No date, no vote
One of the most closely watched cases centers on undated or misdated mail ballots, which have been the focus of numerous lawsuits.
The case was filed shortly after the 2022 general election, and it has the potential to end up before the U.S. Supreme Court.
At the time, the Pennsylvania State Conference of the NAACP, along with other voting rights organizations and individual voters, sued state election officials to compel Pennsylvania to count mail ballots that lack a handwritten date or have an incorrect one (such as their date of birth) on the return envelope. These ballots are received by counties on time and are otherwise sound.
Discarding such ballots, the lawsuit contends, violates the materiality provision of the federal Civil Rights Act, which says that otherwise eligible ballots cannot be disqualified due to immaterial technicalities such as a paperwork mistake.
Late last year, a federal district court ruled in their favor, finding that federal law requires that mail ballots received on time be counted in Pennsylvania even when a voter puts an incorrect date or forgets to write a date on the outer envelope.
The decision was swiftly appealed to the 3rd U.S. Circuit Court of Appeals, which is expected to issue a decision in the coming months.
Regardless of the outcome, the decision is widely expected to be appealed to the U.S. Supreme Court, where some justices have previously signaled interest in weighing in on the issue in Pennsylvania.
In mid-2022, the U.S. Supreme Court briefly considered yet another Pennsylvania case (this one stemming from Lehigh County) about whether to count mail ballots that were missing a handwritten date.
Although the high court ultimately declined to weigh in, three of the nine justices made it clear they would like to take up the larger question, including Justice Samuel A. Alito Jr., who predicted the issue would again rear its head.
Certification chaos
Like other states, Pennsylvania has a lengthy and rigid set of deadlines involving elections.
This year, county boards of election are required to certify their general election results by Nov. 25. After that, there is a tight turnaround window for any recounts.
Timely certification by the state’s 67 county boards of elections is crucial. Without it, the state can’t certify the winners.
In a presidential election year, and particularly in a close race, the failure of even one county to meet the certification deadline could quickly have tumultuous consequences.
In Pennsylvania, the governor sends to Congress what is called a “certificate of ascertainment” — a fancy word for an official document — that names the presidential candidates’ electors, and designates the candidate with the most votes. This year, the deadline for Shapiro to issue that certificate is Dec. 11.
Lawyers and legal scholars say that if just one county declares problems in its vote-casting or counting process, that could hold up the overall certification process. And there is still confusion surrounding what would happen should Pennsylvania miss that Dec. 11 deadline.
One certain outcome: more litigation, said John E. Jones III, a former federal judge who now heads Dickinson College.
“You could have a real mess,” he said.
No deal
Since the 2020 election, officials and voting rights advocates have repeatedly urged state lawmakers to make fixes to the 2019 law, known as Act 77, that ushered in no-excuse mail voting.
The County Commissioners Association, for instance, has asked for several clarifications. Topping the list: the ability to begin processing mail ballots earlier, a task known in election circles as pre-canvassing. It involves opening the envelopes that contain the ballots, unfolding the ballots, and prepping them for counting.
Under current law, counties are not permitted to pre-canvass until the morning of Election Day, which prolongs the time frame for tallying the final vote. In 2020, Trump and his supporters used the lengthy vote count to falsely claim that, as mail ballots were counted and the vote totals favored Biden, that fraud had occurred.
Counties also want the law to provide clarity on providing drop boxes and dealing with flawed mail ballots. Some counties, for instance, proactively contact voters whose ballots are missing a signature or date, or have some other defect, to allow them to fix it.
Several bills have been introduced to make those changes, largely by Democrats, but Republicans who control the state Senate have made it clear that any changes to the state’s election law need to include expanded voter ID requirements and other fixes.
But politics have sunk those efforts.
“We can’t even do things we agree on,” said state Sen. Sharif Street (D., Philadelphia), who in the last legislative session introduced a bill with his colleague Dave Argall (R., Schuylkill) proposing changes they believed had widespread support. It ultimately did not advance.
“The purpose was to make government work better,” said Street, who chairs Pennsylvania’s Democratic Party. “But just doing good-government maintenance in the Donald Trump era is no longer an acceptable thing.”
In the absence of legislative action, the Shapiro administration has taken steps to minimize mail ballot confusion. Late last year, officials announced redesign changes to help voters more easily understand the proper way to fill them out.
“It is absolutely awful to stand there with trays of votes that were cast by eligible, registered voters who made a fatal defect in casting the vote — and not being able to count that vote,” said Al Schmidt, Pennsylvania’s top election official.
Speaking at a press club luncheon in Harrisburg in February, he added: “I would rather not be sued it feels like every week, every month. It’s no fun … There are undoubtedly improvements that could be made. I always prefer that those improvements be made legislatively, but sometimes the courts have a role.”