By Jessica Washington

Ever heard of a naked ballot? It’s when a completed mail-in ballot is put into the paid postage envelope without first being put into a “secrecy envelope.” And the Pennsylvania Supreme Court has recently ruled that naked ballots are to be thrown out regardless of the validity of the ballot.

There is a provision in the Pennsylvania Election Code that requires mail-in ballots to first be put into a secrecy envelope and then that secrecy envelope containing the ballot will be put into a regular mailing envelope which has identifying information for the voter to fill out. It’s not uncommon for a voter—especially a voter voting by mail for the first time—to forget to put their ballot inside the secrecy envelope before putting it into the mailing envelope. But this common mistake could potentially disenfranchise 100,000 eligible voters whose ballot is correct save the secrecy envelope issue.

The naked ballot issue has always been hanging over the heads of election officials. Although the Election Code states that secrecy is required and states reasons for tossing out ballots, it does not state lack of secrecy envelope has a reason to discard ballots or say what to do with a ballot that’s naked. Essentially, that statute was silent on what should be done with naked ballots. In Pennsylvania Democratic Party, et al. v. Boockvar, et al., the Trump Campaign brought suit against Pennsylvania arguing that secrecy envelopes are mandatory under the Election Code. Their argument comes from a statute in the Election Code that requires ballots to be voided if any information about the elector is revealed on the envelope. The Pennsylvania Democratic Party and the Secretary of the Commonwealth (Kathy Boockvar) both arguedthat naked ballots are permitted under the Election Code and further the right to vote under the Free and Equal Elections Clause of the First and Fourteenth Amendments. The Secretary argues that the secrecy envelope is “directory” and that there is court precedent for not discarding ballots purely for failing to follow a directory provision.

The Trump Campaign offered no evidence that fraud existed without secrecy envelopes. Lisa Deeley, the Philadelphia City Commissioner and Election Official, argues that secrecy envelopes don’t serve any purpose in protecting the integrity of mail-in ballots. This is because the secrecy envelopes were originally created to protect the identity of the voter as votes were being counted at precincts. Now, ballots are counted through an automated process. There is no need for secrecy because there won’t be a person actually looking at the ballots. Despite these arguments, the Pennsylvania Supreme Court ruled that naked ballots are to be discarded. The court agreed with the Trump Campaign’s argument that the secrecy language was mandatory, that legislative silence was not a reason to invalidate a mandatory statutory provision, and that the legislature intended for voter information to remain confidential.

This ruling has caused great concern for many voters in Pennsylvania, especially Democratic voters. In the 2020 primary election, 70% of voters that used mail-in ballots were Democrats while only 29% were Republicans. As a result of COVID-19, Pennsylvania passed a reform bill that allowed no excuse vote-by-mail whereas previously people needed to give a reason why they couldn’t vote in person. This new bill along with the pandemic is creating an increase in the number of people wanting to vote by mail, the majority of which are Democrats. There is very little data on naked ballots so no one is really sure how many the state could face in the 2020 presidential election. There is also no cure for naked ballots, which means voters will not have the chance to correct their error before their ballots are thrown out. According to Paul Gronke, an Oregon political science professor who directs the Early Voting Information Center, the people most likely to be affected by this are voters of color, low-income voters, younger voters, and mobile voters.

The outlook is concerning for people voting with mail-in ballots, and many are wondering what they should do. Deeley said the city commissioner’s office is working on their communication plan to inform voters on how to send in their mail-in ballots. Deeley also wrote a letter to the Pennsylvania Republicans asking them to pass a bill that removes the requirement for a secrecy envelope. The Department of State is also working to increase their voter education campaign. Governor Tom Wolf supports legislation that requires counties to count naked ballots and hopes to come to an agreement with the Republican-controlled legislature. As of now, there is no sign that the legislature will change the statute; it seems that all anyone can do is inform voters of the necessary steps that need to be taken in order to vote by mail-in ballot. With an estimation that 100,000 votes could be discarded for being naked ballots, this puts Pennsylvania is a precarious position. Since Trump won the state in the 2016 election by a margin about 44,000 votes the potential for thousands of votes to be thrown out could lead to a major legal battle that hasn’t been seen since Florida in 2000 during the Bush/Gore presidential election.

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