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How Pennsylvania's mail-in voting rules will result in thousands of provisional ballots on Election Day

Last week there was a series of legal battles in Pennsylvania that clarified the rules for mail-in voting there. In short: Mail-in ballots are still being rejected in the crucial battleground state when voters don't properly date the affidavits attached to their ballots. However, voters who make a mistake on their mail-in ballots can vote by provisional ballot on Election Day instead.

The NBC News Decision Desk examined how many mail-in ballots are still outstanding in the state and how many counties have already identified a shortage. In the event of a close race in Pennsylvania, provisional ballots and their counting will receive significant attention after Tuesday evening.

Voters with outstanding mail-in ballots must ensure poll workers receive them by 8 p.m. Tuesday so they can be counted. But voters with outstanding or defective mail-in ballots can also go to their polling stations to vote in person. The data makes clear that most provisional ballots likely come from voters with outstanding mail-in ballots, rather than voters who have already returned defective mail-in ballots. And they also make it clear that these provisional ballots may tip in favor of Vice President Kamala Harris and the Democratic Party.

The data on mail-in ballots and possible provisional ballots

According to public data from the Secretary of State, a total of about 2.2 million Pennsylvania residents have received approved absentee ballot applications. So far, about 82% have returned their mail-in ballots, according to the latest numbers on Monday. That means there are around 390,000 mail-in ballots outstanding.

If Pennsylvania's 2024 election follows the same trend we saw in 2022, that means about 150,000 more mail-in ballots will arrive in time to be counted, either by mail or drop box. The remaining people with outstanding mail-in ballots must vote in person on Election Day to have their votes counted. If those voters show up and cast their mail-in ballots, they would be able to vote with regular ballots; Otherwise, they vote with provisional ballots, which election officials count only after they confirm that the first mail-in ballots were not counted.

In 2022, about a third of voters who requested but did not return their mail-in ballots ultimately voted in person. Using 2022 as a guide, we expect around 90,000 people to vote in person, with around 35,000 using provisional ballots.

Given that the outstanding mail-in ballots are disproportionately held by registered Democrats, we expect that these provisional ballots will give the Democratic candidates some additional votes that will not be reflected in the vote total until several days after Election Day.

It's harder to estimate how many mail-in ballots will be rejected when election officials begin voting on Tuesday. Not only does Pennsylvania reject mail-in ballots if voters have not signed or correctly dated the affidavits on the outside of the return envelopes, or have not placed the ballots in inner secret envelopes, but it also prohibits counties from “acquiring” or mailing-in ballots in advance open election day. Some counties identify mail-in ballots with deficient affidavits or missing secrecy envelopes before Election Day without opening them, but some leave the task to Election Day. For this reason, we cannot determine the true status of absentee voting in some counties.

In total, our panel of available statewide data shows 5,524 defective mail-in ballots per day as of Monday – 2,258 are missing signatures, 2,471 are missing data or misdated and 795 have no secrecy envelopes. The data also shows that about 4,400 voters used state-specific guidelines to “cure” or fix their problematic mail-in ballots.

In counties where we believe election officials returned verified mail ballots based on affidavits or secrecy issues, about 0.8% of mail ballots were ever recorded as defective. If this is true, we would expect a little less than 20,000 defective mail-in ballots statewide – although the defect rate could be higher in other counties.

Voters who returned faulty mail-in ballots and still need to repair them can vote on Election Day, usually through provisional ballots. Those provisional ballots will be counted, according to the state Supreme Court's ruling last week.

However, at least in 2022, relatively few voters made use of this option. Meanwhile, as noted above, an estimated 35,000 could cast provisional ballots after failing to return their mail-in ballots at all.

Looking forward, we expect there will be a lot of discussion on election night and in the days afterward about provisional ballots cast by people who requested absentee ballots. There may be another lawsuit in the future reconsidering whether to count provisional ballots cast by people who previously returned defective mail-in ballots. But when it comes to Pennsylvania's margin of victory, it's important to remember that many more provisional ballots will be cast by people who don't return their mail-in ballots at all.

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