The Butler County Bureau of Elections is joining the Republican National Committee in appealing a Pennsylvania Supreme Court ruling that provisional ballots must be counted if voters’ mail-in ballot are rejected.

Republican Commissioners Leslie Osche and Kim Geyer voted to join the RNC to appeal while Democratic Commissioner Kevin Boozel voted against it at their Wednesday, Jan. 15, meeting.

The American Civil Liberties Union of Pennsylvania, Public Interest Law Center and law firm Dechert LLP filed a lawsuit on behalf of Faith Genser, of Zelienople, and Frank Matis, of Center Township, six days after the April 23 primary when the board rejected two provisional ballots submitted after the voters incorrectly filed mail-in ballots.

As the November election neared, the state Supreme Court ruled in October that counties like Butler must count provisional ballots in cases like Genser and Matis’.

The RNC is footing the bill to defend the county board of elections, according to Osche.

Boozel said he voted against joining the appeal because he learned about it at 9 a.m. Monday in an email from another county commissioner. He said the RNC had 90 days to file the appeal and wouldn’t show or explain it to him when he asked.

“Us finding out a day before the vote is unreal to me,” Boozel said.

The three-member election computation board — Karen Barbati, Jeff Packetz and Carol Knox — and the county Bureau of Elections determined following the April primary that two Democratic and one Republican mail-in ballots would not be counted.

After weighing the submitted ballots, they determined the secrecy envelopes that ensure ballot anonymity were missing. The ballot is meant to be sealed inside the secrecy envelope, which then is sealed inside the provided return envelope.

Entering the invalid mail-in ballots into the election system triggered an email to the voters suggesting they cast a provisional ballot on election day, Osche said.

The voters submitted their provisional ballots, but when they weren’t counted, the ACLU filed the lawsuit on behalf of the two Democrats, Genser and Matis.

The suit found its way to the state Supreme Court following a series of appeals.

The state Supreme Court affirmed an earlier Commonwealth Court 4-3 vote Sept. 5 that provisional ballots will be accepted for voters whose mail-in ballots were rejected because they lacked the secrecy envelope.

Justice Christine Donohue wrote that the Butler County board of elections correctly rejected the mail-in ballots but should have counted their provisional ballots which the computation board rejected.

The ruling reversed a Butler County Court of Common Pleas ruling in favor of the computation board.

Returned mail-in ballots must be sealed inside the yellow envelope shipped with it labeled “official election ballot” then sealed in the outer return envelope to be counted, according to Pennsylvania’s instruction for voting via mail and absentee ballots.

Voters may be issued a provisional ballot if they submitted a mail-in ballot that was rejected by the county board of elections, regardless if they submit their mail-in ballot and secrecy envelope, according to the state’s reasons for issuing preliminary ballots.

The Republican and Democratic commissioners have differing opinions on the case.

Osche highlighted inconsistencies in the state election code that she said allowed judges to adapt the law as they saw fit. The Commonwealth Court agreed the code’s Casting Clause and Timely Received Clause are ambiguous in its Aug. 28 decision.

“Any person who has studied civics understands legislatures write laws and courts have to interpret them,” she said.

Osche said the appeal is about whether its OK for the state Supreme Court to “essentially rewrite law that can be considered in violation of the Election Clause.”

Boozel said the appeal brings into question whether state or federal courts have more rights over cases, and he doesn’t want courts weighing if votes should count. He and the Commonwealth Court also raised questions about when a ballot should be considered cast.

Boozel said when voting in person, the machine doesn’t accept an incorrectly filed ballot and gives the voter a chance to correct it.

“Their way is to eliminate them from any vote counting,” he said.

Osche hopes the state Legislature will “clean up” the election code to eliminate inconsistencies between counties and said now is the time to do it.

Osche also said she’s heard reports that the Legislature is discussing amending the election code but has discussed the code before with no action.

She stands by her computation board and solicitor’s decisions and is optimistic the U.S. Supreme Court will hear the case.