LANCASTER, Pa. — President Donald Trump’s baseless public warnings of widespread voter fraud in the run-up to the general election have steered attention away from a legal push by his campaign to restrict mail-in voting in battleground states this fall.
Lawsuits around voting laws in Pennsylvania, Wisconsin and a half-dozen other key states have been overshadowed by Trump’s frequent verbal attacks on mail-in voting and the United States Postal Service. But the court battles could play a far greater role than the president’s rhetoric in shaping how voters are able to cast their ballots in the middle of a pandemic.
A legal challenge in Pennsylvania offers a good example of the Trump campaign’s attempt to reduce voting by mail — a tactic Democrats claim is aimed at suppressing turnout to help Trump win in a critical battleground state in November.
The Trump campaign “wants to have fewer people vote in Pennsylvania, and [Democrats] to be intimidated and afraid to” participate in the election, said Nancy Mills, chair of the Pennsylvania Democratic Party.
In a complaint filed June 29 in the Western District of Pennsylvania, the Trump campaign and the Republican National Committee asked a federal judge to ban the use of ballot drop boxes in Pennsylvania for the general election. The containers, which typically look like mail boxes, are used by voters who prefer to drop their mail-in ballots off in person, rather than send them through the mail. Several states have used them for years, and Pennsylvania deployed drop boxes across the state for the first time in its June primary to help reduce the spread of COVID-19 through in-person voting.
Attorneys for the Trump campaign argued that the drop boxes would allow “fraudsters” in the general election to vote more than once, destroy ballots, and engage in other forms of ballot tampering that violate the Pennsylvania and U.S. constitutions.
The campaign also requested Pennsylvania be required to throw out ballots that aren’t mailed back inside a state-mandated secrecy envelope, and change a provision of a new election law that bars poll watchers from monitoring sites outside the county where they’re registered to vote.
In its court filing, the campaign argued that poll watchers from any county in the state should be allowed to monitor drop boxes if those boxes are ultimately allowed to be used in the general election. Democrats said the move would pave the way for Trump supporters to intimidate voters in left-leaning areas on Election Day by standing beside the drop boxes to scare voters away.
“Their intent is to be able to put people there who would be intimidators,” said Teresa Hobbs, chair of the Mifflin County Democratic Party.
Last month, U.S. District Judge J. Nicholas Ranjan halted the lawsuit until Oct. 5 to give state courts time to resolve the dispute.
In a 5-2 ruling Thursday, the Pennsylvania supreme court approved the use of drop boxes, and upheld the provision barring poll watchers from monitoring sites outside of their home counties. The court also approved a request by state Democrats and plaintiffs in a separate case to extend the deadline for counting ballots by three days. Under the ruling, late ballots can be counted if they are postmarked by the time polls close at 8 p.m. on Election Day, Nov. 3, and received by 5 p.m. on Nov. 6.
The decision dealt a blow to the Trump campaign, which could file an appeal with the federal court in Pittsburgh, or try to make a direct appeal to the U.S. Supreme Court. Earlier this year, a state supreme court ruling on election law surrounding the Wisconsin primary was appealed to the nation’s highest court, which shot down a request by Democrats to extend absentee voting.
The Trump campaign has not signaled whether it plans to lodge an appeal. In a statement to PBS NewsHour, Trump campaign general counsel Matthew Morgan praised a separate ruling Thursday by Pennsylvania’s supreme court, which barred people from submitting other voters’ absentee ballots, a practice known as “ballot harvesting.” Democrats argue the practice is not widespread, typically consists of spouses delivering their partners’ votes, and doesn’t lead to double voting or other voter fraud.
“This ruling is a victory for Pennsylvania voters. Ballot harvesting by paid political operatives remains illegal,” Morgan said.
Trump weighed in on that ruling Thursday on Twitter, saying that the “the Republican Party won on the atrocious Ballot Harvesting Scam.”
Clifford Levine, an attorney representing the state Democratic party, praised the state supreme court ruling. Democrats had argued that drop boxes were allowed under Act 77, a law enacted last year ahead of the 2020 election, that updated the state’s election laws for the first time in eight decades.
“We appreciate the supreme court’s careful consideration of the vote by mail statute and we’re pleased that the court recognized that the original legislative intent was to allow satellite offices and drop boxes to make voting more accessible,” Levine said.
Pennsylvania is one of 34 states that allow voters to request a mail-in ballot without providing a reason why. So-called “no excuse” mail-in voting was put in place in Pennsylvania as part of Act 77.
Voters in the state can also still choose to vote by absentee ballot, which requires providing a reason — such as being disabled, a member of the military, or out of the country on Election Day — for why voting in-person isn’t possible.
Pennsylvania voters must request applications for mail-in or absentee ballots, and can do so starting 50 days before Election Day, up to one week before Nov. 3.
The campaign’s lawsuit was being closely watched in Pennsylvania because it will likely affect the number of ballots that get counted in a critical state that Trump won in 2016 by just 44,292 votes out of more than 6 million ballots cast. Narrow wins in Pennsylvania, Wisconsin and Michigan sealed Trump’s surprise victory four years ago, and those states will play a key role again this year in the matchup between Trump and former Vice President Joe Biden, the Democratic presidential nominee.
A record 1.5 million people voted by mail in Pennsylvania’s presidential primary on June 2. But approximately 20,000 votes were not counted because of irregularities with the ballots or because the ballots were returned too late, leading Democrats to call for changes — such as reviewing ballots with potential signature issues, instead of rejecting them immediately — to avoid similar problems in the general election.
The NAACP and other groups have filed several lawsuits in Pennsylvania seeking to make it easier to vote in the general election during the pandemic. The state legislature is also weighing some changes, such as allowing county election boards to begin processing mail-in votes three weeks before the Nov. 3 election. Under the current state law, that process, known as “pre-canvassing,” cannot start until 7 a.m. on Election Day.
Several election officials from both parties said in interviews that unless they are given a head start, they will not be able to process the expected influx of mail-in votes in time to have final results the night of the election.
Biden’s campaign is anticipating that disputes will arise in November around election security and has already built a formidable legal team for the looming court battle, the New York Times reported this week. In Pennsylvania, Democrats were growing increasingly concerned about the Trump campaign lawsuit and its implications for turnout this fall, especially with their party’s base in cities and suburban areas.
“President Trump thinks that reducing turnout, particularly Black and brown turnout, helps him,” said state Sen. Sharif Street, a Democrat who represents Philadelphia. “If he really cared about voter security, he would be increasing funding for the post office.”
The Pennsylvania Democratic Party filed a countersuit in July, claiming the Trump campaign’s legal challenge was intended to suppress turnout by eliminating safe options, like drop boxes, for voters seeking to avoid casting ballots in person at crowded polling places during a public health crisis.
With the state supreme court decision in place, the question now is whether the Trump campaign will ask that a federal judge intervene.
Levine, the attorney representing Democrats in their countersuit against the Trump campaign, said there is precedent for federal judges allowing state courts to set state elections law.
Before the ruling, the Trump campaign defended its lawsuit in a lengthy statement to the PBS NewsHour, arguing that the new state elections law did not specify where the drop boxes could be placed, or how they should be guarded.
“As a result, ballot box policies across each of Pennsylvania’s 67 counties are haphazard and inconsistent,” the campaign said.
The campaign cited several examples of voter fraud in the state from the 1980s to the 2020 primary, including dozens of instances in June of voters receiving multiple ballots in the mail, voting more than once, or improperly sending back their mail-in ballots.
In Lycoming County, the campaign said some 61 voters received 8 ballots in the mail, and in Philadelphia County “at least” 28 people voted twice. The campaign said it presented the figures in federal court as part of its lawsuit.
The attorney working on behalf of state Democrats said the figures were based on a report the secretary of state released last month, reflecting on the June primary, as well as anecdotal evidence from county boards of elections.
But the attorney said the figures were misleading because they showed some voters mistakenly received more than one ballot, and did not prove registered voters voted twice. The cases cited by the Trump campaign in Philadelphia were provisional ballots cast by voters who had applied for mail-in ballots, but ended up voting in person — not instances of double voting, he said. There were just two known instances of someone voting twice in the primary, and both of those were investigated by the state, the attorney added.
“These numbers only highlight the fact that the system is safe and working,” he said.
Morgan, the Trump campaign’s general counsel, said in a statement to PBS NewsHour before the ruling Thursday that the legal challenge was intended to ensure transparency in Pennsylvania’s election.
“Republicans will be ready to make sure the polls are being run correctly, securely, and transparently as we work to deliver the free and fair election Americans deserve. President Trump will continue fighting for a free, fair, transparent election so that every valid ballot counts,” Morgan said.
Democrats have refuted the notion that Pennsylvania has a serious issue with voter fraud. They have also noted that there is no evidence of widespread voter fraud at the national level, as Trump has claimed. A June study from the Brookings Institution and similar research has shown voter fraud in the U.S. is exceedingly rare, including in the five states — Colorado, Hawaii, Oregon, Utah and Washington — that conduct all-mail elections.
Both Democratic and Republican county election officials in Pennsylvania said they did not think drop boxes posed a threat to election security.
In York County, a conservative region in southeastern Pennsylvania that Trump won by 29 points in 2016, a drop box was stationed outside the county administrative building for the presidential primary in June, said Julie Wheeler, a Republican in charge of the county board of commissioners.
“It was under 24-hour camera surveillance. During working hours, it was manned by two sheriff’s deputies,” Wheeler said. On June 2, the day of the primary, “I manned it. Voters could come up and drop off” their votes without any issues, she said.
Joe Kantz, the Republican chair of the board of commissioners in Snyder County — a rural, deeply conservative area Trump carried by 46 points four years ago — hired a forensic specialist to examine suspicious-looking mail-in ballots from the primary that he said appeared to have the same handwriting. Overall, the county received 3,100 mail-in ballots. The forensic report concluded there was no evidence of voter fraud, Kantz said.
“Other than two instances where it appears a spouse filled out their [partner’s ballot], it appears none of the other ballots were the same handwriting,” Kantz said. “We feel it was a very good exercise, and it strengthened our confidence in the mail-in voting.”
In nearby Mifflin County, which Trump won by 55 points, Democrats said the Trump campaign’s efforts to make it harder to vote by mail would backfire. “It is perplexing because he’s hurting all voters, including his own. Especially in rural Pennsylvania, where it’s mostly voters who support Trump,” said Hobbs, the county’s Democratic chair.
Jeff Piccola, a Trump supporter and former Republican state lawmaker, said he believed it was “fair and reasonable” to provide additional mail-in voting options this fall. But he said concerns over potential voter fraud remained high. Voters may not want to vote in person “because of the pandemic, but they really don’t trust the mail-in [options] either,” said Piccola, the head of the York County Republican Party.
Democrats blame Trump for casting doubt on the legitimacy of the election with inflammatory rhetoric and a legal challenge that could change the outcome in November.
“It’s just his way of trying to discourage people,” said Dave McLimans, a Democrat and retired steelworker from Chester County. Especially during a pandemic, “it should be easier for people to vote, not harder.”