Mail-In Ballot Extensions: The Court’s Limited Role

Despite the high scrutiny surrounding traditional voting alternatives this year, absentee voting and early voting are hardly novel concepts. Roughly 32 million people voted early in the 2012 General Election.[1] In the 2016 election, that number increased to 47 million people voting before Election Day.[2] In the 2020 General Election, that number shattered records coming in at over 101 million.[3] An estimated two-thirds of that 101 million figure voted by mail, with the other one-third voting early in-person.[4] This huge increase of early voting in 2020 is believed to be attributed to the coronavirus pandemic as traditional voting is not “conducive to social distancing measures” which are encouraged to stop the spread of Covid-19.[5]

Unfortunately, the shift to this many people voting early this year was not without significant complications. The magnitude of persons voting early in-person resulted in set-backs such as long lines and a few technical errors.[6] The magnitude of persons voting by mail resulted in delivery issues, as USPS suffered a “drop in timely mail delivery” and thus recommended that “voters post their mail-in ballots at least one week before election day, making October 27 the latest day, under the guidelines, to guarantee on-time delivery.”[7] The rate of timely mail delivery was even lower in certain regions.[8]

Further, beyond the complications faced by the early-voter, many states experienced significant legal struggles in enacting and changing early-voting procedures.[9] Two of significance include Wisconsin[10] and Pennsylvania[11]— both of which were appealed all the way to the Supreme Court to determine whether mail-in ballot receipt extensions were enacted constitutionally and both of which came to different conclusions.

The first of these two cases was Scarnati v. Boockvar, where the Court faced a question regarding the constitutionality of a court extending the date mail-in ballots must be received by.[12] Scarnati arose from a Pennsylvania Supreme Court case where, among other issues raised, petitioner requested an extension for the receipt of mail-in ballots due to delays in mailing ballots caused by the pandemic.[13] The court framed the question as “whether the application of the statutory language to the facts of the current unprecedent situation results in an as-applied infringement of electors’ right to vote.”[14] Relying on the Free and Equal Elections Clause of the Pennsylvania Constitution and a previous decision in In re: General Election- 1985, the court determined that the “COVID-19 pandemic equates to a natural disaster,” that “the timeline built into the Election Code cannot be met,” and thus the court “can and should act to extend the received-by deadline for mail-in ballots to prevent the disenfranchisement of voters.”[15] The case was then appealed to the Supreme Court requesting a stay in the Pennsylvania Supreme Court’s decision.[16] In Scarnati, the deadlocked Supreme Court then denied the stay and thus allowed the Pennsylvania Supreme Court decision, allowing absentee ballots received within three days of Election Day to be counted even if not postmarked, to stand.[17] This case reached the Supreme Court again in Republican Party of Pa. v. Boockvar, in a “last ditch attempt to prevent the election in Pennsylvania from being conducted under a cloud” where the “motion to expedite consideration of the petition for a writ of certiorari [was] denied.”[18] Justice Alito noted that the Court may revisit the question in the future, stating “[t]hat does not mean, however, that the state court decision must escape our review. Although the Court denies the motion to expedite, the petition for certiorari remains before us, and if it is granted, the case can then be decided under a shortened schedule.”[19]

Standing in contrast to Scarnati is Democratic Nat’l Comm. v. Wis. State Legis., a Wisconsin case that raised a similar issue, but came to a different conclusion.[20] This case came to the Supreme Court from Democratic Nat’l Comm.v. Bostelmann, where the Seventh Circuit considered whether extending the “deadline for the receipt of mailed ballots from November 3 (Election Day) to November 9, provided that the ballots are postmarked on or before November 3” was permissible following a federal trial judge’s order so extending the deadline.[21] The Seventh Circuit determined that “federal courts could not change electoral rules close to an election date” and “political rather than judicial officials are entitled to decide when a pandemic justifies changes to rules that are otherwise valid.”[22] On appeal to the Supreme Court, the petitioner sought a stay of the Seventh Circuit decision, which was denied.[23] While the Court did not issue an explanation, there were multiple concurring and dissenting opinions.[24] In his concurrence, Justice Gorsuch made clear that “the Constitution provides that state legislatures—not federal judges, not state judges, not state governors, not other state officials—bear primary responsibility for setting election rules.”[25] In Justice Kavanaugh’s concurrence, he noted concerns regarding how close to the election the change was made[26] and the improper role the district court played.[27]However, the concern for many regarding his concurrence arose from the third reason stated by Justice Kavanaugh: that “the District Court did not sufficiently appreciate the significance of election deadlines.”[28] While “a State cannot conduct an election without deadlines,” Justice Kavanaugh endorsed reasoning used in Bush v. Gore and stated that states with election day deadlines for the receipt of absentee ballots “want to avoid the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.”[29] As Justice Kagan argued in her dissent, “there are no results to ‘flip’ until all valid votes are counted. And nothing could be more ‘suspicio[us] or’ ‘improp[er]’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious times, is to disserve the electoral process.”[30]

What was the difference between these two cases? Perhaps Justice Roberts, the sole justice who was the deciding vote in both, explained it best when he stated in his concurrence, “[d]ifferent bodies of law and different precedents govern these two situations and require these particular circumstances, that we allow the modification of election rules in Pennsylvania, but not Wisconsin.”[31] He elaborated that, “[w]hile the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes.”[32]

While these two cases were important in determining how the Court views judicially enacted extensions with regards to elections, these rulings likely did not have a huge impact this election cycle. For example, in Pennsylvania, there were only roughly 10,000 ballots that arrived in the three day period following Election Day according to the Pennsylvania Department of State.[33] Further, following the Election, Justice Alito addressed an emergency request filed with the Court and “ordered the counties … to keep the ballots separated, which they were already doing because of Boockvar’s guidance.”[34] Justice Alito allowed the counties to keep counting the ballots, however, “while [the] high court considers whether to take up the case of whether to overturn the three-day extension.”[35]

These two cases do not stand for the proposition that states cannot extend the deadline that mail-in ballots must be received by—in fact, “[t]he law in 21 U.S. states permits mail-in votes received after Election Day to be counted toward the finally tally.”[36] Rather, these cases stand for the principle that the states, not the federal judiciary, are in the best position to determine how they conduct elections under their constitutions and laws.[37]

[1] 2012 November General Election Early Voting, The United States Elections Project (last visited Nov. 13, 2020), electproject.org/2012_early_vote.

[2] Brittany Renee Mayes and Rate Rabinowitz, The U.S. Hit 73% of 2016 Voting Before Election Day, The Washington Post (Oct. 20, 2020), washingtonpost.com/graphics/2020/elections/early-voting-numbers-so-far.

[3] Jen Kirby and Rani Molla, 9 Questions About 2020’s Record-Breaking Early Vote, Answered, Vox (Nov. 3, 2020), vox.com/21527600/early-vote-explained (citing Michael McDonald, General Election Early Vote Statistics, U.S. Elections Project (last visited Nov. 12, 2020), electproject.github.io/Early-Vote-2020G/index.html (explaining that early in-person votes totaled nearly 36,000,000 and mail ballots returned totaled 65,487,735 with some states not differentiating between the two)).

[4] Id.

[5] U.S. Election 2020: How Many Americans have Voted Early So Far?, Bbc News (November 2, 2020), bbc.com/news/world-us-canada-54665375 (explaining that the “traditional way of voting” involves “thousands of people going to a single polling station on one particular day, queuing with other people for hours, and standing in polling booths that are in proximity to each other” which does not comply with social distancing guidelines).

[6] Kirby & Molla, supra note 3 (noting that “pandemic safety protocols, a reduced number of polling sites, and poll worker shortages in some places” contributed to the long wait time experienced by some early voters and the occasional technical glitch occurred in some counties resulting in further delays).

[7] Aimee Picchi, USPS On-Time Delivery Is Getting Worse. That May Put Ballots at Risk, CBS News (Oct. 28 2020), cbsnews.com/news/usps-mail-delivery-slows-2020-election-ballots/ (giving the following example, “While it’s not known how many voters plan to mail ballots in the remaining days before the November 3 presidential election, if 10 million ballots are mailed in the two days before the election, the slowdown in first-class mail suggests 1.4 million ballots could arrive after Election day”).

[8] Id. (noting that Michigan Senator Gary Peters found that “on-time first class mail delivery was below in 80% in six regions, including Philadelphia and Baltimore” and “[d]elivery was even worse across parts of Michigan, with only 71% of first-class mail delivered on time in the Detroit region in early October”).

[9] U.S. Election 2020: How Many Americans have Voted Early So Far, supra note 5 (explaining that “there are [] currently more than 300 lawsuits in 44 states concerning how absentee votes are counted, who is allowed to vote early, and how mail-in ballots are collected”).

[10] Democratic Nat’l Comm. v. Wis. State Legis., No. 20A66, 2020 U.S. Lexis 5187 (Oct. 26, 2020).

[11] Scarnati v. Boockvar, No. 20A53, 2020 U.S. LEXIS 5182 (Oct. 19, 2020).

[12] Id.

[13] Pa. Democratic Party v. Boockvar, No. 133 MM 2020, 2020 Pa. Lexis 4872, at *30 (Sept. 17, 2020).

[14] Id. at *43.

[15] Id. at *43-50.

[16] Scarnati, 2020 U.S. Lexis 5182.

[17] Id.

[18] Republican Party of Pa. v. Boockvar, No. 20-542, 2020 U.S. LEXIS 5188, at *1-4 (Oct. 28, 2020) (Alito, J., concurring).

[19] Id. at *5.

[20] Democratic Nat’l Comm., 2020 U.S. Lexis 5187.

[21] See Democratic Nat’l Comm. v. Bostelmann, Nos. 20-2835 & 20-844, 2020 U.S. App. Lexis 31950, at *7 (Oct. 8, 2020) (holding that this extension was impermissible).

[22] Id.

[23] Democratic Nat’l Comm., 2020 U.S. Lexis 5187.

[24] Id.

[25] Id. at *4-5 (Gorsuch, J., concurring) (citing P.A. Const. art. I, § 4, cl. 1). (noting that “the Constitution provides a second layer of protection too. If state rules need revision, Congress is free to alter them”).

[26] Id. at *8-11 (Kavanaugh, J., concurring).

[27] Id. at *11-14.

[28] Id. at *14-15. See also Jim Rutenberg & Nick Corasaniti, Kavanaugh’s Opinion in Wisconsin Voting Case Raises Alarms Among Democrats, The New York Times (Oct. 27, 2020), nytimes.com/2020/10/27/us/kavanaugh-voting-rights.html (explaining “But a concurring opinion by Justice Brett M. Kavanaugh set off alarms among civil rights and Democratic Party lawyers, who viewed it as giving public support to President Trump’s arguments that any results counted after Nov. 3 could be riddled with fraudulent votes — an assertion unsupported by the history of elections in the United States” and “[t]he concept expressed by Justice Kavanaugh that counting late-arriving ballots could ‘flip the results’ misconstrues the voting process, where official results often are not fully tabulated for days or even weeks after an election”).

[29] Democratic Nat’l Comm., 2020 U.S. Lexis 5187, at *16.

[30] Id. at *39 (Kagan, J., dissenting).

[31] Id. at *1 (Roberts, J., concurring).

[32] Id.

[33] Jonathan Lai, About 10,000 Pennsylvania Mail-In Ballots Arrived After Election Day – Far Too Few to Change the Result If They’re Thrown Out, Chicago Tribune (Nov. 11, 2020) (“There are about 10,000 ballots that arrived in the grace period after Election Day, the Pennsylvania Department of State said late Tuesday”).

[34] Id.

[35] Id. (noting that “[l]egal experts are widely skeptical that even if the Supreme Court were to intervene and overturn the grace period for future elections, they would also throw out ballots submitted by voters just following the guidance of election administrators at the time”).

[36] Julia Jacobo, This Is How Many States Count Votes Received After Election Day, ABC News (Nov. 5, 2020), abcnews.go.com/US/states-count-votes-received-election-day/story?id=74041699.

[37] Democratic Nat’l Comm., 2020 U.S. Lexis 5187, at *1 (Roberts, J., concurring) (stating, “w]hile the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, [the Wisconsin] case involves federal intrusion on state lawmaking processes”); see also U.S. Const. art. I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators”).