I want to highlight one intriguing aspect of this decision.  The state adopted no-excuse absentee voting in a law passed in 2019, before the pandemic.  That meant that the surrounding laws were not written for the volume of absentees likely this fall.

The state-constitutional law issue emerged out of conflict between three elements:  state law that permits voters to request an absentee ballot as late as 7 days before Election Day; state law that requires those ballots to be received by 8pm on Election Night; and the US Postal Service’s representations to the Secretary of the Commonwealth – in a letter from the USPS General Counsel – that it takes 2-5 days to deliver mail. 

You can add those numbers up yourself:  that means there is no guarantee that a voter who lawfully requests a ballot 7 days before the election, fills it out immediately and mails it back, would have their ballot delivered by Election Night and thus be able to cast a valid vote.  Given these circumstances, the majority concluded the state constitution required PA to treat absentees as valid if received up to 3 days after Election Day.

The circumstances required 3 more days in the election calendar.  Those days could have come at the back end but they could also have come at the front end.  And three judges on the court – one a Democrat, the other two Republicans (PA has partisan judicial elections) – agreed that the current laws were unconstitutional, but that the right remedy was to capture those 3 extra days at the front end of the process.  They would have held that the state constitutional violation should have been remedied by requiring voters to request an absentee 10 days (not 7) in advance of the election, and that the court should have preserved the state law requiring receipt by 8pm Election Night.

The argument of these judges was that the number of days in advance that a ballot has to be requested is fairly arbitrary.  There is nothing “magical” about 7 days in advance rather than 10.  Many states require the request to be made 10 or more days in advance, though many permit 7 days.  But this group of concurring/dissenting judges concluded that there was a more compelling legal reason for the state policy that all votes be in by Election Night – that is when the election is over.  So as between which of the two dates should be judicially changed, this group of 3 judges believed the request date, rather than the receipt date, should be changed.

I think many judges would believe that moving up the request deadline would seem like a policy choice that only the legislature could make, while moving back the receipt deadline was a more appropriate form of judicial remedy.  But whether there should be such a big perceived difference between these two options for courts is part of what makes this decision a rich one.

From a policy (not a legal) perspective, I have always been particularly concerned this election about late-counted ballots (maybe the issue won’t matter in the end, because few Pennsylvania voters will mail ballots back at the last minute).  That’s also why I thought this separate opinion for 3 judges raises such an interesting, alternative remedy.