Skip to content

Latest Stories

Top Stories

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

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.

Read More

The election went remarkably well. Here's how to make the next one even better.
Jeff Swensen/Getty Images

The election went remarkably well. Here's how to make the next one even better.

We haven't yet seen evidence that would cast doubt on the legitimacy of the 2020 presidential election — even with the unprecedented challenges of a global pandemic, the threat of foreign interference, civil unrest and greater turnout than any time since 1900. That counts as a resounding success.

Once the final tallies are certified, we need to thank the election administrators and poll workers whose heroic efforts preserved American democracy. After that, we need to assess what worked best and what needs to improve, so we can identify achievable steps to make future elections even more secure.

Based on what we know so far, here are five things that should be on the U.S. elections to-do list:

Keep ReadingShow less
USA map with flags
FotografiaBasica/Getty Images

Distorted U.S. democracy underscores urgency of Electoral College reform

On Dec. 14, the Electoral College will cast its votes. Barring any unforeseen outrage, a majority will vote for Joe Biden, the popular vote winner in the general election, to sighs of relief. Many may conclude the creaky Electoral College works most of the time, and that any fixes are just too hard to worry about.

That would be a mistake.

Keep ReadingShow less
Georgia voting stickers
Stop the presses, says appeals court, even if that means longer Georgia voting lines
Jessica McGowan/Getty Images

The three steps to ensure a well-run runoff in Georgia

Hold the champagne: The 2020 Election Season isn't over just yet. Neither of Georgia's Senate races resulted in a victor on Election Day, sending both contests to January runoffs that will likely determine control of the U.S. Senate. And while many folks are understandably focused on the political repercussions of these races, I'm pulling for a different candidate: democracy.

While Georgia will likely conduct a risk-limiting audit and recount of the presidential election later this month, the state appears to have done a good job administering the 2020 presidential election. As a former election administrator and expert on the integrity of elections, my assessment is there is no reason to question the integrity of the election outcome. If any concrete evidence suggesting that wrongful disenfranchisement has or will affect the accuracy of the outcome, that assessment could change. Right now, there isn't.

Regardless, these are three steps Georgia officials could take now to ensure the integrity of the state's runoff elections in January:

Keep ReadingShow less
Even if it's not official, Republicans should acknowledge Biden's win

Even if it's not official, Republicans should acknowledge Biden's win

The nation has a new president-elect, Joe Biden. At the same time, there is no official president-elect, because the electoral process itself hasn't yet reached that point.

How can both these assertions be true? And if they are, how are Americans supposed to understand that? Most importantly, how can Americans of opposite parties get on the same page, so that we can move forward together as one country, as our new president-elect in his impressive victory speech is urging us to do?

When it comes to ending elections, there are actually two different processes at work, and they operate on different timelines.

Keep ReadingShow less
What's next for U.S. democracy after the president's stress test?
Jay Cross/Flickr

What's next for U.S. democracy after the president's stress test?

In another assessment of the 2020 vote so far, Election Dissection sat down with Laura Williamson, who works on voting rights and democracy at Demos. We spoke about President Trump's election night remarks as a stress test for the United States. Williamson had plenty to say about the state of the elections and some things that need fixing after the votes are finally counted.

What was your reaction to the president?

The president's remarks and actions are a test of our ability to show up, as a people, to mass mobilize and resist his authoritarian calls to end the counting. The basis of our democracy is that we pick our leaders. It's not the president or the courts that choose. So it's a test of our ability as a people to resist what is so clearly an anti-democratic attack.

And Americans are rising to the test. We're seeing masses of people calling for every vote to be counted. They're showing up and exercising their political power. We flexed our political power one way, by voting before or on Election Day. Now we're exercising it again in a different way — showing up in the streets and demanding every eligible vote is counted.

Keep ReadingShow less