This obscure Pennsylvania law could mean voters' ballots aren't counted

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A top Pennsylvania elections official likened the potential electoral chaos to 'Florida in 2000.'

The Pennsylvania Supreme Court ruled on Thursday that any ballots voted by mail must be contained in a secrecy envelope in order to be counted — a strict requirement that could disenfranchise voters in the presidential election in November. 

The state's mail-in ballots come with two envelopes: an unaddressed inner envelope to protect the anonymity of the ballot, and a second addressed, postage-paid envelope. When voters are done voting, they need to first seal their ballot inside the secrecy envelope, and then put it inside the addressed envelope for mailing.

A ballot placed inside the outer addressed envelope without the secrecy envelope is deemed a "naked ballot." The Pennsylvania Supreme Court recently ruled that, under state law, such ballots may not be counted.

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Since many Democrats are expected to vote by mail this November due to the coronavirus pandemic, the potential exists for disqualified "naked ballots" to be detrimental to Biden's electoral chances. Donald Trump won Pennsylvania by only about 44,000 votes in 2016, amounting to less than 1% of votes cast. 

"Recent actions by the Pennsylvania Supreme Court have 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," wrote Lisa Deeley, chairwoman of the Philadelphia City Commissioners, the panel that oversees elections. 

Deeley penned a letter to Pennsylvania's legislative leaders underscoring "the urgent need to eliminate the secrecy envelope requirement," which she believes is "a vestige of the past" that is no longer needed to ensure the anonymity of the ballot, which are now no longer counted at the polls but "centrally, through an industrialized process" that itself protects the identity of voters.

Deeley tweeted her concerns on Sept. 21: "Today, I sent a letter to legislative leaders re: my concerns on the recent @SupremeCtofPA decision requiring ballots to be in secrecy envelopes to be counted & asked for a legislative fix. I don't want 100K+ legit PA ballots thrown out for a technicality."

She said the state is one of only 16 that use secrecy envelopes in absentee voting. 

"Secrecy envelopes are a vestige of the past. Modern central counts make them obsolete. Secrecy envelopes exist just to slow down counting and are now a means to disenfranchise well intentioned PA voters," Deeley tweeted. 

State Supreme Court Justice Max Baer, a Democrat, had ruled in favor of tossing out the naked ballots without the secrecy envelopes.

"It is clear that the legislature believed that an orderly canvass of mail-in ballots required the completion of two discrete steps before critical identifying information on the ballot could be revealed. The omission of a secrecy envelope defeats this intention," Baer wrote, according to the Philadelphia Inquirer

A spokesperson for the Department of State told the Inquirer that Gov. Tom Wolf's administration "would support legislation requiring counties to count naked ballots" under the principle of protecting the right to vote. But it's unclear whether the Democratic governor would be able to reach an agreement with Republican legislators. The state's GOP-controlled legislature showed little interest in changing the law. 

Democrats are now focusing efforts on voter education in hopes of preventing the naked ballots from being invalidated. 

"I encourage every Pennsylvanian who is voting by mail to make sure that they double-envelope their ballot, and put it in the secrecy envelope before inserting it into the declaration envelope," Deeley tweeted. 

Democratic National Committee Chairman Tom Perez issued a statement urging voters to be vigilant in making their voices heard. 

"With vote-by-mail requests surging, it's important that every voter using a mail ballot for the first time has all the information they need so that their ballot will be counted, including the importance of sealing their ballot in the secrecy envelope," Perez said. "Voting begins well before Election Day, and we're confident that our voter education program will lead the way and make sure every Pennsylvanian's voice is heard." 

The Pennsylvania government has produced an instructional video to educate voters on how to ensure one's mail-in vote will be counted.

Published with permission from The American Independent Foundation.