Pennsylvania Mail-in Ballots Received by Nov. 6 Will Count in Election

September 17, 2020 Updated: September 17, 2020

Mail-in ballots received up to three days after the Nov. 3 presidential election will count, the Pennsylvania Supreme Court ruled Thursday, provided they were postmarked or believed to be postmarked by 8 p.m. on election night.

The highest court in a crucial swing state ruled 5-2 for the Pennsylvania Democratic Party, which had filed a lawsuit against Secretary of the Commonwealth Kathy Boockvar, a Democrat, and all 67 county boards.

Calling the ongoing COVID-19 pandemic “a natural disaster,” Justice Max Baer, writing for the majority, said the primary elections earlier this year were rife with threatened disenfranchisement of thousands of voters as several county election boards struggled with the unprecedented volume of mail-in ballot applications that was allowed through Act 77, legislation which permitted mail-in voting without condition. It was passed and signed into law last year.

“In light of these unprecedented numbers and the near-certain delays that will occur in Boards processing the mail-in applications, we conclude that the timeline built into the Election Code cannot be met by the USPS’s current delivery standards, regardless of whether those delivery standards are due to recent changes in the USPS’s logistical procedures or whether the standards are consistent with what the General Assembly expected when it enacted Act 77,” Baer wrote in the 63-page opinion.

“Under our Extraordinary Jurisdiction, this Court can and should act to extend the received-by deadline for mail-in ballots to prevent the disenfranchisement of voters,” he added later.

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An individual deposits letters into a U.S. Postal Service collection mailbox in Philadelphia, Penn., on Aug. 14, 2020. (Rachel Wisniewski/Reuters)

Any ballots mailed by voters via the U.S. Postal Service (USPS) and postmarked by 8 p.m. on Nov. 3 will now be accepted if it arrived by 5 p.m. Nov. 6, but the postmark requirement is flexible.

Ballots received after election day that lack a postmark or other proof of mailing, or for which the postmark or other proof of mailing is illegible, will be counted “unless a preponderance of the evidence demonstrates that it was mailed after Election Day,” the ruling stated.

The move will “reduce voter disenfranchisement resulting from the conflict between the Election Code and the current USPS delivery standards, given the expected number of Pennsylvanians opting to use mail-in ballots during the pandemic,” the majority opinion stated.

Several judges wrote concurring opinions.

“The extraordinary circumstances under which this year’s quadrennial presidential election must be contested manifestly justify an equitable remedy modifying the received by deadline for absentee and mail-in ballots to account for these exigencies and to ensure that no unnecessary impediments to each citizen’s exercise of the franchise be interposed that reasonably can be avoided,” Justice David Wecht wrote in one of them.

Chief Justice Thomas Saylor and Justice Christine Donohue in partial dissents, joined by Justice Sallie Updyke Mundy, spoke out against the extension of the deadline.

“I am not as comfortable as the Majority with the ability of this Court to exercise equitable powers in election matters,” Donohue wrote. “Because they are inherently political, elections are appropriately regulated by the political branch.”

Saylor added: “Although the majority decision appears to be designed to accommodate only ballots actually mailed on Election Day or before, the majority does not so much as require a postmark. Particularly in combination with the allowance of drop boxes, this substantially increases the likelihood of confusion, as well as the possibility that votes will be cast after 8:00 p.m. on Election Day, thus greatly undermining a pervading objective of the General Assembly.”

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Voters cast ballots in primary election in Philadelphia, Penn., June 2, 2020. (Jessica Kourkounis/Getty Images)

The Pennsylvania Democratic Party had argued argued that state election rules pertaining to voting-by-mail, as applied during the current pandemic, led to large numbers of mailed-in ballots being rejected during the recent primaries, and therefore sought a change to the rules.

President Donald Trump’s reelection campaign and the Republican National Committee sought to intervene in the lawsuit but were blocked from doing so last week.

Trump campaign general counsel Matthew Morgan said in a statement sent to The Epoch Times: “This ruling is a victory for Pennsylvania voters. Ballot harvesting by paid political operatives remains illegal. We look forward to the federal courts weighing in on what ‘Election Day’ actually means, but we applaud this major win for voter integrity.”

He was referring in part to a separate ruling Thursday that saw justices rule that third parties cannot deliver absentee ballots.

The Pennsylvania Democratic Party and the Pennsylvania Republican Party didn’t immediately respond to inquiries, nor did Democratic presidential nominee Joe Biden’s campaign.

Pennsylvania’s Supreme Court has five judges appointed by Democratic governors and two appointed by Republican ones.

Trump weighed in on Twitter: “State Supreme Court in Pennsylvania just affirmed that Ballot harvesting remains illegal. We will be watching that the Democrats do not Ballot Harvest – a felony. In other words, the Republican Party won on the atrocious Ballot Harvesting Scam.”

Matthew Vadum contributed to this report.

Follow Zachary on Twitter: @zackstieber