September 21, 2020
When Pennsylvania residents return their mail-in ballots for the Nov. 3 election, they are required to enclose their completed ballots within a "secrecy envelope" that removes identifying information when votes are counted.
The two-envelope system, employed by only 16 states, was originally designed to maintain anonymity when Pennsylvania counted absentee ballots at polling places. The outer envelope requires a signature to verify the validity of the ballot, allowing the secrecy envelope to be separated and the ballot later counted.
Ballots that are submitted without the secrecy envelope are considered "naked ballots," and the Pennsylvania Supreme Court ruled last Thursday that such votes must be thrown away.
While most of the attention last week centered on the court's decision to extend the deadline for mail-in and absentee ballots to be received and counted by county election boards, the naked ballot ruling could potentially have serious ramifications.
The 2020 election will see an unprecedented number of mail-in ballots compared to previous elections. The scale of potential voter error increases dramatically, raising the likelihood that a significant number of votes could be invalidated as a result of a technicality.
Pennsylvania is considered perhaps the most decisive battleground state in the 2020 presidential race, with a thin margin expected to separate President Donald Trump and Democratic challenger Joe Biden.
In a letter to Pennsylvania lawmakers on Monday, Philadelphia City Commissioners chair Lisa Deeley forcefully warned of the damage the naked ballot ruling could do if left alone.
"Recent actions by the Pennsylvania Supreme Court have set Pennsylvania up to be the subject of significant post-election legal controversy, the likes of which we have not seen since Florida in 2000," Deeley wrote.
Further complicating matters is that the state doesn't have an official tally of the number of naked ballots that were received in the June 2020 primary election, which was considered a test-run for the general election.
Approximately 1.5 million mail-in and absentee ballots were submitted in the June primary, accounting for a little more than half the total received.
To generate an estimate of the potential number of "naked ballots" at stake, Deeley looked at Philadelphia's transcripts from the 2019 general election. The Philadelphia Board of Elections received 3,086 absentee ballots, including 197 "naked ballots" that were counted in accordance with the board's precedent of doing so, barring objections that began surfacing at that time.
That means about 6.4% of the absentee ballots Philadelphia received in 2019 would have to be thrown out, based on the Supreme Court's ruling last week.
"If you carry that percentage over, we would have received 11,211 naked ballots in the 2020 Primary," Deeley wrote. "Under the Pennsylvania Supreme Court's recent ruling, that would amount to 11,211 votes that would not have been counted."
Deeley expressed further concern that the estimate above reflects error from voters who likely would have been more accustomed to mail-in ballots from previous elections. In 2020, driven by the coronavirus pandemic, the number of first-time mail-in voters is expected to surge.
If naked ballots rise even somewhat proportionately under the circumstances in 2020, the outcome could be decisive.
"That number could rise to more than 100,000 votes statewide — votes that will not be counted, all because of a minor technicality," Deeley wrote. "When you consider that the 2016 Presidential Election in Pennsylvania was decided by just over 44,000 votes, you can see why I am concerned."
That estimate would not even include thousands votes that may be canceled for other reasons, such as problems with signatures, mail delivery or those returned too late. About 20,000 mail-in votes were tossed from the June primary for a combination of these reasons.
Surveys have shown that Democrats are more than twice as likely as Republicans to vote by mail in 2020, leading to a greater chance that votes for Biden would be tossed in Pennsylvania.
"This is not a partisan issue," Deeley continued. "We are talking about the voting rights of our constituents, whether they be Democrats, Republicans, or independents, whose ballots will be needlessly set aside. As public servants, we owe it to all citizens to avoid this situation, and the likely chaos that would come with it."
Arguing that secrecy envelopes be scrapped altogether, Deeley pointed to the industrialized process in which votes are now counted centrally. The Philadelphia Board of Elections, for instance, has purchased 22 extraction desks that operate at high speeds, practically eliminating concerns about anonymity.
"This equipment will allow us to remove about 12,000 ballots an hour," Deeley wrote. "Without a secrecy envelope, we could remove 24,000 an hour, and we could scan 32,000 ballots an hour. At these speeds, there is no opportunity to stop, or even slow down, and identify how an individual voted — anonymity is maintained."
In 2020, Deeley argues the secrecy ballot exists only to "disenfranchise well-intentioned Pennsylvania voters."
Last week's court decision, written by Pennsylvania Supreme Court Justice Max Baer, a Democrat, stated that the state legislature believed the two-envelope process was necessary to ensure an orderly canvas of mail-in ballots without revealing critical identifying information.
"Whatever the wisdom of the requirement, the command that the mail-in elector utilize the secrecy envelope and leave it unblemished by identifying information is neither ambiguous nor unreasonable," Baer wrote.
Deeley's letter, countering the ruling on grounds of the unprecedented scale of 2020 mail-in ballots, urges the state legislature to eliminate the secrecy envelope requirement. Doing so as soon as possible would be crucial to ensuring that voters can be properly informed.
In the absence of any legislative change, the proper procedure for returning mail-in ballots with both envelopes — "an extremely odd and unusual way to mail something," Deeley wrote — will need to be a critical objective of voter outreach and education in the weeks ahead.
Read Deeley's entire letter below: