HARRISBURG – In a major victory for state Democrat officials, a 4-3 decision of the Supreme Court of Pennsylvania has given the Pennsylvania Democratic Party its requested three-day extension to count mail-in ballots and approved the use of drop-box locations apart from official polling places.
Ballots eligible to be counted in the General Election must now be postmarked by the time polls close on Election Day and be received by all Pennsylvania county election boards at 5 p.m. on Nov. 6, three days after the Nov. 3 election.
Republicans statewide have opposed changing that deadline and also moved to outlaw the use of such drop boxes or satellite election offices, arguing they are not specifically authorized under state law.
However, they were unsuccessful, as the state Supreme Court authorized those measures for this year’s election in its ruling.
A majority of states usually make Election Day the deadline in which to submit mail-in ballots, but 18 states now have a deadline which comes after Election Day.
Through Act 77, a state law passed last year which greatly expanded access to mail-in balloting in Pennsylvania and supported by health concerns over voting during the coronavirus pandemic, over 3 million voters are expected to cast mail-in ballots in this year’s General Election.
Comparatively, that’s more than 10 times the amount of mail-in voters who voted in the 2016 General Election, where President Donald Trump clinched Pennsylvania’s 20 electoral votes on his road to the White House.
Justice Max Baer authored the Supreme Court of Pennsylvania’s majority ruling, which was joined by justices Debra Todd, Kevin M. Dougherty and David N. Wecht.
“The Election Code should be interpreted to allow county boards of election to accept hand-delivered mail-in ballots at locations other than their office addresses including drop-boxes,” Baer said.
“This conclusion is largely the result of the clear legislative intent underlying Act 77, which animates much of this case, to provide electors with options to vote outside of traditional polling places. Section 3150.16(a) of the Election Code undeniably exemplifies this intent by granting the Pennsylvania electorate the right to vote by way of a mail-in ballot beyond the circumstances that ordinarily allow this alternative, such as voter absenteeism.”
The justices in the majority concurred with the Pennsylvania Democratic Party that strict enforcement of an 8 p.m. Election Day deadline to return mail-in and absentee ballots to county election boards – in light of the coronavirus pandemic and alleged delays in mail delivery by the United States Postal Service – would result in “extensive voter disenfranchisement in violation of the Pennsylvania Constitution’s Free and Equal Elections Clause.”
“We adopt Secretary [Boockvar’s] informed recommendation of a three-day extension of the absentee and mail-in ballot received-by deadline to allow for the tabulation of ballots mailed by voters via the USPS and postmarked by 8 p.m. on Election Day, to reduce voter disenfranchisement resulting from the conflict between the Election Code and the current USPS delivery standards, given the expected number of Pennsylvanians opting to use mail-in ballots during the pandemic,” Baer said.
In its majority ruling, the state Supreme Court also affirmed the state’s poll watching law, which the Trump campaign had sought to nullify in federal court by claiming it violated the Pennsylvania Constitution and U.S. Constitution.
Per that law, poll watchers – an appointed volunteer who monitors a polling place on Election Day for incorrect or irregular procedures – must be a registered voter from the county in which they are conducting those activities.
Republicans said they have not been able to enlist enough poll watchers in Philadelphia, a Democratic stronghold in Pennsylvania, while Democrats say that removing the poll watching residency restriction would lead to widespread voter intimidation in polling places.
Wecht said he joined the majority opinion in full, in his own concurring opinion.
“The extraordinary circumstances under which this year’s quadrennial presidential election must be contested manifestly justify an equitable remedy modifying the received-by deadline for absentee and mail-in ballots to account for these exigencies and to ensure that no unnecessary impediments to each citizen’s exercise of the franchise be interposed that reasonably can be avoided,” Wecht stated.
“Having determined that the convergence of a once-in-a-century pandemic and unprecedented operational delays in United States Postal Service delivery capacity threatens to undermine the integrity of our general election, this force majeure necessitates relief.”
Chief Justice Thomas G. Saylor filed a concurring and dissenting opinion, joined by Justice Sallie Updyke Mundy. The dissent pertained to the approval of unmanned drop boxes and the extension of the deadline for receiving mail-in ballots.
“Although the majority decision appears to be designed to accommodate only ballots actually mailed on Election Day or before, the majority does not so much as require a postmark,” Saylor said.
“Particularly in combination with the allowance of drop boxes, this substantially increases the likelihood of confusion, as well as the possibility that votes will be cast after 8 p.m. on Election Day, thus greatly undermining a pervading objective of the General Assembly.”
Justice Christine Donohue, also filed a concurring and dissenting opinion, partially joined by Saylor and Mundy.
“I agree with the majority that the received-by date for ballot applications in light of the deadline for submission of ballots to the county boards of election is unworkable under current circumstances. I dissent from the invocation of equitable powers to craft a remedy,” Donohue said.
“In my view, this issue should have been decided on the evidentiary record [and] based on the analytical framework for an as-applied challenge to the constitutionality of the statutory provisions as violative of Article 1, Section V of our Constitution, with the remedy crafted based upon the legislative intent in enacting the circumstantially defective statutes.”
Supreme Court of Pennsylvania case 133 MM 2020
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com