantees in the Pennsylvania Constitution. The Foundation is not taking a stance on treatment here – it is only demanding that the policy, whatever it is, be clearly defined and fair for everyone. This doesn’t happen. In fact, several districts told the foundation that their treatment policies do not exist in writing and could change based on votes. We even found legal controversy over the use of provisional ballots among treatment-friendly counties.

We are focusing on equal protection issues in this case because it puts Pennsylvania on the path to finally resolving the issue. Courts don’t like to pass election law just before Election Day—it’s bad for morale and violates established legal precedent. To make matters worse, Pennsylvania’s executive and legislative branches have embarrassed the courts on this topic for years. Instead of a convoluted law that must be interpreted by partisan interests by the time the vote is cast, Pennsylvania’s legal architecture surrounding mail-in voting says nothing about the right to remedy. Treatment is neither legal nor illegal—it simply depends on whether your county leaders want to engage in the practice.

Regardless of who the Supreme Court rules, the dispute will not be resolved until November of this year. Not the next one. This was ultimately due to a failure of leadership with Schmidt. His department has known about this gap in the law for many years, and it has still not been filled. Lawmakers rely heavily on the input of state and county election officials when crafting new legislation. Schmidt failed to use his position to solve this problem. Pennsylvania’s peers won’t have to debate the issue at the end of October.

Nobody wants national attention over rejected ballots in Pennsylvania this November. The U.S. Supreme Court is ideally positioned to address these issues with the goal of ensuring equal protection for all. The status quo is unacceptable and almost unique compared to other states. If politicians and authorities do not take action, we will repeat this struggle in 2026 and beyond.

Logan Churchwell is the director of research for the Public Interest Legal Foundation, a nonprofit law firm focused on election integrity.