With a federal lawsuit from President Donald Trump's campaign on hold until October, it could be up to Pennsylvania's Supreme Court to settle crucial questions of election law in the presidential battleground, including whether to count mail-in ballots returned without secrecy envelopes.
The state Supreme Court could decide any day now whether to take over and fast-track a state Democratic Party lawsuit on a matter that could affect more than 100,000 ballots in the Nov. 3 presidential election.
The Democratic Party's lawsuit, among other things, asks the courts to order counties to count mail-in ballots that arrive without secrecy envelopes.
It is a gray area of the law, and Senate Minority Leader Jay Costa, D-Allegheny, estimated the number of votes returned without secrecy envelopes is from 3% to 5% of all mailed-in ballots.
“That’s a significant number, so that issue needs to be resolved,” Costa said.
Trump’s campaign in June sued in federal court to, in part, secure an order preventing those ballots from being counted. But a federal judge on Sunday put that case on hold, saying its claims must wait, at least until Oct. 5, to see if state courts settle them.
Pennsylvania authorized a broad vote-by-mail law last year at a prescient time, just before the pandemic fueled interest in voting by mail in the state's June 2 primary election.
As a result, more than half of the 2.8 million ballots cast were mail-in or absentee ballots. That record-smashing number of votes-by-mail is expected to grow in the presidential election, when Pennsylvania could help decide the outcome.
Even with Trump baselessly excoriating mail ballots as fraudulent, both the state's Republican and Democratic parties are encouraging members to vote by mail, and Trump's campaign is leaving door-hangers encouraging voters to “sign up for your ballot today!”
If at least 3 million people in Pennsylvania vote by mail in the Nov. 3 election, as expected, just 1% of that is 30,000 ballots, while 5% is 150,000 ballots. If 4 million people vote by mail, 5% is 200,000 ballots.
That is compared to the approximately 44,000 ballots that Trump won by in Pennsylvania in 2016 when he became the first Republican since 1988 to capture the state's electoral votes.
Tim Benyo, the chief clerk of Lehigh County’s board of elections, said he doesn’t remember the issue coming up as such a point of contention — until now.
A secrecy envelope is essentially an unmarked envelope that holds the ballot inside the return envelope and theoretically shields election officials and people authorized to watch vote counting from knowing a voter's choices.
Pennsylvania is one of 16 states that require secrecy envelopes be provided to voters, according to the National Conference of State Legislatures. But one of Gov. Tom Wolf’s top elections officials messaged counties in May to tell them that there is nothing in the law that requires them or authorizes them to discard a ballot that is returned without a secrecy envelope.
A majority of counties counted them in the June 2 primary, the Democratic Party's lawsuit said.
Mercer County, which did not count them, set aside almost 400 ballots without secrecy envelopes out of about 8,300 cast. Another, Lawrence County, set aside about 430 ballots out of about 8,000 cast. That’s about 5% in both counties.
Lawrence County's director of elections, Ed Allison, said he welcomes clarity on it.
“If we get a ruling from the court or legislation telling us what we can and can't do, I’m tickled to death,” Allison said. “As an election direction, any ambiguity that can be settled by a court of law or legislation, I’m all for it. I don’t necessarily have to agree with it, but it fixes it.”
Last week, Wolf’s Department of State issued updated guidance to counties that said “naked ballots” should be counted under the law.
In the meantime, Wolf and state lawmakers are discussing making a range of changes to election law to help fix glitches in the primary election's massive vote by mail before November's election.
Rep. Garth Everett, whose committee handles election issues, said he doesn’t have a problem with the state’s guidance on handling ballots without secrecy envelopes. While lawmakers could still weigh in, it is not a sticking point, said Everett, R-Lycoming.
“It may be a moot point now,” Everett said.
