SURE-Based Email Notifications and Accurate Coding as Pennsylvania’s Minimum Statewide Process for Defective Mail‑In Ballots

Introduction

In Center for Coalfield Justice v. Washington County Board of Elections, Appeal of: Republican National Committee and Republican Party of Pennsylvania (No. 28 WAP 2024), the Supreme Court of Pennsylvania affirmed an order of the Commonwealth Court on September 26, 2025. The dispute centered on how counties must notify mail‑in voters when their returned ballot packets are defective and whether, and by what mechanism, those voters must be told of their ability to cast a provisional ballot.

The majority established a new statewide baseline: counties must enter accurate disposition codes into the Statewide Uniform Registry of Electors (the SURE System) upon receipt of defective mail‑in ballot return packets, and the SURE System’s automatically generated emails to affected electors—together with the publicly available online mail‑ballot status tracker—satisfy the minimum notice required. Further affirmative notice (such as phone calls or postal letters) is not required, but counties remain free to offer additional notice.

Justice Mundy filed a dissent, joined by Justice Brobson, arguing that reliance on SURE‑generated emails creates an unequal and non‑uniform voting process under Article I, Section 5 of the Pennsylvania Constitution (the Free and Equal Elections Clause) because (1) voters are not required to provide an email address on the mail‑in ballot application and (2) a persistent “digital divide” limits many voters’ ability to access email or the internet. The dissent also emphasizes county‑to‑county variability in “notice‑and‑cure” practices and warns that such policy choices belong to the General Assembly, not the courts or the Department of State.

Summary of the Opinion

The Supreme Court affirmed the Commonwealth Court’s order relating to Washington County’s election administration in the 2024 cycle.
New statewide floor: County boards must accurately code defective mail‑in ballot return packets in SURE; this coding triggers automatic email notifications and updates the voter‑facing online tracker. If accurate SURE coding occurs, “further affirmative notice is not required.”
Constitutional frame: The majority’s approach is presented as sufficient process under Pennsylvania’s constitutional guarantees (including the Free and Equal Elections Clause) to inform affected voters of their right to vote provisionally.
Optional additional notice: Counties may continue or adopt supplemental “notice‑and‑cure” measures (phone, postal mail, email, public lists), but such additional steps are not mandated by the Election Code or the Court’s decision.

Justice Mundy dissents on the ground that SURE‑based email notice, while now the Court‑approved minimum, inherently advantages voters who provided email addresses and have reliable internet access—conditions not uniformly met across the Commonwealth—thereby failing to equalize the power of voters as the Constitution requires.

Analysis

Precedents and Authorities Cited

Pennsylvania Constitution, Article I, Section 5 (Free and Equal Elections Clause): “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” The clause furnishes the constitutional lens for evaluating whether notice practices equalize voter power statewide.
Pennsylvania Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020): The Court there underscored that the “free and equal” guarantee was “specifically intended to equalize the power of voters in our Commonwealth’s election process.” Justice Mundy uses Boockvar to argue that email‑dependent notice and inconsistent county practices fail to equalize voter power because the ability to receive notice varies with technology access and county policy choices.
Seebold v. Prison Health Services, Inc., 57 A.3d 1232 (Pa. 2012): Cited by the dissent for its separation‑of‑powers principle: courts should defer to the General Assembly on complex social policy judgments. Justice Mundy deploys Seebold to contend that crafting a specific notice regime—especially one that embeds technological presumptions and uneven local practices—is a policy decision better suited to legislative deliberation.
Administrative and factual sources: The dissent points to (a) the mail‑in ballot application’s optional email/phone fields; (b) U.S. Census Bureau data showing 6.1% of Pennsylvania households lack home internet; (c) Pennsylvania Broadband Development Authority reports on remaining connectivity gaps; and (d) the American Civil Liberties Union’s compilation of county “notice‑and‑cure” policies. These materials underscore the dissent’s pragmatic concerns about unequal access and non‑uniform county practices.

Legal Reasoning

Majority’s Approach (as reflected in the dissent)

Statewide floor via SURE: By requiring accurate coding of defective mail‑in ballot return packets in SURE, the Court ensures that a standard, centralized infrastructure triggers automatic email alerts and updates an online status tracker. This combination supplies what the majority regards as the minimum notice to safeguard the right to vote provisionally.
Sufficiency of the online tracker: For electors without an email address on file, the majority views the publicly available mail‑ballot status website as an adequate means to learn of defects and provisional voting options. In other words, due process (and free‑and‑equal guarantees) are satisfied when information is made accurately available through the SURE‑powered status portal, even if some voters must proactively check their status.
Floor, not ceiling: The Court expressly states that once accurate SURE coding occurs, “further affirmative notice is not required.” Yet counties may add more intensive notice (phone, letter, party notifications, public lists) if they wish. This preserves local discretion while establishing a common minimum process statewide.

The Dissent’s Critique

Unequal access to email: Because the mail‑in ballot application does not require an email address—and voters are told email/phone are “optional” and used only if information is missing—SURE email notice inherently advantages voters who opted into email and have reliable internet access. Those who did not (or cannot) provide an email receive no affirmative alert.
The digital divide: Approximately 6.1% of Pennsylvania households lack home internet; more lack reliable service. When defects occur near deadlines, voters without ready internet access may not receive or discover notice in time to cast a provisional ballot. For the dissent, this mismatch between technology‑based notice and actual access renders the system unequal.
Non‑uniform “notice‑and‑cure” practices: Counties vary widely—some call and send letters; others publish lists; still others provide no outreach beyond SURE. The new rule sets a floor but permits disparities to persist above that floor. The dissent argues that the Free and Equal Elections Clause demands not merely a floor but functional equality across counties; otherwise, voter power varies by geography.
Legislative versus judicial role: Citing Seebold, the dissent stresses that designing notice modalities implicates policy tradeoffs (privacy, resource allocation, technology, timing, equity) that are best resolved in the General Assembly. The Court, by elevating SURE email and coding as the minimum, risks hardwiring inequities without the benefit of legislative fact‑finding and comprehensive statutory design.

Impact

Immediate Operational Consequences

Uniform coding practice mandated: All county boards must promptly enter accurate SURE codes for defective mail‑in ballot return packets. This is now a statewide minimum.
Automatic notice as sufficient minimum: SURE’s automatic email notifications and the voter‑facing status tracker satisfy the Court’s minimum process requirement. Counties are not required to add phone calls, letters, or party notifications—but may do so.
Persistence of county variability: Because additional outreach is optional, a patchwork remains. Voters in counties with robust “notice‑and‑cure” will receive more timely and personalized notice than voters in counties that rely solely on SURE.

Strategic and Litigation Implications

Constitutional claims refined: Future Free and Equal Elections challenges will likely test whether reliance on SURE, especially near deadlines or in low‑connectivity communities, truly equalizes voter power. The dissent’s data points—on internet access and optional email—provide a roadmap for fact‑intensive challenges.
Legislative pressures: Expect calls for statutory clarification of uniform, multi‑modal notice (e.g., requiring at least one non‑digital contact method or consent‑based text messaging) to mitigate the digital divide concerns identified by the dissent.
Administrative guidance: The Department of State will likely issue detailed guidance to standardize SURE coding timelines, content of automated emails, and clear public instructions for checking the status tracker. Enhanced transparency may cushion, but not cure, the dissent’s equality concerns.
Data and auditing: Counties may face increased scrutiny over coding accuracy and timeliness, as SURE entries now carry constitutional weight. Audits, logs, and reproducible procedures will be vital to avoid litigation risk.

Voter Experience and Equity

Voters with email and internet access gain a timely notice channel; those without must self‑monitor via the tracker or rely on ad hoc county outreach (if any). The digital divide becomes a salient axis of election administration.
County policy divergence can shape outcomes: As the dissent notes, even small subsets of ballots (e.g., the 259 defective mail‑in ballots in Washington County in the 2024 primary) can meaningfully affect tight races or voter confidence. Divergent county practices compound these effects.

Complex Concepts Simplified

SURE System: Pennsylvania’s Statewide Uniform Registry of Electors—a centralized database supporting voter registration and mail‑ballot processing. When counties enter a code marking a ballot “defective,” SURE can trigger an email to the voter (if an address is on file) and update the public status tracker.
Defective mail‑in ballot return packet: A returned mail‑in ballot package that fails to meet legal requirements (for example, a problem with the outer envelope). A defective packet may be set aside and not counted unless otherwise remedied; the voter may be eligible to cast a provisional ballot.
Provisional ballot: A backup ballot a voter can cast when there is uncertainty about their eligibility or the status of a previously submitted mail‑in ballot. After verification, the provisional ballot is counted if appropriate.
Notice‑and‑cure: Non‑mandatory county practices that attempt to alert voters to defects and provide an opportunity to correct them, such as phone calls, letters, emails, or posting lists for public or party review. These practices vary across counties.
“Floor” versus “ceiling”: A floor is the minimum required by law (here, accurate SURE coding and the attendant automatic email/online notice). A ceiling would cap what counties can do; the Court sets only a floor, allowing counties to provide more notice if they choose.
Free and Equal Elections Clause: Pennsylvania’s constitutional guarantee designed to ensure equal access to and equal weight of the franchise. Under Boockvar, it is specifically meant to “equalize the power of voters” across the Commonwealth.

Conclusion

The Supreme Court of Pennsylvania has now established a clear statewide baseline: accurate SURE coding of defective mail‑in ballot return packets, coupled with SURE‑generated email alerts and the public status tracker, constitutes the minimum notice necessary to safeguard a voter’s ability to cast a provisional ballot. This uniform floor aims to standardize core administrative steps across counties.

Justice Mundy’s dissent, however, powerfully flags the constitutional and practical fault lines that remain. Because email is optional on the mail‑in application and significant numbers of households lack reliable internet access, SURE‑dependent notice risks entrenching disparities in who actually receives timely notice. And by permitting—but not requiring—additional county outreach, the Court’s floor preserves a patchwork that can vary the “power of voters” based on geography, precisely the concern the Free and Equal Elections Clause seeks to avoid. The dissent also reminds that designing the details of a notice regime—particularly in a technologically stratified landscape—is a task better suited to legislative, not judicial, policymaking.

In the near term, counties must prioritize accurate and timely SURE coding and clear voter communications about the status tracker and provisional voting. Over the longer term, the General Assembly may be pressed to adopt uniform, multi‑modal notice requirements that square constitutional equality with administrative feasibility. Until then, the Court’s newly articulated SURE‑based floor will govern, even as debates over equality, access, and uniformity continue.