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• Pennsylvania: The Pennsylvania Supreme Court, which has a 5-2 Democratic majority, has unanimously ruled that election officials may not reject mail ballots because of alleged signature mismatches.
The U.S. Supreme Court deadlocked 4-4 on Pennsylvania Republicans' request to stay two state Supreme Court rulings that had sided against Republican requests to restrict voting access and enable voter intimidation, leaving the state court's orders in place.
The decision, however, has catastrophic implications for the future of voting rights in the likely event that Judge Amy Coney Barrett is confirmed to the bench, signaling that the justices are prepared to eviscerate long-settled doctrines of federalism in the service of actively undermining fair elections.
The rulings in question saw the Democratic majority on Pennsylvania's top court reject the GOP's request to block counties from setting up drop boxes for returning mail ballots. The court also turned back Republican demands that ballots only count if received by Election Day (the state will accept ballots postmarked by Election Day and received within three days).
In addition, the court determined that ballots lacking a postmark would "be presumed to have been mailed by Election Day" unless there is strong evidence to the contrary. Finally, the justices rejected allowing "poll watchers" from serving in counties where they were not registered to vote, a thinly veiled attempt at voter intimidation by Trump, who has repeatedly incited his supporters to harass voters at polling places in Philadelphia and other localities with large Black populations.
While Chief Justice John Roberts' decision to side with the Supreme Court's three liberals leaves the Pennsylvania court's orders in place for now, that's no guarantee they'll remain in effect much longer. Republicans swiftly filed a new federal lawsuit seeking to block the mail ballot return deadline in an attempt to get the question back before the U.S. Supreme Court soon after Barrett is confirmed. Barrett could therefore cast the deciding vote, potentially even after Election Day, to overturn the state court's ruling and throw out thousands of ballots that were postmarked by Election Day but not received until afterward.
It has been a cornerstone of American federalism for more than two centuries that when state courts make decisions based solely on state constitutional grounds that don't conflict with federal law—as is the case here—those decisions are insulated from federal review. However, Republicans argue that the U.S. Constitution's Elections Clause giving the "legislature" in each state the power to set the "times, places, and manner of holding" federal elections means that only the legislature itself may exercise that power, not those tasked with setting or interpreting state laws, such as state courts.
In other words, Republicans are arguing that state courts—as well as voter-initiated ballot measures and potentially even governors—lack the power to set election laws when they disagree with the legislature. Such a notion would shatter the principle of judicial review at the state level. In a state such as Pennsylvania, where the GOP holds gerrymandered legislative majorities despite Democrats winning more votes in 2018, it would cement minority rule by removing any real check on ill-gained legislative power. This outcome would eliminate any real recourse that voters have to end gerrymandering when lawmakers won't act.
The last few months have seen the U.S. Supreme Court and federal judges appointed by Republicans repeatedly rule against voting rights. This Pennsylvania case is an ominous indicator that right-wing judges will go to new extremes to eviscerate voting protections to entrench the GOP in power for the foreseeable future. Should Democrats overcome these barriers next month and win the presidency and Senate, they will likely soon face the difficult choice of either reforming the structure of the courts or watch voting rights wither away under an unrelenting judicial assault.
• Pennsylvania: The Pennsylvania Supreme Court has agreed to take up Democratic Secretary of State Kathy Boockvar's request for it to clarify whether state law allows counties to reject mail ballots based on signatures purportedly not matching the ones on file without notifying voters and giving them a chance to correct the problem. Boockvar had issued a directive last month telling counties that they were required to give voters a chance to fix problems, but the Trump campaign contested it in a separate federal lawsuit.
Meanwhile in that same federal case, a district court has rejected Trump's request to ban dropboxes and allow voters to serve as poll watchers outside their home county, which opponents argued was an attempt to encourage voter intimidation in cities with large Black populations. Trump is appealing to the 3rd Circuit Court of Appeals.
(Note: Daily Kos Elections contributing editor Arjun Jaikumar is representing a party in this case. He took no part in the production of this writeup.)
• Pennsylvania: The Pennsylvania Supreme Court, which has a Democratic majority, has ruled that election officials must count ballots postmarked by Election Day and received by the Friday after. In addition, the court ruled that local officials may set up ballot return drop boxes and also affirmed a ban on poll-watchers working in counties other than those they are registered to vote in. Republicans are appealing.
The court also ruled that so-called "naked" mail ballots wouldn't count, leading election officials are warning that up to 100,000 voters could be disenfranchised without adequate voter outreach. Such ballots are mail ballots contained only inside the outer envelope that contains the return address information, but the court's ruling requires that all mail ballots be inserted into a second "privacy envelope" that goes inside the larger return-address envelope. During the primary, such "naked ballots" were counted, risking further voter confusion this fall.
Consequently, Democrats launched TV ads in Philadelphia to warn voters about how to avoid the problem there, and three women running for state and county legislative offices in the Pittsburgh area used photos of themselves "naked" (the photos were censored with graphics of ballot materials) in a public service announcement that went viral on social media to raise awareness about the problem.
Separately, Democratic Secretary of State Kathy Boockvar has informed election officials that they may not reject mail ballots solely based on alleged signature mismatches, settling a suit with voting rights advocates.
• Pennsylvania: A group called the Fair Elections Center has filed a lawsuit in state court asking that voters who requested mail ballots but don't receive them in time to cast them be able to obtain their ballots electronically instead. However, those voters would still have to download and print out such ballots to return a physical copy. The plaintiffs also want voters to be able to designate someone to pick up their previously requested but undelivered mail ballot for them in the week before Election Day, which would otherwise leave too little time to send them via mail, let alone to try to also return them by mail.
The military has used a system of electronic absentee delivery and printed-copy return for years, and numerous lawsuits across the country during the pandemic—including one in Pennsylvania—have already resulted in making that option available to voters with visual impairments who otherwise cannot vote a secret ballot in-person. However, no court has yet made this method more widely available like these plaintiffs are requesting.
• Pennsylvania: A federal court has placed on hold a lawsuit brought by Donald Trump's campaign that seeks to prohibit local election officials from establishing drop boxes for absentee ballot returns, explaining that long-standing Supreme Court precedent requires it to wait for Pennsylvania state courts to resolve a similar case. Democrats filed that state court suit in a likely effort to short-circuit Trump's federal case and ensure their claims could be heard by the state Supreme Court, where a majority of the justices are Democrats.
• Pennsylvania: Philadelphia and several other Democratic-leaning counties in southeastern Pennsylvania are exploring the possibility of setting up a number of what would effectively be early voting locations, given the widely reported delays in mail delivery in recent months. Currently, voters can only vote early in-person by casting a mail ballot at their county's election's office, but officials are planning to create satellite election offices, including some mobile offices that could shift location depending on demand.
• Pennsylvania: Voting rights advocates have filed a federal lawsuit seeking to require Pennsylvania to notify voters and give them a chance to fix problems with their mail ballots that could cause them to be rejected, such as a non-matching signature. Separately, Democrats are waging an ongoing lawsuit in state court seeking this change and several others to expand mail voting access.
Pennsylvania: Democratic Secretary of State Kathy Boockvar has announced that Pennsylvania will prepay the cost of postage to return mail ballots this fall, a move that comes in response to an ongoing lawsuit by national Democrats that is currently pending before the state Supreme Court. While the decision is a victory for plaintiffs, election expert Michael McDonald warns that some ballots may be rejected because some post offices aren't postmarking prepaid mail despite an official policy to do so for mail ballots.
The plaintiffs in that case are also seeking to count ballots that are postmarked by Election Day and received within a few days afterward; ensure ballots aren't rejected for non-matching signatures without voters having a chance to fix any problems; and allow campaigns or community groups to collect and submit completed mail ballots on behalf of voters.
• Pennsylvania: The Pennsylvania Democratic Party has filed a lawsuit in state court seeking to effectively short-circuit a federal lawsuit that the Trump campaign and several GOP Congress members recently filed to restrict voting access, which the federal district court recently agreed to expedite.
Democrats are asking the appellate-level Pennsylvania Commonwealth Court to guarantee that counties can set up drop boxes for returning mail ballots; count ballots that are postmarked by Election Day and received within a few days afterward; give voters a chance to fix problems with mail ballot signatures; count mail ballots lacking an inner secrecy envelope; and prohibit voters from serving as poll watchers in a county where they aren't a resident. The GOP's federal lawsuit is trying to block drop boxes and allow out-of-county poll watchers, which is likely intended to facilitate voter intimidation.
Pennsylvania: Republican legislators have passed a constitutional amendment out of both legislative chambers that would effectively gerrymander the Pennsylvania Supreme Court and two intermediate appellate courts. This move is a retaliation against the high court, which has a Democratic majority, after the justices struck down the GOP's congressional gerrymander in 2018 and replaced it with a much fairer map in a historic ruling establishing that gerrymandering violated the state constitution's guarantee of "free and equal" elections.
The GOP's amendment would replace the current system of statewide appellate court elections with a district-based system. Because Democrats and Black voters in Pennsylvania are heavily concentrated in cities such as Philadelphia and Pittsburgh, such a system would likely favor Republicans and allow them to win a majority of the Supreme Court's seven seats even if they couldn't win a majority of votes statewide. Federal courts have also not established a binding national precedent that judicial districts need to be of equal population like legislative-branch districts must, opening the door to even more extreme gerrymandering in future years.
Pennsylvania's top court will play a central role in redistricting, since it appoints a tiebreaker to the bipartisan commission that oversees legislative redistricting in the event of deadlock between the two parties (which is all but guaranteed). When Republicans controlled the court after 2000 and 2010, their court majority enabled them to pass gerrymanders that prevented Democrats from winning majorities in the legislature even when they won more votes statewide, as happened in 2018. The court could also wind up redrawing the congressional map for 2022 in the likely event that Democratic Gov. Tom Wolf blocks the GOP legislature from drawing a new gerrymander.
This new amendment still has many hurdles to overcome before it could take effect. Republicans must pass the exact same proposal again after the 2020 elections, meaning that if Democrats are able to flip one of the legislature's two chambers, the amendment will die. However, if the GOP maintains their majorities, they could pass the amendment again and put it on the ballot as a referendum before the 2022 elections. Even in that scenario, though, voters would still have the opportunity to defeat the amendment at the ballot box.
Pennsylvania: The Trump campaign and several Republican Congress members have filed a lawsuit in federal court seeking to prohibit counties from setting up drop boxes or locations aside from the county board office for voters to return their absentee mail ballots. They also want to bar officials from counting mail ballots that aren't placed in a secrecy envelope and allow Pennsylvanians to serve as poll watchers across the state regardless of which county they live in.
These provisions would add onerous burdens for mail voting access, and the measure on poll watchers in particular appears intended to encourage voter intimidation in urban communities of color in cities like Philadelphia. At one 2016 campaign rally, Trump listed several cities with large Black populations—including Philadelphia—and urged his supporters to volunteer as poll watchers in them.
• Pennsylvania: Citing their inability to recruit a sufficient number of poll workers, officials in Pennsylvania's largest county of Philadelphia have asked the state for permission to cut the number of polling places they will operate for the June 2 primary by more than the 60% allowed under the new state law that postponed the primary from April 28. Otherwise, the county is asking for the National Guard to be deployed to help staff them. Allegheny County, which is Pennsylvania's second-largest county and home to Pittsburgh, has similarly asked the state for permission to cut its polling places by up to 90% as the county undertakes a plan to mail applications for mail ballots to all voters.
• Pennsylvania: Democrats have filed a lawsuit in state court seeking to require that Pennsylvania prepay the postage for all mail-in ballots, count ballots if they are postmarked by Election Day instead of only if they're received by Election Day, give voters a chance to correct problems with their ballot signature, and let third-party groups collect and return mail ballots. Meanwhile, Democratic Gov. Tom Wolf is encouraging all registered voters to apply for mail-in ballots for the June primary and has sent out postcards with relevant information.
• Pennsylvania: The NAACP has filed a lawsuit in state court to end prison gerrymandering in Pennsylvania and require the state to count incarcerated people for redistricting purposes at their last address, arguing that the practice dilutes the power of certain groups of voters in violation of the state constitution's guarantee that "[e]lections shall be free and equal." If the plaintiffs prevail, ending prison gerrymandering would likely shift representation at the legislative and local levels from whiter rural communities to urban communities of color such as Philadelphia.
The constitutional provision plaintiffs are relying on is the same one that the state Supreme Court used to strike down Republicans' congressional gerrymander in 2018. The NAACP is also simultaneously waging a lawsuit in federal court over prison gerrymandering in Connecticut.