It’s been long stipulated that Pennsylvania could be a crucial battleground state in this year’s presidential contest. Trump won its 20 electoral votes by 0.73 percent (44,000 votes) in 2016, though Democrats had a strong midterm election in 2018. Joe Biden leads Donald Trump in the RealClearPolitics polling averages for the Keystone State by four percent, two-and-a-half points less than his national lead. So if the race tightens up, Pennsylvania, with its GOP-trending rural areas and new Republican strongholds in the northeast and southwest parts of the state, could again be a barn-burner.
Already, it’s become a very important state in the pre-election legal maneuvering over election procedures. Pennsylvania, like Michigan and Wisconsin, prohibits any sort of mail ballot processing prior to Election Day. (The Republican legislature is offering a three-day pre-election window for processing mail ballots, but it’s in a bill to which Democratic governor Tom Wolf objects on other grounds.) That’s a real problem given the delays in vote-counting in the state after its June primary. And under state law, mail ballots must be received by election day to be counted.
Or that was the case until the Pennsylvania Supreme Court handed down a complex set of rulings on a lawsuit by the state Democratic Party to relax several mail ballot restrictions. The big initial headline rulings seemed to favor Democrats (who hold a 5-2 majority on the Court, and who benefited mightily from a 2018 decision by the same Court striking down a Republican gerrymander of congressional districts). The most important provided that mail ballots received within three days of Election Day that were either postmarked by Election Day or had no legible postmark (unless there was evidence it was mailed later) would not be rejected for late delivery. The Court also approved a petition to allow the use of drop boxes for mail ballots, and for dessert, knocked the Green Party’s presidential ticket off the ballot.
In a separate case, the Court did reject an effort by Democrats to authorize “community collection” of mail ballots, known in Republican circles as “ballot harvesting.” But overall it looked like a big win for Democrats — until voting-rights advocates began looking more closely at a ruling that required use of “secrecy envelopes” for mail ballots, which meant that “naked ballots,” defined as those without the envelopes, would henceforth be rejected.
As the Philadelphia Inquirer reported, local officials in that city warned that the requirement could lead to the rejection of tens of thousands of otherwise valid ballots, and for no good reason since machines used for initial processing of mail ballots could not read the votes being kept “secret:”
“While everyone is talking about the significance of extending the mail-ballot deadline, it is the naked ballot ruling that is going to cause electoral chaos,” Lisa Deeley, chair of the Philadelphia city commissioners, wrote in a letter to state legislative leaders urging them to change the law to allow the ballots to be counted.
Deeley warned there will likely be tens of thousands thrown out — maybe more than 100,000…..
In last November’s municipal election — under the old [excuse-required] absentee system — 197 out of 3,086 absentee ballots in Philadelphia lacked secrecy envelopes. That’s 6.4%, and Deeley said that number will be even higher this year. People who voted absentee under the old system — in a municipal general election in deeply Democratic Philadelphia — are more likely to be highly engaged voters. And people are more likely to make mistakes when using a voting method for the first time.
It’s unclear what, if anything, Pennsylvania Democrats can do about the “naked ballot” problem, other than publicizing the concern so fewer voters run afoul of it. But Pennsylvania Republicans are already petitioning the U.S. Supreme Court to strike down parts of the state court decision on statutory and constitutional grounds. As Rick Hasen reports at his Election Law Blog, the GOP is arguing that allowing un-postmarked ballots that may have been mailed before November 3 abrogates the uniform Election Day set by Congress for federal elections; and that the state Supreme Court is usurping the state legislature’s power to regulate elections as provided in the U.S. Constitution. If accepted, this latter argument could have a major impact on election litigation all over the country. And it will be considered by a SCOTUS that is now lacking one of its staunch liberal members and its primary voting-rights advocate.
The big picture here and in many other states is that Democrats, knowing that their voters are much more likely to utilize voting by mail than are Republicans, are trying to reduce the relatively large percentage of these ballots that are rejected for one reason or another (late receipt being the major culprit). In the primary season nationally, NPR estimates that 550,000 mail ballots were rejected, including 37,000 in Pennsylvania. Given the disproportionately Democratic tilt of these ballots likely to occur in the general election, such a level of rejections could be damaging, or even fatal, to Joe Biden and other candidates.
In Democratic-controlled states, intensive efforts are underway to limit unnecessary rejections or require notice to voters of technical mistakes and an opportunity to “cure” them. In New York, plagued by very high levels of mail ballot rejections during the June primary, voting-rights advocates reached a settlement with state election officials this week to provide voters with a “cure” process. But at the same time, anything Democrats can do to make mail ballot receipt deadlines more flexible will also reduce rejections — though such rules may also slow down the count, particularly in those states that ban or limit pre-Election Day processing.
What makes it hard to assess how the landscape will change is that there are over 300 lawsuits under way in 44 states on election procedures, with well-financed batteries of lawyers deployed by both major parties. If nothing else, 2020 will buttress the case I have made for a substantially nationalized system of elections with one set of rules and one firmly established right to vote.