DV Journal

The state Supreme Court declined to hear a mail-in ballot signature case last year, believing it was too close to the November 2024 election. Now that the election is over, the high court has taken up an appeal regarding Baxter v. Philadelphia Board of Elections.

The case was brought by Brian Baxter and Susan Kinniry, two Philadelphia voters whose ballots were rejected by the Philadelphia Board of Elections because they lacked signatures  with dates as required by state law.

Two lower courts sided with the plaintiffs. Republicans have appealed to the Supreme Court.

After the November election, Bucks County Commissioners Diane Ellis-Marseglia and Bob Harvie created a bruhaha by voting to count mail-in ballots sans the required signatures. Ellis-Marseglia famously said, “I think we all know that precedent by a court doesn’t matter anymore in this country. People violate laws any time they want. So, for me, if I violate this law, it’s because I want a court to pay attention to it.”

The Montgomery County commissioners also voted to ignore the law.

The ACLUPA and the Public Interest Law Center are representing the plaintiffs.

“This case is about an unconstitutional rule that needlessly disenfranchises thousands,” said Stephen Loney, senior supervising attorney at the ACLU of Pennsylvania. “Court ruling after court ruling has found that a handwritten date, or lack thereof, on the outer envelope of a mail ballot, has no bearing on whether the voter is eligible or returned their ballot by the deadline.

“Counties should be doing all they can to ensure that every eligible voter can cast their ballot and that every vote is counted. Disqualifying ballots over the lack of a handwritten date is plainly unconstitutional,” he said.

But Republican election lawyer Linda Kerns said the state legislature, not the courts, should be making the law.

“The issue is that election laws should be changed via the legislative process – not the courts. The court will now address the merits of the challenge under the Free and Fair Elections Clause – which it has already upheld in previous cases and should do so yet again – respecting the plain language of the Pennsylvania General Assembly’s duly passed law. The General Assembly decided to include a commonsense requirement that voters record the date that they signed their ballot,” said Kerns.

“If the left wants to change that, it should be through the General Assembly,” she added.

In 2019, the Pennsylvania legislature passed Act 77 to permit mail-in ballots, and the practice has been the subject of controversy and litigation ever since. Republican voters had remained tepid about mail-in voting, but Democrats adopted it enthusiastically.

For the 2024 election the RNC and Republican leaders, including President Donald Trump, pushed their voters to vote by mail, increasing their voters’ buy-in.

Senior Assistant Montgomery County solicitor John Marlett said some 474 Montgomery County primary voters returned ballots with the wrong date.

“The year was either missing or incorrect,” he said. The Board of Elections then voted 2-1 to accept ballots without a year or the incorrect year.  However, neighboring Delaware County adopted the opposite policy.

Marlett told the Montgomery County Board of Elections on Friday that the secretary of state’s guidance says a missing or incorrect year does not disqualify the ballot, leaving it up to county boards of election. The state issued that advice despite the fact that the Third Circuit Court of Appeals found wrong dates disqualified the ballots.

Montgomery County Board of Elections Chair Neil Makhija, a Democrat, said the policy of accepting incorrectly dated ballots was implemented during the North Penn special election and “the year [on the ballot] doesn’t provide any sort of security or validation.”

He moved to accept ballots dated between when they were distributed and when the election would be counted. Vice Chair Jamila Winder, also a Democrat, seconded it.

Republican Tom DiBello opposed the move, saying, “My opinion hasn’t changed.”

He noted that Act 77, the law allowing mail-in ballots, has not changed. “There’s been no change to the law. I didn’t support it then, I don’t support it now, and I won’t support it moving forward.”

Makhija said, “We shouldn’t allow something immaterial to disqualify or discount their vote… I think it’s really important for this board to protect the right to vote for all residents.”

The motion passed 2-1.

DiBello said, “Obviously, in Montgomery County, we interpret Act 77 the way we want.” He noted there were “significant issues” in the primary election process and suggested the election board meet monthly leading up to the general election to ensure a smooth process.”

In Delaware County, the Board of Elections took the opposite position from Montgomery County.

“The Third Circuit Court of Appeals ruled that the dates can be required by state law, overruling the federal Circuit Court ruling,” said James P. Allen, elections director for Delaware County. “Therefore, Delaware County did not process any ballots from envelopes that were completely missing a date or that were dated incorrectly.”

Linda Kerns, a Philadelphia election lawyer, said because of the guidance from the secretary of state, counties are making different decisions about which mail-in ballots to count.

“So, yet again, we have counties interpreting the issue quite differently which means, as usual, in Pennsylvania, ballots are being treated differently based on the county where you vote,” said Kerns. “Generally, counties with Republican election offices are interpreting date to mean month, day, year that you filled out the ballot. Democrat-led offices are taking a much more broad and liberal approach. That is not exclusive, though, as some Democrat counties are not counting. So it is, as usual, a disgrace.”

Kerns added, “Each court is interpreting a poorly written law very differently. We should have uniformity as to how these ballots are treated.  That is what is fair and democratic. We do not have that.”

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Despite receiving the most eligible votes in last November’s election, Richard Marino III will not be serving as a Towamencin Township supervisor.

Marino, the incumbent, tied with his challenger, Kofi Osei, and so the race was decided by Osei picking the winning tile in a tiebreaker at Montgomery County Courthouse.

But that tie was based on including improperly-dated ballots in the total. Osei received five of those ballots and Marino one.

Last month, in a landmark case in election integrity, the Third Circuit Court of Appeals ruled that mail-in ballots must have a correct date and the voter’s signature to be counted, as per Pennsylvania law. In other words, the six ballots in question should not have been counted.

That overruled a previous court ruling that found ballots from eligible voters did not need to have a handwritten or correct date on the envelopes.

The Third Circuit decision gave Marino hope that he would prevail in the Commonwealth Court.  But on April 8, that court ruled against him, and he decided not to appeal to the state Supreme Court.

In a Facebook post thanking his supporters, Marino said, “Ironically, according to both the Pennsylvania Supreme Court and the Federal Third Circuit Court of Appeals, the man now sitting on the Board of Supervisors in my place did not win the election.

“Yet he will retain his seat due to a November ruling by a federal judge that has since been overturned and because our petition, in the eyes of the Commonwealth Court, was filed two days late. I’m sorry, but it just does not seem like a just outcome for the voters of Towamencin. That being said, I am not going to appeal beyond this.

“Given the makeup of the Pennsylvania Supreme Court, I have no reason to believe that they would render a verdict any different than that of the Commonwealth Court,” Marino concluded.

Marino is a Republican, while the Democrat majority in the state Supreme Court has earned a reputation for its partisanship.

Osei said, “I’m glad we’re finally able to put the 2023 election behind us. I really hope Towamencin can come together after a few contentious years.

“I supported the Marino camp’s right to seek legal relief as these sorts of things tend to happen in close elections, and I really can’t promise I wouldn’t have done something similar had the four-vote margin remained. I do, however, want to push back on their characterization of what happened.

“I have not attempted to intervene in the federal lawsuits surrounding misdated ballots, so I’m unsure why Marino’s camp consistently characterizes the (federal court) ruling as ‘interference.’ Counting the ballots was legal and arguably mandated at the time of certification. The state law conflicts with the federal law, and per our Constitution, federal law preempts state law.”

And Osei said it’s time for the state legislature to fix this legal pothole.

“This specific provision of Act 77 has been legally controversial since its inception, and I’m unsure why the General Assembly doesn’t simply remove it as the election officials don’t use it at all. If we want confidence in our elections, we need to remove this type of legal liability,” Osei said.

At the same time, Osei isn’t apologizing for how he won.

“I have now won three electoral contests in as many attempts. The Towamencin Republican Party hasn’t earned the right to run sloppy campaigns versus me, and I’m taking this last win with no caveats,” Osei said.

However, the issue may not be over yet.

The plaintiffs in the voting lawsuit, led by the ACLU, have filed an appeal asking the full Third Circuit to consider the case and rule. A decision is not expected before the April 23 primary.

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In what’s being called a landmark case for election integrity, the federal Third Circuit Court on Wednesday upheld a ruling by the Pennsylvania Supreme Court requiring people using mail-in ballots must put a correct date along with their signatures on the outer envelope.

It could also be a landmark for Richard Marino III of Towamencin Township. He lost the supervisor’s election to Kofi Osei when those ballots, now declared ineligible, were used in the final vote count.

The ruling overturned a previous ruling by a district court judge who found  ballots from eligible voters received on time did not need to have a handwritten date or a correct date.

“The Pennsylvania General Assembly has decided that mail-in voters must date the declaration on the return envelope of their ballot to make their vote effective. The Supreme Court of Pennsylvania unanimously held this ballot-casting rule is mandatory; thus, failure to comply renders a ballot invalid under Pennsylvania law,” the Third Circuit panel said in its 2-1 majority ruling.

In the 2023 Towamencin Township supervisor’s election, Marino received the most ballots. But when the undated ballots were added, the race turned into a tie with Osei. As a result, the election was decided by a drawing to pick the winner.

Marino’s appeal is scheduled to be heard in the Commonwealth Court on April 3.

“I am happy the Third Circuit Court of Appeals found in our favor and rejected the idea that procedures put into place to secure election integrity somehow disenfranchises voters who ignore those procedures. I look forward to continuing this fight,” Marino said.

Christian Nascimento, chair of the Montgomery County Republican Committee, said Marino “absolutely should (return to the board). The Montco Board of Elections followed a process that has been deemed to be illegal.”

Republicans in the Keystone State and across the nation have made election integrity and the rule of law top priorities. The circuit court’s decision was praised by Republican National Committee Chairman Michael Whatley.

“This is a crucial victory for election integrity and voter confidence in the Keystone State and nationwide. Pennsylvanians deserve to feel confident in the security of their mail ballots, and this Third Circuit ruling roundly rejects unlawful left-wing attempts to count undated or incorrectly dated mail ballots. Republicans will continue to fight and win for election integrity in courts across the country ahead of the 2024 election,” Whatley said.

The American Civil Liberties Union (ACLU), however, opposed the decision, arguing the civil right to have a ballot counted overrides the civil right of citizens to pass and enforce election laws to prevent fraud.

“If this ruling stands, thousands of Pennsylvania voters could lose their vote over a meaningless paperwork error. The ballots in question, in this case, come from voters who are eligible and who met the submission deadline. In passing the Civil Rights Act, Congress put a guardrail in place to be sure that states don’t erect unnecessary barriers that disenfranchise voters. It’s unfortunate that the court failed to recognize that principle. Voters lose as a result of this ruling,” said Mike Lee, executive director of the ACLU of Pennsylvania.

“The court ruling is a gigantic win for Pennsylvania, the nation, and election integrity,” countered Pennsylvania GOP Chairman Lawrence Tabas. “The Pennsylvania GOP will continue to do everything we can to keep our elections safe and secure because, above all, Pennsylvanians deserve to have confidence in our elections.”

The Pennsylvania Department of State offered a measured response.

“The Department of State believes every vote by a qualified voter should be counted, and we are continuing to work to ensure that is the case in Pennsylvania,” said press officer Matt Heckel. “To that end, the department has made significant proactive improvements to mail ballot materials designed to cut down on undated or misdated mail ballot envelopes.”

The new ballots will be rolled out for the 2024 primary on April 23.

“Additionally, the department is encouraging counties to employ processes to provide notice to voters of these errors so that voters have a chance to correct them and ensure their votes are counted. The department is reviewing potential next steps as we analyze yesterday’s court decision,” Heckel added.

“The real winners in the Pennsylvania mail ballot case are the voters,” said Philadelphia election lawyer Linda A. Kerns. “In a well-reasoned opinion, the Third Circuit held that Pennsylvania law must be followed so voters can be assured, at least when it comes to dating, ballots across the commonwealth will be treated equally by election officials. I have no doubt the left will continue to attack the rule of law – but voters should feel confident with this victory.”

State Sen. Gene Yaw (R- Bradford) said, “The argument has always been about voter ID and all these other things out there, that it somehow restricts the number of people that can vote. And what the Third Circuit said in this particular case is that the signature requirement did not violate anything because it did not restrict the number of people that can vote. It only addressed how they can vote.

“Our Pennsylvania law did not run afoul of any federal requirement because we weren’t restricting the number of people.”

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With many voters having problems correctly filling out their mail-in ballots, Pennsylvania officials designed new ballots to make the process easier to understand.

A federal judge in western Pennsylvania ruled last week that county boards of elections must accept mail-in ballots with the wrong date. The ruling caused Montgomery County to delay certification of its 2023 election results from Nov. 22 to Dec. 4.

“The canvass and tabulation of undated and improperly dated mail-in ballots was completed on Monday, Nov. 27. In accordance with the election code, the results must be posted for a five-day waiting period before they may be certified,” a county spokeswoman said. In Bucks County, the Board of Elections reversed course Monday and added undated ballots to its totals.

Secretary of the Commonwealth Al Schmidt announced Wednesday that redesigned mail ballot materials will be used in the 2024 primary election. The redesigned envelopes and instruction sheets have revised language to explain to voters how to correctly fill out and return their mail-in ballots. The goal is to decrease voter confusion that can lead to completed ballots being rejected and to help county election workers with efficient mail-in ballot processing.

“Gov. Shapiro has made it clear that the commonwealth should help people succeed, not get in their way. In each election cycle since 2020, when no-excuse mail-in voting was implemented in Pennsylvania, we have seen thousands of mail ballots not be counted because of unintended technical errors voters made when completing their ballot,” Schmidt said. “The Shapiro administration is committed to allowing every eligible Pennsylvanian to cast their vote and make their voice heard. Our hope is that these new materials will better assist voters in making sure their completed mail ballot packet is filled out correctly and can be counted.”

The most common reasons for mail ballot rejection in the 2023 primary were arriving after Election Day (46.8 percent of all rejected ballots), lack of a date (20.3 percent), lack of a secrecy envelope (14.9 percent), incorrect date (8.4 percent), and lack of a signature (4.7 percent).

However, critics remain skeptical of the mail-in ballot system.

“If either Gov. Shapiro or Secretary Schmidt won $100 million in the Pennsylvania lottery, I wonder if they would sign the lottery ticket in pencil (as they are suggesting voters mark their ballots) and drop it into the mail. Of course not. Yet they continue to state that mail ballots ‘strengthen our democracy’ as if the more times they say it, they can make it true,” said Linda Kerns, an election lawyer.

“The number of times Pennsylvania has had to tweak this mail ballot process (and the number of lawsuits challenging the flaws) demonstrate the inherent weakness of the system. Shapiro and Schmidt can spend oodles and oodles of taxpayer money revising this glitch-ridden debacle, but mail ballots will never be as secure as showing up in person, no matter how many fancy, color-coded forms their high-paid consultants develop,” said Kerns.

Joy Schwartz, a Republican who ran for Delaware County Council this year and has been demanding the county report the results of required two percent elections audits, was even more blunt.

“Redesigning mail-in ballots to make them more secure is like putting lipstick on a pig. Gov. Shapiro cannot fix an inherently fraudulent system, and why would he want to? The half-way measures he is proposing will not restore confidence in elections or in him,” said Schwartz. “Any remaining faith his misguided Republican supporters may have had in Gov. Shapiro’s intentions to play fair should have been dashed by his recent scheme to inflate Pennsylvania’s dirty voter rolls by linking voter registration to driver’s licenses and undermining the legislature.”

“Any hopes the Pennsylvania GOP has entertained in attempts at out-harvesting the Democrats with mail-in ballots should have evaporated in the early hours of Nov. 8. Until the legislators come to their senses and repeal the mess that is Act 77 (which allowed mail-in ballots), all central counting centers, where the citizens cannot meaningfully track the injection of ballots into the system, must be closed down.

“All ballots, mail-ins included, should be hand and machine counted and reported from the precinct level, as required by law,” said Schwartz. “No election machines should ever be used without meticulous testing and auditing pre and post-election. No drop boxes should be used to collect them. Counties must stop outsourcing their elections to outside vendors like ERIC, Hart, TotalVote, and KnowInk and clean up their own voter rolls through canvassing.

Diane Houser, a Chester County resident who pointed out problems with the county voter rolls, said, “I agree that the redesigned mail ballot materials to give voters clearer instructions may decrease the number of rejected ballots, but this redesign will not ensure that every legal vote is counted. Why aren’t voter rolls being cleaned up? Why are ballots sent to individuals who moved out of state? What safeguards are in place that ensures that only legal citizens are voting? What safeguards are in place to prevent ballot harvesting? Why is there no ID required to verify voters? Why aren’t signatures verified? What is being done to improve chain of custody? Why can an individual receive more than one ballot? What happens to undeliverable ballots?

“So, if Secretary of the Commonwealth Al Schmidt truly wants ‘Voting by mail to be a safe, secure, and accessible way for Pennsylvanians to participate in the election process,’ he has some homework to do,” said Houser.

Schwartz said, “Further centralization of elections, as proposed by Shapiro, will further erode the democratic process and will not ensure integrity. You can say goodbye to the commonwealth and hello to the People’s Republic of Pennsylvania.”

Kerns added, “All that said, voters must realize that in order for their vote to count, they must cast it. So, if you are unsure whether you will be able to vote on election day, voting by mail is an option as long as you fill out the ballot carefully and deliver it yourself to the election office. Last season, we watched the Phillies leave too many runners on base – look where that got us. We should not be leaving votes uncast.”

This article first appeared in Broad and Liberty

Just days before Pennsylvania’s 2023 municipal election this month, Pennsylvania Republican Party Chairman Lawrence Tabas struck a confident tone on mail-in ballots.

“We looked at all the different methods that were being used for voting by mail and how to promote it. And then we unveiled our campaign and I met with the counties and we’ve met with each one individually and we’ve been working very closely with them. And it’s been, as I said, it’s gone far better than I had expected,” Tabas told Battleground Politics reporter Lauren Mayk.

“Our numbers are much better than they were in ‘21 in a municipal year, and our numbers are probably going to maybe exceed ‘22 as well, which is a general election year with a higher turnout,” Tabas also said.

Whatever Tabas’s expectations were, the 2023 election results plainly showed that Republicans in the Commonwealth are still so far behind Democrats in using mail-in ballots that catching up may take years.

A spreadsheet from the Department of State shows that by election day 2022, Democrats returned 718,744 mail-in ballots, compared to 178,609 for Republicans, exactly four times as many.

In 2023, Democrats returned 550,456 mail-in ballots, compared to 142,921 for Republicans — 3.8 times as many.

Whether Tabas and the state party’s “task force” were up to the challenge of radically altering Republicans’ adoption of mail-in voting is debatable, but what is certain is that Tabas knows that utilizing the new voting method is not a theoretical exercise, it’s existential.

“There are a lot of people who can’t get to the polls either because of maybe health or weather or job or family duties. This is a great way in order to be able to vote and participate in the process. We have a lot of people who have not been voting for a while who find this to be very convenient and supportive of this effort that we’re making here,” he told Mayk.

A request for comment to the state GOP seeking details on its “Bank the Vote” task force was not returned.

Voting by mail wasn’t an option for Pennsylvanians until the General Assembly passed Act 77 in 2019, ushering in some of the largest changes to voting the commonwealth has seen in generations.

When the pandemic hit in the spring of 2020, the expanded use of “no excuse absentee voting” quickly became a de facto full fledged vote-by-mail system, as both parties sought to win a turnout war while hundreds of thousands of voters still had concerns about the spread of the coronavirus in public places — like local voting locations.

Grassroots Republicans have largely lashed out at their own party’s elected officials who passed Act 77.

But rarely discussed is that the Trump White House and the Republican National Committee were urging passage of the bill for strategic reasons of their own.

“In the communications that were taking place between our leadership and the White House and the RNC, the brass ring for them, in their opinion, was getting straight-party voting eliminated,” state Representative Jim Gregory (Blair County) said in 2021.

“In states that had, had [straight-ticket voting] previously and got rid of it, you saw an opportunity for President Trump to be re-elected by a range of four to eight percent. They did not concern themselves with mail-in balloting, and they were fine with that, in the communications that I’ve been told,” Gregory added.

In the run-up to the 2020 election, President Trump pilloried voting by mail.

“Mail ballots, they cheat,” Trump said at the White House in September 2020. “Mail ballots are very dangerous for this country because of cheaters. They go collect them. They are fraudulent in many cases. They have to vote. They should have voter ID, by the way.”

Most political strategists and observers still credit Republicans’ reluctance to use mail voting to Trump’s continual disparagement in 2020, although he has since shown a change of heart — somewhat.

“In December [of 2022], Mr. Trump told Breitbart News that the GOP has no choice but to ‘live with the system that stinks,’ while maintaining ‘a mail-in ballot will always be corrupt’ and that Republicans should seek to change laws,” a Wall Street Journal report from March noted.

And Pennsylvania’s Republican leadership seems to be of a similar mind.

At a statewide February meeting in Hershey, Republicans adopted two measures related to Act 77, and mail-in voting.

“The first says the party will encourage more of its members to avail themselves of the mail-in voting Act 77 created in order to be more competitive,” Broad + Liberty previously reported. “The second measure affirms the party will try to undo the law when it has the necessary levers of power in state government — circumstances that couldn’t even possibly materialize for another four years.”

To improve voter turnout, Republicans are now embracing mail-in ballots, an innovation Democrats readily adopted.

Party leaders hope to combat skepticism among the rank and file by touting mail-in voting to ensure their voters can vote no matter what happens on Election Day.

In a press phone call on Tuesday, Republican National Committee Chair Ronna McDaniel said the new program, Bank Your Vote, is needed, using a sports analogy.

“We can all agree you don’t want your football team to start scoring in the fourth quarter and think you’re going to win the game. We all know there’s no longer just an election day. There’s an election season,” McDaniel said.

Pennsylvania GOP Chair Lawrence Tabas said the 2023 election is “critical,” with statewide judicial races and municipal and school board races.

“You have until Oct. 31 at 5 p.m. to apply for (a mail-in) ballot,” said Tabas. He said the Pennsylvania GOP has been closing the voter gap and now stands at 235,000. “We’re committed that winning in ’23 is the path to winning in ’24.”

“Bank Your Vote is a crucial step,” Tabas said.

Dave McCormick, the endorsed Republican candidate for U.S. Senate, said, “The stakes are high.”

“With inflation from gas to groceries, Keystone State families are suffering from high inflation of a 20 percent rise in prices under the failed leadership of (President) Joe Biden and (Sen.) Bob Casey and that’s hurting all Pennsylvanians. But it’s hurting elders on fixed incomes. It’s hurting working families. As a result of this, Pennsylvania remains in the worst half of states for unemployment rates. And this is also killing small business owners.”

Treasurer Stacy Garrity, who will be running for reelection in 2024 and was also recently endorsed by the party, also urged people to bank their votes.

It helps so “life doesn’t get in the way.”

“We also need our most reliable voters to vote before election day to help our Republican candidates know who voted,” said Garrity. That pre-voting saves campaigns money that they won’t have to spend sending out mailings and reminders, so they can use it to target infrequent voters or independent voters.

The DVJournal asked how the GOP can reassure skeptical voters that their votes are secure if they use mail-in ballots.

McDaniel said in 2022, 80,000 poll workers were recruited nationwide who were there not just on election day but throughout the voting period.

“On top of that, we have a robust team of election integrity lawyers that are being deployed to the states. Pennsylvania already has some in place that are on the ground working with the counties to make sure that we know they’re going to administer the elections and making sure that’s being done,” she said. “And we can take decisive action quickly to protect your vote.”

Echoing Garrity, she said, “We cannot afford to chase ballots all the way through Election Day…We have to get these ballots in earlier.”

Tabas said a system was in place to track mail-in ballots. If a voter contacts their county party and says they did not get their ballot or their confirmation, “We’re on top of that,” he said.

Another question asked concerned “curing” ballots or allowing voters to fix mistakes, which has differed from county to county in the past.

Tabas blamed the courts for that discrepancy and said it was important for every county to operate under the same rules.

“Pennsylvania has to be assured that there are uniform rules so that if they’re counting your ballot anywhere in the commonwealth, it will be counted on the same basis, no matter where you live. Your ZIP code shouldn’t determine how your ballot ends up getting counted.”

Asked why the party has had a “change of heart” regarding mail-in ballots, McDaniel said it was necessary to adopt them to be competitive.

“This is a 2023, 2024 strategy that’s going to go on in the future and will result in big victories for Republicans in Pennsylvania,” said Tabas.

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After the state Office of Open Records (OOR) ruled signatures on mail-in ballots are public records, Delaware County agreed to allow a group of candidates to look at and count the envelopes from the May 16 primary.

Lead petitioner Joy Schwartz, a Republican running for county council, said six people are prepared to begin the process on July 18. The county did not comment on the settlement.

The OOR opinion comes on the heels of a hearing last week in Commonwealth Court, where the judge sent a case Schwartz and others filed to request to examine mail-in ballot envelopes to Common Pleas Court.

Schwartz and plaintiffs Gregory Stenstrom, Leah Hoopes, and Paul Rumley had filed three petitions asking the Commonwealth Court to intervene. Schwartz and her supporters, who represent themselves, were initially denied permission to look at the envelopes by county officials. Then, after the certification occurred, they were told they could. However, Secretary of State Al Schmidt suggested the names must be redacted from envelopes first for privacy reasons. As workers began to affix blue strips of painter’s tape over the names, Schwartz was concerned the envelopes would be damaged. She subsequently filed a second court challenge.

Commonwealth Court Judge Michael H. Wojcik also removed Schmidt as a defendant.

The petitioners had argued that blue tape the county was using to cover the signatures could cause the signatures to be ruined, which would be a violation of Act 77, the right-to-know law and state election code, said Schwartz.

“My big concern is that they have had well over a month of delay in producing the records. Suppose the envelopes are all there, showing they have approximately 27,000 valid declarations with signatures on them, and the corresponding images exist on the BlueCrest sorter, which scans them. In that case, the county should have no worries. If they have all the data, why are they fighting so hard to keep it from the public?” asked Schwartz, a retired history teacher.

“Delaware County is pleased that the court agreed with us that there was no jurisdiction for the case in the Commonwealth Court,” said Ryan Herlinger, a spokesman for the county, after Wojcik’s decision.

Schwartz and the other plaintiffs have also been joined by four candidates for the Rose Tree Media School Board: Kathyrn Buckley, Pat Bleasdale, Loranne Mazzulo, and Dean Dreibelbis.

Schwartz said the plaintiffs did not initially take their case to Common Pleas Court because an earlier election case they brought was “subject to strategic mooting in Delco. The Delco Court of Common Pleas has refused to assign a 2022 election case to a judge for 230 days.”

As for Delaware County election officials agreeing to allow the envelopes to be counted, Schwartz said, “They were not compliant with the law, Act 77.”

“The envelopes and people’s signatures are public records,” she said. She said these are similar to voting rolls, “blue books” that many counties use for in-person voting, which are also public records.

She added Pennsylvania allows various third-party, non-governmental organizations to have access to voter records, with voters’ information, including Social Security numbers.

“It’s a very porous system,” said Schwartz.

“I’m a watchdog,” she said. “I’m trying to watch so we have safe and secure elections.”

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The results of the May 16 primary are slated to be certified Thursday, June 1.

Not so fast, says Joy Schwartz, a Republican candidate for Delaware County Council.

She requested permission to count the envelopes that the mail-in ballots were sent in. The county denied that request, despite what she claims is clear language under Act 77, the 2019 law that permits mail-in voting.

“They’ve basically denied people those records for five or six different election cycles,” said Schwartz. “In 2020 twice, twice in 2021, twice in 2022, and now again in 2023. So, I am a candidate, running unopposed (in the primary), but I wanted to get ahead of this now because I don’t want to have this fight in November, after the fact.”

Her representative, who was present during ballot “canvassing” at the county warehouse, told her the stack of mail-in ballots was much higher than the stack of envelopes those ballots came in.

“I want to see if the number of outer envelopes matches the number of mail-in ballots,” said Schwartz. “If they have fewer envelopes than mail-in ballots, that’s a huge problem. That has to be investigated.”

But, Schwartz said, she does not have to give a reason to look at the envelopes since those are public records.

John McBlain, a member of the county Election Board and a lawyer, wrote to  County Elections Director James Allen, saying, “25 PS Section 2648 indicates the Board must keep its records open to public inspection and allow for inspections of the records’ during ordinary business hours, at any time when they [the records] are not necessarily being used by the board, or its employees having duties to perform thereto.’

“I do not believe these envelopes are in use by the Board or our employees at this time,” McBlain added.

“Second, it is irrelevant what the motivation is for wanting to examine records. The Board’s response to a statutory duty should not be formed by whether we believe the motivation for the request is valid or supported by a factual basis.

“I, too, have expressed to the requestor that I have no reason to believe the underlying premise that a voluminous amount of mail-in ballots were added and/or that there were a number of mail-in ballots processed that did not arrive in outer envelopes. Nonetheless, it is the public’s right to examine the Board’s documents even if the Board believes such an exercise is a fool’s errand. I believe the Board should make its records as transparent as possible, especially to disprove any unsubstantiated gossip,” McBlain wrote.

McBlain, the minority Republican member, did not respond when DVJournal asked whether he planned to vote to certify the results.

“I’m concerned. I’m exercising my right to see those records,” said Schwartz, a retired American history and civics teacher who taught in the William Penn School District.

Allen disagreed with Schwartz’s interpretation of the law and told her via email that the county made the online mail-in voter list available through the Department of State.

“As an authorized representative, you do not have access to go through the envelopes, which is consistent with the directive from the Department of State that you possess and presented to me in an earlier email.

“The following are among the reasons this request to go through the envelopes at this time is being denied: As Mr. Agovino noted, we are extremely busy and have various tasks to complete as part of the canvass leading up to the certification on Thursday. We do not have the staff to sit one-on-one with you or any other individuals who want to participate.”

Also, “we have one pending recount, and we have other matters that may result in recounts, and we cannot disturb the election materials prior to the completion of (1) the canvass and certification and (2) any necessary recounts. That would be patently unfair to the candidates and would violate basic standards that those campaigns should expect for chain of custody prior to the certification. The deadline was May 12 to file objections to any absentee or mail-in ballots. The review of the physical envelopes serves no legally required function at this time and is not part of the section of Act 77 that you clearly misquoted,” Allen said.

Allen told Schwartz that she could look at the envelopes after the election was certified.

“So, this is their modus operandi, to operate in the dark and to keep people out,” said Schwartz. “It’s got to be challenged.”

Asked to respond, a county spokeswoman said, “The county continues to comply with all requirements of state law. The candidate is misinterpreting the relevant sections of Act 77 and the Election Code.”

I loved basketball when I was a kid. I spent my free time shooting hoops in my parents’ driveway. I played on my elementary, junior high, freshman, and junior varsity teams in school.

I got cut from the varsity team in my junior year because, despite my love of the game, I wasn’t very good at it. I was a benchwarmer. I was short, so I had no advantage under the basket. My ball-handling skills were rudimentary at best, so playing point guard was not in the cards either.

I was somewhat passable in one skill on the court, though – shooting from way outside. Unfortunately, shooting from way outside was frowned upon back then because there was no such thing as the 3-point shot. Every basket counted for two points, so layups and inside shots were preferred over tossing one up from anywhere greater than 15 feet out.

The 3-Pointer Changed the Game

The NBA adopted the 3-point shot in 1979, the year I got cut from the varsity team. The NCAA fully adopted it in 1986, and high school basketball quickly followed suit.

The 3-pointer was a game changer. Outside shooters were fostered, and teams altered their offensive strategies accordingly. If the 3-pointer existed when I was playing, perhaps I could have squeaked my way onto the varsity squad.

While the 3-point shot is now an integral part of the game, imagine being a coach or player back when it first came on the scene. Would you have taken advantage of it? Of course you would, as it enables you to increase your point total by 50 percent every time your team goes down the court.

Stubbornly refusing to take 3-point shots would be a fool’s errand, putting your team at a distinct disadvantage. You gotta play to win, as they say.

The Political 3-Point Shot

In Pennsylvania, no-excuse mail-in voting is the equivalent of the 3-point shot in its early days. Unfortunately, Republicans have been operating as if this new rule doesn’t exist – and it shows. We’ve routinely been trounced by the Democrats in mail-in voting.

Regardless of whether we like mail-in voting, nothing changes the fact that it’s legal and will remain legal for the foreseeable future. Republicans must embrace a winning mail-in strategy or we’ll suffer the same fate as basketball teams who fail to embrace a 3-point strategy: we’ll continue to lose elections.

The winning strategy is not convincing in-person voters to vote by mail, but to cultivate mail-in votes from Republican voters who might not otherwise show up on Election Day.

Before the advent of no-excuse mail-in voting, Pennsylvania Republicans regularly won the absentee ballot game. Winning the mail-in game is a larger task, but not entirely new or impossible.

A Turning Point

On January 31, Republican Lynda Schlegel Culver won a state Senate seat in a special election. Culver won the mail-in vote in two of the five counties in her Senate district. In the other three counties, the mail-in margins Democrats earned during previous elections were significantly reduced.

Of note is that under Pennsylvania election law, those who applied to vote by mail in 2022 were automatically mailed a ballot for this special election. As a result, over 10,000 ballots were automatically delivered to Democrat voters, while only around 5,000 were sent to Republicans.

Efforts to cultivate the Republican mail-in vote were smoothly coordinated between the Republican Party of Pennsylvania, five separate Republican county committees, Senate leadership, and the Culver campaign. This cooperation also led to Republicans outperforming Democrats in new mail-in applications by an 8:1 ratio.

It’s clear that some Republicans like voting at home, and will cast their vote from home if made aware of the opportunity to do so. It’s also clear that cooperative efforts by Republican candidates and committees can lead to success.

Pivoting to Shoot the 3-Pointer

Republicans can no longer remain on the sidelines complaining about the new rules. We must get on the court and utilize the rules to compete in all aspects of the game. By learning from our past success with absentee ballots and emulating the cooperative efforts behind the Culver win, we can use the political 3-point shot to earn more wins.

Republicans have succeeded at this in other states. There’s no reason we can’t do it here in Pennsylvania. We need to pivot to a new strategy, and we need to do it yesterday. If we fail to even attempt the 3-pointer, we so do at our own peril.

Rep. Russ Diamond is a member of the Pennsylvania House of Representatives, the Republican Party of Pennsylvania, and the Lebanon County Republican Committee.

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