The Pa. Supreme Court ruled on critical election questions Thursday. Here’s what you need to know

By: and - September 17, 2020 3:56 pm

Pennsylvania Supreme Court chambers in Harrisburg (Capital-Star photo)

The Pennsylvania Supreme Court issued rulings in a pair of election-related lawsuits Thursday, clearing the way for counties to send out mail-in ballots and extending the deadline for voters to return them.

The rulings resolve key questions of how Pennsylvania’s 67 counties will administer the Nov. 3 presidential election that’s just six weeks away, when they expect to see record-high turnout and an unprecedented level of voting by mail.

The state Legislature may still take action that could change protocols for requesting, submitting and processing mail-in ballots. But Gov. Tom Wolf has said he will veto any legislative proposal that puts new time constraints on voters. 

The Democratic majority on the Supreme Court offered a similarly expansive interpretation of Pennsylvania’s election law Thursday.

“The Election Code should be liberally construed so as not to deprive … electors of their right to elect a candidate of their choice,” Justice Max Baer, who was elected as a Democrat, wrote.

The first ruling the high court issued Thursday will allow counties to begin to print and send ballots to voters who requested to vote by mail. 

State law allows counties to mail ballots starting on Sept. 14. But the process was put on hold by a lawsuit brought by Democratic Party activists, which challenged the candidacy of Green Party presidential nominee Howie Hawkins, based on how he filed nomination paperwork.

The aim of the suit was to have Hawkins kicked off the ballot in Pennsylvania – a perennial objective of Democrats, who fear the far-left Greens will siphon votes from the Democratic nominee, the Associated Press reported.

But it had the effect of delaying the shipment of mail-in ballots to Pennsylvania voters, since some counties had printed ballots that included Hawkins’ name. 

The decision in favor of the Democratic plaintiffs split the high court 5-2, with all five of justices elected as Democrats signing on to the majority opinion written by Justice David Wecht. 

Now that the case is resolved, counties can start printing ballots and using them in tests for voter equipment. 

But that can take time, one election official told the Capital-Star, which makes it “very hard to say” when voters will receive ballots in the mail. 

“It’s good we got a decision, but boy, could we have used this weeks ago,” Forest Lehman, chief of elections in Lycoming County, said. “We will do what we can to get [ballots] out, but we want to make sure we do them correctly.”

The second case, a civil rights lawsuit brought against Pennsylvania by the state Democratic Party, sought five changes to the states’ election law ahead of the election. The Pennsylvania Republican Party and state Senate Republican leadership intervened in the suit to defend the law as it was written.

On three of the five changes, including on two of the biggest questions, the high court ruled for the Democratic Party, and against the Republicans.

Under the ruling, all ballots postmarked by 8 p.m. on Election Day, will be counted if delivered by 5 p.m. on the Friday after Election Day, Nov. 6.

State law already allows for military and overseas ballots to arrive up to a week after the election, an exception that Baer highlighted in the ruling.

“We conclude that this extension of the received-by deadline protects voters’ rights while being least at variance with Pennsylvania’s permanent election calendar, which we respect and do not alter lightly, even temporarily,” he wrote.

The timeline adopted was one put forth by Secretary of State Kathy Boockvar. Democrats had originally requested an extra week.

The court also approved drop boxes for mail-in ballots, whether in a satellite election office or an unmanned box, and found that residency requirements for poll watchers are constitutional.

The ruling was “the result of the clear legislative intent underlying Act 77 [Pennsylvania’s vote-by-mail law], which animates much of this case, to provide electors with options to vote outside of traditional polling places,” wrote Baer.

All five of the court’s justices elected as Democrats backed the drop box ruling, but one justice, Christine Donohue, did not agree with the additional deadline for mailed ballots.

In a dissenting opinion with the court’s two justices elected as Republicans, she argued that the deadline to apply for a mail-in ballot should be advanced from Tuesday, Oct. 27 to Friday, Oct. 23 to match postal delivery schedules.

Republicans in the General Assembly, who crafted the 2019 law approving mail-in ballots, have also been leery of providing more time for mail-in ballots to arrive. Instead, the House passed legislation earlier this month to advance the application deadline and ban drop boxes.

The court’s decisions immediately sparked partisan reactions Thursday.

In a joint statement, Wolf and Attorney General Josh Shapiro hailed the court actions as a victory “that will help ensure that every eligible voter will more easily be able to cast their ballot and have it counted fairly.” 

Republican leaders, meanwhile, charged that decisions would make elections less secure, but did not say how they would invite fraud or interference.

President Donald Trump has falsely said this year that mail-in voting is vulnerable to fraud. 

But states that hold elections entirely by mail report that fraud is extremely rare.

“There is no such thing as a perfect election system … but vote-by-mail fraud is painfully small, it’s virtually non-existent,” Paul Rosenzweig, an election security expert at the conservative R-Street Institute, told the Capital-Star this spring.

The top Republicans in the Senate also said that the Supreme Court overstepped its constitutional role by deciding on matters related to election administration. 

“The responsibility to determine the times, places and manner of elections lies solely within the legislative process,” Senate President pro Tempore Joe Scarnati, R-Jefferson, and Majority Leader Jake Corman, R-Centre, said in a joint statement. 

State lawmakers did not amend the state’s election code before they adjourned for a lengthy summer recess in June, and Wolf has said he will veto measures that emerged from the House and Senate in late August. 

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Elizabeth Hardison
Elizabeth Hardison

Elizabeth Hardison covered education policy, election administration, criminal justice and legislative news for the Capital-Star from Jan. 2019-April 2021. You can find her on Twitter @ElizHardison.

Stephen Caruso
Stephen Caruso

Stephen Caruso is a former senior reporter with Pennsylvania Capital-Star. Before working with the Capital-Star he covered Pennsylvania state government for The PLS Reporter.