Primary election mail-in deadline battle goes to court
Three Delaware County residents are among 11 petitioners asking the Pennsylvania Supreme Court to forgo a requirement that all mail-in ballots must be received by the June 2 Primary Election in order to be counted, as Delaware County announced nearly all ballots had been processed.
The suit, filed by the Public Interest Law Center and attorneys from the Washington, D.C., firm Arnold & Porter Kaye Scholer LLP, seeks to have the deadline amended so that all ballots postmarked by the June 2 election and received within seven days should are counted as valid. Current law requires that ballots must be received by 8 p.m. on Election Day in order to be counted.
“In these extraordinary circumstances, enforcement of the received-by deadline violates the Pennsylvania Constitution,” according to the complaint. “The deadline violates Pennsylvania’s Free and Equal Elections Clause. Elections are not ‘free’ when tens or hundreds of thousands of Pennsylvania voters are disenfranchised due to the consequences of a pandemic or must risk their lives to ensure their votes will be counted. And elections are not ‘equal’ when voters in one region of the commonwealth — southeast Pennsylvania — face grossly disparate disenfranchisement and burdens on their right to vote because they have the misfortune of living in the region that has been hit hardest by a deadly virus.”
The petitioners argue that enforcing the “received-by” date puts voters – especially seniors or those with underlying health issues – in a perilous position: Either they can mail off their ballot a few days before the election and hope that it makes it, or they can go to a polling place and risk infection.
The latter option offers its own challenges this year, as many polling locations are being consolidated and could experience larger crowds and long lines. In Delaware County alone, there will be
238 fewer polling places, according to the petition. In Philadelphia and Allegheny counties, a combined 2,100 polling places have been reduced to fewer than 500.
The complaint names Secretary of the Commonwealth Kathy Boockvar and Director of the Bureau of Election Services Jessica Mathis as respondents. Representatives for the state said they do not comment on pending litigation.
The complaint notes that a similar petition was filed in April, but was dismissed with prejudice after the Department of State successfully argued there was no concrete evidence that there would be a surge in absentee and mail-in ballot applications ahead of a May
26 cutoff date, backlogs at county boards of election in processing applications and sending out ballots, or delays in mail delivery times.
“Things have changed,” the complaint says. “The Department of State now admits that all of the problems it previously characterized as speculative have come to pass.”
The petition points to a May 22 declaration made by Deputy Secretary for Elections and Commissions Jonathan Marks in another case pending before the Commonwealth Court, which highlight exactly the harms the petitioners claim Pennsylvania voters might suffer if the deadline is not amended.
In Delaware County, Marks said there was a backlog of 31,139 ballot applications, about 40 percent of the total applications received, that had either not been processed or for which the voter had not been sent a ballot as of May 21.
One of the Delaware County petitioners, 68-yearold Mary Cay Curran, requested a ballot on March
3 and still had not received one at the time of filing, according to the complaint. The other two – Charles Cella, 61, and Deborah Cella, 57, - requested their ballots on May 21 and 24, respectively.
All three indicate in the petition that they do not wish to vote in person due to health risks associated with COVID-19.
Delaware County issued a release late Tuesday indicating that 76,000 absentee or mail-in ballots had been approved and all will have been mailed out by today. Another approximately 6,000 applications were still pending and, if approved, would be sent out by Thursday, according to the release.
“Ballots for all applications received by May 1 have been sent,” the release said. “Ballots for paper applications received by May 16 and online applications received by May 20 will have been sent by May 27,” the release stated.
The release indicated Delaware County is currently projecting more than 85,000 absentee or mail-in ballots for the primary, 60,000 more than the prior high of approximately 25,000 for the 2008 General Election.
The release notes ballot challenges in the county were not resolved by courts until April 28 and the county was not able to begin sending out mail-in ballots until May 4.
“This compressed the timeframe to process this historically high number of mail-in ballots, all in the midst of the COVID-19 pandemic, creating further staffing and logistical challenges,” the release says. “The Election Board was simultaneously consolidating polling locations and recruiting poll workers to fill in for long time election board members who decided not to work this election due to their elevated risk from COVID-19.”
The release thanked the many volunteers and county employees who worked outside of their own departments to get ballots out to those who requested them. Over Memorial Day weekend and for the next several days, 40 volunteers and 27 temporary employees worked extended hours in shifts to maintain social distancing in order to keep up with the demand for ballots by mail, the release said. Voters can check the status of their ballot online at votespa.com.
Those who wish to return their mail-in or absentee ballot by hand may do so at the Delaware County
Government Center in Media between 8:30 a.m. and
4:30 p.m. Monday through Friday, from 9:00 a.m. to
2:00 p.m. Saturday and on Election Day between 8:30 a.m. and 8 p.m.
Sealed ballots can also be hand-delivered to drop boxes at polling places on Election Day and a “mobile drop box” will visit retirement communities on Election Day to collect ballots that were received too late to be returned by mail for those residents who cannot leave the facility.
Those who requested an absentee or mail-in ballot but did not receive them can also vote by provisional ballot. Those ballots will be counted when the Election Bureau confirms that the requested mail-in ballot was not returned. Because all ballots are being counted centrally, provisional ballots will likely be included in the initial results, according to the release.