IE 11 is not supported. For an optimal experience visit our site on another browser.

'Naked ballots,' explained: In Pennsylvania, new court ruling complicates mail-in voting

Ballots returned without secrecy envelopes could disenfranchise thousands in a key battleground, voting rights advocates warn.

After a Pennsylvania court said ballots returned without secrecy envelopes would be rejected in November, election officials and Democrats are raising the alarm that “naked ballots” could inadvertently disenfranchise thousands in a pivotal battleground.

Pennsylvania counted those “naked ballots” during the state’s primary earlier this year, but amid a flurry of lawsuits over how the state handles an election heavily reliant on a mail-in voting due to the coronavirus pandemic, the state Supreme Court ruled Sept. 17 that ballots mailed back without secrecy envelopes will not be counted in the general election.

President Donald Trump's campaign, which challenged the "naked ballots" in a lawsuit along with the Republican National Committee, argued that requiring the secrecy envelopes with submitted ballots was crucial to preventing voter fraud, even though they did not produce evidence of fraud while litigating the case, according to The Guardian.

Lisa Deeley, chair of Philadelphia's City Commissioners, estimated in a letter to state legislators urging action that some 100,000 ballots could be affected statewide by the ruling and predicted it will cause "electoral chaos." The ruling is particularly considered a loss for Democrats because so many more Democrats than Republicans say they are planning to vote by mail, based on ballot requests and surveys.

But do voters outside Pennsylvania have to worry about keeping their ballots, er… clothed? Like just about everything to do with elections, it depends on where you live. Here’s what you need to know about "naked ballots."

What's a secrecy envelope, and why would a voter need one?

Secrecy envelopes, or privacy sleeves, are used to separate a voter’s identifying information which is used to verify the eligibility of the voter — with the ballot that shows how that person voted.

In her letter to state lawmakers, Deeley, a Democrat, called Pennsylvania's secrecy envelopes a "vestige of the past."

Secrecy envelopes are a "hold over" from when the state counted absentee ballots at public polling places, she wrote. Now, absentee ballots are counted on machines in a central location that preserve anonymity by processing ballots quickly. Secrecy envelopes actually slow down the process, Deeley said.

Nathaniel Persily, a professor at Stanford Law School and co-director of the Stanford-Massachusetts Institute of Technology Healthy Elections Project, argued that many states do not use secrecy envelopes or privacy sleeves and that voters shouldn’t be penalized for forgetting to include them when mailing back their completed ballot. It creates an unnecessary barrier to the ballot box in a year when so many Americans will be voting by mail for the first time, he added. People voting by mail for the first time are more likely to make unconscious errors.

A mail-in ballot and secrecy envelope from Pennsylvania's primary as seen on May 26, 2020.Gene J. Puskar / AP file

According to Persily, secrecy sleeves were created "mainly as privacy protection to deal with that small group of people who were voting by mail — often it was in the context of nursing home residents. They were a lot more paranoid about potential coercion and violations of processing."

In 2018, about 4 percent of Pennsylvania ballots were cast by mail. But during a pandemic where congregating at the polls poses a health risk, millions more are expected to take advantage of voting by mail ­— something that makes Persily believe the secrecy envelope is an unnecessary impediment.

“Fast-forward to today, when you’re going to have roughly half of Pennsylvania voters vote by mail and we’re worrying about people getting disenfranchised,” he said.

Which other states have privacy sleeves or envelopes?

Pennsylvania is one of just 16 states that have historically required absentee ballots be mailed with secrecy sleeves or envelopes: Alaska, Florida, Georgia, Hawaii, Kentucky, Minnesota, New Hampshire, New Jersey, New York, North Dakota, Ohio, Texas, Virginia, Washington, and West Virginia are the other 15, according to the National Conference of State Legislatures that reviewed mail-in voting laws earlier this year.

Other states and jurisdictions may choose to use privacy sleeves, as well, while still others use additional processes or mechanisms to try and keep people's votes secret. Utah, which conducts its elections entirely by mail, sometimes uses a tab that allows them to remove identifying information from a verified ballot before it is counted.

Do all states with privacy sleeves reject 'naked ballots'?

No. Many of those states say ballots are acceptable without the secrecy sleeves or envelopes. Florida says its secrecy sleeve is optional. Georgia recently replaced its security envelope with a sleeve, and officials say it’s also optional. In Utah, an elections official confirmed to NBC News they still count eligible ballots that arrive without a secrecy envelope.

New Jersey, however, rejects ballots that are missing an interior envelope, as voters must sign a certificate on it. Meanwhile, other states’ election laws do not detail what happens if a secrecy envelope is missing.

Less than 2 percent of mail ballots in 2016 were rejected because of problems with ballot materials, such as the ballot was missing from the envelope, according to a survey of election officials by the U.S. Election Assistance Commission. The survey does not list missing privacy sleeves or envelopes as a suggested reason for a ballot rejection.

That alone, Charles Stewart III, a professor of political science at MIT who co-directs the Stanford-MIT Healthy Elections Project with Persily, “leads me to believe that rejection for this reason is rare, and certainly behind the other reasons” a ballot would not be counted, he said.

Still, in Pennsylvania, a state that Trump won in 2016 by less than 45,000 votes, Persily said the ruling could have a big impact.

"In a close election, this is what we’ll be talking about," he said.