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Ballot extensions in 2 key states survive Supreme Court, but Pa. fight not over
Oct 29 2020
Ballots that arrive several days late in the pivotal battlegrounds of Pennsylvania and North Carolina will get counted. But whether all those votes will actually count in the contest for president is still not sure.
That's the main takeaway from back-to-back rulings Wednesday from the Supreme Court. They were likely the last important voting decisions before an Election Day where the ground rules have been whipsawed as never before by partisan litigation fueled by a pandemic.
<p>The Pennsylvania case remains in legal limbo. That because all the court did was say it wasn't going to fully reconsider the three-day grace period before the voting stops — but that it might afterward.</p><p>It made that decision after the state promised to to instruct local boards of elections to segregate all the mailed votes that arrive after the polls close Tuesday but before the end of the workday Friday — making it logistically possible to remove that part of the tabulation later, potentially changing the outcome in a tossup state with 20 electoral votes. (As of Thursday, 1 million requested absentee ballots in the state had not yet been returned, while 2.1 million had.) </p><p>The nine-day extension that North Carolina has granted for ballots postmarked as late as Tuesday was locked down by the court, however — so the presidential race could be up in the air until Nov. 12 or longer if the state's 15 electoral votes prove decisive. (The state says 600,000 of its requested mailed ballots have not come back.)</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>Justice Amy Coney Barrett, on the bench only a day, did not participate in either case because, the court said, she had not had time to get up to speed on the disputes.</p><p>The non-legalistic bases of both are the same. People are voting absentee in unprecedented numbers to avoid possible coronavirus exposure at their polling places. Democrats have spent months pushing for more leniency in the distribution and counting rules for mailed ballots. And Republicans have fought them at almost every turn, arguing with hardly any evidence that such relaxations will sully American democracy with cheating.</p><p>The Pennsylvania extension was ordered by the state Supreme Court, based on the belief that the state Constitution required the easements to protect voting rights in light of Covid-19 and pervasive Postal Service delays. The Supreme Court <a href="https://thefulcrum.us/pennsylvania-election" target="_self">first upheld </a>that decision on a 4-4 tie last week. Chief Justice John Roberts joined the court's three liberals, later explaining his position that state courts are free to interpret their own state constitutions in voting cases.</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>The state Republican Party tried again, and on Wednesday only three of the most conservative justices said they wanted to decide the case in the week before Election Day and will ask their colleagues to pick it up afterward: Samuel Alito, Clarence Thomas and Neil Gorsuch. </p><p>The same three also dissented from the North Carolina decision, which was unsigned and had no majority opinion. It <a href="https://thefulcrum.us/nc-vote-by-mail" target="_self">upheld a federal appeals court</a>, which ruled 12-3 last week that the state Board of Elections could extend the deadline under its authority to change voting rules during emergencies. (It's done the same thing after hurricanes in two recent election years.)</p><p>Where the court takes election law next is a bit unclear.</p><p>Alito declared that, by not finalizing the Pennsylvania fight, the election will be "conducted under a cloud" and the court has "needlessly created conditions that could lead to serious postelection problems."</p><p>He also reiterated his view that the federal Constitution gives state legislatures exclusive authority to make the rules for their congressional and presidential elections.</p><p>That echoed a concurring opinion issued on Monday by Justice Brett Kavanaugh when <a href="https://thefulcrum.us/voting/vote-by-mail-wisconsin" target="_self">the court struck down</a> an absentee ballot extension in another battleground, Wisconsin, that had been ordered by a federal judge. His opinion has alarmed some legal scholars and democracy reformers because it pointed to the Supreme Court's decisions in cases culminating in Bush v. Gore. That 5-4 ruling, which settled the disputed 2000 results in Florida and handed the presidency to George W. Bush, has been ridiculed ever since as both legally flawed and motivated by raw partisanship.</p>
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In Pennsylvania, Supreme Court punts on constitutional issues. For now.
Oct 20 2020
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.
<p>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. </p><p>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. </p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>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. </p><p>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 <a href="https://moritzlaw.osu.edu/electionlaw/litigation/documents/Opinion_006.pdf" rel="noopener noreferrer" target="_blank">Obama for America v. Husted</a>, a 2012 challenge to an Ohio law that provided different dates for military and overseas and domestic voting. </p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>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." </p><p>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 <a href="https://www.axios.com/supreme-court-pennsylvania-mail-in-voting-cd322239-57bb-4bae-aabe-a4116e5bf6d5.html" rel="noopener noreferrer" target="_blank">the Pennsylvania outcome</a>. If they do, it's still possible the U.S. Supreme Court may have to consider the details. </p><p><em>Steven Huefner is professor of law and deputy director of the </em><a href="https://moritzlaw.osu.edu/electionlaw/" rel="noopener noreferrer" target="_blank"><em>election law program</em></a><em> at The Ohio State University's Moritz College of Law. Read more from The Fulcrum's </em><a href="https://thefulcrum.us/election-dissection" target="_self"><em>Election Dissection</em></a><em> blog.</em></p>
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Pennsylvania election officials cannot begin processing mail-in ballots before Election Day, ensuring the winner of the state's 20 electoral votes will not be known for days.
GOP looks to keep fighting against late-arriving mail ballots in Pennsylvania
Oct 20 2020
Republicans signaled Tuesday they are not giving up their effort to shut down the vote count on Election Day in Pennsylvania, hours after the Supreme Court delivered a significant win to Democrats by permitting absentee ballots in the pivotal battleground to arrive later.
Word from GOP leaders in the state magnified the realities that legal fighting over almost every aspect of the presidential race is far from over — and that Judge Amy Coney Barrett could play a deciding role in this year's essential democratic exercise as soon as she arrives on the high court, probably next week.
For the time being, though, the situation in Pennsylvania, with 20 electoral votes crucial to both candidates, is something of a good news, bad news situation for an already confused electorate.
<p>On the one hand, voters who wait until the last minute to cast their absentee ballots are less likely to be disenfranchised because they get delayed by the mail. But on the other hand, the winner in the state, and perhaps the winner of the presidency, very likely won't be known until the weekend after the election — at the earliest.<br></p><p>That suspense will be compounded because none of the state's 2 million or more expected vote-by-mail envelopes will even be opened, and the signatures on them checked, until after the polls open Nov. 3. Negotiations in Harrisburg on a last-minute deal to allow that processing to start earlier essentially collapsed Monday. </p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>What the Supreme Court decided later Monday night, because of a 4-4 deadlock, was to let stand a decision by the Pennsylvania Supreme Court. It had ruled that ballots arriving by Nov. 6, or three days late, should be counted so as not to punish voters for the consequences of the coronavirus pandemic and delays by the Postal Service — so long as they were postmarked by the time the polls closed or, if the postmark was missing or illegible, it could be proved the ballot went in the mail after Election Day.</p><p>The state court noted that Pennsylvania law allows mail ballots to be cast on Election Day, even though delivering them by the end of the day is impractical. Republicans say the court claimed authority that belongs to legislators.</p><p>Putting a halt on that ruling, called a stay, would have required five votes. The four most conservative justices justices would have done so: Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh. On the other side were Chief Justice John Roberts Jr. and the three liberal justices, Stephen Breyer, Sonia Sotomayor and Elena Kagan.</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>Neither side offered anything in writing, and the fact that it took two weeks for the decision in such an urgent case suggests that compromise had proved impossible.</p><p>But it also gave the Republicans a legal window to try again after all nine seats are occupied. Barrett is on course to secure Senate confirmation in the first half of next week, which is the week before the election. During her confirmation hearings she declined to say if she would recuse herself from presidential election cases, on the grounds she would be biased toward the candidate who put her on the court. </p><p>Top Pennsylvania GOP officials issued statements Tuesday signaling they were ready to press the issue.</p><p>Monday night's ruling "only underscores the importance of having a full Supreme Court as soon as possible," Chairman Lawrence Tabas said. "The Supreme Court decided not to grant a stay — which does not mean the actions of the Pennsylvania Supreme Court would withstand a legal challenge to their Judicial overreach should the court hear the case."</p><p>"We are still hopeful that a full court will reverse the Pennsylvania Supreme Court's intrusion, added the party's top attorney, Tom King.</p><p>Trump, meanwhile, derided the Supreme Court ruling as "ridiculous" on "Fox & Friends" Tuesday morning.</p><p>The decision sets aside one of the biggest legal hurdles still facing the election in Pennsylvania. The state Supreme Court is expected to decide in the coming days what rules, if any, should face election officials confronted with sloppy mail ballot signatures. </p><p>Democrats had requested 1.7 million absentee ballots in the state as of the end of last week, to just 672,000 for Republicans — one of the reasons the Joe Biden campaign is optimistic of carrying the state if all his supporters follow through. Trump carried the state by 44,000 votes, or less than 1 point, last time.</p><p>"In a year where there is a very real possibility that the final presidential election result hinges on Pennsylvania, the new rules imposed by the decision of the Supreme Court of Pennsylvania (a body elected in partisan elections) could destroy the American public's confidence in the electoral system as a whole," the state GOP and the party's legislative leaders said in their high court brief.</p><p>Pennsylvania and North Carolina are the two presidential tossup states where Republicans control the legislatures but Democrats hold most state Supreme Court seats.</p><p>The justices' decision was a big deviation from its record in election cases since the pandemic began. In all but one other case, the court has come down on the side of stricter rules for voting — mainly by applying a precedent against judges loosening procedures close to Election Day. It's first such ruling, hours before Wisconsin primary day in April, overturned a federal judge's decision lengthening the time for absentee voting. (The court did allow ballots to arrive late in that case, too, however.)</p>
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Democratic Gov. Tom Wolf wants to speed the count by allowing processing of mail ballots before Election Day. Republicans in Harrisburg want to restrict drop boxes.
Pennsylvania may decide the election, but has to decide many rules first
Oct 16 2020
Eighteen days from when the voting stops, no battleground state has its election procedures more up in the air than Pennsylvania.
Whether to permit an extension for the arrival of absentee ballots will be decided any day by the U.S. Supreme Court, protecting or disenfranchising tens of thousands of voters.
Whether to reject ballots for sloppy signatures will be decided any day by the state Supreme Court, determining the validity of thousands more votes.
Whether to allow processing of mailed ballots before Election Day will be decided any day at the state capital, either speeding or delaying results that could settle who wins the presidency.
<p>And then there are the continued disputes over how expansively to permit ballot drop boxes, what to do with mistakenly duplicated vote-by-mail applications, how to recover from ballot printing mistakes, how much more to regulate poll workers — and whether <a href="https://thefulcrum.us/voter-fraud-cases" target="_self">discarded vote envelopes</a> sent by Pennsylvanians in the armed forces overseas are a sign of sweeping election fraud. (The big hint here: There were nine of them, not the "thousands of ballots" President Trump falsely claimed Thursday night.)</p><p>All the indecision suggests that another round of fresh legal fights is likely to be unleashed after Nov. 3 if the national contest between Trump and former Vice President Joe Biden remains too close to call — and Pennsylvania's 20 electoral votes remain up for grabs. (State law says that's supposed to be settled with the certification of election results by Nov. 23.)</p><p><p style="text-align: center;" id="sufn"><a style="font-weight: bold;margin:40px auto;font-size:2rem" href="https://thefulcrum.us/st/newsletters">Sign up for The Fulcrum newsletter </a></p></p><p>"I happen to think that Pennsylvania could be ground zero in the country for determining the outcome of the presidential election because of the delays from litigation," Philadelphia election lawyer Matt Haverstick t<a href="https://www.spotlightpa.org/news/2020/10/pa-supreme-federal-courts-election-decisions/" target="_blank">old Spotlight PA</a>. "I have a feeling we are going to be the Florida of 2020."</p><p>The most dramatic possible scenario involves competing slates of electors vying for the eye of Congress — one group backing Trump that gets forwarded by the Republican-majority General Assembly, and a group for Biden endorsed by Democratic Gov. Tom Wolf.</p><p>But that hypothetical would come true more than two months from now, and several more tangible disputes must be settled in the next two weeks.</p>
<p>In the meantime, a record 2.6 million Pennsylvanians have already asked for and received mail-in ballots, and 518,000 had been returned by the middle of the week. Four years ago, Trump carried the state by just 45,000 votes out of 6 million cast.</p><p><div class="x12"><div class="htlad-Desktop_Content_Banner"></div></div></p><p>Assuming turnout is higher this year, as widely expected, the most important pending case looks to be the one before the U.S. Supreme Court. </p><p>Republicans are asking the justices to reverse a ruling by the state's high court last month, ordering a three-day extension for the arrival of absentee ballots mailed by the time the polls close Nov. 3. The state's justices also ruled 4-3 that envelopes with a missing or unclear postmark must be accepted, so long as there's no indication they were sent in after polls closed.</p><p>More than 18,000 envelopes were tossed because they arrived after primary day in June, or about 1 percent of the total vote.</p><p>Republicans say Election Day arrival should be the rule again, not only because the state court imposed its will on a decision that should have been left to legislators but also because the justices changed the rules too close to the election. Both arguments have fared well in a series of election cases the Supreme Court has considered since the coronavirus pandemic upended normal election rhythms this spring.</p><p>The state high court said this week it would decide another big dispute before Election Day: Democratic Secretary of State Kathy Boockvar, Pennsylvania's top election official, wants the court to prevent counties from rejecting ballots based on a subjective assessment of the signatures on the envelopes by election officials, who are not trained to see how handwriting can change over time. (About 1,800 primary ballots were rejected for this reason this summer.)</p><p>The Trump campaign wants to disqualify mail-in ballots with signatures that don't appear to match what's on file. A federal judge in Pittsburgh last week threw out a lawsuit to that effect, which also sought to lift the county residency rule for partisan election monitors and an effective ban on ballot drop boxes.</p><p>While Trump's team readies a federal appeal, his GOP allies in Harrisburg are pursuing his poll watcher and drop box preferences as their main objectives in negotiations over a last-minute election bill. But on Thursday the governor's office described his latest offer as having been spurned and said the talks are at an impasse.</p><p>Wolf's main goal is a change in state law to permit county election officials a head start of at least a few days to check the signatures, open the envelopes and stack the ballots for tabulating — painstaking work that right now can only begin the morning of Election Day. (Winners of some close legislative and congressional primaries were not clear for weeks afterward as a result of that late start.)</p><p>Such a switch would speed the vote count, assuring a vast majority of ballots are tabulated on election night and reducing the ability to credibly claim the results are being manipulated. At a campaign rally in Pennsylvania this week, Trump falsely asserted that the only way he could lose the state is if Democrats cheat. (Polling for now shows Biden with a single-digit lead.)</p><p>A spurt of worry about potential fraud quickly subsided Thursday but was supplanted by a wave of voter confusion.</p><p>The state reportedly rejected 372,000 requests for mail-back ballots that seemed fishy at first blush, but the cause of that enormous number turned out to be benign. More than 90 percent were duplicates — from people who failed to remember that, back when they asked to vote absentee in the primary, they checked a box to get a general election absentee ballot as well. </p><p>Even before the pandemic, the state had decided to drop strict excuse requirements on the books for years and to encourage more use of the mail — and the new system has proved baffling or worry-inducing to many, and overwhelming to local officials. </p><p>Officials in Pittsburgh, for example, were scrambling to get more than 29,000 replacement ballots to voters who had received vote-by-mail packets asking the to cast down-ballot votes for races in a different parts of the state</p><p>Only 4 percent of votes were cast by mail statewide just two years ago, but it was more than half in the primary.</p>
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