ACLU Sues Over Pennsylvania Absentee Ballot Deadlines

Nov 13, 2018

The ACLU filed a lawsuit challenging Pennsylvania’s absentee-ballot rules Tuesday, alleging that voters are being disenfranchised by the state’s tight deadlines for returning ballots.

“This is not about trying to game the system for one party or another,” ACLU of Pennsylvania legal director Vic Walczak told WESA. “This is about trying to make sure that every voter who was duly registered and wants to vote is able to cast a ballot.”

"Pennsylvania has the earliest absentee ballot receipt deadline of any state in the country," the complaint contends. The time frames are so tight, it says, that many voters are unable to mail them back to county elections officials in time. "Pennsylvania’s Election Code establishes a deadline for receiving completed absentee ballots that regularly disenfranchises Pennsylvanians who ... receive their absentee ballot so late that they cannot fill it out and mail it back to election officials before the Election Code deadline."

The suit faults cuts to the United States Postal Service for slowing ballot delivery. And it contends that some 300,000 absentee ballots have not been returned by Pennsylvania voters since 2009 -- including 46,000 for the 2016 presidential election alone. The presidential race here was decided by just over 44,000 votes that year. 

The complaint seeks to have the current deadline for the county to receive ballots -- set by state law at the Friday before election day -- deemed unconstitutional. 

The case's nine plaintiffs include voters from across the state, ranging from a journalist assigned to work in South Dakota to a paramedic who had to work a 24-hour shift on Election Day. Each met the deadline for requesting an absentee ballot and mailed it back after receiving one -- only to have it reach county elections offices after the deadline. The ACLU, which provides "election protection" services to absentee and other voters, is also a plaintiff.

Under Pennsylvania election laws, the deadline to apply for an absentee ballot is the Tuesday before the election: In most cases, the county must receive those ballots the Friday before the election. (The ballots of military and overseas voters can come in up to a full week after Election Day, so long as they are postmarked the day before polls open.)

But it can take days for the blank ballots to reach voters by mail. Walczak says that means applicants who meet the application deadline may not even receive their ballots -- let alone return them -- before it's too late for them to be counted.

“The way the Election Code is structured, the voter can do everything that is required of them, the county can do everything appropriately, and still the voter is disenfranchised,” Walczak said.

According to data compiled by the US Vote Foundation, which provides resources for absentee ballots, among all 50 states, Pennsylvania has the earliest deadline for election officials to receive an absentee ballot. The vast majority of states will allow count ballots that arrive on Election Day itself. A handful require them to arrive on Monday, but several – including the neighboring states of Ohio, New York, and Maryland -- allow absentee ballots to come in several days after the election, so long as they are postmarked the day before.

“When you look at return rates for absentee ballots in other states, they tend to be very high – like 85 or 90 percent,” Walczak said. “In Pennsylvania, they tend to be much lower. The suspicion is that it’s because you’ve got this very early deadline.”

The case is a civil-rights claim, under the state Constitution's guarantee of voting rights. The ACLU relied on those same provisions when it successfully sued to overturn a “Voter ID” requirement passed by Harrisburg Republicans in 2014. The defendants include Gov. Tom Wolf, legislative leaders and elections officials, all sued in their official capacities. The case will be heard by Commonwealth Court, a statewide appeals court that handles lawsuits involving government agencies.

Complaints about absentee balloting are nothing new for advocates of voting rights.

“I think any time you are mailing something, you have to look at it taking at least two days, but some folks assume it will be faster,” said Maureen Mamula, president of the League of Women Voters’ Greater Pittsburgh chapter.

Mamula says she urges voters to request their ballots as soon as possible for just that reason. Still, while she said there were 70 absentee voters in her Mt. Lebanon precinct, she estimated about a dozen either failed to return their ballots or had them disallowed.

“If you send the ballot in, your expectation is that it gets in on time, but how would you know?” she said. While absentee voters can check with the county election office, she said, workers are often busy in the days just before the vote.

Cris Beuger, the Pittsburgh League’s vice president, said her own daughter was unable to vote Nov. 6 because she was in the Netherlands at the time. Although she planned the trip and notified election workers in mid-August, by the time the ballot reached her parents' home, getting it to her and back by express mail would have cost $100 – and still not necessarily been received in time to be counted.

“She ended up not being able to vote,” Beuger said. “She wasn’t happy.”

Beuger said that her daughter’s preferred Democratic slate of candidates won anyway this year. But she noted that last spring’s special election in the 18th Congressional District was arguably decided by absentee ballots. “This year wasn’t like that, but it could have made a huge difference, and we both would have been much more upset.”

Beuger said one solution would be to allow early voting, as happens in other states. “Having early voting would help because then they wouldn’t have to vote absentee in the first place.”

Short of that, Walczak said a couple of remedies would help. The state could allow additional time for non-military ballots to arrive at election offices: “They’re still counting ballots today. There is no good reason to require all of the ballots to be submitted … four days before everybody else votes.”

Another fix would be to change the rule that bars counties from sending out absentee ballots until two weeks before the election, even for voters who request them many weeks before that.

Reform advocates acknowledge that absentee ballots present logistical challenges for county workers. The ballots have to be printed to reflect third-party entrants and other changes in the field. And election experts generally agree that absentee ballots are more susceptible to voter fraud than in-person voting – where fraud occurs so rarely as to be statistically insignificant. So security measures are a factor.

Still, Walczak points to the fact that every other state has more lenient rules than Pennsylvania, and says he hopes a better system will be in place by the 2020 Presidential election. And he said that wasn’t because he’s seeking a partisan advantage for one side or the other.

“I couldn’t tell you which party any of our clients belong to because it doesn’t matter,” he said. “They’re voters, they’re entitled to vote, and we’re trying to make sure their votes are counted in the future.”