• Home
  • Opinion
  • Quizzes
  • Redistricting
  • Sections
  • About Us
  • Voting
  • Events
  • Civic Ed
  • Campaign Finance
  • Directory
  • Election Dissection
  • Fact Check
  • Glossary
  • Independent Voter News
  • News
  • Analysis
  • Subscriptions
  • Log in
Leveraging Our Differences
  • news & opinion
    • Big Picture
      • Civic Ed
      • Ethics
      • Leadership
      • Leveraging big ideas
      • Media
    • Business & Democracy
      • Corporate Responsibility
      • Impact Investment
      • Innovation & Incubation
      • Small Businesses
      • Stakeholder Capitalism
    • Elections
      • Campaign Finance
      • Independent Voter News
      • Redistricting
      • Voting
    • Government
      • Balance of Power
      • Budgeting
      • Congress
      • Judicial
      • Local
      • State
      • White House
    • Justice
      • Accountability
      • Anti-corruption
      • Budget equity
    • Columns
      • Beyond Right and Left
      • Civic Soul
      • Congress at a Crossroads
      • Cross-Partisan Visions
      • Democracy Pie
      • Our Freedom
  • Pop Culture
      • American Heroes
      • Ask Joe
      • Celebrity News
      • Comedy
      • Dance, Theatre & Film
      • Diversity, Inclusion & Belonging
      • Faithful & Mindful Living
      • Music, Poetry & Arts
      • Sports
      • Technology
      • Your Take
      • American Heroes
      • Ask Joe
      • Celebrity News
      • Comedy
      • Dance, Theatre & Film
      • Diversity, Inclusion & Belonging
      • Faithful & Mindful Living
      • Music, Poetry & Arts
      • Sports
      • Technology
      • Your Take
  • events
  • About
      • Mission
      • Advisory Board
      • Staff
      • Contact Us
Sign Up
  1. Home>
  2. Election Dissection>
  3. vote by mail pa>

In Pennsylvania, Supreme Court punts on constitutional issues. For now.

Steven Huefner
October 20, 2020
U.S. Supreme Court
Drew Angerer/Getty Images

The U.S. Supreme Court's decision on an important absentee voting case from Pennsylvania means that, for now, mail-in ballots will have more time to arrive and be counted in this key swing state. That could have a significant impact on the election, but this might not be the last word from the high court.

The justices were reviewing a Pennsylvania Supreme Court decision, Pennsylvania Democratic Party v. Boockvar. Many commentators had expected the Supreme Court to stay that decision, as requested by state Republicans, and in so doing possibly address difficult questions about the meaning of some key provisions in the U.S. Constitution. But with only a few weeks to go before the election, and on a 4-4 vote, the Supreme Court avoided reaching the underlying questions. The state ruling will stand for now.


Under Pennsylvania law, absentee ballots must arrive by 8 p.m. on the day of the election. But during the June primary, election offices were overwhelmed, thanks to Covid-19. Nearly 20 times the expected number requested to vote absentee. Thousands didn't receive their ballots in time to return them by Election Day.

In response, the Pennsylvania Democratic Party and others asked the state Supreme Court to permit absentee ballots postmarked by Election Day in the general election to be received several days later. The Pennsylvania court agreed. It also said mailed ballots received by the third day after Election Day even without a legible postmark should be presumed to have been mailed by Election Day unless evidence established otherwise.

Sign up for The Fulcrum newsletter

The state court relied on the Pennsylvania Constitution's "Free and Equal Elections" provision, which protects "a voter's right to equal participation" in the state's electoral process. Essentially, it said absentee voters should not be disenfranchised by delays beyond their control, as long as those voters have actually cast their votes by the same deadline applicable to voters who vote in person. A secondary though critical element of the court's ruling was that Pennsylvania's election process (like the process in every state) already provides time after Election Day for officials to count other ballots that arrive later, including ballots of military and overseas voters.

Indeed, there's a compelling argument that allowing military and overseas voters to cast an absentee ballot that arrives after Election Day, while denying other voters the same opportunity, is a violation of the U.S. Constitution's 14th Amendment's guarantee of equal protection of the law. This argument prevailed in Obama for America v. Husted, a 2012 challenge to an Ohio law that provided different dates for military and overseas and domestic voting.

A second part of the state court case is trickier. The court decided to permit the three-day extension of the ballot return deadline to apply to ballots without a legible postmark. The Pennsylvania Republican Party argued to the U.S. Supreme Court that this ruling would permit voters to cast ballots after Nov. 3. But voters do not control whether an absentee ballot return envelope bears a legible postmark. Voters shouldn't be disenfranchised, the court said, "for the lack or illegibility of a postmark resulting from the USPS processing system."

The Supreme Court's denial of a stay doesn't mean it agrees with the Pennsylvania state court on the merits. It's merely a decision not to disturb this state court decision now, with the election only two weeks away. So we wait to see whether absentee ballots arriving by the third day after the election without a postmark will make a difference in the Pennsylvania outcome. If they do, it's still possible the U.S. Supreme Court may have to consider the details.

Steven Huefner is professor of law and deputy director of the election law program at The Ohio State University's Moritz College of Law. Read more from The Fulcrum's Election Dissection blog.

From Your Site Articles
  • Legal wins gives hope to promoters of smooth elections - The Fulcrum ›
  • Pennsylvania could decide the election, but it's a mess now - The ... ›
  • GOP to keep fighting late ballots in Pennsylvania - The Fulcrum ›
  • The coming Supreme Court showdown that may affect your vote - The Fulcrum ›
  • Court allows Pennsylvania latitude to reject mail ballots - The Fulcrum ›
Related Articles Around the Web
  • High court allows 3-day extension for Pennsylvania ballots ›
  • Supreme Court declines to block Pennsylvania mail-in ballot extension ›
  • Supreme Court leaves in place order requiring Pennsylvania to ... ›
  • Supreme Court Tie Gives Pennsylvania More Time to Tally Some ›
vote by mail pa

Want to write
for The Fulcrum?

If you have something to say about ways to protect or repair our American democracy, we want to hear from you.

Submit
Get some Leverage Sign up for The Fulcrum Newsletter
Follow
Contributors

Reform in 2023: Leadership worth celebrating

Layla Zaidane

Two technology balancing acts

Dave Anderson

Reform in 2023: It’s time for the civil rights community to embrace independent voters

Jeremy Gruber

Congress’ fix to presidential votes lights the way for broader election reform

Kevin Johnson

Democrats and Republicans want the status quo, but we need to move Forward

Christine Todd Whitman

Reform in 2023: Building a beacon of hope in Boston

Henry Santana
Jerren Chang
latest News

Becoming the (healthy) fungus among us

Debilyn Molineaux
22h

Podcast: God squad: Let friendship redeem the republic

Our Staff
22h

Facebookopoly

Seth David Radwell
23h

Does partisanship impact happiness?

Lynn Schmidt
07 February

Return copyright to its roots: Compensate human creators

Samantha Close
07 February

It’s the institutional design, stupid! With a parliamentary system, America could avoid gridlock and instability

Milind Thakar
06 February
Videos

Video: America's civic education gap: What can business do?

Our Staff

Video: What does it mean to be Black?

Our Staff

Video: The dignity index

Our Staff

Video: The Supreme Court and originalism

Our Staff

Video: How the baby boom changed American politics

Our Staff

Video: What the speakership election tells us about the 118th Congress webinar

Our Staff
Podcasts

Podcast: God squad: Let friendship redeem the republic

Our Staff
22h

Podcast: Why Democrats fail with rural voters

Our Staff
06 February

Podcast: Anti-racism: The pro-human approach

Our Staff
03 February

Podcast: 2024 Senate: Democrats have a lot of defending to do

Our Staff
02 February
Recommended
Becoming the (healthy) fungus among us

Becoming the (healthy) fungus among us

Big Picture
Podcast: God squad: Let friendship redeem the republic

Podcast: God squad: Let friendship redeem the republic

Podcasts
Facebookopoly

Facebookopoly

Big Picture
Does partisanship impact happiness?

Does partisanship impact happiness?

Big Picture
Return copyright to its roots: Compensate human creators

Return copyright to its roots: Compensate human creators

Business & Democracy
Video: America's civic education gap: What can business do?

Video: America's civic education gap: What can business do?