#2DaysOut: “Reflections from Philadelphia” (Tabatha Abu el-Haj)

The following is a symposium contribution from Tabatha Abu el-Haj (Drexel):

Let us hope that the likelihood that the election will turn on Pennsylvania is indeed low. Reputable state polling has consistently favored Joe Biden by small but significant margins for weeks, and analysts predict votes for him will fall well-outside the so-called margin of litigation. But is Biden’s lead in the polls comfortable enough to forgo the uncertain number of mail-in ballots that are going to be thrown out for errors?

The surge in mail-in voting in Pennsylvania has led to the casting of approximately 2.3 million mail-in ballots as of October 30, with as many as one million more outstanding. This creates a variety of opportunities for voter frustration, Election Day confusion, and inadvertent spoilage.

The U.S. Election Project currently suggests the number rejected mail-in ballots is insignificant. But we know that, in a normal election, 1-2% of mail-in ballots are rejected and that the percentage is often higher in states, like Pennsylvania, with less experience with mail-in voting. Moreover, there is good reason to believe that the official numbers being tracked by the U.S. Election Project underrepresent the problem. Pennsylvania counties are approaching both record-keeping and outreach over defective ballots differently, with some refusing to officially reject defective mail-in ballots before Election Day.  Second, and relatedly, many Pennsylvania voters who requested mail-in ballots are now planning to vote in person. This process is cumbersome. It is a safe bet many will forget to bring their mail-in ballot and its envelope and be forced to wait in long lines to cast provisional ballots with all the additional requirements.

If Pennsylvania is tight and it matters, there will be litigation over the count. And commentators should not concede to Justice Kavanaugh’s characterization of the Pennsylvania Supreme Court’s decision as one which overrides “a clearly expressed intent of the legislature.”

The Pennsylvania Supreme Court’s interpretation of Act 77 is neither antithetical to the text nor unreasonable. The Pennsylvania Supreme Court did not hold that an 8:00 pm deadline on Election Day for the receipt of ballots is per se constitutionally infirm, thereby rewriting the Commonwealth’s election code. Its decision takes up a narrower question: how to address the fact that Act 77 is silent about how to accommodate the deadline in the context of a natural disaster or emergency? The Court turned to its precedents based in the Commonwealth’s Free and Equal Elections Clause to answer that question. To be sure, a textualist might argue Act 77’s silence was a hard-fought compromise, but there is no evidence of that, and it is equally reasonable to argue that the statutory deadline was passed in full knowledge of these equitable decisions.

No doubt the real issue is that Justice Kavanaugh and the others disagree with the Pennsylvania Supreme Court’s lack of “hesitation in concluding that the on-going Covid-19 pandemic equates to a natural disaster.” But that factual judgment is surely neither unreasonable nor a federal question.

I will spare readers a more detailed analysis unless the matter gets back to the Court. In the meanwhile, I will say that I am increasingly of the view that the Supreme Court has actively intervening ex ante to maintain stringent ballot counting rules because, at some level, it recognizes that the political climate has significantly shifted since 2000, and any ex-post decisions that hand President Trump a second term by stopping the count are likely to result in massive civil unrest—unrest fueled by frustrations with the pandemic, massive unemployment, a summer of racial reckoning, and far-right, White Supremacist groups keen to unleash violence.

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