Brianna Robbins had no idea she hadn’t voted.
As far as she was concerned, she had done her civic duty. She had requested an absentee ballot before the deadline, since she lives in Philadelphia but works in Delaware. She had considered the candidates, filled out the ballot, and dropped it in a mailbox outside a nearby school.
It was a week before Election Day. All done, she figured. She had voted, and with time to spare.
Or so she thought.
But as was the case with thousands of other would-be voters last election, Robbins’ ballot arrived too late. It showed up in City Hall that Saturday, three days before the election. She had just missed Pennsylvania’s deadline: Absentee ballots must be received by county election officials by 5 p.m. the Friday before the election.
“That really sucks,” she said. And while the election generally turned out the way Robbins, a Democrat, wanted, she said, “that’s still a really big shame that I tried — I followed the rules — and it still didn’t work.”
Robbins had followed the law — but by law her vote couldn’t be counted. And she had no idea.
Nor do thousands of other Pennsylvanians who attempted to vote by mail in November.
As turnout surged to record levels in the November 2018 election, data show, so too did the number of requests for absentee ballots. But with Pennsylvania’s tight deadlines, the number of rejected ballots also increased, far surpassing recent midterm elections.
Statewide, there were 2,162 rejected late ballots in 2010. There were 2,030 in 2014.
More than 4,600 ballots were rejected because they came in late to Philadelphia and Bucks, Chester, Delaware, and Montgomery Counties. (Statewide figures aren’t yet available.)
“Isn’t that a shame?” said Susan Carty, president of the League of Women Voters of Pennsylvania. “And that’s a weakness of that system, where ideally, the concept of absentee ballots should be to help support and encourage voters who are not able to be there on Election Day.”
Pennsylvania’s absentee ballot deadlines are set by the state Election Code: Ballots can be requested until the Tuesday before Election Day, and they must be in the hands of election officials by 5 p.m. that Friday.
“It’s a ridiculous deadline,” said Kevin A. Kelly, the acting supervisor of elections in Philadelphia who has overseen elections for a decade.
For voters who do not request ballots until the deadline, that leaves almost no room for delays. And the problem has only grown in recent years after changes to mail delivery times.
As a result, Pennsylvania has one of the highest rates of voters missing the deadlines
In Bucks County, 777 domestic civilian absentee ballots arrived after the deadline and were not counted. There were 935 in Chester County; 636 in Delaware County' 1,327 in Montgomery County; and more than 1,000 in the city, where officials stopped counting after a while.
It’s a problem that’s receiving increased attention.
After losing her bid for state Senate by 74 votes in November, State Rep. Tina Davis, a Democrat from Bucks County, sued to have counted at least 216 late absentee ballots that arrived between the deadline and Election Day. A judge dismissed the challenge without providing an explanation.
While Davis said she believed she had “a decent chance of winning” if those votes were counted, she doesn’t attribute her loss to the uncounted ballots. But the encounter with the deadlines was eye-opening, she said.
“To be honest with you, I didn’t realize," she said. "I knew we were tough on these laws, I always knew that, but after doing homework I found out we were the strictest in the whole country.”
Davis is preparing legislation that would change the absentee-ballot deadlines to give voters more time to submit their ballots. She expects to introduce it in a few weeks, she said, and hopes it will find bipartisan support.
“Obviously, being in the minority, we don’t get as many bills through, so I have to look through my bills and decide what are the most important for this year and decide what to prioritize. And that’s one of them,” she said. “I feel like it’s an issue we can get through this year.”
Meanwhile, litigation is ongoing.
In November, the ACLU of Pennsylvania and nine voters, with lawyers from the Lawyers’ Committee for Civil Rights Under Law, sued over the deadlines, saying they disenfranchise voters in violation of the state and federal constitutions. They request the court overturn the current deadlines and set new ones.
The defendants responded last week with their preliminary objections.
State Senate President Pro Tempore Joe Scarnati (R., Jefferson) and House Speaker Mike Turzai (R., Allegheny), in separate filings, argued the court cannot impose new deadlines without violating separation of powers and legislating from the bench. They also seek to remove the ACLU as plaintiffs because the organization does not itself vote and cannot be disenfranchised.
Gov. Tom Wolf, a Democrat, and other defendants from the executive branch raised multiple objections, including that the lawsuit fails to include county officials, who actually run elections, that overturning the deadlines would not fix the voters’ inability to cast ballots in November 2018, and that the voters can’t prove the deadlines will disenfranchise them in the future.
Wolf and the two other executive defendants, former acting Secretary of State Robert Torres and Elections Commissioner Jonathan Marks, seek to have the lawsuit dismissed.
“Here, there is no allegation that [the state] prevented or delayed Petitioners from applying for absentee ballots. Indeed, the Petition makes clear that there are many Pennsylvanians who vote by absentee ballot,” they wrote in their filing last week. “Put another way, it was Petitioners’ conduct — not seeking an absentee ballot until very late in the process — that contributed to their ‘disenfranchisement.’ ”