Mail-in Ballots:  In or Out in Pennsylvania?

There has been much discussion of and controversy surrounding mail-in ballots in Pennsylvania and their legality this year which has intensified as we get closer to the general election on November 8.  Several lawsuits have been filed concerning them and some of those have reached our Supreme Court.  Claims have been brought claiming this type of ballot itself is unconstitutional and regarding their effectiveness as a ‘vote’ if the procedures to submit such a ballot are not strictly followed.  So how did we get to this point with only a few days before an election where it is believed that an estimated over 500,000 of mail-in ballots have already been cast?

Prior to the Civil War, Pennsylvania election law did not provide for any method to vote other than in person at your proper polling place and casting your vote.  In 1864, probably as a result of those serving away from home due to the conflict at the time, the election law provided for voting by mail if the voter was absent from his required polling place on Election Day due to active military service (this was later amended to include absent due to ‘duty, business or occupation’).  Over the years, a few other categories of voters were added and allowed to vote by ‘absentee’ ballot.  These included those who were involved in “Election Day duties” or those because of illness, disability, or observance of a religious holiday could not present themselves at their polling place.  If a voter did not qualify under one of these limited exceptions, he could not vote by mail.

That all changed with the passage of Act 77 by the General Assembly in October 2019.  Although Act 77 made several changes to the election laws, the provision for ‘universal’ mail-in voting has caused the most controversy since its inception.  Much of this arises from the fact that less than 6 months after its enactment, the COVID-19 pandemic struck.  In the ensuing months, the Commonwealth went through a shut down and the primary election, originally to take place in April 2020 was postponed to June.  In that primary, 51% of the votes cast in Pennsylvania were done by mail-in voting.  In the November General Election, over 38% of the votes cast were by mail-ins.  The results of that election provided the stage for several legal challenges with the Commonwealth Court granting an injunction stopping certification of that vote on the basis the universal mail-in voting provision of Act 77 was unconstitutional.  The Pennsylvania Supreme Court disagreed and reversed that finding holding the challengers had waited too long to lodge their challenge.  An appeal to the U.S. Supreme Court was denied, and the November vote was properly certified.

However, shortly thereafter, similar challenges were again brought to the Commonwealth Court.  The challenger asserted that the Pennsylvania Constitution provides in the registration requirement that a voter must establish residency for 60 days in the election district he or she “shall offer to vote.” He asserted that this phrase requires the voter be physically present to cast a legal ballot unless he/she meets one of the three narrow exceptions mentioned earlier that the Constitution permits.  Thus, the universal mail-in allowance of Act 77 is unconstitutional and void.  The Commonwealth Court agreed and declared the universal mail-in provision unconstitutional.

On appeal to the Pennsylvania Supreme Court, in a 76-page opinion by Justice Donahue, the Supreme Court again reversed the Commonwealth Court and found no constitutional bars to the universal mail-in provisions of Act 77.  The Court rejected the argument that ‘offer to vote’ required physical presence of the voter. The Court observed more than once that the General Assembly is vested ‘with great legislative power’ by the Commonwealth’s Constitution to regulate elections so long as its enactments do not violate the Constitution.  The Court found no such violation in the universal mail-in provision. So, for the time being, universal mail-in voting is the law of Pennsylvania.

This does not mean that challenges to mail-in ballots have ended. Part of the requirements to properly cast a mail-in ballot is that the voter, after completing the ballot and securing it in the ‘official’ envelope, requires that the voter place it in a second ‘mailing’ envelope on which the voter must place his/her signature and date.  Several earlier decisions of the Commonwealth Court would appear to hold that the lack of a date is not a proper basis to reject a mail-in ballot.  However, challenges to those decisions filed in October in the Pennsylvania Supreme Court involve whether mail-in ballots that are missing the date on the outer envelope are valid and may be counted in the vote totals.  On November 1, the Supreme Court filed an order (with opinions to follow) directing County election officials to segregate and preserve absentee and mail-in ballots with missing or ‘incorrect’ dates with further instructions not to count those ballots in the November general election totals.  A related issue of whether the failure to count such ballots violated federal election law evenly split the Court. 

For the November election, mail-in ballots, many of which have already been cast, are proper and will be counted.  However, those missing or showing incorrect dates on the outer envelope will not.  It is doubtful that this will be the last word, so stay alert for further developments.

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