How to Challenge the PA Secretary of State's Election Chicanery

Much of the election controversy in PA had to do with guidance that PA secretary of state Kathy Boockvar gave election officials on the night before the election:

"At issue is guidance Boockvar's office gave to counties on the night before the election.  Counties were told that as they began to process ballots on Election Day, they could share information with political parties about ballots that contained deficiencies, such as a missing signature or date, or a missing secrecy envelope."  (See also here )

Has it occurred to anyone to ask why Secretary Boockvar waited until the night before the election to issue this guidance?  Apparently, because factcheck.org asked Penn State professor Daniel Mallinson for an explanation.  Mallinson helpfully explained that the guidance was "timely," because "counties were barred by state law from starting their review of mail in ballots until 7 am on election day."

With all due respect to Professor Mallinson, I think I may have a better answer.  The short version is that it is easier to ask forgiveness than to ask for permission.  For the longer answer, we'll need to look at the Pennsylvania Supreme Court's September 17 ruling concerning secrecy envelopes.  In this decision, the Court ruled that a "mail-in elector's failure to [enclose] the ballot in the secrecy envelope renders the ballot invalid" (p.52).

It should be noted that this ruling was received with much hand-wringing and predictions of disenfranchisement from Democrats:

"[Philadelphia's city commissioner, Lisa M.] Deeley[,] estimated that if this ruling stands, and all absentee ballots arriving without sleeves are rejected, more than 100,000 ballots in Pennsylvania could be thrown out during the 2020 general election, based on estimates from previous elections and the massive increase in first-time absentee voters expected this year." (See also here, here, here, and here).

So what is a Democratic secretary of state going to do to prevent such an outcome?  After all, as Vox pointed out (on 9/28), "Donald Trump won Pennsylvania in 2016 by just 44,000 votes," and "this time around, polls and models show Pennsylvania has a relatively high chance of being the 'tipping point' state likely to put Trump or Biden over 270 electoral votes."

The answer is to find a way around the PA Supreme Court ruling.  How?  By instructing counties — on the night before the election — to contact the appropriate political party when an invalid ballot was received so that the party could contact voters who forgot to enclose their ballots in secrecy envelopes (or made other mistakes) and advise them to vote in person and cast a provisional ballot.

What's the problem here?  Just because Boockvar had more foresight than Republicans who failed to challenge Act 77 before the election, is that any reason to complain?  The problem is not in the secretary's foresight, but in the lack of secrecy that resulted from the directive.  To understand why, we need to examine the Sept. 17 PA Supreme Court ruling more closely.

The word "secrecy" occurs 43 times in this 63-page ruling, so it must be important.  The key finding of the court can be found on p. 49.  The Court begins by citing two sections of the PA election code.  The first — Section 3150.16(a) — requires absentee voters to seal their ballots "in secret" and then place them in secrecy envelopes before mailing them.  The second — Subsection 3146.8(g)(4)(ii) — declares that any ballot that reveals "the identity of the elector, the elector's political affiliation or the elector's candidate preference ... shall be set aside and declared void" (emphasis added).

From these provisions, the Court concludes (emphasis added):

These provisions make clear the General Assembly's intention that, during the collection and canvassing processes … it should not be readily apparent who the elector is, with what party he or she affiliates, or for whom the elector has voted. The secrecy envelope properly unmarked and sealed ensures that result[.]

As the Court points out on p. 50 of this ruling, this provision reflects the requirement in Article VII, Section 4 of the PA Constitution that protects secrecy in voting.  This provision reads: "All elections by the citizens shall be by ballot or by such other method as may be prescribed by law: Provided, That secrecy in voting be preserved" (emphasis added).

On p. 53, the Court says, "in providing for the disqualification of mail-in ballots that arrive in secrecy envelopes that bear markings identifying the elector, the elector's party affiliation, or the elector's vote ... the Legislature signaled beyond cavil that ballot confidentiality up to a certain point in the process is so essential as to require disqualification" (emphasis added).

Let's think about this for a moment.  How can PA counties preserve secrecy in voting — as the PA Constitution, PA election law, and the PA Supreme Court all require — and still "share information with political parties about ballots that contained deficiencies, such as a missing signature or date, or a missing secrecy envelope"?  The answer is, they can't — and that is why Secretary Boockvar waited until the night before the election to issue her directive.  If she had done so sooner, she never would have gotten away with it.

How many votes were "cured" in pursuance of this guidance?  It's hard to say.  A lawyer representing the Democratic National Committee assures us that "[t]he numbers aren't even close to the margin between the two candidates, not even close."  The spokesman for the Philadelphia city commissioners, Kevin Feeley (not to be confused with Lisa Deeley — the Philadelphia city commissioner who predicted that 100,000 ballots in PA could be thrown out) — says that only 4,000 naked ballots were received in Philadelphia.  Forgive me if I don't take these gentlemen's word for it.  All I could find on the internet is that around 100,000 provisional ballots were cast in PA in this election.

The Trump legal team, perhaps in its haste to get to the U.S. Supreme Court, challenged the curing of ballots in PA on 14th Amendment "equal protection" grounds — and were swiftly rebuffed by U.S. district and circuit court judges.  In addition, Republicans argued in U.S. district court that ballot-curing violated the PA Supreme Court's secrecy envelope ruling and argued in a PA appellate court that sharing ballots with political parties violates PA election law, but neither of those arguments is correct.  All the PA Supreme Court ruled is that absentee ballots without secrecy envelopes must be considered invalid — and that is what makes the secretary of state's ploy so brilliant.  Nevertheless, the curing almost certainly violates the secrecy requirements of the PA Constitution, and to the best of my knowledge, no one has yet challenged the curing of ballots in pursuance of the secretary of state's election eve guidance on these grounds.

The great state of Texas has just filed a complaint against PA and other battleground states, in part for "non-legislative actors' purported amendments to States' duly enacted election laws, in violation of the Electors Clause's vesting State legislatures with plenary authority regarding the appointment of presidential electors."  If it's not too late, perhaps Secretary Boockvar's Election Night guidance can be rolled into the list of non-legislative misconduct.