Pennsylvania election officials and voting rights advocates are sounding the alarm over a state Supreme Court ruling ordering officials to toss out “naked ballots,” warning that the decision could cause widespread voter disenfranchisement and a massive legal controversy following the November elections.
The ruling on so-called naked ballots — mail ballots returned to election offices without an inner secrecy envelope — carries potentially sweeping electoral ramifications for a state that President Trump won in 2016 by only 44,000 votes and that former Vice President Joe Biden now sees as a critical part of his path to the White House.
In a letter sent to Republican leaders in the state legislature on Monday, Lisa Deeley, the chair of the Philadelphia city commissioners, warned that the court ruling could result in more than 100,000 mail ballots being thrown out and urged lawmakers to swiftly eliminate the secrecy envelope requirement for mail ballots.
The recent court ruling, she wrote, could “set Pennsylvania up to be the subject of significant post-election legal controversy, the likes of which we have not seen since Florida in 2000,” when a lengthy recount dispute prompted intervention by the U.S. Supreme Court.
“This is not a partisan issue. We are talking about the voting rights of our constituents, whether they be Democrats, Republicans, or independents, whose ballots will be needlessly set aside,” Deeley, a Democrat, wrote. “Anyone who advocates doing nothing to address this situation, in hopes that more Democratic ballots are thrown out than Republican ballots, is not being an effective policy maker and is not doing their job to make sure that this election goes off well.”
It’s not yet clear how many ballots could be thrown out as a result of the court’s order. This will be the first election in which every Pennsylvania voter will be allowed to vote by mail and most counties did not track naked ballots cast in the state’s primary elections in June.
Deeley estimated that in the June primaries, between 15,000 and 30,000 naked ballots were returned in Philadelphia. With the number of mail ballots expected to double in the general election, she said that the court’s ruling could invalidate between 30,000 and 40,000 ballots in Philadelphia alone.
The number of mail ballots cast is also expected to be particularly high, given concerns about the coronavirus pandemic and the public health risks associated with in-person voting. Eileen Olmstead, the communications director for the Pittsburgh chapter of the League of Women Voters, said that the court’s order to throw out naked ballots was another hurdle for voters in an already chaotic election year.
“People are scared to death already that all kinds of things are going to happen to their ballot, and so we don’t need one more mistake to put their vote in jeopardy,” Olmstead said. “What we’re telling people is, as soon as you get your ballot, open it, mark it, stick it into the security envelope, sign it and send it in immediately.”
The concerns over naked ballots come as polls show Biden leading Trump in Pennsylvania. A Reuters-Ipsos survey in the state released Monday found the former vice president with a narrow 3-point advantage over Trump, while an NBC News-Marist College poll out earlier this month showed Biden with a more significant 9-point lead among likely Pennsylvania voters.
The ruling on naked ballots was handed down Thursday as part of a series of election-related decisions by the Pennsylvania Supreme Court that included an order to extend the deadline for mail ballots to be returned, as well as one allowing voters to submit mail ballots through drop boxes.
Taken together, the decisions were largely seen as favorable for Democrats, given that the party’s voters are expected to cast mail ballots at higher rates than Republicans. The court also removed Green Party presidential candidate Howie Hawkins from the general election ballot, a decision that could benefit Biden.
But the court ultimately ruled that naked ballots must be invalidated, coming down on the side of the Trump campaign, which sued to have such ballots tossed out. Only the state lawmakers have the ability to eliminate the secrecy envelope requirement, and the GOP-controlled legislature is not expected to take up the issue.
In another turn, the Republican Party of Pennsylvania asked the U.S. Supreme Court this week to review the Pennsylvania Supreme Court’s decision to extend the mail ballot due date, arguing that the later deadline would increase the risk of illegal voting.
Sara Mullen, the advocacy and policy director at the American Civil Liberties Union of Pennsylvania, said that part of the concern over the state Supreme Court’s ruling owes to the fact that 2020 will be the first time many Pennsylvania voters will cast their ballots by mail.
“I think people are still getting used to how they work and some people don’t realize there’s a secrecy envelope enclosed,” Mullen said. “It’s just incumbent on those of us who are doing outreach and education to let people know the importance of that envelope.”
“The whole issue of secrecy envelopes wasn’t really a top priority before this ruling, but I think it will be now,” she added.
The order to discard naked ballots also marks a change from the state’s past guidance on the issue. In the primaries, the Pennsylvania Department of State advised county election officials to count such ballots, though the counties were ultimately left to decide for themselves whether to do so.
After the state Supreme Court’s ruling last week, the Department of State rescinded that guidance.
Suzanne Almeida, the interim chair of the watchdog group Common Cause Pennsylvania, which intervened in the case, said she was disappointed by the court’s decision on naked ballots. But she also said there is a “silver lining,” noting that the ruling clarified a policy statewide that had previously been left up to county officials.
“We’re always worried about ballots not counting from voter mistakes,” she said. “But I do think, fundamentally, I have confidence that voters can learn the rules and can follow the rules.”