Two Courts Offer Election Guidance: Slow-Walking Ballots is Unconstitutional

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Mail-In and Absentee Ballots Debated in COVID-19 Pandemic and Election Day Overlap

Two recent cases indicate a judicial willingness to intervene in election processes to protect and broaden voting rights. The cases originating in Pennsylvania and Washington suggest that courts are likely to set aside any governmental action or inaction that would slow the collection and counting of votes or ease voting deadlines, at least for the duration of the COVID-19 pandemic.

A 2019 Pennsylvania enactment gave all qualified electors the opportunity to vote by mail without proving absentee status on Election Day. The Pennsylvania Democratic Party and several Democratic elected officials and candidates filed suit in state court seeking clarification of the law. President Trump’s reelection campaign and the Republican National Committee filed a similar case in federal court. On Aug. 16, Pennsylvania’s Secretary of the Commonwealth filed an application asking the Pennsylvania Supreme Court to exercise extraordinary jurisdiction for review because of the upcoming 2020 general election.

The central issue in Pennsylvania Democratic Party v. Boockvar is whether the strict enforcement of the Pennsylvania Election Code’s requirement that mail-in and absentee ballots be received by 8 p.m. on Election Day would constitute a violation of the Pennsylvania Constitution’s “Free and Equal Elections Clause” in light of the COVID-19 pandemic and U.S. Postal Service mail delivery delays. These impediments caused considerable delays and resulted in disputes during Pennsylvania’s primaries earlier this year. The petitioners sought a court order saying that the State’s seven-day grace period for overseas and military voters applies to all mail-in ballots.

In resolving this question, the Supreme Court of Pennsylvania held that, in establishing and accomplishing the State Legislature’s intent, courts should be guided by the principles that all elections conducted in the State must be “free and equal.” It added that questions of election law must be resolved “in the broadest possible terms” and “liberally construed” to favor suffrage and voter participation. (Article II, sections 2, 2.5 and 3 of the California Constitution contain provisions that parallel the Pennsylvania Constitution.) The Pennsylvania Supreme Court found that these principles, together with its equitable authority to grant a remedy warranted a temporary extension of election deadlines to address “mail-delivery delays during an on-going public health disaster.” The Secretary had predicted that average election mail delays would be three days, so the court adopted an extension of mail-in deadlines by that length of time.

The court also reasoned that the law permitted the Pennsylvania county boards of elections to accept hand-delivered mail-in ballots at locations other than their offices, including drop boxes. It upheld other technical ballot protocols by rejecting a proposal to give electors the opportunity to fix incomplete or incorrectly filled out ballots, upholding the requirement that absentee or mail-in ballots be placed in official election ballot envelopes, and upholding a poll watcher residency requirement.

In State of Washington et al. v. Donald Trump, 13 states joined Washington this month in convincing a federal court to issue a nationwide injunction on several administrative changes to USPS operational guidelines. They include requiring absolute precision in mail truck departure times (even if it meant leaving mail on mailroom floors or docks), eliminating overtime, removing mailboxes, reducing operating hours and decommissioning sorting machines (72 percent of which were in counties where then presidential candidate Hillary Clinton received the most votes in 2016). The court held that these “transformative changes” infringed on the states’ constitutional authority and the people’s right to vote. The court found evidence that the purpose of the USPS’s actions was voter disenfranchisement in “President Trump’s highly partisan words and tweets,” large numbers of uncounted primary ballots affected by the new rules, and the timing of the changes. The court ordered the new rules reversed and concluded that a mandatory nationwide injunction was appropriate since the amount of mail crossing state lines requires nationally consistent carrier policies.

Note: Californians can track their ballots here and volunteer to be poll workers by clicking here.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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