A pair of court rulings this week in Michigan and Pennsylvania will give voters more time to cast their mail-in ballots in the two critical swing states.
However, that means if the election is close and comes down to those two states, the presidential winner might not be known for several days.
In Michigan, State Court of Claims Judge Cynthia Diane Stephens ruled Friday that if a mail-in ballot is postmarked by Nov. 2, the day before the election, election officials must count it if it arrives by the end of the day on Nov. 16. That’s a two-week window in which ballots can still be counted after the election.
The judge also ruled that starting at 5:01 p.m. on Friday, Oct. 30, voters can receive assistance in delivering their mail ballot to a drop box or to the county clerk from “any individual the voter chooses.”
And in Pennsylvania, the state Supreme Court ruled Thursday that any ballot postmarked by 8 p.m. on Nov. 3 — Election Day — must be counted if it’s received by the end of the day on Friday, Nov. 6.
The court also said that any mail ballot without a postmark, or whose postmark is illegible, must be counted if it’s received by that same date, Nov. 6.
The Pennsylvania judges said they based their rulings on concerns about delays in mail delivery by the U.S. Postal Service.
“We conclude that the timeline built into the Election Code cannot be met by the USPS’s current delivery standards,” the Pennsylvania Supreme Court wrote.
The court also noted that the Republican-controlled state legislature had “enacted an extremely condensed timeline, providing only seven days between the last date to request a mail-in ballot and the last day to return a completed ballot.”
A Michigan judge also cited Postal Service delays.
“In light of delays attributable to the COVID-19 pandemic, mail delivery has become significantly compromised, and the risk for disenfranchisement when a voter returns an absent voter ballot by mail is very real,” wrote Stephens, the Michigan judge.
On another issue that will directly affect how long it takes to count votes, both Michigan and Pennsylvania are still waiting on the legislature to take action.
Election officials across the country are nearly unanimous that they need to be able to open mail ballots before Election Day in order to report the results in a timely manner. Otherwise, clerks will only be able to start verifying the validity of ballots on Election Day, which will likely lead to delays in tabulating votes.
In Michigan, the state Senate has passed a bill that would allow clerks to start opening mail ballots one day before the election. The House has yet to take up the legislation. Both chambers have Republican majorities.
Michigan Secretary of State Jocelyn Benson, a Democrat, said the bill is “a step in the right direction but does not go nearly far enough to provide the relief that clerks have been seeking for more than a year.”
“I support the small step forward because I know at this point clerks will take any legislative assistance. But the bill comes up far short of what our clerks and voters deserve. The Bipartisan Policy Center recommends clerks have at least seven days to process absentee ballots before Election Day,” Benson said.
In Pennsylvania, House Republicans have passed a bill that would give clerks three days before Election Day to “pre-canvass” ballots, which includes opening and counting ballots, without publicly publishing the results.
But Pennsylvania Democrats want the Republican-controlled state legislature to give clerks at least 14 to 21 days to pre-canvass. Pennsylvania Republicans told Yahoo News this week that if they allow more than three days of pre-canvassing, then mail ballots would be opened without the opportunity for election monitors to challenge ballots they think were cast fraudulently.
The Pennsylvania secretary of state also shot down the Republican contention that anything longer than a three-day window for pre-canvassing would eliminate the ability to challenge ballots.
“In our proposal, the rights of authorized representatives currently permitted in the pre-canvass and canvass processes would still be valid in a longer pre-canvassing period,” Wanda Murren, a spokesman for the Pennsylvania secretary of state, told Yahoo News.
The bill passed by the House Republicans in Pennsylvania had proposed several other measures that would have made it harder to vote, but the state Supreme Court decision quashed those attempts to restrict voting.
Pennsylvania Republicans have wanted to eliminate most drop boxes, which are secure receptacles in which voters can hand-deliver their mail ballots well before Election Day without having to send them through the mail. President Trump’s reelection campaign sued in federal court to get rid of these secure drop boxes as well, claiming — without evidence — that they were susceptible to fraud.
A federal judge in August had stayed the Trump lawsuit and deferred to state courts. And Pennsylvania’s highest court said that counties could erect drop boxes and “satellite” voting locations apart from the county clerk’s offices, which will allow any county to erect as many of these alternative early voting locations as they want. In big cities like Philadelphia, where long lines have made voting in person a time-consuming enterprise, these drop boxes and extra voting locations might help alleviate the crush of voters on Election Day.
Pennsylvania Republicans also wanted poll watchers to be able to show up anywhere in the state to possibly challenge voters at the polls. Poll watchers are distinct from poll workers, and are appointed by the party. They work as election observers, and in theory are on hand to make sure the voting is legitimate. Only one from each party is allowed in a polling place.
Pennsylvania law says poll watchers can serve only in the district in which they live. Republicans sought to expand that to allow them to serve anywhere in the state. A spokesperson for Senate Majority Leader Jake Corman told Yahoo News this week that the County Commissioners Association of Pennsylvania (CCAP) had requested the change be made to supply more poll watchers.
But a spokesman for the CCAP said this was not true, and the Corman spokesperson admitted they were mistaken when presented with the CCAP comment.
Democrats said that allowing poll watchers to come from conservative parts of the state into Democratic strongholds could be disruptive and lead to longer lines in major urban areas like Philadelphia. The state Supreme Court did not wade into this debate but upheld state law and prevented Republicans from obtaining the expansion of poll watcher eligibility.
But the state Supreme Court ruled against Democrats on two counts. It said that if a mail ballot is sent in without an outer “secrecy envelope” — a piece of paper that helps protect the identity of the voter — it cannot be counted. And the court ruled against requiring clerks to follow up with voters if they did not “fill out, date, and sign the declaration printed on the outer envelope” or if they used the incorrect ink color on their ballot as specified by the county.
Nonetheless, the rulings in the Pennsylvania decision were called “the best news of the [election] cycle” by Marc Elias, the Democratic lawyer spearheading his party’s legal campaign on voting issues.
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