The Pennsylvania Supreme Court on Thursday issued rulings that could make it easier for people to vote by mail, steps likely to aid Democrat Joe Biden’s prospects and increase the likelihood that results in the critical battleground state won’t be known for days after Election Day.
In three decisions less than seven weeks before the Nov. 3 election, the Democratic-controlled high court extended the deadline for mail ballots to be returned, ruled that voters can use drop boxes to return them, and removed the Green Party’s presidential ticket from the ballot.
The changes will likely allow tens of thousands more mail ballots to be counted than would have been accepted previously. Democrats are expected to vote by mail in disproportionate numbers this fall compared with Republicans, who, interviews and polls show, have been turned off from doing so following President Donald Trump’s false attacks on the method as susceptible to widespread fraud.
“It really makes the access to voting better,” Gov. Tom Wolf said Thursday, “and so I welcome the decision.”
The ruling allowing mail ballots to be counted if they arrive by the Friday after Election Day has the potential to create a historic cliffhanger as the nation awaits Pennsylvania’s results. The state is one of a handful likely to decide the presidential race, and if the Pennsylvania contest is as close as expected, the winner might not be known until those ballots are tallied.
“It’s not impossible that the Pennsylvania outcome could decide who the next president is," said Mark Nevins, a Philadelphia-based Democratic consultant, "and if the counting process is prolonged, get ready for our state to be overrun with lawyers, surrogates, and rabid partisans on both sides.”
The key majority opinion was written by Justice Max Baer, a Democrat, and joined by fellow Democratic Justices Debra Todd, Kevin Dougherty, and David Wecht.
In concurring and dissenting opinions, Chief Justice Thomas Saylor and Sallie Updyke Mundy, both Republicans, agreed with parts of the decision but not others, as did Justice Christine Donohue, a Democrat. The three dissenting justices advocated setting an earlier deadline for voters to request ballots instead of extending the deadline for ballots to be returned. Saylor and Mundy also argued against allowing drop boxes.
Elections officials had delayed sending out mail ballots while the court cases were pending. The rulings mean such ballots could begin going out, effectively starting the voting as soon as this month.
The ruling allowing drop boxes was a defeat for Trump’s campaign, which had sued to prohibit them. So was a ruling upholding the requirement that poll watchers only work in the county where they are registered to vote. Biden has consistently led Trump in public polls in the state.
Still, the Trump campaign did prevail on the issue of “naked ballots” — mail ballots that arrive without a separate “secrecy envelope” inside the mailing envelope. That decision is likely to disenfranchise some voters, especially those who are new to voting by mail. Republicans argue that secrecy envelopes are important to ensuring the privacy of mail votes.
The court also ruled in Trump’s favor in prohibiting third parties from collecting and returning mail ballots — something Trump and his allies have decried as “ballot harvesting.”
Under a 2019 law, this is the first year any Pennsylvania voter can vote by mail without having to provide a reason.
Thursday’s rulings could also mark another instance in which the state Supreme Court significantly upends an election. The court two years ago threw out the state’s partisan-gerrymandered map for congressional districts, which helped lead to Democratic victories in seats that had been held by Republicans. The reshaping of the court happened after three Democrats won all the open seats in 2015.
Unless federal courts step in or the law is changed, the state Supreme Court’s decisions have set the rules for the election.
“We certainly believe it should be final,” said Kevin Greenberg, the Philadelphia lawyer who represented the state Democratic Party in the cases. “It’s time for voters to start voting, it’s time to allow counties to start processing these ballots. This is going to be an administrative challenge, and it’s time to allow them to start doing so.”
An existing case brought by the Trump campaign was on hold until the state courts ruled, and the judge lifted that stay Thursday, ordering the parties to explain how the state Supreme Court’s decisions affect the case.
In a pair of Twitter posts, Trump focused on the rulings in his favor.
“State Supreme Court in Pennsylvania just affirmed that Ballot harvesting remains illegal,” he said. "We will be watching that the Democrats do not Ballot Harvest — a felony. In other words, the Republican Party won on the atrocious Ballot Harvesting Scam.
In swing states across the country, Democrats have sought to make it easier to vote by mail, hoping to expand participation, while Republicans have tried to tighten voting rules. They argue tougher rules are needed to prevent fraud, though fraud is extremely rare and some Republicans, including Trump, have also said high levels of voting are simply bad for the GOP’s prospects.
The justices also kicked Green Party presidential candidate Howie Hawkins off the ballot, a ruling that could benefit Biden, who may draw support from liberal voters who would have voted for Hawkins. In 2016, Green Party candidate Jill Stein won almost 50,000 votes in Pennsylvania, and Trump ultimately won the state by just 44,000 votes, or less than 0.7% of the total.
State law says mail ballots must be received by 8 p.m. on Election Day to be counted, but tens of thousands of ballots arrived after a similar deadline in the June primary election, because of mail delivery disruptions and delays, and because local elections offices struggled to process the volume of ballots.
Almost two million voters have already requested mail ballots for the Nov. 3 election, and almost three million are expected to vote by mail, according to the Pennsylvania Department of State. In the majority opinion, Baer wrote that the timetable to cast and count votes may have been feasible “under normal conditions” but that it "will unquestionably fail under the strain of COVID-19 and the 2020 presidential election, resulting in the disenfranchisement of voters.”
The court ordered that mail ballots be counted as long as county elections officials receive them by 5 p.m. on Nov. 6. Ballots arriving after Election Day must either be postmarked by Nov. 3 or have no proof they were sent afterward. Ballots that arrive by the new deadline with missing or illegible postmarks would still be counted.
The rulings were also a victory for Wolf, a Democrat who has been calling for the GOP-controlled legislature to pass a bill that would allow counties to count ballots postmarked by Election Day.
In a statement, House Speaker Bryan Cutler (R., Lancaster) and House Majority Leader Kerry Benninghoff (R., Centre) assailed the Supreme Court ruling, which they said "makes Pennsylvania’s elections less secure and opens the door to serious questions about the integrity of the process in one of the most.”
They said they were examining legislative and legal options.
While the court’s rulings address some of Wolf’s concerns, they do not allow counties to begin processing mail ballots before 7 a.m. Election Day. Counties are anxiously waiting on lawmakers to make that change, arguing it’s necessary to ensure timely election results. A state House bill does make that change, but Wolf has vowed to veto it in its current form.