By Marian Schneider, Consultant, Voting Rights and Elections, ACLU of PA
By all rational measurements, the 2020 election was a success. Voters turned out in numbers not seen in 100 years. They did their part and had their say, despite efforts by powerful people to make voting more difficult – efforts that were aimed particularly at people of color.
Election administrators, under pressure not seen in our lifetimes, delivered a smooth, safe, and secure election. Here in Pennsylvania, election officials had to implement new voting methods, including a shorter registration deadline, new machines, and vote-by-mail, all in the midst of a global pandemic that has taken the lives of more than 250,000 people in less than a year.
This should be a time to celebrate democracy. But since Election Day, some partisan diehards have been consumed by conspiracy theories and baseless claims about the presidential election, fed by a media and social media echo chamber that appeals to their worst instincts. These wild ideas are held despite the Republicans’ election wins in down ballot races both in Congress and in the Pennsylvania General Assembly.
This situation was predictable and predicted; Donald Trump and his sycophants in Washington and Harrisburg railed about it before a single vote was cast, attempting to undercut the safe, secure process of mail-in voting, a process that has been used for decades by every state in one form or another. The surge in those ballots was, of course, the result of the coronavirus pandemic.
Earlier this year, Trump and other Republican lawmakers sowed confusion about mail-in voting. Because of these baseless claims, the overwhelming majority of those ballots were cast by Democrats. In a twist that was confusing to the most-seasoned campaign pros, these anti-democracy forces unilaterally discouraged voters, including their own supporters, from using this well-tested method of voting.
The failure of the Republican-controlled General Assembly to permit counties to begin canvassing and counting ballots before Election Day exacerbated this manufactured perception that there was something wrong with ballots that were delivered to the county elections office rather than cast in person. These suggestions of impropriety are aimed at undermining the fundamental democratic institution of voting and disenfranchising millions of voters.
Instead of accepting that he lost both the popular vote and the Electoral College, Trump has filed numerous lawsuits in swing states, including Pennsylvania, to try to overturn the will of the people through the court system. Yet, the lawyers in these cases have submitted absolutely no evidence of impropriety. Instead, Trump and his hired guns are attempting to convince the courts to toss out validly cast ballots whose validity is not at issue in the least and the eligibility of the voters who cast them is not in question at all.
Before the election, Trump and the Republican National Committee filed lawsuits attempting to make it harder for voters to vote. The only issues they prevailed on in those lawsuits were 1) that “naked” ballots, i.e. those that lacked a secrecy envelope would not be counted; and 2) that the Election Code did not require counties to notify voters about problems with their ballots so that they could correct their mistakes. (Many counties did so, anyway, because the election code does not prohibit it.)
Consistent with their pre-election attempt to suppress the vote, the post-election lawsuits are all asking a variety of courts to toss out the valid votes of eligible voters or pointing out procedural inconsistences that they could have sought clarification on before the election. Not only that, the campaign brazenly aims to discard the votes of primarily Black and Brown voters.
All of the lawsuits can be grouped into one of four categories and all are addressed at counties in which Trump lost by wide margins.
Proximity of Canvass Watchers to the counting
In the first category of cases, the Trump campaign complained that it was not provided access to the canvass of mail ballots. Nothing could be further from the truth. Designated representatives were permitted in the room at all locations where mail in ballots were examined, opened, and counted. They filed no less than five lawsuits on this issue complaining that they could not “see” the ballot envelopes because they were not close enough.
Putting aside the fact that ballot level challenges were prohibited by the clear language of the election code, all of the counties they complained about actually set aside ballots with deficiencies on the declarations for adjudication at a meeting of the board of elections. The Trump campaign has had every opportunity to challenge those ballots, and it did so, consistent with their overall strategy to prevent otherwise valid votes by eligible voters from being counted.
The overwhelming majority of judges who heard these cases dismissed them outright or forced the parties to agree to a process, in some cases that was already being followed. On Tuesday, November 17, the Pennsylvania Supreme Court, in a 5-2 ruling held that the Philadelphia Board of Elections’ rules governing access for campaign and candidate representatives did not violate the election code and allowed representatives adequate access to observe the board in conducting canvassing operations.
Notice and opportunity to cure deficiencies
The Trump campaign is also complaining about counties who allowed voters to correct deficiencies in the declaration form on the envelope of their mail-in ballot or to correct a missing secrecy envelope. The chief complaint is that counties handled these mail-in ballots differently and some voters were able to correct their ballots or go to the polls and vote provisionally on Election Day.
Ironically, the individual plaintiffs whose ballots were not counted and are suing in federal court submitted “naked” ballots, which the Trump campaign successfully sought to exclude in earlier litigation.
The Trump campaign is basing their interpretation of the election code on the PA Supreme Court’s decision earlier in the fall holding that state election law did not require counties to notify voters and offer an opportunity to fix their mistakes. That decision was handed down on September 17. The campaign had plenty of time to litigate this issue before the election and establish uniform procedures for handling these ballots.
Yet, it waited until after the election and now says that the unequal treatment of these ballots requires that all such ballots be tossed out. Again, the Trump campaign seeks to disenfranchise voters who followed the instructions of their election officials but only in counties with high numbers of voters of color and those that heavily favored Biden. Three of the cases filed by Trump were discontinued by Trump or stayed by the court.
On Saturday the federal district court, in which the ACLU is representing four organizations and eight voters, dismissed the Trump campaign’s claims in a strongly worded rebuke of their failure to allege any cognizable claim.
Allegedly deficient mail-in ballot declarations
In the next category of lawsuits, the Trump campaign is trying to toss out validly cast ballots from eligible voters who forgot to print their name or address or include a date on the declaration that appears on the outside of a mail in or absentee ballot. The Trump campaign is arguing for a strict interpretation of the election code to disenfranchise voters, especially voters of color.
The ballots at issue in these cases number in the thousands, but none of them are included in the current results. By definition, even if these ballots are not counted, they will NOT change the outcome of the election. On November 23, the Pennsylvania Supreme Court held that the election code leaves the form of the declaration to the discretion of the secretary and, therefore, does not prohibit valid ballots missing immaterial items on the declaration from being counted.
Vote-by-Mail receipt deadline
On September 17, 2020, the Pennsylvania Supreme Court ruled that, given the pandemic and the USPS crisis, the statutory deadline for receipt of mail-in and civilian domestic absentee ballots would be extended. Ballots postmarked on or before Election Day and received by 5 p.m. on Friday, November 6, would be considered timely received.
The Trump campaign has appealed this state court decision interpreting matters of state law to the United States Supreme Court on a theory that this somehow violates the U.S. Constitution. Members of the Pennsylvania General Assembly have moved to intervene. Per agreement by the parties, the late arriving ballots have been set aside, have not been counted, and number only about 10,000 statewide. By definition, their exclusion or inclusion will not change the outcome of the presidential election.
The crux of the Trump campaign’s claim is that courts may not change or modify a statutory enactment relating to elections because the elections clause and the electors clause of the U.S. Constitution delegate that authority to the legislature. This view is a minority position and would turn existing law and legitimate expectations on their heads.
The U.S. Supreme Court has not ruled, and the case is still pending. However, on Friday, the Court of Appeals for the Third Circuit held that the Trump campaign and other candidates for office lacked standing to bring any claims under the U.S. Constitution’s elections clause and electors clause. The court held that the campaign is unable to allege a specific, concrete injury other than the generalized injury to all Pennsylvanians if officials do not comply with the election code. That is not enough to bring a case in federal court.
This decision has wide-reaching implication for other cases that raise the same legal theory. If this view prevails, state courts would be completely handcuffed from interpreting state election law and from interpreting the “free and fair” elections provision of the state constitution. It would overturn more than 100 years of case law. Because of it, the Trump campaign dropped most of its claims in the case pending in the middle district of Pennsylvania.
Under extreme pressure with the eyes of the world watching them, election officials in Pennsylvania did their job and administered an election that was safe and secure. Nationally, the Cybersecurity and Infrastructure Security Agency, which is housed in the federal Department of Homeland Security, called the election “the most secure in American history.” County election offices and the Pennsylvania Department of State deserve our gratitude, and it is a disservice to their hard work for partisan sore losers – and sore winners who themselves won elections this year - in Washington and Harrisburg to suggest otherwise.
The voters voted. The votes have been fairly counted and certified. It is time to move on.
Marian Schneider is a consultant on elections and voting rights for the ACLU of Pennsylvania and served as deputy secretary of state under Governor Tom Wolf.