Voters in Philadelphia, Pittsburgh, and certain other parts of Pennsylvania will have an additional week for elections officials to receive their primary mail ballots if they are sent on Tuesday, officials said Monday.
Pennsylvania Gov. Tom Wolf initially suggested he had extended the deadline for the entire state. The current deadline requires elections officials to have received mail ballots by 8 p.m. on Tuesday, when polls close.
“The count will continue for seven days after tomorrow," Wolf said Monday, as days of civil unrest and violent clashes over the death of George Floyd in Minneapolis had officials scrambling to conduct Tuesday’s election safely.
“I can’t do anything about the election day, but I am extending the time to actually get votes in,” Wolf said at a news conference in Philadelphia. “So if you vote and the vote gets in by next Tuesday… it’ll count. An extra seven days.”
But Wolf apparently misspoke. His executive order, which allows mail ballots to be counted if they are postmarked by Tuesday and received within a week, will apply only to Philadelphia and Delaware, Montgomery, Allegheny, Dauphin, and Erie Counties.
“The civil disturbances in these affected counties have created one or more barriers to voters returning their ballots,” the order said, “including travel and public transportation disruptions, road closures and blockages, lack of access to ballot drop boxes, alteration of mobile ballot collection schedules, evacuations of buildings, and curfews.”
Coming little more than 13 hours before polls open Tuesday, Wolf’s surprise announcement — and its bungled delivery — led to major confusion. Elections officials in three of the six counties said they had no advance notice and learned of the news either from reporters or others calling with questions.
Delaware County elections officials decided Monday not to mail 400 ballots out to voters “due to the timing and staffing constraints.” But County Council member Christine Reuther, a Democrat, said they would have done so if they had known in advance about the governor’s order.
“If I’d known this was coming … we would’ve found a way to keep printing our ballots," she said.
The county sent its final batch of 6,000 mail ballots Monday, to be delivered to voters Tuesday. But those ballots do not include return postage, Reuther said, because officials did not believe any of those voters would be able to mail them back. Now, with Wolf’s order, those voters will be able to receive their ballots Tuesday and, if they return them immediately, have them postmarked and counted.
Reuther and a number of county elections officials across the state had warned that thousands of voters would likely be disenfranchised under the deadline set in state law, which does not allow postmarks to count. The existing deadline may work under normal circumstances, officials said, but the coronavirus pandemic and a change in state law led to an unexpected flood of mail ballot requests that county officials struggled to handle while also preparing an in-person election.
Wolf’s order drew immediate criticism from Republicans, who said the Democratic governor had overreached and was violating the state and federal constitutions by changing election policies in only some counties.
“I want the governor to explain to Pennsylvania how this is constitutional,” said Matt Haverstick, a Philadelphia-based lawyer who has represented Republicans who control the state Senate in legal challenges involving the state’s election law. “Specifically, how does what he’s doing — treating voters differently depending on where they live — comport with the Free and Equal Elections Clause? I’d be fascinated to hear the answer.”
The state Constitution guarantees that “elections shall be free and equal.” Election lawyers generally warn that creating a patchwork system of election policies across a state runs the risk of violating the equal protection clause of the federal Constitution, as the U.S. Supreme Court said in Bush v. Gore would occur if recount policies differed across counties.
“The facts on the ground may indeed differentiate some localities from others, but it is a statewide election, and it is always treacherous under Equal Protection principles to give some voters in the same election extra voting opportunities than other voters,” said Edward B. Foley, who heads the election law program at Ohio State University’s Moritz College of Law.
Lawrence Tabas, an election lawyer who heads the state Republican Party, put out a statement calling for Wolf “to immediately withdraw this invalid order and consult with the legislature.”
“The U.S. and Pennsylvania Constitutions clearly give the legislature the sole authority for the conduct and timelines of an election,” he said, adding that both constitutions require “that all laws governing an election must be uniform throughout the state.”
Every step of the vote-by-mail process has been delayed and complicated by the pandemic, county elections officials across the state said, and mail delivery has been uneven. As a result, they said, some voters would receive their ballots too close to election day to return.
Bucks and Montgomery Counties put their last ballots in the mail Friday. Officials said they hoped those would arrive Monday. (Bucks and Chester Counties were not included in the governor’s order.)
Chester County’s last ballots were mailed Wednesday morning. Philadelphia’s went out Thursday.
“I am thankful that this has come to fruition. As a result, there will now be thousands of voters whose votes will count which otherwise wouldn’t have,” said Lisa Deeley, chair of the Philadelphia Board of City Commissioners, the office which runs elections. She was among the first elections officials to call for an extension of the mail-ballot deadlines.
The mail ballot deadline has been challenged in court several times. There are two statewide lawsuits currently before state courts, both against the Pennsylvania Department of State and seeking one week mail-ballot deadline extensions for the entire state. The department, which oversees elections and is part of Wolf’s administration, has defended the deadlines.
Separately, Montgomery and Bucks Counties have gone to their respective county courts to request deadline extensions. Montgomery County was denied and appealed before the governor’s order. Bucks County’s request will be heard in court Tuesday.
“It’s a little confusing" that Bucks was left out of the governor’s order, said Diane M. Ellis-Marseglia, chair of the county commissioners. She noted that Wolf’s order cited the civil unrest as its justification.
"I guess it was good that Bucks County went down and helped Philly, and we went over and helped Trenton, but we didn’t have enough damage here,” she said. Some Bucks County police officers were sent to Philadelphia and Trenton to assist Sunday night.