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HARRISBURG — With less than seven weeks to go, the Pennsylvania Supreme Court has significantly altered how the state’s election will run on Nov. 3, allowing ballots that arrive after Election Day to be counted and giving voters the option to use satellite drop boxes.
But a change counties say is critical to a smooth election — allowing them to begin processing ballots earlier — remains unresolved in the legislature. And with Republicans condemning the court’s rulings as partisan and dangerous, the chances of Democratic Gov. Tom Wolf and GOP leadership reaching an agreement seem less likely than ever.
The state’s high court ruled Thursday on three election-related cases, including one that challenged the Green Party’s inclusion on the November ballot and another brought by the state Democratic Party that sought in part to extend the deadline to accept ballots.
Under state law, absentee and mail-in ballots must be received by 8 p.m. on Election Day to be counted. The Supreme Court ruled that election officials should count ballots that are received as late as Nov. 6, as long as they are postmarked by Nov. 3. Ballots that arrive by the new deadline with missing or illegible postmarks will be counted.
One of the rulings also allows counties to employ drop boxes where voters can deposit their ballots. The boxes have become a target of President Donald Trump, who has falsely claimed they are not secure.
“Today’s ruling confirms that counties will be able to provide convenient secure options such as additional county election offices and drop boxes to increase accessibility for those who are voting by mail,” Wolf said in a statement. “Today is an important day for voters' rights in Pennsylvania. Now, we and every county election worker will continue our efforts to administer an election that is secure, fair and accessible in every way.”
But there are still logistical issues that could wreak havoc on Nov. 3 and the days that follow. Counties are anxiously waiting to see if lawmakers and Wolf will extend the amount of time elections boards have to begin “pre-canvassing” mailed ballots — that is, removing ballots from their envelopes, flattening them, and preparing them to be scanned.
Current law only allows that process to begin at 7 a.m. on Election Day. And with the Department of State expecting as many as three million Pennsylvanians to apply to vote by mail, results could be delayed for days. That wait could have far-reaching effects across the nation, as the state will be central to deciding who wins the presidency.
The state House recently passed a bill that would allow counties to begin the process three days before the election. But the legislation — which the Senate had indicated it would consider next week — would also ban satellite drop boxes and grant partisan poll watchers the flexibility to volunteer anywhere in the state.
Both of those provisions are poison pills for Wolf, who has vowed to veto the legislation as written.
Before the state Supreme Court rulings, there was agreement among Democrats and Republicans that the time frame to count ballots needed to change — although by how much was up for debate.
The GOP-sponsored legislation at first allowed counties to begin the process three weeks before Election Day, the amount of time the Department of State recommended after reviewing issues that arose during the June primary.
But that provision was changed during the amendment process. Rep. Garth Everett (R., Lycoming), chair of the House State Government Committee, said there were concerns among some election officials and Republican lawmakers about issues including fraud.
“There were members who were leery of pre-canvassing in the first place and thought that 21 days allowed too much time for some sort of nefarious activity to take place,” Everett said.
But both the state and a nonpartisan good-government group said fraud is extremely unlikely.
Wanda Murren, a spokesperson for the Department of State, said the agency has “full confidence that county election directors understand fully and take very seriously their responsibility to maintain the security of ballots,” and that state law requires ballots be stored in a secure container. And as an additional layer of protection, the department has requested lawmakers ensure authorized representatives witness the pre-canvass process.
Suzanne Almeida, interim director of Common Cause Pennsylvania, said every election office in the state has an established chain of custody to keep track of ballots — whether the envelopes have been opened or not.
“Those are still ballots that are going to exist in the world and are going to be sitting somewhere,” she said.
Whether any change will be made now is unclear.
Throughout the coronavirus pandemic, Wolf and the GOP have been at odds over the administration’s attempts to slow the virus' spread, including an order that temporarily closed some businesses. Republicans have attempted to undo Wolf’s orders and curtail his executive power, only to be met by the governor’s veto pen.
Even before Thursday’s rulings, talks between Republicans and the governor on election reform appeared to have largely stalled. The GOP may try to use the legislative process to explicitly ban drop boxes and roll back other changes allowed by the state Supreme Court, but Wolf has the power to reject any bill, and it’s unlikely that Republicans could garner enough Democratic support to overturn a veto.
To make matters even more complicated, this may not be the end of the legal drama. There’s a separate federal court case brought by Trump’s campaign that can now resume.
And Bruce Ledewitz, a law professor at Duquesne University, said Republicans in the General Assembly could go to the U.S. Supreme Court to challenge Thursday’s decisions. Statements from Republicans in both chambers hinted that an appeal may be forthcoming.
Senate President Pro Tempore Joe Scarnati (R., Jefferson) and Majority Leader Jake Corman (R., Centre) said in a joint statement that the court has “overtaken the job constitutionally provided to the legislature and made partisan decisions.”
“We believe the court has erred in its ruling and is jeopardizing the accountability and security of our election process in Pennsylvania,” the Republican leaders said in a statement. “We will continue to review the decision, exploring our options to ensure trust in the election process and defend the Constitution against this activist court.”
House Speaker Bryan Cutler (R., Lancaster) and House Majority Leader Kerry Benninghoff (R., Centre) similarly said they “are currently examining our legal and legislative options and remain committed to ensuring our elections are conducted in a safe and secure manner with results beyond reproach.”
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