Evidence was presented Tuesday, May 7, in the civil suit filed against the Butler County Board of Elections by two county residents whose primary mail-in ballots were rejected and their provisional ballots were not counted on the primary election day.

The suit was filed on behalf of Faith Genser, of Zelienople, and Frank Matis, of Center Township, and asks county Common Pleas Court to order the board to count their provisional ballots.

The two are represented by attorneys from the American Civil Liberties Union offices in Pittsburgh and Philadelphia, the Public Interest Law Center of Philadelphia and another Philadelphia law office.

Both petitioners appeared before Judge S. Michael Yeager to testify and hear the procedures used by the election board from its director, Chantell McCurdy.

During opening arguments, Benjamin Geffen from the law center said the case involved “naked ballots,” or ballots that have been returned to the board without the secrecy envelope. Mail-in or absentee ballots are required to be placed in a secrecy envelope and then a declaration envelope for valid submission.

Geffen explained that Genser and Matis’ ballots were not placed in secrecy envelopes, and so would not be counted. The two then voted via provisional ballots at their respective polling places. He said those votes also were rejected by the computation board on April 26.

“We don’t challenge (the decision to) not cast the naked ballots, just the decision to not count the provisional,” he said.

McCurdy testified that when absentee and mail-in ballots arrive at their office, they are marked as “returned” and put into a machine which checks the envelopes without opening them for weight or height discrepancies.

The machine then lists what possible errors there may be, including the absence of a secrecy envelope.

McCurdy explained that ballots with potential errors are kept locked away to be reviewed by the computation board the Friday after an election day.

On that day, the three-person computation board chose to evaluate absentee and mail-in ballots that may have issues first, then the provisional ballots.

“Historically, any ballot without a secrecy envelope is rejected,” she said.

According to McCurdy, the elections board encourages those who make this mistake to still cast a provisional ballot, though it will not be counted, since the computation board usually goes with the first ballot cast by a voter.

During testimony, Matis said he received an email from the state Department of State about his error with the secrecy envelope and was encouraged to fill out a provisional ballot at his polling place.

He said someone from the election board also told him to fill out a provisional ballot, and so he did.

“I made a mistake; I’m well aware I didn’t put it in the secrecy envelope,” he said.

According to Matis, someone called him about his provisional ballot not counting. Matis said he was not sure how the person learned this or obtained his number.

Genser also testified to receiving an email. She also recalled having two separate phone calls with the election board about her ballot.

She said a woman from a voting rights organization later contacted her by phone and encouraged her to fill out a provisional ballot on the primary election day.

However, Genser said she was not hopeful it would be counted based on the information she gathered from the board.

“I should have been able to fix that mistake, and I want other people to fix that mistake in the future,” she said when asked why she was in court on the matter.

During an argument for a dismissal that was ultimately denied by Yeager, it was explained by attorney Kathleen Gallagher that a recent case determined any error involving a secrecy envelope is classified as a “fatal defect.”

“All Butler County did was follow the law,” she said.

She added that policies exist county by county to cure deficiencies on the outside of ballots. According to McCurdy, there is a curing policy in place for fixing mistakes on the declaration envelope via an attestation form.

Yeager determined counsel representing both parties had to have their final briefs in by June 28.