Jul 2, 2024 By Mike Jones 7 min read

In a lawsuit that could have statewide implications, seven Washington County residents whose mail-in ballots were rejected during the April primary due to fatal errors are suing the county’s elections board claiming they were deceived into thinking their votes were counted.

The lawsuit, filed Monday morning in Washington County Court of Common Pleas, accuses the county of failing to offer a notice and cure option for mail-in ballots that lacked a signature or date, while also implementing a system that deliberately kept voters in the dark about such issues.

The ACLU of Pennsylvania, Public Interest Law Center and Philadelphia-based Dechert law firm filed the lawsuit on behalf of the Center for Coalfield Justice, the Washington Branch of the NAACP and seven voters whose mail-in ballots were not tabulated due to errors on the envelopes.

“I do feel like I was deceived,” said one of the plaintiffs, Bruce Jacobs of Venetia, during a conference call with reporters Monday. “(Voting) is my right. I’m an American and their job as commissioners are to support the people they represent. … These are my rights, and it’s just flat-out wrong.”

In addition to Jacobs, the six other Washington County residents who brought the lawsuit are Jeffrey Marks of Washington; June DeVaughn Hython of Canonsburg; Erika Worobec of Cecil; Sandra Macioce of Canonsburg; Kenneth Elliott of Amity; and David Dean of Canonsburg.

The lawsuit alleges violation of the due process guarantee in the state’s Constitution and argues that the county’s current policy disenfranchises voters despite easy solutions that are available to notify voters of problems with their mail-in ballots.

At the heart of the issue is the April 11 decision by the county’s elections board – which is occupied by the three county commissioners – to not offer any ballot curing options while also refusing to let the elections staff notify voters or answer questions from residents inquiring about the status of their ballots. Republican Commissioners Nick Sherman and Electra Janis voted against a ballot curing option while Democratic Commissioner Larry Maggi voted in favor of allowing the procedure.

Instead, all mail-in ballots that were returned to the elections office – even those with fatal flaws – were marked as “received” in the state’s elections database and an email was sent to each voter that they would only be contacted if there was an issue, despite that not necessarily being true. The result was that 286 votes weren’t counted in the April 23 primary, including 251 that could have been cured had voters been notified of errors, such as missing signatures or problems with the date.

The ACLU and other nonprofits requested and received from the county a list of all the rejected mail-in ballot envelopes after the primary, which allowed them to contact each voter to inform them of the situation. According to the lawsuit, none of the voters knew that their ballots weren’t counted.

“They actively concealed this information so voters wouldn’t and couldn’t find out if their ballots would not count, and they had no way of fixing it,” ACLU of Pennsylvania Legal Director Vic Walczak said during the conference call. “When we started calling voters on that list (after the primary) most of the voters even at that point did not realize that their votes had not counted, that their ballots were canceled. And it was long past time for them to do anything.”

The lawsuit states the policy disproportionately affected older voters, who were more prone to making technical mistakes on the envelopes with missing signatures or mistakes with the dates, which automatically nullifies the ballot, according to state law. A review by the plaintiffs of all the rejected ballot envelopes in Washington County showed that 75% of them were sent by people 65 and older, and 30% of them came from people 80 and older.

The lawsuit suggests Washington County could list the ballots as “canceled” or “pending” in the state’s election database along with the reasons, which would automatically send an email notifying the voter of the issue.

Neighboring counties in Allegheny, Beaver, Fayette and Greene currently offer mechanisms for notifying voters of errors to allow them to cure their ballots. Most counties contact voters about the issue and then allow them to either fix the problem, request a new ballot or vote provisionally at their polling place on Election Day.

Coalfield Justice is a plaintiff in the matter because its “Defending Democracy Program” had planned to review discarded ballots before the primary and contact voters to encourage them to vote provisionally on Election Day. The local NAACP chapter is included in the lawsuit over concerns that it will have to redirect resources from other initiatives due to Washington County’s lack of notification to voters about ballot errors.

“When people’s right to vote is on the line, it is too important not to get involved,” Coalfield Justice Executive Director Sarah Martik said on the conference call.

David Gatling, who is president of the NAACP’s Washington Branch, said the elections board “chose to conceal” from voters the fact that there were errors with ballots.

“Our voting rights are under attack here in Washington County,” Gatling said. “This is a form of voter suppression.”

While the lawsuit was filed in Washington County, it will likely be appealed no matter the decision, meaning a ruling from the state’s appellate courts could set a precedent and offer uniformity with ballot curing, which is handled differently by every county due to different interpretations of the law. The plaintiffs said they hope to have a resolution in the case before mid-September, when counties across Pennsylvania will begin sending out mail-in ballots ahead of the Nov. 5 general election.

“We very much hope that this case will have statewide implications,” said Mimi McKenzie, who is legal director for the Philadelphia-based Public Interest Law Center.

County solicitor Gary Sweat said he was still reviewing the 178-page lawsuit Monday afternoon and hoped to convene a special meeting with the elections board as soon as next week to address the situation, although most of the discussion would likely be held in a closed-door executive session due to the litigation aspect.

“Our position at this point is that the Washington County Board of Elections followed the elections code, as well as the cases handed down by the Pennsylvania Supreme Court and Commonwealth Court with curing practices as it is related to deficient mail-in ballots,” Sweat said. “There was no intent to deceive. I believe we were following the law.”

Walczak said the ACLU was “alarmed” by how Washington County handled the process, especially considering the elections board had allowed ballot curing in the past. He added that they do not know of any other county in the state that handles the receipt of defective mail-in ballots – by listing it as received in the state’s database – and refused to answer questions from voters about whether their ballot was being counted.

“It’s like a game of gotcha. ‘Ah, you missed one little thing and we’re not going to count your ballot.’ That’s not how voting is supposed to work,” Walczak said. “This is a fundamental right.”

Most of the plaintiffs in the lawsuit said they began voting by mail in 2020 amid the COVID-19 pandemic, so they were familiar with the process and hadn’t made errors in the past. Of the seven plaintiffs whose mail-in ballots weren’t counted, five were due to incomplete dates – likely leaving the last two digits off the year – while one was not signed and dated, and the other was signed in the wrong area and not dated.

Several exhibits included emails sent to the voters showing their ballots had been received, indicating there was nothing else they had to do. Many wrote in their signed declarations included in the lawsuit that they were “angry” about not knowing their votes didn’t count, and they would’ve done whatever was necessary to fix the errors had they been notified.

When asked if he had a message for Sherman and Janis, who voted on the policy to not allow ballot curing, Jacobs didn’t hold back in his opinion of their decision.

“They denied me my rights,” Jacobs said. “They’re not upholding their responsibility in their position to allow me to cure my vote.”