Pennsylvania voters’ absentee and mail-in ballots can still be counted by counties' Boards of Elections offices following a recent court ruling.
Two state lawmakers in January sued the state’s 67 county Boards of Elections and the state itself to challenge its 2019 mail-in voting law.
The lawsuit named Al Schmidt, the Commonwealth of Pennsylvania, the Pennsylvania Department of State and all county board of elections offices as defendants.
The Pennsylvania Supreme Court dismissed the case by state Reps. David Zimmerman (R-Lancaster, Berks counties) and Kathy Rapp (R-Crawford County) on Sept 25.
Act 77 of 2019 established mail-in voting in Pennsylvania. It allows voters to deposit ballots in drop boxes or mail them to their county’s Board of Elections office.
Zimmerman and Rapp argued the act violated the state Constitution by allowing election officials to canvass ballots, both mail-in and absentee, at county offices instead of the voter’s precinct. Canvassing is the act of counting the number of ballots, not how people voted.
The lawmakers appealed their case to the state Supreme Court on Aug. 26 after Commonwealth Court dismissed the case.
On Wed., Sept. 25, the Supreme Court issued an order vacating the case and remanding it back to Commonwealth Court, effectively dismissing it in both courts.
In its order, Supreme Court said Commonwealth Court lacked "original subject matter jurisdiction" in the case because neither the Secretary of State nor the Department of State is an indispensable party, as required by the Judicial Code.
In this case, the indispensable party would be the county Boards of Elections.
The remedy sought by the plaintiffs can only be granted "solely by and through the county Boards of Elections," the court's order stated, noting those boards are not state government bodies.
Gregory Teufel, Zimmerman and Rapp’s lawyer, said his clients sued because they argue Act 77 is in conflict with the state Constitution, which requires absentee ballots to be canvassed at voters’ precincts.
“Act 77 of 2019 changed election code precedent for 50 years from directing that they be canvassed at the precincts, just like the Constitution says, to directing that they be canvassed at the county offices,” said Teufel.
Teufel also hoped the state Supreme Court would overturn two sections of the state Election Code that allow officials to canvass absentee ballots at the county Boards of Elections offices.
He argued that Act 77 took unconstitutional shortcuts for the sake of ease.
“I can certainly see why that’s more convenient, but it’s not wildly impractical or impossible to continue to forward absentee ballots to the precincts as they had done for 50 years,” Teufel said.
Don Frederickson Jr., Lackawanna County’s solicitor, disagrees with the plaintiffs. He said his office’s number of mail-in and absentee ballots increased substantially after Act 77 was passed in 2019. Besides straining county offices, he argued that local precincts would be unable to handle the number of mail-in and absentee ballots alone.
“I think we’re going to process over 70,000 in this election coming up,” said Frederickson. For each precinct to do it, it would be almost impossible. It would take days for them to open them and process them.”
Deputy Director Geoff Morrow from the Department of State (DOS) emailed the department’s response to the lawsuit.
“Returning completed absentee and mail-in ballots to county boards of election for counting is practical, efficient — and, most importantly, constitutional,” said Morrow in an emailed statement.
If the court had ruled in Zimmerman and Rapp’s favor, board of elections offices could receive absentee ballots, but they would need to send them back to individual precincts on or before election day to be canvassed. Those ballots would then be routed back to their respective county board of elections offices for counting.
