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HARRISBURG — In the weeks leading up to November’s historic election, there has been one constant: lawsuits and court decisions that have shaped the way Pennsylvanians can cast ballots, and how their votes will be counted.
From poll watchers to vote-counting deadlines to drop boxes and naked ballots, state and federal judges in recent weeks have waded into increasingly high-stakes battles to clarify what is legal, and what isn’t.
The hope, legal experts said, is that those decisions will prevent a bitter, drawn-out vote count that could foil a swift resolution to who wins the presidency — a development many fear could lead to misinformation and chaos.
But lawyers are split on whether those decisions will be enough to stop what could be a rash of legal challenges on Election Day and in the days after, ones that could prevent counties from meeting the Nov. 23 deadline to certify their election results to the state.
“I happen to think that Pennsylvania could be ground zero in the country for determining the outcome of the presidential election because of the delays from litigation,” said Philadelphia-based lawyer Matt Haverstick, who has argued election-related and other cases in the state’s appellate courts, including for Republicans who control the state Senate.
“I have a feeling we are going to be the Florida of 2020,” he added, referring to the tense and chaotic recount in Florida in 2000 and the subsequent litigation that resulted in President George Bush’s narrow win.
To date, federal judges, as well as the justices on Pennsylvania’s highest court, have played a pivotal role in clarifying the state’s still-new mail-in voting law — this in a year expected to see a record number of voters cast their ballots using the U.S. Postal Service, drop boxes, or early voting at election offices.
As of mid-week, 2.6 million people had requested and been approved for a mail-in or absentee ballot, and 518,000 had been returned.
A handful of cases stand out as having had the most impact, although underlying all of them is a fundamental question: Should voting be made easier or harder?
“On one side, there has been a concern about impropriety or cheating, so the concern has been locking down the electoral system to rule that out,” said Ben Geffen, staff attorney at the Public Interest Law Center in Philadelphia, which has been involved in one of the election-related legal cases. “And on the other side, the concern has been too much red tape or bureaucracy keeping people from voting.”
In a case decided last month, the Pennsylvania Supreme Court upheld the use of drop boxes and satellite election offices, both touted by voting rights groups as key to helping counties more quickly and effectively gather and process a mountain of mail-in ballots.
The high court, dominated by Democrats, also extended the deadline for mail-in ballots to be received by county election offices in order to be counted. Initially, ballots were due by the close of polls on Nov. 3. The justices, in a 4-3 decision, allotted an extra three days for them to be received, as long as they are postmarked by Election Day.
The court did not stop there.
The justices also ruled that even ballots that have an illegible postmark — or ones that don’t have a postmark at all — can be counted unless there is convincing evidence that they were mailed post-Election Day, another victory for voting right activists.
The ruling was controversial, prompting some Republicans to complain that the court was effectively legislating from the bench, usurping the role of the General Assembly. Republican leaders, including the two top lawmakers in the Senate, have appealed portions of the case to the U.S. Supreme Court, which has not indicated yet whether it will hear arguments in the case.
At the federal level, a Pittsburgh-based judge last week threw out a separate lawsuit filed by President Donald Trump’s campaign, which wanted to bar counties from using drop boxes or mobile sites for ballot collection that are not staffed or monitored consistently throughout every county in Pennsylvania. (Trump’s campaign is expected to appeal a portion of the decision.)
The Trump campaign had also sought to allow partisan poll watchers to staff voting locations outside the counties in which they reside, and to disqualify mail-in ballots on which a voter’s signature does not appear to match the signature election officials have on file.
But on the issue of signature matching, there is still a pending legal challenge: The state Supreme Court just this week said it would hear arguments, on an emergency basis, on litigation by Kathy Boockvar, the state’s top election official. Boockvar has asked the high court to prevent counties from rejecting ballots based on a subjective reading of signatures, which can change over time.
Suzanne Almeida, interim executive director of Common Cause Pennsylvania, said that this deluge of pre-election litigation could decrease the likelihood of mass challenges to mail-in ballots come Election Day.
But it won’t eliminate it.
“It is 2020,” said Almeida, adding that it would be “foolish to assume” the two parties, and the two presidential campaigns, will not use every legal avenue to secure a win.
She and others said it is hard to predict what that litigation might look like. It could be over smaller issues that will play out in county courts — a poll worker, for instance, wrongfully asking for identification.
“But what if there is some widespread problem with the voting technology … some unforeseen glitch with those systems that lead to hours-long lines or that leads to uncertainty of the outcome of the election?” Geffen said. “I think there are a lot of lawyers who are girded for battle.”
Another potential issue: What happens if counties take so long to count mail-in ballots that they miss the deadline for certifying their results to the state?
The latter, in particular, caused agita in political circles following an article last month in The Atlantic that noted, if there is protracted litigation, the state legislature could step in to appoint Pennsylvania’s electors, whose job it is to formally submit the state’s 20 electoral votes to Congress.
In Pennsylvania, a battleground state, both legislative chambers are controlled by the GOP, fueling fears that partisan politics could drive the outcome.
Bruce Ledewitz, a professor at Duquesne University School of Law, doesn’t think the doomsday scenario of protracted litigation will play out post-election. In Florida in 2000, “there was a breakdown in the process” that included the fundamental problem of not knowing how people had even voted because officials couldn’t decipher the ballot.
In Pennsylvania this year, the process is clear, he said, and the courts have already weighed in on potential problem areas.
“You can’t challenge a ballot just because someone mailed it in,” he said. “There has to be a reason.”
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