COVID-19 and postal service cuts have presented historic challenges to our electoral systems and sparked widespread fear of voter disenfranchisement. Recently, in Pennsylvania Democratic Party v. Boockvar, the Pennsylvania Supreme Court extended the November due date for mail-in ballots by three days and approved several changes to electoral processes during the pandemic. Because Pennsylvania is a battleground state, this case could have massive implications for the 2020 General Election.
The Pennsylvania Democratic Party and several Democratic elected officials filed suit seeking declaratory and injunctive relief pertaining to five issues of statutory interpretation of Act 77 of 2019 and the Election Code, 25 P.S. sections 2600-3591. The Pennsylvania Supreme Court exercised Extraordinary Jurisdiction to clarify these five counts prior to the General Election. The Petitioner requested: (I) declaratory relief to confirm Act 77 permitted local election boards “to provide secure, easily accessible locations . . . where appropriate, mobile or temporary collection sites, and/or drop-boxes for the collection of mail-in ballots”; (II) an injunction to “lift the deadline in the Election Code across the state to allow any ballot postmarked by 8:00 p.m. on Election Night to be counted if it is received by the Boards” by 5:00 p.m. on Tuesday, November 10 or to allow boards’ discretion to extend deadlines to 21 days after the voter’s ballot is mailed by the county; (III) a requirement that the Board expeditiously notify electors whose mail-in or absentee ballots were incorrectly completed and offer an opportunity to fix minor facial defects until the November 10, 2020 deadline; (IV) a declaration under Act 77 that the Boards must place ballots submitted without the secrecy envelope—known as “naked ballots”—into a proper envelope and count them instead of invalidating them; and (V) a declaration that the “Election Code’s poll watcher residency requirement does not violate the United States Constitution’s First and Fourteenth Amendments, its Equal Protection Clause, or the Equal Protection and Free and Equal Elections Clauses of the Pennsylvania Constitution.” The Court denied Counts III and IV, and it granted relief for Counts I, II, and V.
Justice Baer wrote for the majority. Finding that the postal service could not meet the Election Code’s statutory calendar due to changes in its logistical procedures and the demand for mail-in ballots during the COVID-19 crisis, the court concluded that it could act to prevent the disenfranchisement of voters and enforce the Free and Equal Elections Clause in the Pennsylvania Constitution. Thus, it approved the injunction allowing a three-day extension of the absentee and mail-in ballot received-by deadline so that ballots sent via the United States Postal Service, postmarked by 8:00 p.m. on Election Day, and received by the county boards of election on or before 5:00 p.m. on November 6, 2020 would be counted. The court stressed that state election laws already accommodate the receipt of ballots after Election Day, including military and overseas ballots tabulated up to seven days after the deadline. Furthermore, this extension did not affect the dates for the Secretary of State’s final reporting of election results, which must occur no later than November 23, 2020 (twenty days after Election Day). Lastly, following the Secretary’s guidance, the court ruled that ballots which do not have a proof of mailing or legible postmarks still will “be presumed to have been mailed by Election Day unless a preponderance of the evidence demonstrates that it was mailed after Election Day.”
Justice Wecht concurred, Justice Donohue wrote a concurring and dissenting opinion, and Chief Justice Saylor authored a concurring and dissenting opinion. Justice Wecht emphasized that the three-day timeline would “minimize the number of voters denied the franchise simply for mailing their votes based upon long-trusted, but presently unrealistic expectations about the speed of the post, while minimizing any subsequent delay in the tallying of votes.” On the other hand, Justice Donohue distanced herself from the majority’s analysis, contending that the majority should have framed the issue as an as-applied challenge to the constitutionality of Act 77. And while she agreed that the statutory deadline for submission of ballots was unworkable, she dissented from the use of equitable powers to craft a remedy “in the form of an order permitting non-compliance.” Building upon Justice Donohue’s opinion, Justice Saylor argued that “the majority does not so much as require a postmark.” He warned that the lenience on postmarking could increase the possibility that votes would be cast after Election Day, undermining the statute’s objectives.
The State’s Senate President Pro Tempore, Senate Majority Leader, Speaker of the House of Representatives, and House Majority Leader filed a stay request with the Pennsylvania Supreme Court on September 22, 2020, planning to appeal the case. The Republican Party of Pennsylvania also filed an application for stay with the United States Supreme Court. These Republican legislators seek to block two portions of the decision: (1) requiring election officials to accept and count ballots received after the election even if they do not have a legible postmark, and (2) extending absentee and mail-in ballot deadlines past Election Day. A stay must garner five votes to grant. This request represents the first major voting rights issue before the Court since the passing of Justice Ginsburg, who was considered to be a champion of voting rights.
This pending decision may have monumental implications for this year’s presidential race. Pennsylvania will be highly contested in this year’s election. President Trump’s narrow victory in the state—by 44,000 votes, less than one percentage point—secured his 2016 presidential victory. This fall, the incumbent candidate likely must win in Michigan, Wisconsin, or Pennsylvania to keep the presidency. Every vote in the battleground state matters, and with over three million Pennsylvanian voters expected to cast mail-in ballots, any Election Day obstacles could alter the course of the general election. The Democratic vote may be most affected; according to the Pennsylvania Department of State, Democrats have requested 1.5 million ballots to date in comparison with 535,000 requests from Republicans and 223,000 requests from independent and third party voters.
In its preparation for the election, Pennsylvania has encountered novel obstacles that justify the court’s extension. This year is the first that the state is allowing all of its citizens to register for mail-in ballots. However, a recent report reveals that nearly one in four counties in the state has experienced the loss of top election officials in the past year, hampering its organizational efforts. Pennsylvania counties are spending millions of dollars purchasing equipment to expedite the state’s counting, which officials are predicting will extend far beyond election night. During the state’s June primary, counties received over one hundred thousand mail-in ballots after Election Day, with the majority of those ballots arriving three days afterwards. Experts predict that the U.S. Postal Service delays could cause the disenfranchisement of five percent of voters submitting mail and absentee ballots in Pennsylvania’s general election. Under these exceptional circumstances, pushing back the deadline three days ensures that the votes are properly tallied during a pandemic.
Ultimately, the outcome of the 2020 General Election should reflect who the American public voted for. The potential disenfranchisement of hundreds of thousands of voters in a state that could swing the election erodes confidence in our democratic process. The court’s holding in Count II preserves the basic principle that everyone’s vote should count, even in tumultuous times.