Pennsylvania in the Crosshairs

Carol Nackenoff

With the presidential election just days away, Pennsylvania is garnering a disproportionate share of candidate attention, both in terms of visits and ad buys. Each contender knows Pennsylvania could easily be the state that makes the difference in 2020. The state is also in the crosshairs in terms of election litigation and potential litigation.

Turnout in blue urban areas, in Philadelphia’s ring suburban counties, and in red central Pennsylvania counties all hold an important key to the election outcome. Indications across the nation suggest that voting rates will be high. As of October 23, according to Pennsylvania’s Secretary of State, nearly 1.5 million mail-in ballots had been returned. 

Mail-in Ballots

In 2019, the state legislature passed, and the governor signed, a bipartisan compromise bill that aimed to make voting both more convenient and more secure. Mail-in ballots available to all Pennsylvania voters were authorized beginning with the 2020 primary. (Those wishing an absentee ballot must still provide a reason, such as absence from their residence on the date of the election). Under the reform, voters can request to receive mail-in ballots automatically for every election. Many states made voting changes recently, some to make voting safer because of the COVID-19 pandemic. Battleground states are receiving disproportionate legal scrutiny. 

The request rate for mail-in ballots was highest (36.2%) among registered voters 65 and older, nearly double the rate of those aged 55-65. The rate among those 18-24 years of age was only 8.1%. Delaware County registered voters requested mail-in ballots at rates higher than voters in many other counties (34.4%), but were eclipsed by Montgomery County (44.4%), Philadelphia County (37%), Allegheny County (43.1%), Bucks County (38.3%), and a few others. I have shared with my Swarthmore College American Elections class a neat dataset and map compiled by a professor at the University of Florida, from which these numbers are taken: swat.ink/early-vote-stats. (It is not clear whether these numbers include absentee ballots, which also can be cast early.)

Unsubstantiated assertions that mail-in voting results in massive voter fraud (which scholars, as well as investigations by the Department of Justice during the George W. Bush administration, do not support) have been prolific during this campaign. In early October, Attorney General William Barr authorized U.S. attorneys to launch investigations into voter fraud during the 2020 election, departing from a 40-year precedent that had been designed to maintain confidence in ongoing elections. Ballots are being closely watched. 

During the first presidential candidate debate, Donald Trump asserted, “Bad things happen in Philadelphia.” He alleged that some individuals (who had not requested formal poll watcher status) were barred from entering at least one Philadelphia satellite mail-in ballot center (where voters can cast their ballots immediately after requesting and receiving them). The President also mentioned sealed military ballots found in the trash, a Luzerne County incident that involved nine ballots: swat.ink/military-ballots-2020.

The President has urged supporters to show up at the polls to watch, leading to fears of voter intimidation. Recent surveillance of drop boxes by those saying they are concerned about fraud have yielded photographs of individuals depositing two or three mail-in ballots, a practice which is legal in some circumstances.

Election Litigation

Only about 44,000 Pennsylvania votes separated Clinton and Trump in 2016, and, this year, litigation about election-related issues has been fast and furious. The Trump campaign has already taken Pennsylvania to court several times this election cycle. Most recently, the issue was the decision by the state Supreme Court to allow three extra days for mail-in ballots postmarked by election day to arrive and be counted. In this case, the U.S. Supreme Court on October 19 decided not to put a hold on the extension, essentially letting the Pennsylvania court’s decision stand. The vote was 4-4, with Justice Roberts joining the liberal wing. Republicans have just returned to the U.S. Supreme Court seeking to have the case decided on the merits before election day. If the Court agrees to rule on the merits, the case will come before a bench including a new justice: swat.ink/voting-court-case.

A federal court judge (appointed during the Trump administration) recently threw out a lawsuit contesting Pennsylvania’s rules regarding poll-watchers and unattended mail-in ballot drop boxes. The Pennsylvania Supreme Court has just ruled that county election officials may not —  absent other concerns about a ballot — compare signatures in order to reject mail-in or absentee ballots, either of their own volition or in response to third-party challenges. 

In September, the state Supreme Court upheld the use of drop boxes, barred poll watchers from monitoring sites outside their home counties, and handed the Republicans an important victory on “naked ballots”: ballots returned without the inner secrecy envelope. These secrecy envelopes are used by only 16 states. By some estimates, the failure to use the inner envelope could lead to the invalidation of up to 100,000 ballots in Pennsylvania. The ruling forces county election officials’ hands, whereas previously some had been lenient in their treatment of such ballots.  

For most of those voting in person on November 3 in Delaware County, the hand-marked paper ballot that voters will feed into a scanner (then deposit into a lockbox) will be new. The system was used for the first time during the June primary. The change should offer greater protection from COVID transmission than the touch screen voting machines used before. However, many voters’ unfamiliarity with them may make the new procedure a bit slower.  

If the election is close, Pennsylvanians and other swing-state residents could see an avalanche of litigation continuing after November 3. Such litigation could possibly call into question ballots that were cast while the rules of the game were still shifting. 

Carol Nackenoff is the Richter Professor of Political Science at Swarthmore College. She lives in Swarthmore.