Pennsylvania, like most states in 2020, has seen contested election litigation. In Pennsylvania Democratic Party v. Boockvar, the state supreme court determined that the county board of elections may accept mail-in ballots outside of their offices, including in unmanned drop-boxes; and that the deadline for mail-in and absentee ballots is extended by three days, even for ballots lacking a postmark.
The case centered around Pennsylvania’s Act 77 of 2019, which authorized no-excuse mail-in voting for the first time in the Commonwealth. The bill was signed into law in late October 2019, before COVID-19 was a household name and a part of the debate about how elections should be conducted. Section 1301-D of Act 77 allows any Pennsylvania registrant who is not qualified to cast an absentee ballot under Pennsylvania law to be a “qualified mail-in elector.” Under this new law, a registrant must submit an Application for Mail-In Ballot. The registrant’s county board of elections then processes the application and, if approved, mails the registrant a ballot. Included with the ballot are two envelopes so that the ballot may be placed in one envelope with only the words “Official Mail-In Ballot” on the front which is then placed in a larger envelope to be signed by the registrant attesting that he is qualified to vote by mail and has not already voted in the election.
It was unusual for the state’s high court to take this case so close to the election because of a long established principle that the rules of elections should not change too close to elections, but it did so due to the ongoing COVID-19 crisis. The petition for review was initially filed in an intermediate appellate court by the Pennsylvania Democratic Party, Democratic officials, and Democratic candidates in mid-July. The petition sought relief against Secretary of the Commonwealth Kathy Boockvar and county election boards. Multiple entities sought to intervene in the matter, including Trump for President, Inc. and the Pennsylvania GOP, as well as several groups such as Common Cause of Pennsylvania and the League of Women Voters of Pennsylvania.
In August, Secretary Boockvar asked the Pennsylvania Supreme Court to exercise “extraordinary jurisdiction” over the claims. The Democratic Party did not object, and the Pennsylvania Supreme Court granted the request on September 1, 2020. The Supreme Court also allowed the Pennsylvania GOP to intervene along with members of the Pennsylvania Senate and House of Representatives but denied the motions to intervene of other entities.
The plaintiffs wanted two significant changes. First, the Democratic Party sought a declaration that county boards of election can utilize as many ballot “drop boxes” as they wish. Pennsylvania law states that mail-in ballots should be sent “by mail, postage prepaid, except where franked, or deliver[ed]  in person to said county board of election.” The Democratic Party and the Secretary advocated that this language must allow drop boxes in places designated by the county board. The Pennsylvania GOP, however, argued that the General Assembly intended the ballots to be delivered to the office of the county board.
The court found that the competing interpretations of state law were reasonable but sided with the Democratic Party and Secretary because their position “favors the fundamental right to vote and enfranchises, rather than disenfranchises, the electorate.”
Second, the Democratic Party sought to extend Pennsylvania’s deadline for the receipt of ballots by seven days. Pennsylvania statute requires that ballots be received by 8:00 pm on Election Day. The Secretary reversed her previous position against any extension and consented to a 3-day extension for the receipt of ballots. The court determined that the present circumstances qualify as a “natural disaster” and that “[i]t is beyond cavil” that there will be an extraordinary number of Pennsylvanians seeking to vote by mail. Additionally, the court expressed concern over the United States Postal Service’s handling of the anticipated high volume of ballots. For these reasons, the court found that it “can and should act to extend the received-by deadline for mail-in ballots to prevent the disenfranchisement of voters.”
The Democratic Party also sought a declaration that Pennsylvania’s requirement that poll watchers be appointed only to locations within the county in which they reside is constitutional. The Secretary agreed with the Democratic Party. The court determined that the “requirement does not burden one’s constitutional voting rights” and that the legislature’s choice to require that poll watchers serve where they reside is reasonable in light of how Pennsylvania runs its elections. Therefore, the court granted the requested relief.
The Democratic Party also requested a mandate that county boards contact voters who submitted faulty ballots to allow an opportunity to cure as well as a declaration that ballots lacking a secrecy envelope must still be counted. As to the former, the court decided that such policy changes are best left up to the legislature. As to the latter, the court determined that the secrecy envelope requirement is mandatory.
Justice David Wecht joined the majority’s opinion in full and wrote a concurring opinion emphasizing that “the convergence of a once-in-a-century pandemic and unprecedented operational delays in United States Postal Service delivery capacity threatens to undermine the integrity of our general election, this force majeure necessitates relief.”
Justice Thomas Saylor dissented as to the majority’s allowance of drop boxes and the 3-day extension for receipt of mail-in ballots. Justice Saylor expressed concern over the fact that “although the majority decision appears to be designed to accommodate only ballots actually mailed on Election Day or before, the majority does not so much as require a postmark. Particularly in combination with the allowance of drop boxes, this substantially increases the likelihood of confusion, as well as the possibility that votes will be cast after 8:00 p.m. on Election Day.”
Justice Christine Donohue also wrote separately to state that while current circumstances support extending the deadline for receipt of mail-in ballots, such a decision should have been presented along with a sufficient showing of the existence of a constitutional injury. Justice Donohue constructed a chart of the election deadlines along with the USPS expectation of delivery for mail and concluded that “the deadline for requesting a ballot should be moved to Friday, October 23, 2020. . . .The legislative choice of Election Day at 8:00 p.m. should remain intact.”
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At the time this article was published on November 5, a petition for full review of this case is currently pending at the U.S. Supreme Court. On September 22, 2020, Republican state officials filed an application for stay, but the state supreme court denied it on September 24. Four days later, two applications for stay were filed at the U.S. Supreme Court; the first came from Joseph Scarnati III and Jake Corman, president pro tempore and majority leader of the Pennsylvania Senate, and the second came from the Pennsylvania Republican Party. On October 19, the U.S. Supreme Court denied these applications 4-4 and let stand the state supreme court’s ruling. On October 24, a petition for certiorari was filed by the Republican Party of Pennsylvania at the U.S. Supreme Court, followed by an October 28 denial of motion to expedite consideration for certiorari issued by the Supreme Court. For more details, please visit https://www.scotusblog.com/election-litigation/pennsylvania-democratic-party-v-boockvar/.
 Pa. Democratic Party v. Boockvar, No. 133 MM 2020, 2020 Pa. LEXIS 4872, at *88-90 (Sep. 17, 2020).
 25 P.S. §§ 3150.11-3150.17.
 Press Release, Governor Tom Wolf, Governor Wolf Signs Historic Election Reform Bill Including New Mail-in Voting (Oct. 31, 2019), available at https://www.governor.pa.gov/newsroom/governor-wolf-signs-election-reform-bill-including-new-mail-in-voting/.
 Pennsylvania Application for Mail-In Ballot, https://www.votespa.com/Register-to-Vote/Documents/PADOS_mailInapplication.pdf.
 Boockvar, No. 133 MM 2020, at *1-2.
 Id. at *2.
 Id. at *6-7.
 See 42 Pa.C.S. § 726.
 Boockvar, No. 133 MM 2020, at *6.
 Id. at *6-7.
 25 P.S. § 3150.16(a).
 Boockvar, No. 133 MM 2020, at *12-13.
 Id. at *16.
 Id. at *23.
 See 25 P.S. §§ 3146.6(c), 3150.16(c).
 Boockvar, No. 133 MM 2020, at *32-35.
 Id. at *47.
 Id. at *47-48.
 Id. at *48.
 Id. at *74-77.
 Id. at *87.
 Id. at *88.
 Id. at *56-57.
 Id. at *73-74.
 Id. at *94.
 Id. at *103.
 Id. at *112.