For Law Students

Join Now

The battle over mail-in ballots in Pennsylvania

Ballot Box
A sign directs voters to a mail-in ballot drop off box location at the Berks County Agricultural Center in Leesport, Pa. (iStock photo)

Just after Election Day, Republicans and Democrats disagree on whether states should consider mail-in ballots received after November 3. The issue has not yet been resolved, and Americans who voted by mail are anxiously waiting to see whether or not their votes will be counted in the 2020 Presidential Election.

Roughly 100 million Americans cast their votes by mail this election due to the pandemic. This record-breaking number resulted in delays at election facilities that are still receiving ballots later than Tuesday. The delay stems from the extraordinarily high volume of ballots, and USPS operational changes from newly appointed Postmaster General Louis DeJoy.

As a result, in Pennsylvania, the State Supreme Court ruled in favor of extending the date to accept mail-in ballots by three days, as long as the ballot is post-marked on or before November 3. The court based its decision on Article I § 5 of the Pennsylvania Constitution which reads, “elections shall be free and equal.”

The Republican Party argues that the Pennsylvania State Supreme Court’s decision violates Article II of the U.S. Constitution, which expressly grants the power to state legislators to decide electoral practices. Basically, they contend that the State Supreme Court “usurped” powers expressly granted to the state legislature by the U.S. Constitution to decide when the cut-off should be.

Simply put, the issue here is whether the Pennsylvania court has power (pursuant to the State Constitution) over the state legislator power (in the U.S. Constitution) to decide whether late ballots should be counted. The Republican Party says no, the Democratic Party says yes.

On October 28, the Supreme Court in a 4-4 decision denied the motion to issue an expedited decision on the matter and will likely decide the case after the election. However, both the Republican and Democratic Parties of Pennsylvania urged the Supreme Court to hear the case before Election Day. Nevertheless, with only a few days until the election, the Supreme Court held firm that there was no time do so.

Instead, Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, issued a statement warning against the danger of a state supreme court overriding the powers granted to state legislatures by the U.S. Constitution.

“That question has national importance, and there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution. . . [b]ut I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election,” wrote Alito.

Pennsylvania is a key battleground state in presidential elections. This year, both President Trump and Joe Biden devoted large efforts to win over the state’s 20 electoral votes, spending the last days of their campaign in Pennsylvania.

“It’s clear from an Electoral College perspective, if you look at the map from last cycle, just how pivotal Pennsylvania is,” said Pennsylvania Attorney General Josh Shapiro. “At the end of the day, I think if Pennsylvania goes, so does the country.”

Accordingly, Pennsylvania must divide ballots received past November 3rd to ensure an adequate remedy is available if the Court decides that consideration of these votes is unconstitutional.  The Secretary of the Commonwealth ordered the county board of elections to segregate ballots received between 8 p.m. on November 3 and 5 p.m. on November 6 to ensure adequate relief is available if the Court rules in favor of the Republican Party of Pennsylvania.

So, what does this mean for the ballots received after November 3? Well, the newly appointed Justice Amy Coney Barrett makes for a conservative majority on the Supreme Court. Logically, it is unlikely that late ballots will be counted in Pennsylvania. But maybe we’re in for another surprise? 

Alexandra Brod Alexandra Brod is a rising 2L at Widener University Delaware Law School. She graduated from The University of Iowa and was the editor of the Iowa Journalist Alumni Magazine.