Even before the 2020 presidential election was called by various news media in favor of President Elect Joe Biden based on the votes already counted, President Donald Trump’s campaign has been in court over Pennsylvania’s election laws. The various challenges to election practices that are both long-standing and directly in response to the COVID-19 pandemic have the potential to change current election law in the Commonwealth.
The primary focus of these challenges to election laws in Pennsylvania concerns the means of receiving and verifying voter ballots. Mail-in ballots were the most common source of legal challenges. While absentee voting has long been permitted in Pennsylvania, the COVID-19 pandemic spurred a wider adoption of mail-in ballots for at least this election cycle.
There are differences between absentee ballots and mail-in voting. Absentee ballots are only used by those who are out of their municipality or unable to go to the polls because of some kind of barrier like disability, illness, or military service. Mail-in ballots were created in October 2019 by Act 77 and allow any registered voter to request a ballot and vote by mail. The addition of mail-in voting served to amend the voting act passed in 1937 in the state, which described absentee voting. Both absentee and mail-in ballots require the voter to apply, and they are screened and processed the same way by Pennsylvania election offices.
As mentioned previously, most of the challenges to election law in the Commonwealth had to do with these new mail-in ballots. One major concern was so-called “naked ballots,” or those submitted without the secrecy envelopes. These kinds of ballots were counted during the state’s primary election earlier in 2020, but a number of lawsuits ensued regarding whether such secrecy envelopes should be required for the validity of a vote. The Pennsylvania Supreme Court held on September 17 that any ballots mailed back without the secrecy envelope would not be counted for the general election in November.
President Trump’s campaign brought the suit challenging naked ballots with the Republican National Committee and argued that the secrecy envelopes are critical in preventing voter fraud. There was no evidence of fraud produced during the litigation of this case, however. A total of 16 states have historically required absentee ballots to be mailed with secrecy envelopes, while other states and jurisdictions make it optional or provide other means by which the state can remove identifying information from a verified ballot before it is counted.
The Trump campaign also sued over the absentee ballot drop-off locations in July of this year, alleging that these drop-off locations are a threat to free and fair elections because they are not monitored or secure enough. The U.S. District Court for the Western District of Pennsylvania dismissed this suit stating that the alleged harm was speculative, and the parties did not meet their burden of proving that there was any actual injury.
Another major focus of the challenges to mail-in ballots came from the time at which the election offices received the votes. There was a challenge that went to the U.S. Supreme Court that upheld the order that absentee ballots must be mailed before or on Election Day and received in the next three days to be valid. The Supreme Court agreed that ballots would still be counted even if its postmark is missing or illegible as long as it was more likely than not cast before Election Day. The court held that the deadline for receiving mail-in ballots would be 5 pm the Friday following Election Day. The Trump campaign later brought a suit attempting to overrule that decision to approve of the extended deadline, but the U.S. Supreme Court dismissed it.
The U.S. Supreme Court held in another suit that mail-in ballots arriving after 8 pm on November 3 should be segregated and counted separately. This would allow the court to exclude such ballots should it hold in later proceedings that they are for some reason invalid.
The Pennsylvania Supreme Court also unanimously ruled near the end of October that absentee or mail-in ballots cannot be considered invalid based on a signature comparison. President Trump’s campaign argued that Pennsylvania’s election code required vote counters to conduct a signature-comparison for mail-in ballots and applications, and to discard those that did not match closely enough. The Court held that county election boards are not authorized to reject absentee or mail-in ballots based on signature comparisons.
The Trump campaign also announced on November 4, the day after Election Day, that it filed a lawsuit in Pennsylvania attempting to stop the state from counting absentee and mail-in ballots on the basis of the campaign’s alleged lack of access to ballot locations. The campaign alleged that it did not have enough access to observe the opening of ballots and the counting process. The court granted the campaign’s requests for greater access by allowing the observers to be closer to the counting but maintained that they must stay at least six feet away from the counters and wear masks.
Yet another suit dealt with attempts to cure ballots. When a ballot has been submitted with which election officials find a problem, they are permitted to contact the voters and attempt to cure the ballot after verifying the signatures and viewing proof of identification. The director of elections in Pennsylvania had allowed officials to cure the ballots for up to three days after the election as long as they were postmarked by election day in light of Pennsylvania’s permission to extend the deadline for receiving absentee ballots for three days. For this case, a Pennsylvania Commonwealth Court judge ruled that ballots may not be counted if the voters do not provide proof of their identity by November 9.
House of Representatives candidate Jim Bognet was another party to bring a suit after losing his bid on a Republican ticket this election cycle. The U.S. Court of Appeals for the Third Circuit denied his motion to separate mail-in ballots in the Commonwealth when they were received after 8 pm on Election Day, thus verifying over 9,300 mail-in ballots. This motion was denied because the court held that Bognet had not suffered an actual injury, which is required to establish that he has standing to bring the suit. He also alleged that the decision to extend the mail-in ballot reception deadline removed power from the Pennsylvania General Assembly illegally, but because none of the parties suing were actually part of the General Assembly, the court again held that they lacked standing to bring the suit.
There have thus been many challenges to current election laws in Pennsylvania this year. These challenges have contributed to a greater understanding of the extent of rights to cast and count mail-in or absentee ballots, as well as the state’s position on secrecy envelopes, signature comparisons, and standing to sue over elections in court. The insights gained from challenges this year will likely inform election processes and suits in the coming cycles.
With contribution from Angela Mauroni, second year J.D. candidate at the University of Pittsburgh School of Law.