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What If the 2020 Presidential Election is Disputed? SCENARIO 1.1 SCROLL DOWN

Session 1: From Election Day (Nov 3) to Meeting of Electors (Dec 14)

Hypothetical Scenario 1.1: Philadelphians experienced delays receiving absentee ballots

Pennsylvania’s new vote-by-mail law, which extends vote-by-mail to any voter who would prefer that method of voting (and thus no longer requires an “excuse” for “absentee” voting), requires all mailed ballots to be delivered to local boards of election by 8 p.m. on Election Day, November 3. (See 25 P.S. § 3150.16.) Suppose, however, because of the extraordinarily high demand among voters for the ability to exercise this vote-by-mail option, as a consequence of COVID-19, and because 2020 is the first election in which Pennsylvania has administered this type of “no excuse” vote-by-mail system, the state experiences considerable problems especially in Philadelphia. In particular, although local boards are required to deliver ballots to voters within 48 hours after their ballot “applications are received and approved,” delays caused by the large volume of applications—as well as problems with postal delivery—meant that many voters were not receiving their ballots until as late as November 2, one day before Election Day. Indeed, a substantial number of voters did not receive their absentee ballot even by November 3 itself.

A lawsuit was filed in state court on behalf of Philadelphia voters seeking an injunction that, in light of the failure of the government to provide these voters with their official mail-in ballot in sufficient time for voters to return them by 8 p.m. on November 3, any voter who had timely requested a mail-in ballot but had not received one by November 2, was entitled to use the Federal Write-In Absentee Ballot (FWAB) as a substitute emergency ballot, which was required to be counted as valid as long as (a) the voter signed and dated the ballot no later than November 3, and (b) the ballot arrived at the voter’s local board of election by November 10 (the date by which military and overseas ballots in the state must be received). The state court granted this relief but extended it to all voters statewide (not just those in Philadelphia) who had failed to receive an official mail-in ballot by November 2 despite their timely request.

The Republican Party of Pennsylvania has filed suit in federal court, claiming that the state court’s order violates the Due Process Clause of the Fourteenth Amendment, as interpreted in such cases as Roe v. Alabama, 43 F.3d 574, 581 (11th Cir. 1995), because it changes the rules for an election after ballots have been cast—both the date by which a cast absentee ballot must be delivered and by providing for use of the FWAB as an alternative form of mailed ballot for domestic voters (rather than just military and overseas voters, as provided by the applicable state statutes). The plaintiffs in the state court action have intervened as defendants in the federal case, arguing that it would violate the Equal Protection Clause and section 2 of the Voting Rights Act for the state to strictly enforce its statutory deadline, and thus the state court relief was warranted on federal-law grounds whatever its validity under state law. Should the federal court grant or deny the GOP-requested injunction?

[This analysis of this scenario requires consideration of the U.S. Supreme Court’s recent ruling in Wisconsin’s April election, RNC v. DNC.]