The State Department of State is challenging Washington County’s decision not to count any provisional ballots completed at the polling place after mail-in ballots were rejected due to serious defects.

In a statement released Thursday, state election officials said Washington County’s “position is inconsistent with the Department’s guidance,” based on a March memo that asked counties to count such last-chance provisional ballots in specific cases where a mail-in ballot was not counted because the envelope was missing a signature or date.

Many surrounding counties have implemented notice-and-cure policies that allow voters to correct errors on the envelope of a mail-in ballot or to vote at the polling station on Election Day using a provisional ballot.

However, the Washington County Board of Elections has decided against re-polling ballots before the April 23 primary election. At a court hearing on Monday, it was revealed that officials do not count provisional votes filled out at the polling place if the election office has already received a voter’s absentee ballot.

“The Department is aware that Washington County has not adopted the interpretation contained in the Department’s guidelines,” said Geoff Morrow, deputy communications director for the Department of State. “Our guidelines remain the most reliable source of information on election rules in Pennsylvania.”

Morrow cited a March 11 department memo sent to all 67 election offices that provided guidelines on how to handle provisional ballots in various situations.

“If a voter cast his or her vote on Election Day or successfully voted by absentee ballot or mail, the provisional vote will not be counted,” the memo states.

The memo then cites a September ruling by the Delaware County Court of Common Pleas that said people who had their mail-in or absentee votes not counted due to an error should be able to cast a provisional ballot at the polling place.

“If a voter’s absentee or mail-in ballot was rejected for a reason unrelated to the voter’s qualifications, and the voter submitted a provisional ballot and meets other requirements for provisional ballots, the provisional ballot will be counted if the county determines that the voter is eligible to vote,” the memo states.

But the “policy” memo is not the same as a “directive” that would require a county election office to follow such instructions. Nick Sherman, chairman of the Washington County Commission and also chairman of the Election Board, sharply criticized the agency’s policy memo and said they would not follow it.

“The State Department needs to realize that we are not following their guidelines. We follow state law and state law takes precedence over their guidelines,” Sherman said. “They had every opportunity to get these changes through the state legislature and they failed to do that.”

According to election law, one of the conditions that a provisional ballot cannot be counted is if “the voter’s absentee ballot is received by a county board of elections in a timely manner.” The county argues that absentee ballots are considered “received” once they are accepted by the election office, regardless of whether or not they contain serious defects.

Another section of Act 77 of 2019, which expands mail-in voting to everyone starting in 2020, states that “any voter who receives and completes an absentee ballot pursuant to Section 1301 shall be ineligible to vote at a polling place on Election Day.” The county and the ACLU are arguing in court over whether a person actually voted if the absentee ballot they mailed in is never counted.

“The law is not vague. The law is crystal clear,” Sherman said. “The judges and the State Department are saying, ‘Here are our guidelines, and follow them.’ … The state legislature needs to step in and simplify this.”

No one whose mail-in ballot was rejected due to serious defects attempted to cast a provisional vote in their Washington County precinct during the April primary, likely because voters were never notified if there was a problem. But even if they had, the Board of Elections would not have counted the votes because the mail-in ballot had already been received by the elections office.

Seven voters represented by the ACLU of Pennsylvania are suing the county, arguing that their constitutional rights were violated by the measure because their ballots were among 259 that were rejected due to defects, but they were never notified.

As part of the lawsuit, Washington County Elections Supervisor Melanie Ostrander testified during nearly eight hours of testimony in Pittsburgh on July 18 that the Board of Elections decided not to count such provisional votes because doing so would be considered ballot tampering.

“If a voter who returned a ballot with a disqualifying error had gone to their polling place on Election Day in April 2024 and asked to cast a provisional ballot, what would they have been told?” asks Mimi McKenzie, legal director of the Philadelphia-based Public Interest Law Center, which is also involved in the lawsuit.

“Any voter or anyone can cast a provisional vote,” Ostrander replied, according to the 220-page transcript of the testimony.

“If a voter returns a ballot with a disqualifying error in April 2024 and then goes to the polling place and casts a provisional ballot, will it be counted?” McKenzie asked.

“The decision would be made by the Board of Elections, but under election law, a voter who had already mailed in their absentee ballot, regardless of whether there was a disqualifying error, and then cast a provisional ballot, it would not count because they had already mailed in a absentee ballot,” Ostrander said.

Other neighboring counties handle the situation quite differently. Election officials in Fayette and Greene, however, said no absentee voters attempted to use a provisional ballot because they had other opportunities to correct their mistakes on the envelopes.

“If for some reason they can’t come in (to request an absentee ballot), we told them they can go in and cast a provisional ballot unless something else is wrong,” said MaryBeth Kuznik, director of the Fayette County Board of Elections. “But the Board of Elections has been counting the votes.”

“We follow the guidelines of the Secretary of State and any local decision has to be made by the Board of Elections here,” said Joe Lemley, Greene County Elections Supervisor.