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Lawsuit Claims Early PA Absentee Voting Deadline Is Unconstitutional

Alan Diaz
A voter hands his absentee ballot to a Miami-Dade County elections official.

Edward Ream cast a ballot in the 2018 midterm election, but it was never counted. As an emergency medical technician, he works 24-hour shifts. When he learned on October 27, 2018, that he would work on Election Day, he applied for an absentee ballot, but by then the timeline was tight.

Pennsylvania has the earliest absentee ballot deadline in the country -- 5 p.m. on the Friday before an election.

Ream didn't receive his ballot until October 31 -- five days before the election, but only two before the Friday deadline. He mailed it via the U.S. Postal Service, but it didn't arrive to officials in Perry County on time.

Now, Ream and eight other voters claiming disenfranchisement are suing Pennsylvania in an attempt to give absentee voters greater leeway. The first oral arguments in the case were heard in Commonwealth Court Wednesday in Philadelphia.

Petitioners want the court to push back the deadline, but wouldn't yet advocate for a specific day and time.

"There are 47 states that have an Election Day deadline for returning an absentee ballot, and the only other states that have a deadline earlier than that are Mississippi and Louisiana. Pennsylvania can do better than that," said Benjamin Geffen, a lawyer with the Public Interest Law Center representing the plaintiffs.

A Keystone Crossroads story found that nearly 10,000 absentee ballots were rejected in Pennsylvania in 2018 -- double the amount in 2010. Historically, most rejections occur because ballots are tardy.

Plaintiffs argue the current scheme is unconstitutional and requires a remedy from the courts.

The defense in this case, which represents the Pa. Department of State, as well as leaders of the state legislature, claimed that the court would be overstepping its duties by allowing the case to proceed.

Defense attorney Kathleen Gallagher argued the deadline decision needs to be set by legislation agreed to by the General Assembly and the governor.

"It is a slippery slope," she said, referring to the court's potential decision to take power from the legislature.

Applications for absentee ballots can be requested 50 days before an election. That means people voting by absentee ballot potentially have more than a month to mail their ballot. According to defense attorney Kenneth Joel, this point negates the plaintiffs' case. He said that if some people can manage to file absentee ballots on time, Pennsylvania's rules can't be deemed unconstitutional.

Commonwealth Court will now decide whether the case should go to trial or if it should be dismissed.

Governor Tom Wolf's office declined to comment on the case.

John Powers, an attorney for the plaintiffs with the Lawyers' Committee for Civil Rights Under Law, wants the chance to argue the case on its merits.

"We think in this case, where Pennsylvania's deadline is so early, by far the worst in the country, and so many voters are being disenfranchised, that we do have the legal arguments and the evidence to continue and take this case forward to trial," Powers said.


Keystone Crossroads is a statewide reporting collaborative of WITF, WPSU and WESA, led by WHYY. This story originally appeared here.