A hidden new threat to US elections
By Blake Hounshell and Nick Corasaniti
It’s been more than nine weeks since the Pennsylvania primary. The election is still not certified.
The reason: Three counties — Berks, Fayette and Lancaster — are refusing to process absentee ballots that were received in a timely manner and are otherwise valid, except the voter did not write a date on the declaration printed on the ballot’s return envelope.
The Pennsylvania attorney general has argued in court amid a lawsuit against those three counties that the state will not certify results unless they “include every ballot lawfully cast in that election” (emphasis theirs).
The standoff in Pennsylvania is the latest attempt by conservative-leaning counties to disrupt, delay or otherwise meddle with the process of statewide election certification, a normally ceremonial administrative procedure that became a target of Donald Trump’s attempts to subvert the 2020 contest.
It’s happened in other states, too. Earlier this year, Otero County, a conservative rural area in southern New Mexico, refused to certify its primary election, citing conspiracy theories about voting machines, though no county commissioner produced evidence to legitimize their concerns.
Eventually, under threat of legal action from the state’s attorney general and an order from the state Supreme Court, the commissioners relented and certified the county’s roughly 7,300 votes.
Pro-democracy groups saw Otero County’s refusal to certify the results as a warning of potentially grave future crises, and expressed worries about how a state might be able to certify a presidential election under similar circumstances.
The showdown in Pennsylvania is most likely less severe. The number of undated ballots is quite small, and if they had to, state officials could certify the election without counting those ballots, disenfranchising a small number of voters but preserving the ability to certify and send presidential electors to Congress (or elect a governor, senator or local official from the area). For now, the attorney general’s argument is to simply force the counting of every legal ballot.
“It is imperative that every legal vote cast by a qualified voter is counted,” said Molly Stieber, a spokesperson for the attorney general, Josh Shapiro, who is now the state’s Democratic nominee for governor. “The 64 other counties in Pennsylvania have complied and accurately certified their election results. Counties cannot abuse their responsibility for running elections as an excuse to unlawfully disenfranchise voters.”
The battle over the undated envelopes in Pennsylvania also presages what is likely to be another litigious election season, in which partisans will look to contest as many ballots as possible to help their side win, seizing on technicalities and immaterial mistakes in an effort to cancel votes.
Election experts say that such sprawling legal challenges, combined with false accusations of fraud, could create chaos akin to the 2020 election aftermath.
“Had this unfolded on this kind of timeline in 2020, it really could have created problems, because there would have been questions about whether the state could have actually named a slate of electors,” said Robert Yablon, a law professor at the University of Wisconsin Law School. “You could imagine there being disputed slates of electors that were sent to Congress, and it could have been a big mess.”
The issue reached the courts last year, when the 3rd U.S. Circuit Court of Appeals ruled in a dispute over a judicial election that ballots could not be discounted because voters had not dated the return envelope’s declaration. The Supreme Court upheld that decision in June.
In Pennsylvania’s tight Republican primary race for Senate between Mehmet Oz, now the nominee, and David McCormick, a state court again ruled that the undated ballots must be counted, but also instructed counties to report two separate tallies to state election officials — one including the undated ballots, and one without them — should there be a later decision on appeal going the other way.
So far, there has been no new opinion allowing counties to not count the ballots. Local officials in each county have declined to comment, citing the ongoing lawsuit.