Pa. is poised to take an unusually restrictive approach to mail-in ballots

(Danya Henninger/Billy Penn)

(Danya Henninger/Billy Penn)

A recent court ruling could make Pennsylvania a significant outlier in how it deals with mail-in ballots in the 2020 election — and could mean thousands of votes aren’t counted.

Among other things, the ruling handed down from the Democratic-controlled state Supreme Court decided that mail-in ballots should be discarded if they arrive at a county election office without a “secrecy envelope,” sometimes called “naked ballots.”

Under Pennsylvania’s mail voting statute, voters are supposed to place their completed ballots inside the smaller secrecy envelope, then put that inside the postmarked envelope that comes with their ballot.

It’s a mechanism intended to maintain voters’ privacy after the outer envelopes are removed during vote counting. But it’s one that state and county officials say they never considered particularly essential in the past, and one that’s not commonly used in other states, either.

So, exactly how unusual would Pennsylvania’s new approach to secrecy envelopes be?

Only sixteen states legally require these envelopes to be used in the first place. A few others give their counties the option to use them if they want, but they’re not mandatory.

Charles Stewart, an MIT political science professor who studies American elections, said it’s difficult to say how those states handle ballots that are returned without secrecy envelopes. Often these decisions are left to counties — as was the case in Pennsylvania until recently — so each individual state might have many ways of handling the issue.

But Stewart said a broad-strokes decision like the one now governing Pennsylvania’s process is definitely uncommon.

“Rejection because of the lack of a secrecy envelope is so rare that the U.S. Election Assistance Commission doesn’t ask about it in their post-election Election Administration and Voting Survey,” he said.

Of the sixteen states that require secrecy ballots, several — Florida, New Hampshire, Ohio — are considered competitive in the general election. But Pennsylvania is perhaps the most competitive of all, and the most likely to influence the election’s outcome.

Susan Dzieduszycka-Suinat, who heads the voting information nonprofit U.S. Vote Foundation, said she doesn’t think there’s a good reason why ballots can’t be accepted without the secrecy envelope, or why the envelope is necessary at all.

Other states, she noted, use different methods and are still able to ensure secrecy.

“I can tell you in no uncertain terms that we do believe in the confidentiality of each person’s vote as the ultimate goal, but we do not agree that it should be used for grounds for ballot rejection,” she said. “That is extreme.”

The ruling on secrecy envelopes came because the state Democratic Party had included it in a list of requested decisions intended to interpret existing law to “protect the franchise of absentee and mail-in voters.”

One of the items was whether election boards had to count “naked ballots,” rather than invalidating them. The Democrats had wanted to interpret the law as requiring those ballots to be counted, and in fact wanted to prohibit election boards from excluding them.

The court decided otherwise, ruling that after “careful examination” of the law in question, they had come to the “inescapable” conclusion that the legislature intended for secrecy envelopes to be mandatory.

“Whatever the wisdom of the requirement, the command that the mail-in elector utilize the secrecy envelope and leave it unblemished by identifying information is neither ambiguous nor unreasonable,” the majority opinion said.

This week, Philadelphia City Commissioner Lisa Deeley raised a red flag about the court’s decision. In the past, she said, if ballots made their way to the Philadelphia elections office without a secrecy envelope, they were counted anyway.

“It is a vestige of the past,” she wrote. “The secrecy envelope is a holdover from when Pennsylvania counted absentee ballots at polling places. Now they are counted centrally, through an industrialized process.”

The commissioners’ practice was challenged in the 2019 general election, and in the 2020 primary, but each time the group voted to continue tallying ballots that arrived without the secrecy envelope.

It’s difficult to know how many ballots could be rejected due to missing secrecy envelopes, both because Pennsylvania drastically expanded mail voting for this year’s election, and because missing envelopes weren’t closely tracked in the past.

But Deeley estimated the number could be around 100,000 statewide.

Wanda Murren, a spokeswoman with the Department of State, said Philadelphia’s approach was consistent with state guidance. The DOS had previously put guidance to that effect on its website, but removed it when the Supreme Court handed down its verdict.

“Consistent with the longstanding policy in this Commonwealth to protect the voters’ right to vote, the secretary and the administration would support legislation requiring counties to count naked ballots,” Murren said in an email.

But in the meantime, she added, the state plans to step up its messaging letting voters know they need to use the secrecy envelope.

A spokesman for GOP House Speaker Bryan Cutler recently told the Associated Press he believes “this issue is settled for this election.”

Often, partisanship enters into conversations about access to mail-in voting. Democrats are considered more likely to vote by mail, and so any threat to their mail turnout tends to be considered a threat to their election prospects.

Dzieduszycka-Suinat said in her opinion, partisanship shouldn’t enter into these considerations. If votes are at stake, the legislature should act to make the process easier.

“I’ll tell you,” she said, “Republicans don’t read instructions just as much as Democrats don’t.”

Which way will Pa. vote?

Want a digest of WHYY’s programs, events & stories? Sign up for our weekly newsletter.

Together we can reach 100% of WHYY’s fiscal year goal