PHILADELPHIA — “Naked ballots” are fast shaping up as 2020’s equivalent of hanging chads.
After the state Supreme Court ruled Thursday that mail-in ballots sent without a proper envelope — known as naked ballots — cannot be counted, Pennsylvania election officials are sounding the alarm that upwards of 100,000 votes could be tossed out in November in this key battleground state.
In 2016, Pennsylvania saw one of the closest finishes in the nation: Donald Trump defeated Hillary Clinton here by only 44,000 votes. Now, the prospect that more than twice that number of ballots might be disqualified is sending shudders through the Democratic establishment in a state where recent polls show Joe Biden’s lead is within single digits.
The decision on naked ballots was immediately seen as a victory for Trump’s campaign and state Republicans: They’ve argued in a lawsuit against Pennsylvania that such votes should be tossed out. Democrats countered with their own suit in state court that made the case they should be tallied. Because Democrats are planning to vote by mail at much higher rates than Republicans this year, any rejection of ballots without the necessary envelopes is likely to harm Biden’s campaign more than Trump’s.
“This has the potential of disenfranchising tens of thousands of voters. People that aren’t using a ‘secrecy’ envelope, we’re going to throw votes out based on a technicality,” said Democrat Lisa Deeley, the top election official in Philadelphia. “When you consider that the 2016 presidential election in Pennsylvania was decided by just over 44,000 votes, you can see why I’m concerned.”
Several election officials said so-called secrecy envelopes, which are supposed to be enclosed in another mail envelope with a voter’s mail or absentee ballot to ensure privacy, are unnecessary, outdated and often forgotten by voters. Heavy machines are processing those ballots in several counties, meaning election workers are picking them up at such a speed that they aren’t looking at any particular ballots regardless of whether they have a secrecy envelope, they said.
“I think it will absolutely disenfranchise people,” said Montgomery County Commissioner Ken Lawrence, the Democratic chairman of the Board of Elections there. “My concern is that I think we should be helping people to have their votes count, and I don’t know what the secrecy ballot does with that.”
Though the ruling on naked ballots was a loss for Democrats, other major parts of the decision represented a victory for the party. For instance, the Democratic-controlled state Supreme Court also decided that drop boxes are permitted and mail ballots must be counted if they are received three days after Nov. 3 as long as they are postmarked by Election Day or there isn’t any evidence it was mailed after that date.
But Deeley said in a letter to Republican leaders in the state legislature that “[w]hile everyone is talking about the significance of extending the mail ballot deadline, it is the naked ballot ruling that is going to cause electoral chaos.” She estimated that more than 100,000 naked ballots could be rejected, including 30,000 to 40,000 in Philadelphia alone, based on the fact that about 6 percent of the total absentee ballots in the city in the 2019 general election lacked secrecy envelopes.
She warned GOP state Senate President Pro Tempore Joe Scarnati and state House Speaker Bryan Cutler that it “set Pennsylvania up to be the subject of significant post-election legal controversy, the likes of which we have not seen since Florida in 2000." She has not yet received a response, she said.
“This is a serious issue, and I’m very concerned about it,” said Rep. Brendan Boyle (D-Pa.), who represents part of Philadelphia. “It doesn’t look like there is a legal remedy available, but I will yield to legal experts on that. It’s also obvious the GOP legislature has no desire to fix this problem. So our best recourse at this point is to spend resources to educate voters on the proper procedures for voting by mail.”
Pennsylvania’s Republican-led legislature could amend the law to allow naked ballots to be counted, a proposal that Democratic Gov. Tom Wolf supports. But few in Harrisburg are optimistic that the two sides will reach an agreement on this or other election changes.
Wolf opposes a GOP bill that would allow election officials to open and scan mail ballots three days before the election — he prefers three weeks — because that measure would also shorten the time that voters have to request those ballots, effectively eliminate drop boxes and allow poll watchers to volunteer outside of their county.
Kate Eckhart Flessner, communications director for Scarnati, said he “continues to work with his legislative colleagues to ensure the voting process in Pennsylvania complies with the law, and is fair, transparent and timely.”
However, Jennifer Kocher, a spokesperson for state Senate Majority Leader Jake Corman, said, “We would agree with the governor’s sentiment that the court ruling ‘didn’t help’ the negotiation process,” a reference to comments Wolf made about a separate decision that recently determined that some of his coronavirus restrictions were unconstitutional.
Democratic Lt. Gov. John Fetterman said that despite the ruling on naked ballots, the handful of state Supreme Court rulings that were released last week dealing with elections were a triumph for Democrats overall.
“If you look at the Supreme Court decisions that came down, the majority of them fell on the side of enfranchisement. This one, of course, isn't ideal,” he said. “But at the end of the day, I think it can be overcome with education and awareness.”
Bethany Hallam, an Allegheny County Democratic council member and election board member, agreed that a widespread voter education program is necessary: “Something has changed — something very, very important that could completely invalidate your mail-in ballot, possibly without you ever knowing. … It’s incumbent upon the counties and even the state to make sure there is a thorough marketing campaign that’s letting voters know about this.”
To avoid problems, the Wolf administration has launched a “multi-million dollar” campaign about the vote-by-mail process, which includes TV, radio and digital ads as well as postcards sent to all registered voters. Rachel Lee, a spokesperson for Trump’s Pennsylvania campaign, said “we have been educating our voters about the changes and will continue to do so.”
The Biden campaign, meanwhile, said that its direct mail to voters in Pennsylvania features detailed steps about the mail-in process as well as images based on the state’s secrecy envelopes. It is also launching digital ads this week that stress the importance of returning ballots with the proper envelopes.
“This year Pennsylvanians have more voting options than ever,” said Brendan McPhillips, Biden’s state director in Pennsylvania. “Our robust organizing and voter protection teams have launched a multi-faceted program to make sure Pennsylvanians in all 67 counties know that they must return vote-by-mail ballots with two envelopes -— the smaller secrecy envelope and the larger return envelope, and that they must complete and sign the voter declaration on the back.”