HARRISBURG, Pa. (CN) — Forty days out from the November election, the Pennsylvania Supreme Court rejected a request by Republicans on Thursday to stay a ruling issued last week that extends the state’s deadline for mail-in ballots.
Without explaining its decision, the court, which holds a 5-2 Democratic majority, denied a request to go back on its ruling, which favored the Democratic Party’s argument that “strict enforcement of this [mail-in ballot] deadline, in light of the current COVID-19 pandemic and alleged delays in mail delivery by the USPS, will result in extensive voter disenfranchisement in violation of the Pennsylvania Constitution’s Free and Equal Elections Clause.”
The opinion said ballots postmarked Nov. 3 will be counted as long as they are received by 5 p.m. the Friday following the election. Ballots missing postmarks or with illegible postmarks will also be counted, the court said, as long as there is no indication they were sent after Election Day.
Pennsylvania Republicans contend the opinion exceeded the court’s constitutional authority and breaches federal law, which sets Election Day as the first Tuesday in November.
Justice Sallie Mundy, a Republican, dissented, writing the Pennsylvania GOP raised solid points in its objection to last week’s ruling, which said ballots with no postmark that arrived the Friday after Election Day would be counted.
“In my view, intervenors make a substantial case on the merits that this court should stay the portion of our opinion extending the deadline for receipt of mail-in ballots past 8:00 p.m. on November 3, 2020, Election Day,” Mundy wrote, noting that “virtually no evidence exists to overcome such a presumption” that ballots that arrive un-postmarked three days after Election Day had been mailed by deadline.
Mundy noted the Republicans believe the U.S. Supreme Court would grant their motion to stay.
“Intervenors note that the United States Supreme Court stayed a Wisconsin Supreme Court judgment and held that ‘[e]xtending the date by which ballots may be cast by voters after the scheduled election day fundamentally alters the nature of the election,’” Mundy wrote. “It is reasonable that the United States Supreme Court may view this court’s presumption regarding ballots lacking a postmark or bearing an illegible postmark in the same light.”
According to John Fortier, director of governmental studies at the Bipartisan Policy Center, there’s an argument for either extending the deadline or keeping it as Election Day.
“One of the reasons for people who advocate for the longer time is that there are people who will mail in their mail-in ballots past the deadline and that is one of the more common reasons for an absentee ballot or a ballot to be rejected,” Fortier said. “One of the reasons for not having it is just the efficiency of the counting process.
“Certainly in this election, there’s something of a partisan split between Republicans who are generally advocating for election day to turn in ballots and Democrats who’ve been arguing for the extension of the period to include the postmark date,” Fortier said.
Fortier, who is also the author of a book on absentee and early voting trends, said mail-in voting by choice has picked up steam in recent years.
“For a long time in the 20th Century, until the late ’70s, basically, pretty much all the states were the same and voting absentee ballots were pretty limited,” he explained. “They were only used for a reason and there were some other notary public requirements for security purposes. That meant roughly 5% of the population voted by mail, absentee and they were people who were out of town or people who were sick.”
The paradigm that mail-in voting was for people who wanted it, not needed it, started the late ’70s, he said.
“Especially in the West, you had states moving towards a paradigm that was ‘Well, let’s make this a convenience for people then,’” he said, noting California was the first. Some states, like Washington state and Oregon, have since switched over to voting completely by mail for all elections.
“Traditionally, I’d say, broadly speaking, Republican legislators were probably not as in favor of big expansion. Democrats were a little more in favor but it varied state by state,” Fortier said. “When the system was in place, we didn’t see great differences in the usage of by mail Republicans, Democrats tended to follow the percentage of the state.”
A little more than 20% of Americans voted by mail in the 2016 election.
“But it was very uneven,” he noted. “You’d have some states with 100%, and then other states and I’d put Pennsylvania in this category, that were more traditional, where you voted absentee if you had a reason.”
Just under 5% of Pennsylvania voters voted by mail in the 2016 election, Fortier said. In accordance with changes put in place to make it easier to vote by mail due to Covid-19, he expects to see an increase in that number this year but that doesn’t necessarily mean we will see a concrete increase in the percentage of people who vote.
“It tends to move people around, people who voted anyway,” he said. “That’s why it’s very difficult, even in a normal election, to predict early election outcomes by how many mail-in ballots have been cast by Democrats and Republicans. Because obviously one party can end up putting more in by mail and then the other party in-person.”
But he noted there’s been a big change in attitudes and that this year “Democrats are much more favorable about voting by mail and Republicans are less so.”
“We expect that there’s going to be a much bigger difference this time between the overall vote of percentages democratically by mail and then presumably the other direction, percentage of in-person are likely to skew Republican,” he said.
Trey Hood III, a political science professor at the University of Georgia, echoed this Friday, saying that in Georgia, where he’s been working with polling data, the numbers indicate that Democrats are more fearful of the coronavirus than Republicans.
“And that because of that we’re going to see more democrats voting absentee by mail and Republicans probably in person,” he said. “Whether it’s going to make a difference to the overall vote I guess remains to be seen.”
Along with Michigan and Wisconsin, Pennsylvania was one of the states that put Trump over the finish line to win the Electoral College in 2016, Hood explained. Between Trump and his Democratic opponent Hillary Clinton, Trump won the state by 44,000 votes, less than a percentage point. This year, more than 2 million Pennsylvanians — two-thirds of them Democrats — have requested mail-in ballots. President Trump has repeatedly pitched mail-in ballots as a way to try to “steal the election” at his campaign events.
“There are a lot of electoral votes at stake and it’s certainly a battleground state or viewed that way, whether he wins it or not,” Hood said. “I don’t see a real clear path for [President Trump] winning without winning Pennsylvania.”
In order to take the case to the Supreme Court, Republicans would have to raise a federal question, Hood said, or a constitutional question. He stressed too, that at some point legislation concerning mail-in ballots and voting must end.
“Some states are already sending out absentee ballots, which means in some states elections have already essentially started,” he emphasized, noting that these issues would have ideally been resolved already.
Hood said that voting by mail should be a reliable way for voters to cast their ballots as long as they don’t procrastinate.
“Get your ballot. Vote. Get it back to the mail or return it in person or whatever kind of options are available in your state,” he said. “If you need to mail it back, I would put it in the mail at least a week at a time, and it should be fine. There’s all this doomsday talk about the Postal Service and all the rest of it. My message is things are going to be fine, as long as the voter doesn’t procrastinate.”