State and federal court rulings over the past two months have mostly laid out how to handle the crush of mail-in ballots due to the COVID-19 pandemic, but they still required that ballots be sealed in an inner "privacy envelope" and signed on the outer envelope. Meanwhile, ongoing litigation from Republicans challenging the state judicial and executive branches' election decisions could determine whether ballots that arrive after Election Day are counted, and there could be future fights over how long ballots can be counted.
"There's going to be issues galore," said Thomas King III of Dillon McCandless King Coulter & Graham LLP, general counsel to the Republican Party of Pennsylvania and an attorney for the Republicans in some of the election lawsuits around the state. "Mail-in ballots are an absolute disaster in Pennsylvania."
King pointed to decisions against his clients, along with misprints and delayed ballots as problematic, but state officials said millions more voters have applied for, received and returned their mail-in ballots in order to avoid in-person voting. Whether all those ballots will be counted depends on several other factors.
While the U.S. Supreme Court has twice declined to overturn Pennsylvania's three-day extension for ballots to be received after Election Day, several experts say a Republican challenge could still affect late-arriving votes after they've been cast.
After the high court's 4-4 split Oct. 19, Keystone State Republicans challenged the extension again on the eve of potential tiebreaker Justice Amy Coney Barrett's confirmation. But the newest justice declined to weigh in, saying she had not had time to fully review the briefs, and Justice Samuel Alito said Oct. 28 that only the proximity of the election prevented the court from considering the case faster. Republican state legislators filed a third version of the petition Friday.
"Alito pretty much said he was going to keep the cert petition alive," said Clifford Levine, chair Dentons' public law and regulatory practice group and counsel to Pennsylvania Democrats on several of the election cases.
Secretary of the Commonwealth Kathy Boockvar ordered that all ballots arriving after Election Day be kept and counted separately in case the challenge moves ahead. She and other state officials started emphasizing last week that it was too late for hundreds of thousands of unreturned ballots to be sent back by mail and still arrive by Election Day, urging voters to return them directly to election offices or to use drop boxes if available.
"I still think Boockvar and the extension deadline issue is in play up until and after Election Day, because even those dissenting justices ... seem to suggest they could review the case after the election and that there is a remedy for ballots improperly counted after the election," said Gerald Dickinson, an associate professor of constitutional law at the University of Pittsburgh and a former Democratic candidate for Congress.
Thomas R. Spencer of Thomas Spencer PA, a Florida attorney who was co-counsel to the Bush-Cheney campaign in the 2000 Florida recount, said the high court would likely only weigh in after the election if the vote were close enough for the late-arriving ballots to make a difference. Given the extraordinary circumstances of the coronavirus pandemic and the possibility that the state legislature could make further revisions to the Election Code before the next election, the court may consider the case moot if there is a landslide, he said.
"If it becomes a Bush v. Gore, 437-vote difference, they'll have to rule on it," Spencer said. "If it ultimately doesn't matter as to the outcome, why get into it?"
But Boockvar and attorneys said the period for counting votes is written into the law and would be difficult to challenge.
"There is no basis in Pennsylvania or federal law for a candidate to declare an election is done until the statutory requirements for the election are done," Boockvar said in a Monday news conference. "There is no power for anyone other than the [Pennsylvania] Department of State to certify the election."
The state's Election Code says counties have until 5 p.m. on Nov. 10 to send the state their unofficial results, and until noon on Nov. 25 to report the results of the last recounts.
"Alito is saying to follow the statute, and the statute says to do the pre-canvassing and count the votes," Levine said. "It shouldn't be a game. ... Trump knows the results can't be finished on Nov. 3. These are all legitimate votes, and they're sitting there right now and can't be counted yet."
Dickinson, the Pitt Law professor, said he didn't believe the state or federal high courts have indicated any willingness to change the deadlines for counting, just whether to count the ballots received after the deadline.
"Nothing in Justice Alito's brief statement denying the writ of certiorari signals the possibility of the Supreme Court limiting how long after the election votes can be counted, but instead which votes can be counted," Dickinson said.
And Spencer, the former Bush v. Gore attorney, said he didn't think the president was pressuring counties or courts to cut counting short — despite Trump's statements that he'd be "going in with our lawyers" after Election Day and his unsupported claims that an extended count would be vulnerable to fraud.
"I don't think the president is saying, 'Stop counting after Nov. 4.' Legal votes still have to be counted. ... That's part of the system," Spencer said. "They'll count as long as their little eyes can hold out."
The Pennsylvania Supreme Court's Sept. 17 ruling also said counties can't count or fix ballots that are returned without their inner privacy envelope, which led election officials to worry about how many first-time voters would forget or misunderstand the instructions.
In a letter to state lawmakers urging them to change the election law's requirements following the ruling, Philadelphia election commission Chairwoman Lisa Deeley extrapolated voting data from the primary election and warned that as many as 100,000 "naked" ballots could be submitted statewide. In Pennsylvania, the 2016 presidential election was decided by a margin of less than 45,000 votes.
"In the 2020 General Election, there will be many thousands more voting through the mail, for the very first time," Deeley wrote. "30,000 to 40,000 ballots could very likely be thrown out in Philadelphia alone. That number could rise to over 100,000 votes statewide — votes that will not be counted, all because of a minor technicality."
Secretary Boockvar noted Monday that if a voter has given their email address, the county could send the voter a notice if their ballot is "naked" and give them a chance to cast a provisional ballot on Election Day. The state high court said reaching voters whose ballots have other problems, like missing signatures, is not required by the law, but Boockvar said individual counties could still offer opportunities to "cure" deficient ballots.
King, the Republican party's lawyer, said ballots missing their signatures could still be tossed, and those with obviously wrong signatures could be the party's next focus.
"If the ballot comes from 'Mickey Mouse' and they signed 'Donald Duck,' should that still be counted?" he said. "I don't believe the [state] Supreme Court reached that issue."
--Editing by Breda Lund.
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