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By Angela Couloumbis | Spotlight PA
Credit: Tom Sofield/NewtownPANow.com
Earlier this year, a group of Republican state lawmakers filed suit in federal court to throw out executive actions aimed at expanding voter registration, claiming the legislature’s constitutional right to determine how presidential elections are run in Pennsylvania had been violated.
Election experts, lawyers, and others called the suit the first salvo in what is expected to be another year of high-stakes court battles in Pennsylvania, a swing state that four years ago helped decide the nail-biting race between President Joe Biden and former President Donald Trump.
With a Biden-Trump rematch likely in November, new challenges are expected to target everything from the legality of drop boxes to what constitutes a valid mail ballot. One case involving mail ballots that a voter fails to date or misdates has the potential to land before the U.S. Supreme Court.
Even more litigation could come after the Nov. 5 general election, including suits that challenge how counties counted votes, a worrisome — but some believe not far-fetched — scenario that could snarl Pennsylvania election officials’ ability to timely certify results.
“I’m expecting a repeat of 2020 this year — different but also likely even more intense,” said Witold J. Walczak, legal director of the ACLU of Pennsylvania, which is representing voting rights groups involved in the federal appeals case.
Elected officials, activists, and others say this potentially crowded litigation landscape could have easily been prevented if, as they have been urging for more than three years, the state legislature had clarified portions of Pennsylvania’s landmark 2019 law that ushered in voting by mail.
But the General Assembly, bogged down by partisan disagreements fueled by Trump’s relentless attacks on mail ballots and unfounded claims of election fraud, has failed to strike a consensus on making those changes.
“It’s incredibly frustrating,” said Lisa Schaefer, executive director of the County Commissioners Association of Pennsylvania, which has been one of the loudest voices advocating for legislative fixes. “This is a presidential year, and Pennsylvania is a battleground state … and we haven’t made those changes in the law that could provide clarity.”
Separation of powers
The federal lawsuit, filed by 24 Republican state lawmakers in late January, takes aim at two separate executive actions signed by Biden and Pennsylvania Democratic Gov. Josh Shapiro.
Biden’s order, signed in March 2021, directed federal agencies to expand opportunities for voter registration. This includes providing state-specific information and links on their websites, as well as “soliciting and facilitating” nonpartisan, third-party organizations to provide voter registration services on their agency’s premises.
Shapiro announced last fall that his administration had launched automatic voter registration in Pennsylvania. He directed the state and transportation departments to automatically lead people through signing up to vote when applying for a driver’s license or ID card, unless they choose to opt out. Before, PennDOT employees would ask residents receiving those services if they wanted to register to vote.
The suit also targets a directive by former Gov. Tom Wolf’s administration that ordered counties not to reject voter registration applications solely because they contained a Social Security or driver’s license number that did not match what government agencies had in their databases.
Those executive actions, the 24 lawmakers contend, usurped the authority of the state legislature to determine the time, manner, and place of elections.
Many of those GOP lawmakers were incensed when Shapiro announced his decision last year, questioning whether the governor had the authority to impose automatic voter registration.
In a social media post, Trump called the policy a “disaster” that would hurt Republican candidates. While automatic voter registration has boosted new sign-ups, those registrations are split almost evenly between the major political parties, state voter data show.
Adam Bonin, a Democratic attorney who specializes in cases involving campaign finance and election laws, said “government couldn’t function if every single step could only be done by the legislature.”
“Of course, there is a role for the governor and the Department of State to implement policy and make administrative decisions,” said Bonin, who is not involved in the specific case.
Attorneys for the 24 lawmakers asked the court in mid-February to prevent Pennsylvania officials from using automatic voter registration while the case is being litigated.
The judge in the case, Jennifer P. Wilson, had yet to rule on the request as of March 4. Attorneys for the legislators did not respond to requests for comment.
Separately, two Republican state House lawmakers filed suit in late January in Commonwealth Court over absentee ballots. The legislators are challenging laws and guidance by Pennsylvania’s Department of State, which oversees elections statewide, that allow voters to submit absentee ballots to their local board of elections.
The two state representatives, Kathy Rapp (R., Warren) and David Zimmerman (R., Lancaster), argue in the suit that some county boards permit drop boxes or have opened satellite offices that can accept mail ballots. The Pennsylvania Constitution, the two argue, permits voters to only cast ballots at their local polling place or precinct.
No date, no vote
One of the most closely watched cases centers on undated or misdated mail ballots, which have been the focus of numerous lawsuits.
The case was filed shortly after the 2022 general election, and it has the potential to end up before the U.S. Supreme Court.
At the time, the Pennsylvania State Conference of the NAACP, along with other voting rights organizations and individual voters, sued state election officials to compel Pennsylvania to count mail ballots that lack a handwritten date or have an incorrect one (such as their date of birth) on the return envelope. These ballots are received by counties on time and are otherwise sound.
Discarding such ballots, the lawsuit contends, violates the materiality provision of the federal Civil Rights Act, which says that otherwise eligible ballots cannot be disqualified due to immaterial technicalities such as a paperwork mistake.
Late last year, a federal district court ruled in their favor, finding that federal law requires that mail ballots received on time be counted in Pennsylvania even when a voter puts an incorrect date or forgets to write a date on the outer envelope.
The decision was swiftly appealed to the 3rd U.S. Circuit Court of Appeals, which is expected to issue a decision in the coming months.
Regardless of the outcome, the decision is widely expected to be appealed to the U.S. Supreme Court, where some justices have previously signaled interest in weighing in on the issue in Pennsylvania.
In mid-2022, the U.S. Supreme Court briefly considered yet another Pennsylvania case (this one stemming from Lehigh County) about whether to count mail ballots that were missing a handwritten date.
Although the high court ultimately declined to weigh in, three of the nine justices made it clear they would like to take up the larger question, including Justice Samuel A. Alito Jr., who predicted the issue would again rear its head.
Certification chaos
Like other states, Pennsylvania has a lengthy and rigid set of deadlines involving elections.
This year, county boards of election are required to certify their general election results by Nov. 25. After that, there is a tight turnaround window for any recounts.
Timely certification by the state’s 67 county boards of elections is crucial. Without it, the state can’t certify the winners.
In a presidential election year, and particularly in a close race, the failure of even one county to meet the certification deadline could quickly have tumultuous consequences.
In Pennsylvania, the governor sends to Congress what is called a “certificate of ascertainment” — a fancy word for an official document — that names the presidential candidates’ electors, and designates the candidate with the most votes. This year, the deadline for Shapiro to issue that certificate is Dec. 11.
Lawyers and legal scholars say that if just one county declares problems in its vote-casting or counting process, that could hold up the overall certification process. And there is still confusion surrounding what would happen should Pennsylvania miss that Dec. 11 deadline.
One certain outcome: more litigation, said John E. Jones III, a former federal judge who now heads Dickinson College.
“You could have a real mess,” he said.
No deal
Since the 2020 election, officials and voting rights advocates have repeatedly urged state lawmakers to make fixes to the 2019 law, known as Act 77, that ushered in no-excuse mail voting.
The County Commissioners Association, for instance, has asked for several clarifications. Topping the list: the ability to begin processing mail ballots earlier, a task known in election circles as pre-canvassing. It involves opening the envelopes that contain the ballots, unfolding the ballots, and prepping them for counting.
Under current law, counties are not permitted to pre-canvass until the morning of Election Day, which prolongs the time frame for tallying the final vote. In 2020, Trump and his supporters used the lengthy vote count to falsely claim that, as mail ballots were counted and the vote totals favored Biden, that fraud had occurred.
Counties also want the law to provide clarity on providing drop boxes and dealing with flawed mail ballots. Some counties, for instance, proactively contact voters whose ballots are missing a signature or date, or have some other defect, to allow them to fix it.
Several bills have been introduced to make those changes, largely by Democrats, but Republicans who control the state Senate have made it clear that any changes to the state’s election law need to include expanded voter ID requirements and other fixes.
But politics have sunk those efforts.
“We can’t even do things we agree on,” said state Sen. Sharif Street (D., Philadelphia), who in the last legislative session introduced a bill with his colleague Dave Argall (R., Schuylkill) proposing changes they believed had widespread support. It ultimately did not advance.
“The purpose was to make government work better,” said Street, who chairs Pennsylvania’s Democratic Party. “But just doing good-government maintenance in the Donald Trump era is no longer an acceptable thing.”
In the absence of legislative action, the Shapiro administration has taken steps to minimize mail ballot confusion. Late last year, officials announced redesign changes to help voters more easily understand the proper way to fill them out.
“It is absolutely awful to stand there with trays of votes that were cast by eligible, registered voters who made a fatal defect in casting the vote — and not being able to count that vote,” said Al Schmidt, Pennsylvania’s top election official.
Speaking at a press club luncheon in Harrisburg in February, he added: “I would rather not be sued it feels like every week, every month. It’s no fun … There are undoubtedly improvements that could be made. I always prefer that those improvements be made legislatively, but sometimes the courts have a role.”
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