Free Speech For People and the law firm Dechert LLP filed a lawsuit in the Pennsylvania Commonwealth Court on behalf of the Pennsylvania State Conference of the NAACP challenging a broad range of Pennsylvania election practices as unsafe and unequal during the COVID-19 pandemic. The complaint alleges that the state’s insufficient number of polling places, use in many counties of repeat-touch voting machines, requirement that voting in person must take place within a single day, and limited access to vote-by-mail will result in unsafe voting conditions and abridgment of the right to vote, with particular adverse impacts for voters of color, in violation of the Pennsylvania Constitution’s guarantees of free and fair elections and equal protection of the law.

Key Facts

Caption NAACP Pennsylvania State Conference v. Boockvar
Court Commonwealth Court of Pennsylvania
Docket No.

364-MD-2020

Status Complaint filed
Plaintiffs NAACP Pennsylvania State Conference
Defendants Secretary of the Commonwealth Kathy Boockvar and Director of the Bureau of Election Services and Notaries, Jessica Mathis

Background

Public health experts, and the Commonwealth of Pennsylvania itself, project that the crisis will persist at least until the end of 2020, and that the second wave of COVID-19, which is expected to occur this fall, will be even more dire than the first wave.  African American and Latino citizens have been disproportionately affected by the pandemic, experiencing higher incidences of infection, hospitalization, and fatalities due to the coronavirus.  Thus, the risks of voting in an overcrowded polling place are particularly severe and disparate for these populations.

The COVID-19 disease can be spread person-to-person or through contact with an infected surface such as a repeat-touch electronic voting machine. The best practices for reducing the risk include social distancing as much as possible and reducing repeated touching of the same surfaces. Forcing voters to vote on a single day in a reduced number of polling places risks overcrowding, which impedes the right to vote in normal times and poses a serious risk of illness or death during the pandemic.

The complaint identifies several major flaws in Pennsylvania’s current election plans that threaten voters’ ability to vote safely in November:

  • Impractical and overly rigid mail-in ballot procedures and deadlines that made it difficult for many voters to receive mail-in ballots sufficiently far in advance to cast their votes in the primary.
  • Dramatic reductions (in some cases 90%) in the number of polling places, often reducing polling places more in areas with substantial populations of African-American and Latino voters, and with inadequate notice. Crowding voters into fewer polling places can result in long lines and overcrowding, thus increasing the chance of virus transmission.
  • A single day for in-person voting, forcing all in-person voters into the same spaces on one day, rather than spreading in-person voting over several days or weeks, which would reduce overcrowding.
  • Allowing counties to require all those voting in person to use hard-to-disinfect, repeat-touch electronic voting machines, rather than single-use paper ballots with disposable pens.  

Public health experts have identified repeat-touch electronic voting machines as a potential disease vector. While election officials might be able to mitigate this threat through frequent cleaning, doing so is impractical — cleaning the machines after each contact by a voter is time-consuming, difficult, and costly, and would lead to even longer lines at polling places. Such cleaning can also damage the machines and is ineffective in eliminating the coronavirus if improperly done. Meanwhile, using untested and uncertified alternatives such as gloves or Q-tips may not work properly with touchscreens, risking lost or miscast votes. For this reason, several Pennsylvania counties that were going to use electronic voting machines for the primary decided to use single-use hand-marked paper ballots (with disposable pens) instead.

Voting by mail can address many of these problems, but African-American and Latino voters are more likely to encounter difficulties in requesting or submitting mail ballots, and the Commonwealth’s deadlines and scheme for mail-in voting are inadequate and do not present a viable alternative for many voters.

The suit seeks injunctive  relief, including requiring a minimum number of polling places per population, expansion of voting days, increased access to vote by mail, and use of hand-marked paper ballots for the general election.

Free Speech For People and the law firm of Dechert LLP represent the plaintiffs pro bono.

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