A U.S. Supreme Court ruling on Tuesday disallowing the counting of undated mail-in ballots adds a new wrinkle to what votes cast by mail can be counted in the Nov. 8 election in Pennsylvania.
Acting Secretary of State Leigh Chapman said the department is reviewing the decision and will be issuing guidance to county election officials who until now as a result of a lower court ruling were advised to count those ballot with no or wrong dates on them.
“It’s active litigation,” Chapman said in a Zoom call with reporters shortly after the ruling was posted. “So I’m unfortunately unable to comment any further.”
However, the secretary did share that whatever guidance or directives the department issues to local election officials, “we expect counties to follow.”
If they don’t, she said the department first will make sure the county officials understand the guidance and what’s expected of them. Then, if necessary, she said the department will consider taking legal action.
The Supreme Court ruling vacates a decision by the 3rd Circuit U.S. Court of Appeals in case brought by a Republican judge candidate in Lehigh County who lost to his Democratic opponent by five votes when 257 undated absentee ballots were counted.
The ruling doesn’t change the results of that election but it does set a precedent that Pennsylvania, New Jersey and Delaware, states covered by the 3rd Circuit Court, must follow.
As of Tuesday, Chapman reported 1,136,685 mail-in and absentee ballots have been requested with 821,181 requested by registered Democrats and 213,204 by Republicans.
To date, just 4.6%, or 52,522, had been returned, she said.
“With 21 days to go until the Nov. 1 deadline for requests for a mail-in or absentee ballot, we expect that total to rise dramatically,” Chapman said. Ballots must be returned to county election offices by 8 p.m. on Election Day to count.
One other bit of guidance provided to counties, she shared, is that ballots that have taped inner or outer envelopes are to be counted.
Other highlights from the conversation with Chapman include:
Risk-limiting audits: Beginning with this election, all counties will be required to perform a risk-limiting audit, which she described as the gold standard of election audits to confirm election results, before certifying their vote totals to the Department of State.
This requirement grows out of the settlement of lawsuit filed in 2016 by Green Party presidential candidate Jill Stein that required all 67 counties to perform this type of audit by the November 2022 election.
In addition, state law requires counties to conduct a separate 2% statistical audit of ballots after each election and relay the results to the state.
Election results: Once again, Chapman is asking voters for patience when it comes to finding out the outcome of races on the ballot.
“An accurate count of all eligible votes is paramount and it cannot be rushed,” Chapman said. “Election workers must be given a reasonable amount of time to do their jobs thoroughly. And official results will be available within a few days.
“And it’s critically important that all of you understand and that you convey to your audiences that this delay does not mean anything nefarious is happening. It simply means that the process is working as it’s designed to work in Pennsylvania.”
The state provided $45 million in grants this year to counties that they could use for a prescribed list of items including hiring staff and buying equipment, to help speed up the vote counting process. Counties that accepted a grant are required to begin continously counting mail-in ballots once polls close on Election Day.
One change that Chapman said the General Assembly didn’t approve that Gov. Tom Wolf and counties have asked for is to allow for earlier pre-canvassing of mailed ballots than the 7 a.m. start time that the law currently allows for opening ballots and getting them ready to be counted.
Drop boxes: The department’s guidance recommends counties ensure their drop boxes are secure and monitored by camera or other means. She said she sent a letter to Lehigh County before the primary and more recently to Berks County expressing concern over the use of law enforcement officials who question voters at drop boxes.
She said state law requires voters to return their own ballot unless they designated someone else to return their ballot for them. “So my concern is that when there’s law enforcement presence, when there’s questioning of voters at drop boxes, there could be the potential for voter intimidation,” Chapman said. “A lot of voters might not even decide to show up and return their ballot because of that concern.”
The department also updated guidance to counties telling them to report any intimidation that happens at drop boxes just as they would report that activity at polling places.
Important dates to remember: The last day to register to vote in the upcoming election which will decide the U.S. Senate, gubernatorial, congressional and legislative races is Oct. 24. The last day to request a mail-in or absentee ballot is Nov. 1. Polls are open on Election Day from 7 a.m. to 8 p.m.
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