The Pa. Supreme Court made the wrong call with mail-in ballot ruling | Opinion

October 1, 2020 6:30 am

The Pennsylvania Judicial Center in Harrisburg (Capital-Star file)

By Linda A. Kerns

Several years ago, I asked a student interning at my office to mail a letter for me.  She put the stamp in the upper left hand corner, where most people put the return address. Last year, when a young relative of mine asked me how to apply for an absentee ballot, I sent him the blank application along with a prepared envelope – and included a stamp already affixed in the correct location. 

He told me later that he could not find a mail box or Post Office to send it. As the hysteria builds in this election year over mail in voting, I wonder — how many people, especially those raised in the era of email and mobile phone apps, actually understand how to use the U.S. Mail. Even if people figure out where and how to vote by mail, what happens if they do not mail their ballot back in time?

A vote must be received to be counted. Election administrators receive ballots cast in person — whether on a machine in a polling place or filled out and hand delivered to an election office — before the end of Election Day.  Mailed ballots, however, add an element of uncertainty, and previously our law said either it gets there by Election Day or it is not counted.

An avalanche of litigation in Pennsylvania, with a Secretary of State and executive administration as willing partners, sought to change some of our laws, such as mail ballot deadlines and ballot certification procedures. 

Pennsylvania’s June primary, that saw approximately 37,000 mail ballots rejected for failure to follow the rules, triggered this legal feeding frenzy.  It raised alarm bells, featuring ballot collection boxes at fairgrounds, supermarkets and other random locations, as well as overwhelmed officials who could not effectively process the mail in ballots. 

Pa. Senate Republicans take mail-in ballot fight to U.S. Supreme Court

Last week the Pennsylvania Supreme Court, brimming with left-leaning justices, agreed to change the law by extending the deadline and overhauling the election procedure by judicial fiat.  Now ballots postmarked by Election Day will be counted if received by three days after Election Day. 

The Pennsylvania GOP asked the United States Supreme Court on Monday to stay the Pennsylvania Supreme Court’s ballot return extension.  With the death of Justice Ginsburg, the Court’s 5-3 conservative majority could easily rectify Pennsylvania’s mistakes.  While the Court historically shies away from disputes arising only under state law, the ballot includes federal candidates which would spark the Court’s interest.

In 2016, Trump edged out Clinton in the Keystone State by a razor thin margin of approximately 44,000 votes.  When Pennsylvania election officials rejected 37,000 mail-in ballots in this summer’s primary, everyone realized that a similar number of rejections in November could decide who takes the White House.

Even with the extended deadline, a large number of ballots may still be rejected.  Because USPS first class mail takes an average of 10 days roundtrip, voters who submit their mail ballot requests just before the current deadline may not have enough time to successfully return their ballot by mail. 

Another problem — the postmark process is far from foolproof.  Mail with pre-paid postage –something Secretary of State Kathy Boockvar recently announced the Pennsylvania Department of State will provide for voters — does not always receive an official postmark as it is often sorted differently than regularly stamped mail.

Under the court ruling, a ballot missing a postmark will still be counted if received by November 6, unless someone can show that it was mailed after Election Day. 

Election officials therefore have no way of verifying whether ballots were actually sent before the 8:00 p.m. deadline on election night, which means as long as they arrive before the extended return deadline, they will be counted, even if they were actually voted after Election Day.

When ballots cast after Election Day are accepted, it fundamentally alters the nature of the election––something the Supreme Court reiterated after Wisconsin’s election mess in April.  And with Pennsylvania’s long history of election fraud, extending the return deadline only increases opportunity for ballot fraud and illegal voting. 

Do we really want ballots streaming in days after Election Day?  Should our election officials be bogged down with examining tiny postmarks on envelopes and trying to read the dates? 

Election integrity procedures provide necessary checks to mail voting that build public trust — our elected officials debated and passed these laws in a democratic process.  Allowing lawyers and lawsuits to change our duly enacted laws does nothing but create chaos and foment distrust. 

If Pennsylvania chooses the White House’s next occupant, let the Pennsylvania voters make that choice – not scheming interest groups and lawyers that want to alter the playing field for their preferred candidate.

Linda A. Kerns is a co-founder of Broad & Liberty, a Philadelphia-based think-tank. Readers can follow her on Twitter at @lindakernslaw.

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