The Volokh Conspiracy

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Pennsylvania Court Orders That Certain Ballots May Not Legally Be Counted

"[T]he state may not count ballots where the voters needed to provide proof of identification and failed to do so by Nov. 9," despite the Pennsylvania Secretary of State's attempt to extend the deadline to Nov. 12.


The order is here (Donald J. Trump for President, Inc. v. Boockvar):

Respondent Kathy Boockvar, in her official capacity as Secretary of the Commonwealth, lacked statutory authority to issue the November 1, 2020, guidance to Respondents County Boards of Elections insofar as that guidance purported to change the deadline in … the Pennsylvania Election Code … for certain electors to verify proof of identification ….

{In Pennsylvania Democratic Party v. Boockvar, the Pennsylvania Supreme Court exercised its extraordinary jurisdiction to adopt a three-day extension of the received-by deadline for absentee and mail-in ballots for the 2020 General Election, thereby allowing Respondents County Boards of Elections to count all such ballots that were postmarked by 8:00 p.m. on Election Day, Tuesday, November 3, 2020, and received by the County Boards no later than 5:00 p.m. Friday, November 6, 2020.

Secretary Boockvar's interpretation of the Supreme Court's decision as requiring a corresponding three-day extension of the proof of identification deadline highlights the cascading effect that altering one deadline in the Election Code can have on other statutory deadlines. Mindful of this, the petitioners in Pennsylvania Democratic Party, i.e. , the Pennsylvania Democratic Party and several Democratic elected officials and candidates, asserted that the Supreme Court "has the authority to alter [post-election] deadlines to be consistent with the relief granted" in that case. The petitioners' observation persuades the Court that an amendment of the Supreme Court's order is necessary to achieve Secretary Boockvar's objective.}

[T]he Court hereby ORDERS that Respondents County Boards of Elections are enjoined from counting any ballots that have been segregated pursuant to paragraph 1 of this Court's order dated November 5, 2020 ….

Here is the explanation from Ronn Blitzer (Fox News):;

A Pennsylvania judge ruled in favor of the Trump campaign Thursday, ordering that the state may not count ballots where the voters needed to provide proof of identification and failed to do so by Nov. 9.

State law said that voters have until six days after the election—this year that was Nov. 9—to cure problems regarding a lack of proof of identification. After the Pennsylvania Supreme Court ruled that mail-in ballots could be accepted three days after Election Day, Pennsylvania Secretary of State Kathy Boockvar submitted guidance that said proof of identification could be provided up until Nov. 12, which is six days from the ballot acceptance deadline. That guidance was issued two days before Election Day….

[The court's decision] was in line with the Trump campaign's argument, which was that there was no basis in the state's law to extend the identification deadline, and that Boockvar did not have the power to unilaterally change it.

I don't know enough about Pennsylvania law to opine on whether the decision is correct; and I can't speak about whether this order, coupled with any other requests that might be pending, would affect the bottom-line result in the election. But I thought readers might be interested in seeing the order, so I'm passing it along.