Nonprofits, GOP fight over mail-in deadline
Delays could prevent timely ballot submissions
Warning that pandemic-induced bureaucratic delays could prevent many Pennsylvanians from submitting their mail-in and absentee ballots on time before the 8 p.m. cutoff in the state’s June 2 primary and November’s general Election Day, a group of nonprofits are asking the state Supreme Court to step in and force the state to extend its deadline.
State and national Republican groups, meanwhile, are trying to get the case thrown out.
The Republican Party of Pennsylvania, Republican National Committee and National Republican Congressional Committee filed a motion this week asking the court to let them intervene in the matter, insisting if the court were to compel a change to the ballot deadline, it would upend the “orderly” administration of the election, alter the competitive landscape and undermine laws that protect their voters and candidates.
They also allege the original lawsuit’s dire warnings of voter disenfranchisement are based not on facts, but on “wild guesses dressed up in soaring rhetoric,” according to their court filing.
If approved, the Republican apparatus would get to intervene in a case where the nonprofits — led by one that represents more than a million Pennsylvanians with disabilities — want ballots that were sent or postmarked by the Nov. 3 Election Day and received by county elections offices within the following seven days to be considered valid.
The deadlines for mail-in and absentee voting “were written for a pre-pandemic world,” the nonprofits say — a world before COVID-19 threatened the viability of in-person voting and made the new option to vote by mail more attractive for thousands of voters.
But with voters permitted to apply to vote by mail up until a week before the primary, they’ll have to rely too much on county elections offices and the U.S. Postal Service
to process and facilitate their ballots back and forth in a timely manner, the nonprofits assert in their filing.
These are counties, the nonprofits say, already overwhelmed by an influx of mail ballot requests and are facing staffing shortages and backlogs that will only get worse as the election nears. The postal service is facing challenges that could delay services, which could leave many voters feeling unsure if their ballots will arrive on time.
“These voters will then face a choice: either mail the absentee or mail-in ballot and risk that it will arrive too late and will not be counted, or vote in person and risk not only their own health and lives, but the health and lives of their families and neighbors,” the nonprofits wrote, noting that those who decide to vote in person may have to wait in longer lines due to staff shortages and polling place consolidation.
Ultimately the nonprofits want the Supreme Court to declare the state’s enforcement of the deadline to be unconstitutional during the public health crisis — in violation of the Free and Equal Elections Clause, for one. They say elections aren’t free when voters have to risk their lives to practice their rights, and they’re not equal when some may not have their votes tallied because of factors outside their control — say, if they live in an area where USPS services are slower.
The GOP groups counter that the nonprofits “cannot conjure up a constitutional violation based on a hypothetical injury” that would be technically caused by mail delivery and ballot application processors, not the state’s deadline. They note, too, that many of the differences felt by voters are felt during any election.
“That the burden of exercising the right to vote varies from voter to voter because of these differences does not render the election laws discriminatory,” the Republicans wrote. “It demonstrates only that voters are not shaped by a cookie cutter.”
But the nonprofits contend that COVID-19 has made their disparities worse. Many disabled voters, for example, already take longer to submit ballots because they may need assistance, but now, the choice is either to face a tight and uncertain deadline or to take risks by voting in person in the midst of a pandemic.
Republicans say arguments like those ignore the fact that voters can request ballots up to 50 days before the election.
The GOP’s filing says “the hypothesized harm — if it is indeed a constitutional harm — will occur only if a chain of hypotheticals all take place.” Also, it says that no one has been denied the right to vote and that the deadline “treats all voters alike.”
While Republicans increase their political messaging around the suit and say that a delay in the ballot deadline also would delay the outcome of the election and overwhelm election offices for weeks afterwards, the nonprofits filed a motion urging the court to act immediately on their requests by way of injunction.
If Republicans are permitted to intervene in the case, they also will argue that striking down the 8 p.m. Election Day deadline — which was set in comprehensive bipartisan legislation last year — would void nearly all of that legislation, including the entire concept of mail-in voting in Pennsylvania. The nonprofits say they’d withdraw their suit if the courts determine that to be true.
The GOP’s request to intervene in the Pennsylvania case is part of a nationwide effort by the Republican National Committee to fight in state courts, arguing that Democrats are backing mail ballot suits — for one — because they can’t win otherwise and want to change the rules to benefit themselves politically.