Pennsylvania's election is in uncharted territory with a new rule that rejects 'naked' ballots

• For the first time, Pennsylvania is allowing all voters to cast a ballot by mail without an excuse.
• But the state Supreme Court has ruled that officials must reject "naked" ballots that arrive without an inner secrecy envelope in addition to the outer envelope.
• While one election official estimated that tens of thousands of naked ballots could be rejected in Pennsylvania alone, a lack of data makes it difficult to know the true extent of the issue.
• Experts who spoke to Insider said that while they are concerned about the decision, they believe there's still enough time to educate voters and prevent the ballots from causing an election catastrophe.

Just weeks before the November 3 presidential election, the Pennsylvania Supreme Court issued a ruling on an obscure provision of state law, requiring voters to place mail ballots in not just one but two envelopes in order to be accepted and counted.

Pennsylvania, a critical battleground state worth 20 votes in the electoral college, is permitting all voters to vote by mail without an excuse for the first time in 2020. It is also the site of multiple key congressional and state legislative races.

The state has also seen a flurry of litigation over its election rules from both sides of the aisle. On September 17, the state handed down a number of rulings in a major lawsuit filed by the state's Democratic party and other plaintiffs against state election officials.

The court sided with Democrats, allowing for the use of secure ballot dropboxes, establishing a county residency requirement for poll watchers, and requiring that officials accept ballots that are mailed by November 3 and arrive by November 6, a move that could prevent thousands of ballots from being rejected.

But the Supreme Court ruled against Democrats in mandating that officials reject ballots without secrecy envelopes, sometimes referred to as "naked ballots," a new change that could potentially result in thousands of votes tossed out because voters don't know the rule about including the ballot in the secrecy sleeve.

Pennsylvania is one of 16 states that requires both an outer envelope and an inner secrecy envelope for voters to return their ballots, according to the National Conference of State Legislatures. But it will be one of few states to fully enforce the requirement in order for the ballot to be counted — and it has no uniform process by which voters can fix an error with their ballot.

"I think that the decision was overall pretty favorable for voters and really making sure that there are much fewer obstacles to casting a ballot this year. The thing that we were less excited about were the naked ballots, which used to be a dorky term of art among us voting people, and are now something suddenly everyone is aware of," Sara Mullen, the Advocacy and Policy Director for the Pennsylvania Civil Liberties Union, told Insider.

Shortly after the ruling, Philadelphia City Commissioner and election official Lisa Deeley warned state lawmakers in a letter that, in her estimation, 30,000 to 40,000 naked ballots could be rejected in Philadelphia County alone this November and up to 100,000 statewide for the minor technical error.

In the 2016 presidential election when the state required an excuse to vote by mail, less than 4% of Pennsylvanians voted with an absentee ballot. In the state's June primary, 1.8 million, about 20% of Pennsylvania's 8.8 million registered voters, sent in a mail ballot request, which can be used for both the primary and general election, according to data compiled by the US Elections Project.

Because of the partisan divides in mail ballot requests seen so far this year, the rejection of naked ballots could disproportionately affect Democratic voters and candidates, although it's not clear yet what the partisan breakdown in mail voting for the general election will be. Over 70% of Pennsylvania voters who requested ballots in the state's June 2, 2020 primary were registered Democrats, according to state data from early August, while 29% were registered Republicans.

Deeley's letter prompted headlines from outlets including the Philadelphia Inquirer and Politico suggesting that the naked ballot issue could cost Democratic presidential nominee Joe Biden a victory in the state or worse, trigger a major dispute over the results that could rival the 2000 election catastrophe in Florida.

But Pennsylvania's limited experience with high levels of mail voting, a lack of data on rejection rates for naked ballots, and the circumstances of the COVID-19 pandemic make it difficult to know how, exactly, naked ballots will factor into this election.

States currently use a number of measures to verify that the voter that received a mail ballot is the one who sent it back, including requiring a voter signature on the outer envelope, signature verification, and requiring that ballots be postmarked or received by a certain date.

A secrecy envelope, however, doesn't serve any purpose in ensuring the integrity of mail ballots. As Deeley pointed out, the requirement was meant to add another layer of privacy when mail ballots were processed at precincts, but is no longer relevant now that ballots in Pennsylvania are counted through an automated process at a central location.

"The presence of a secrecy sleeve has nothing to do with the eligibility of the voter, the accuracy, or casting of the ballot," Amber McReynolds, the CEO of the National Vote at Home Institute told Insider. "No state should reject a ballot for lack of a secrecy sleeve."

A lack of data sends Pennsylvania into uncharted waters

Deeley's assessment that up to 100,00 ballots statewide could be rejected is mainly an extrapolation of a small sample of just 197 ballots, or 6.4% of the total that arrived without secrecy envelopes in Philadelphia's 2019 local elections, which took place before the pandemic and before Pennsylvania's law expanding mail voting went into effect.

"I don't think the numbers lie, and the difference now is that the state has gone through almost 10 months of public communication on how to securely submit a mail-in ballot," Scott Seeborg, the Pennsylvania State Director of advocacy group All Voting is Local, told Insider of Deeley's estimations. "Extensive public education will move the needle downwards on the number of 'naked ballots' even as the total volume increases to more than 20 times the 2019 levels, as we saw in the primary."

Because few states use secrecy envelopes and how few counties track how many they receive, there isn't comprehensive data either in Pennsylvania or nationwide of how many naked ballots arrive at election offices every year.

"The only hard data the public has on this is scattered reporting from a couple of counties in the 2020 primary and data from Philadelphia in their pre-COVID municipal election in 2019. Data quality on this issue has long been a concern and not one that is easily overcome," Jonathan Robinson, the lead research scientist at political data firm Catalist, told Insider.

Forrest Lehman, the director of elections in Lycoming County, Pennsylvania, told Insider that Pennsylvania's Department of State, which oversees elections, gave official guidance urging counties to accept ballots that did not come in a secrecy envelope for the state's June 2 primary.

Lehman said that guidance meant that many counties, including his own, did not track precisely how many naked ballots arrived in their county, making it challenging to know what to expect in the general election.

In addition to the lack of data from Pennsylvania, there aren't any nationwide statistics on how many naked ballots arrive at election offices in other states.

Neither the 2016 nor 2018 Election Administration and Voting Surveys from the US Election Assistance Commission, which collects data from county officials, contain concrete statistics on how many ballots that arrived at election offices were rejected for lacking a secrecy envelope, or even mention the topic at all.

'Eating, sleeping, and breathing voter education'

Suzanne Almeida, the interim executive director of Common Cause Pennsylvania, told Insider that while she's concerned over rule changes that increase the chances of ballots being rejected for avoidable mistakes, "the silver lining" of the court's decision was providing necessary clarity over the law.

"This is only the second election where all Pennsylvania voters who want to are eligible to vote by mail. So this is a learning curve for everyone, and that actually provides us an opportunity: we're not changing an established practice, we're teaching people how to do something for the first time," she said. "I certainly think there are actionable steps we can take including voter education, and including not sounding the alarm of disenfranchisement when really, this is about teaching folks about the rules."

Groups including All Voting Is Local, Common Cause, and the ACLU said that state and local election officials and other community-based organizations in Pennsylvania are already hard at work both with direct voter outreach and putting out PSAs on television and social media about secrecy envelopes, like this ad from the Democratic National Committee.

—David Bergstein (@DavidABergstein) September 24, 2020

"There is a broad coalition eating, sleeping, and breathing voter education in the state to ensure voters understand the importance of the secrecy envelope," Seeborg said.

In another wrinkle that could lead to more ballots being disqualified, Pennsylvania, unlike many other states, does not have a uniform process by which election officials are required to notify voters of problems with their ballots and give them an opportunity to cure their ballot so it can be properly counted.

Lehman told Insider that it's currently up to individual counties to devise their own cure processes. But even if the state legislature did implement a statewide cure requirement, there are still hurdles.

Pennsylvania's state law doesn't allow election officials to open any ballot envelopes or begin processing mail ballots until 7 am on Election Day, a rule that Lehman and other officials have been lobbying the state legislature to change to give officials more time to process ballots.

Because Pennsylvania officials can't open up ballots until Election Day itself, they can only alert voters to fix the problem of failing to sign the affidavit on the outer envelope before processing starts on November 3.

Making things more complicated, the state does not require that voters provide a phone number or email for election officials to easily contact voters and alert them to a problem.

"The bigger problem that counties are going to have is that for many voters, you simply don't have a means to get in touch with them. You've got an address, but you don't have anything faster, like a phone number or an email address right now," Lehman said.