Electorally Speaking

By October 28, 2020 No Comments

By Erin McClelland
Pittsburgh Current Contributing Writer

If you have a mail-in ballot that you have not yet mailed: BRING IT TO YOUR COUNTY ELECTION DEPARTMENT OR YOUR POLL.  That’s what we have learned from this past week in PA election law.  With only 5 days until election day, PA’s ability to count ballots received after election day remains in dispute.

Last week, SCOTUS ruled to allow the counting of Pennsylvania ballots up to 3 days after the election, essentially upholding the Pennsylvania Supreme Court’s ruling.  Then this week, SCOTUS ruled to bar the counting of mail-in ballots received after election day in Wisconsin.  The swing vote between these rulings was Chief Justice Roberts.  In his opinion, Roberts specifically cited why he voted to maintain the 3-day extension in PA and bar it in Wisconsin, “I write separately to note that this case presents different issues,” Roberts wrote referencing the PA cases. “While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state law-making processes.”

Simply put, Roberts was the deciding vote in each case, opining to uphold each state’s authority to regulate their own elections, refusing to intrude during what he referred to as, “the thick of election season.”

Then, last Friday, 2 key actions occurred. First, the PA Republican Party asked the court to fast-track a formal review of the merits of the case, therefore setting precedent and once again deciding the fate of mail-in ballots received after election day.  And by Monday night, conservative Justice Amy Coney Barrett was confirmed by the US Senate and replaced Ruth Bader Ginsberg on the US Supreme Court.

This decision will put Justice Barrett under intense scrutiny, should she not recuse herself from the ruling.  If the court chooses to overturn the state court, barring the counting of the ballots, it will unquestionably cause serious systemic disruption to County Elections Departments already burdened by a massive influx of mail-in ballots.  If the court upholds the state’s ruling with any conservative support, it would be a win for state’s rights and precedent on a long-standing debate in national elections: Are we holding 50 state elections or one national election?   

Also on Friday, the PA Supreme Court voted unanimously that a mail-in or absentee ballot cannot be rejected on the basis of signature challenge by the County Elections Department or third-party challenge, citing no such requirement in the election code.  In her opinion, Justice Todd wrote,

“We conclude that the Election Code does not authorize or require county election boards to reject absentee or mail-in ballots during the canvassing process based on an analysis of a voter’s signature on the ‘declaration’ contained on the official ballot return envelope for the absentee or mail-in ballot. We, therefore, grant the Secretary’s petition for declarative relief, and direct the county boards of elections not to reject absentee or mail-in ballots for counting, computing, and tallying based on signature comparisons conducted by county election officials or employees, or as the result of third-party challenges based on such comparisons.”

The opinion went on to cite the lower court’s ruling, decided against the Trump campaign by Trump appointee Judge Ranjan as,

“Relevant to the present dispute, in his scholarly and comprehensive supporting opinion, Judge Ranjan concluded that ‘the plain language of the Election Code imposes no requirement for signature comparison for mail-in and absentee ballots and applications.’”

The long-term effects of this ruling require at least one immediate response from the legislature.  They must write a clear articulation of criteria for challenging the validity of a mail-in or absentee ballot into the election code if we are to mitigate concerns of fraud with our newly established mail-in ballot process.

The only thing decided in PA election law this week, is there is more to be decided in the aftermath of Act 77 as it continues to be litigated and mitigated in the courts.  In the meantime, the safest choice for PA voters still in possession of their mail-in ballot is to take the ENTIRE BALLOT PACKET to their County Elections Department for submission or bring it directly to the polls where you can spoil it and vote in-person.

Electorally Speaking is a series on the extensive impact and complications ACT 77 has affected on Pennsylvania’s election processes, scheduled to run now through election day.

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