The Pennsylvania state Supreme Court is considering whether it should step in immediately to set how Pennsylvanians cast ballots in the November election and end nearly all related court challenges, as state officials say they fear chaos this fall.
The battleground state’s secretary of the commonwealth went to the high court on Sunday for “extraordinary” help to end confusion and various ongoing court cases that have put elections officials, Democratic interest groups and the Trump campaign at odds largely about how to conduct mail-in voting in the swing state that’s key to both parties.
If court cases continue before trial judges through August, they’ll “sow confusion” with voters and election workers, lawyers for Secretary of the Commonwealth Kathy Boockvar, a Democrat, wrote.
“There is simply insufficient time to litigate these novel constitutional and statutory issues of statewide importance twice,” Boockvar’s unusual court filing said, citing multiple court cases where Democratic groups and the Trump campaign have separately sued to set balloting procedures. “Both voters and election officials need clarity on these critical election issues as soon as possible.”
The state executive said it wants the court to set 8 p.m. on Election Day as the deadline for voters to mail ballots, and for county officials to have three days after Election Day to count them. The state also wants county boards to decide drop-off locations for mail-in ballots, that ballots sent without a second privacy envelope to be counted, and that poll watchers must live in the county where they will work on election day.
The Trump campaign is currently suing Pennsylvania in federal court over a 2019 state law that allows widespread mail-in voting. Republicans also want to bar the state from having ballot dropboxes and to mandate ballots must be inside two envelopes. On Monday, Matthew Morgan, the Trump campaign’s top lawyer, pinned the legal strategy to use the appeals court on Democrats.
“The Democrats have done everything in their power to muddy the water on this case, including playing games with the court system, because they know the standardless procedures they’re trying to implement violate voters’ rights,” he said.
In this and other state court fights, Pennsylvania’s elections officials are largely in line with the Democratic Party’s wishes. The Democrats continue to push for minor changes to what the state wants, such as extending the deadline for mail-in ballots to be received to seven days.
“We really are getting close to the election,” said Witold Walczak, the ACLU of Pennsylvania’s legal director. The group is involved in several of the election lawsuits in the state, and Walczak said a quick, clear decision from the high court could help voters.
“The sooner, the better. We are looking at potentially the perfect storm. There are enough problems trying to make sure that all voters are able to cast a ballot this fall,” he told CNN.
The court has given until Thursday for those involved in Pennsylvania election litigation to respond to the state’s “extraordinary” request.
Going to the ‘King’s Bench’
The disputes in Pennsylvania are being repeated in court cases in battleground states across the country, where political interest groups and the major parties are still fighting to set plans for the November election. Each state is different, and many have multiple ongoing court cases that are far from resolved.
But Pennsylvania, with its unique laws, could be poised to finalize its election plan quickly, while other states may continue fights until closer to November.
Pennsylvania’s state officials highlighted exactly how, if the court cases continue longer, they may disrupt voters from casting ballots.
“Because of this uncertainty, mail-in voters may hold off requesting and/or returning their ballots until the last minute, or decide against mail-in voting all together. And county election officials, uncertain about the constitutionality of a specific procedure, may not know how to train their staff or advise their staff and other election workers,” lawyers for the state wrote to the court.
The situation in Pennsylvania is so unusual, the approach the state leaders have taken in court is almost never used. It’s a special approach dating back to a legal maneuver from medieval England called the “King’s Bench.”
The “King’s Bench” authority gives the Pennsylvania Supreme Court the ability to step in over cases in trial courts and end them with a final decision, more quickly than most normal court procedure would allow.
State officials asking for extraordinary help from the high court to silence litigation was almost unheard of before spring of 2020, when coronavirus threw the state’s governance into chaos and executives rushed to the courts.
But the elections cases getting a ruling from the “King’s Bench” Supreme Court could potentially resolve even federal court cases.
The court cases in Pennsylvania have drawn national attention for several reasons: that they are fast moving, that recent Postal Service delays prompted state leaders to ask to push back a deadline for mail-in ballots, and that one case prompted a Trump-appointed judge to order the Trump campaign to turn over evidence of voter fraud in the primaries.