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Elections & Democracy, Free Expression

“Naked Ballots” Ruling Highlights Need to Educate Voters and Fight Misinformation

With nearly half of American voters planning to vote by mail or absentee this year, it is essential that states make it as easy as possible for Americans to cast their vote successfully. On September 17, the Supreme Court of Pennsylvania issued several rulings that expanded voting rights, such as by extending the deadline by which completed absentee ballots must be received. Yet, it also ruled that completed ballots returned without being enclosed in secrecy envelopes—termed “naked ballots”—must be disqualified. This judgment, which had been sought by President Trump’s campaign, could lead to the invalidation of potentially tens of thousands of ballots.

Some background: Pennsylvania is one of 16 states that provide absentee voters with a secrecy envelope. Voters place their completed ballot in the secrecy envelope—which is printed with no identifying information—before enclosing the secrecy envelope inside the voter-signed return envelope. A 2019 election reform bill expanded absentee voting in the state, but in doing so did not explicitly say whether ballots returned without the secrecy enveloped should be counted or considered void. The secrecy envelope is intended to protect voter privacy by separating the ballot itself from the identity of the voter. Thus, an election official can verify the voter’s identity and open the return envelope, but leave the ballot inside its secrecy envelope for later opening and counting.

CDT believes strongly in the right to a secret ballot. We have argued that, historically, the secret ballot reduces the ability to influence votes, especially in international environments where voter coercion is common. But, according to Philadelphia City Commissioner Lisa M. Deeley, absentee ballots in Pennsylvania are already sufficiently anonymized from election officials, making secrecy envelopes entirely unnecessary:

“The secrecy envelope is not needed, it is a vestige of the past. The secrecy envelope is a hold over from when Pennsylvania counted absentee ballots at polling places. Now they are counted centrally, through an industrialized process…Without a secrecy envelope…we could scan 32,000 ballots an hour. At these speeds, there is no opportunity to stop, or even slow down, and identify how an individual voted—anonymity is maintained.

Even if the secrecy envelope were a meaningful protection of voter identity—and it does not appear to be—voters who don’t know the rules or make a single mistake should not be disqualified. Indeed, of the 16 states that provide voters with secrecy envelopes, few of them disqualify ballots returned without secrecy envelopes. Georgia state law makes expressly clear that a voter’s failure to use a secrecy envelope does not disqualify a ballot.

It is difficult to know how frequently ballots are returned without secrecy envelopes, since statistics are not tracked on a statewide or nationwide basis. Commissioner Deeley estimates, based on 2019 data from Philadelphia voters, that this ruling could disqualify “over 100,000” ballots in Pennsylvania, an alarmingly high number. It is also concerning that Pennsylvania, unlike many other states, does not even have a uniform process for informing voters that their ballot was disqualified and allowing them to fix it.

For months, the President has been spreading falsehoods about the integrity of mail-in and absentee voting, which appears to be dissuading Republicans from voting by mail. A recent poll indicated that about 65% of Democrats but only 23% of Republicans believed mailed-in votes would be properly counted. And, in keeping with those beliefs, mail-in ballot requests for this election are much more likely to be from a registered Democratic voter than a registered Republican voter. This has created a situation where Republican candidates are likely to benefit—and Democratic candidates more likely to suffer—if more mail-in and absentee ballots are disqualified.

Indeed, on September 28, Republican Pennsylvania State Senate leadership asked the U.S. Supreme Court to block the part of the Pennsylvania Supreme Court decision that extends the ballot return deadline. Meanwhile, Philadelphia voters are receiving ballots marked with deadlines that the Pennsylvania Supreme Court decision have now rendered inaccurate.

These court rulings and legal maneuvers, as well as others that may arise before Election Day, create confusion and uncertainty for voters about the policies and procedures around voting, which in turn provides a fertile breeding ground for mis- and disinformation. It is critical that election officials work diligently to detect and correct election-related misinformation and ensure that voters have ready access to accurate, up-to-date information about how to vote.

To support these efforts by election officials, and in partnership with the Center for Tech and Civic Life, CDT has created a guide to combating election misinformation. The guide seeks to give election officials the knowledge and training necessary to protect voting in their jurisdictions. CDT is also actively fighting efforts from the White House’s executive order to intimidate social media services into reducing their efforts to combat misinformation and voter suppression online.

Voter education can go a long way towards minimizing the number of ballots that are disqualified based on the secrecy envelope technicality. We applaud the Pennsylvania Department of State for responding to the Supreme Court ruling by issuing guidance for counties, encouraging them to provide clear warnings that ballots returned without secrecy envelopes cannot be counted. Likewise, media outlets and election officials across the country should repeatedly remind voters to carefully follow all instructions, and to sign and return ballots as early as possible.

When the dust settles on the 2020 election, we encourage state legislatures in Pennsylvania and elsewhere to amend their laws based on lessons learned in this election. While secrecy envelopes should be provided to absentee and mail-in voters, the laws should follow Georgia’s example and explicitly state that a missing secrecy envelope shall not be grounds for disqualification of a completed ballot. And in general, clarity around absentee ballot procedures should help to ensure that the final weeks of future elections aren’t marred by litigation, confusion, and misinformation. Every person, regardless of their party or the method by which they prefer to vote, has the right to vote with as few obstacles as possible.