PA Legislature's Delays Could Result In Chaos For Election Officials And Voters In November

Aug 10, 2020

Pennsylvania lawmakers acknowledge they need to change the state’s election code before November to accommodate the expected large number of mail-in ballots.

At one point, it looked like the legislature might get to work on those changes starting today. But that probably isn’t going to happen, despite the commonwealth and other states getting official word from the U.S. Postal Service that existing vote-by-mail deadlines could be too tight for ballots to be delivered in time.

Even before reports this summer of big problems with mail delivery, voting rights groups had been going to court for years to challenge Pennsylvania’s deadlines for mail-in ballots. County election directors are also urging changes, driven by their experience in the June 2 primary when 1.5 million Pennsylvanians voted by mail. 

Stakeholders are pushing to allow counties to process ballots well ahead of Election Day, too. They also want clarity on how voters can hand-deliver ballots — are they limited to hand delivering at county election offices, or can they drop ballots at polling places or drop boxes?

Still another issue is how to staff mail-in ballot processing and in-person voting when so many of the regular volunteers and workers are expected to opt out to avoid potential exposure to the coronavirus. 

Left unresolved, the combination of problems could disenfranchise voters, lead to huge delays in ballots being counted and compromise public confidence in the outcome.

“Hopefully, the General Assembly will keep their eyes on [the] ball,”  former Mercer County Election Director Jeff Greenburg, who left that position on July 31 to work with the National Vote at Home Institute, wrote by email. “If they get too far into the weeds or attempt to drop in other fixes now, my fear is nothing will get done.”

Waiting on the legislature

Last week, state Rep. Garth Everett (R-Lycoming) sounded like he was ready to get back to work on election reforms. 

“These are things that we definitely have already talked about,” said Everett, who, as chairman of the Pennsylvania House’s State Government Committee, plays an influential role in any debate over election changes.“And as far as our timeline in the General Assembly, whatever we’re going to do needs to be done in August … and the sooner the better.”

Everett said he was planning to resume work on election changes on August 10 or August 17, though he noted he does not have the power to call lawmakers back to session.  

That authority rests with House Majority Leader Kerry Benninghoff (R-Centre). Just a few days after Everett spoke optimistically about getting to work, Benninghoff  told PCN not to expect meaningful dialogue quite so soon. 

“If there is an agreement between all the different entities, whether it’s administration — because the administration has also weighed in on some things that they would like — and the Senate, if that can come to fruition, I would try to bring people back in late August,” Benninghoff said. 

Democrats from both chambers say consensus hasn’t been reached, and Pennsylvania Senate Republicans confirm that negotiations haven’t begun. Discussions are ongoing, as they have been for months, mainly out of the public eye through phone calls and emails.

“The key is, what do you do with pre-canvassing?” said Fred Sembach, executive director of the Senate’s State Government Committee, referring to ballot processing. 

Lawmakers are divided over which steps should happen prior to Election Day. Should processing be limited to opening envelopes and extracting ballots, or should counties be allowed to scan and even tabulate mail-in votes? 

Some officials worry about results being leaked if counties prep ballots for scanning ahead of time: “If you open ballots early, there are human eyes looking at them,” Sembach said. 

Pat Christmas, policy director for the Philadelphia-based Committee of Seventy, said he hasn’t found examples of results leaking in the two-thirds of states that allow some degree of processing before Election Day.

“Whether it’s an election director or a staffer, … these folks are just trying to do their jobs here and process paperwork,” Christmas said. “Making a tally in their heads or taking pictures of balances – it’s just not something we’ve seen elsewhere.”

Sembach said he doesn’t know whether leaks have been a problem in other states. Oregon and Washington have been conducting elections by mail for years and have reported no problems with results being leaked early. In Washington, ballots are pre-processed as they arrive, but are not tabulated until Election Day.

As far as how and where voters can drop off mail-in ballots, Everett and some election directors support allowing voters to return them at polling places on Election Day. In addition to offering another option to voters, the move would cut down on the number of provisional ballots cast by people who were issued a mailed ballot but who choose to vote in-person because they are concerned that the postal service won’t deliver it in time. While a necessary option, provisional ballots are time-consuming for voters and election workers, at the polls and during canvassing, election directors have said. 

“The short answer is, yes, if [polling places] are good enough for in-person voting, they’re good enough” for ballot dropoff, Sembach said.  

But dialogue on that issue has been limited by a lawsuit filed by President Trump’s reelection campaign against Pennsylvania over ballot drop boxes, poll watchers and secrecy envelopes, according to Sembach. The lawsuit argues that the state election code limits ballot returns to a county election office, meaning remote drop boxes or allowing voters to leave them at libraries or other public places would be prohibited.

“With the lawsuits, no one is able to have a discussion about drop boxes,” Sembach said last week. 

With no action in the legislature, counties must move forward with election planning, such as making decisions about what equipment to buy, where to store ballots and hiring an adequate number of staff, Christmas said.

“It’s making things a whole heck of a lot tougher, and it’s intensely frustrating for folks across the commonwealth,” Christmas said of legislative inaction. “The fact that there are real uncertainties around the mail just makes things all the more complicated.”

Postal problems

The U.S. Postal Service wrote to officials in Pennsylvania and other states in late July alerting them that their vote-by-mail deadlines are too tight for delivery standards, meaning the post office can’t guarantee all ballots will be delivered if mailed too close to those deadlines. 

The letter cites a five-day delivery time for first-class mail – which is the service offered by business reply mail accounts like the one the Pennsylvania Department of State will offer to counties as part of the state’s plan to cover mailed ballot postage costs, according to spokeswoman Wanda Murren. 

Current law, however, allows Pennsylvania voters to apply for a mailed ballot up until one week before the election. Even if an application is processed and a ballot goes out the same day, that’s still three days short of the 10-day round-trip USPS says is needed for first-class mail. 

Officials for USPS in Pennsylvania and in Washington, DC, didn’t respond to requests for clarification on the agency’s advised timeline. Although the letter indicates 10 days in one section, it later suggests a 15-day buffer between mailed ballot application and return deadlines as a preferable expectation. 

In May, the agency suggested two weeks in response to questions from The Philadelphia Inquirer. USPS officials also sent a warning letter to Maryland election officials, despite the fact that there are 24 days between the state’s vote-by-mail application deadline and the deadline for receiving ballots with an Election Day postmark

The USPS Board of Governors didn’t get into specifics, either, during its brief treatment of the issue during a meeting Friday morning

“We’re urging these officials to take postal logistics into account in their decision making and in their own communications with the public,” said board Chairman Robert Duncan, speaking hours before USPS announced a major restructuring that critics say will create even more problems for the nation’s mail system.

State Sen. John DiSanto (R-Dauphin/Perry), chairman of the Pennsylvania Senate’s State Government Committee, said through his chief of staff that he’s “open to moving deadlines for the requesting of mail-in ballots and return of those ballots so they are consistent with current U.S. Postal Service mail delivery standards.” 

Other lawmakers didn’t respond to questions about whether they favor changing Pennsylvania’s deadlines in response to the USPS warnings. 

But any new laws would need to be effective by “early September” to give counties time to implement them, according to the Department of State’s recent report on the June 2 primary.

That report was commissioned by lawmakers who said they needed to know more about how the primary was managed to inform any election law changes ahead of November. 

“If the General Assembly returns in late August, particularly to address this deadline, extended pre-canvass of ballots and continuing poll worker/polling location emergency provisions, I don’t think it would be too late,” Greenburg said. “There isn’t much time, but I would keep fighting until there is no time – and they haven’t reached that point yet.”

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