HARRISBURG, Pa. (AP) — Pennsylvania is seeing a lot of action to address gaps in its vote-by-mail laws. The problem is that it happens in the courtroom and not in the legislature.
That could make the most populous presidential swing state a hotbed of challenges and conspiracy theories if the November election is close, as expected.
The state also has a battle in the U.S. Senate between Democratic incumbent Bob Casey and Republican challenger David McCormick, which will help determine control of the chamber, increasing scrutiny of election offices if lawmakers cannot break a partisan deadlock and vote counting is delayed by mail-in ballots.
“Everyone really feels how high the stakes are in Pennsylvania because it is the largest swing state in the country,” said Lauren Cristella, president and CEO of the Committee of Seventy, a Philadelphia-based good government group.
Pennsylvania’s political standoff over election laws dates to 2019, when a Republican-controlled Legislature significantly expanded mail-in voting in a compromise with then-Democratic Gov. Tom Wolf.
Within months, then-President Donald Trump, without evidence, began demonizing mail-in voting as a source of fraud, turning Republican voters against it and prompting Republican lawmakers to reverse their support. He has taken conflicting positions this year, promoting mail-in voting while supporting lawsuits against it.
The attacks on mail-in voting have created partisan battle lines around efforts to solve the problem in Pennsylvania.
Democrats also want to add early in-person voting, a convenience that has already been adopted by most states but has been a non-starter for Republicans. Unlike some other states, Pennsylvania voters cannot change their election laws because the state constitution does not allow citizens to write their own ballot initiatives.
As a result, election-related lawsuits are arising in state, federal, and provincial courts, almost all of which focus on mail-in voting.
Across the country, Republicans are now trying more than ever to get their voters to vote by mail, a striking change for a party that amplified conspiracy theories about ballots in an effort to explain Trump’s 2020 loss.
Yet voting by mail remains largely the domain of Democrats. In Pennsylvania, roughly three-quarters of mail-in ballots are cast by Democrats.
One of the key solutions to the state’s vote-by-mail law is one sought by counties. It would allow local election offices to begin processing mail-in ballots before Election Day, something almost every other state with mail-in voting allows. That would help them get results faster on election night.
Democrats have also tried to resolve a firestorm of lawsuits by clarifying the law so that mail-in ballots without a handwritten date on the outer envelope, a signature or an inner secrecy envelope can still be counted. Thousands of those ballots are thrown out, though Democratic counties typically try to help voters fix these errors so their ballots will count.
Without any solution in state law, Democrats expect a repeat of the chaos surrounding the 2020 election in November.
Sharif Street, chairman of the Pennsylvania Democratic Party, said the state is able to conduct fair and well-conducted elections under existing laws. But, he said, Trump and his allies are not interested in that.
“He doesn’t want a smooth process in Pennsylvania or anywhere else because he believes the chaos benefits both of them in the run-up to the election because he can rally people around him by saying, ‘There’s going to be a theft.’ and then after the election… (he can) point to irregularities to say he is the rightful winner when in fact he lost,” Street said.
Trump has been sowing doubts about this year’s elections for months. At a rally last weekend, he said only widespread fraud could keep him from being re-elected. “The only way they can beat us is to cheat,” he told supporters in Las Vegas.
Baseless allegations of fraud filled the vacuum during the drawn-out vote counting process after the 2020 election.
Charlie Gerow, a longtime Republican activist and strategist in Pennsylvania, said the Republican Party will be prepared to report and document fraud in ways it was not prepared for in that year’s election. To be clear, voter fraud is extremely rare; it typically involves just a few ballots and even involves Republican voters — some of whom cast additional votes for Trump.
A 2021 Associated Press investigation found fewer than 475 cases of potential voter fraud in the six states where Trump contested his loss, not nearly enough to tip the election. In Pennsylvania alone, Biden defeated Trump by more than 80,000 votes.
When Democrats advanced legislation to a vote in the House of Representatives to let counties process ballots before Election Day — called pre-canvassing — a Republican lawmaker warned it could “lead to various forms of abuse and fraud.”
Republican Secretary of State Al Schmidt of Pennsylvania said he has never heard of a single state where this type of fraud has occurred.
The legislation passed the Pennsylvania House, which is closely controlled by Democrats, but is stalled in the Senate, where a majority of Republicans are demanding that the House first pass a constitutional amendment to expand voter ID requirements.
“I am very concerned about public perception and public concern that our process is not safe, and we need to figure out ways to make that process safer,” said Senate Majority Leader Joe Pittman, a Republican.
Democratic House Majority Leader Matt Bradford said he is also concerned about the legislative deadlock and its potential impact in November.
“We went through the pre-survey to try to quickly bring some semblance of certainty, to give people a winner as quickly and accurately as possible,” Bradford said. “That has continued to fade away.”
Meanwhile, battles over mail-in voting in the state are piling up in the courts.
One lawsuit by Republican lawmakers would require mail-in ballots to be counted at polling places, rather than county election offices. That would add “enormous complexity and burden to election administration,” provincial governments that opposed the lawsuit said, according to court documents.
Democrats and left-wing groups are suing in state and federal courts over the practice of throwing out ballots with a missing or incorrect handwritten date on the outer envelope.
And at least two Republican-controlled counties are being sued over their refusal to help voters fix technical errors on mail-in ballots — such as a missing date or an inner secrecy envelope — to prevent the ballot from being thrown out.
One bright spot is that counties are getting better at counting ballots.
During the 2020 COVID-19 pandemic, 2.6 million voters — nearly 40% of Pennsylvania’s total — cast ballots by mail. That overwhelmed counties and required nearly four days of post-election vote counting before a presidential winner could be declared, which decided the contest.
Counties have since purchased more high-speed processing equipment and refined their Election Day routines to count more efficiently.
Allegheny County, which includes Pittsburgh, expects to post results on election night. In 2020 it took most of the next day.
Philadelphia expects to complete most of its counting this fall within about 24 hours after polls close, a task that could be completed by election night if given the opportunity to process ballots before Election Day.
“That’s a very common practice that happens all over the country,” said Seth Bluestein, a Republican elections commissioner in Philadelphia. “The fact that we can’t do that in Pennsylvania will prevent us from counting all the ballots on election night. It is the sole cause, and the Legislature could have fixed it.”
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