Late into election night 2020, Donald Trump emerged with a message.
He was ahead in Pennsylvania, he said, declaring that it was “not close,” and that “with 64 percent of the vote in, it’s going to be almost impossible to catch.” There was one solution, Trump assured the country, and everyone, he said, agreed on it: “We all want voting to stop.”
“We don’t want them to find any ballots at four o’clock in the morning and add them to the list,” he proclaimed.
Contra the then-President’s wishes, Pennsylvania duly completed the rest of its vote count. Biden emerged as the winner by more than 80,000 votes.
But that multi-day period of delay in confirming the final result gave Trump a critical opportunity to lob his farcical claims of voter fraud at the public, seizing on a “red mirage” in which early results trended more Republican when compared to later-arriving Democratic results.
Next month, the country’s largest and most important swing state will likely repeat that delay. Pennsylvania Republicans have for the past four years blocked an easy fix that could allow the state to complete the count in as fast as a day, holding it hostage with a demand for strict voter ID requirements.
The fix comes down to pre-canvassing, the obscure but necessary process that allows election workers to verify the outside envelope of mail-in and absentee ballots before an election. In Pennsylvania, unlike many other states, officials are not allowed to begin that process until 7 a.m. on Election Day. In a state which, since 2019, has had expansive mail-in voting it’s a recipe for long delays and a prolonged lack of clarity around the result. And while that manifests in anxiety for most of the country, for Trump, it’s an opportunity: he can use the time, as he did in 2020, to claim any loss is illegitimate.
Delays, Conspiracy Theories and a Legislative Stalemate
Experts, politicians and local voting officials agree on the solution to this: Other states give poll workers more time — weeks, in some cases — to pre-canvass the surge of mail-in ballots. A simple legislative fix could see Pennsylvania provide a result hours, not days, after polls close. Florida and other GOP-leaning states have adopted similar solutions.
But instead, state Republicans have held legislation to make the fix hostage with a demand of their own: requiring voter ID for elections. It’s a significant stalemate amid a year-long volley of lawsuits asking courts to shape the playing field of the 2024 election, with the Republican National Committee joining in a lawsuit that seeks to deprive voters of the ability to fix errors in the information placed on the outside envelope of a mail-in ballot.
That GOP stonewalling has left Pennsylvania’s canvassing procedures unchanged, with the same 2020 delay likely to repeat itself in November.
Just Throw Out The (Mostly) Democratic Votes
Meanwhile, another set of related fights has played out in the courts. Republicans have had mixed results in their other attempts to make voting — particularly voting by mail, which skews Democratic in Pennsylvania — more difficult.
For years, voting groups — often joined or opposed by the national Democratic and Republican committees, respectively — have wrestled with Pennsylvania’s election administrators over the exterior envelope of absentee ballots. Voters must date the envelope, despite the fact that the date is useless; administrators don’t use it for anything, including determining whether the ballot was sent on time.
This spring, the Third Circuit Court of Appeals ruled that ballots missing the date, or having an incorrect one, must not be counted. The panel reversed a district court, which had found that the requirement violated the Materiality Provision, a section of the Civil Rights Act meant to protect voters from having their ballots being tossed out for small, technical reasons. The full Third Circuit declined to hear the case en banc.
The plaintiffs sought help at both the U.S. and state Supreme Court. The PA Supreme Court, dominated by Democrats, declined to change voting laws so close to the election (absentee ballots had already been sent out to Pennsylvania voters). The U.S. Supreme Court, with its inconsistent notions about when is too soon to intervene in election administration, has yet to act on the plaintiffs’ petition for certiorari.
Under the status quo, thousands of timely sent ballots will near-certainly be thrown out.
“In the 2022 general election, county boards of elections in Pennsylvania refused to count at least 10,500 timely-received mail ballots based solely on missing or purportedly ‘incorrect’ handwritten dates on the outer return envelope,” the plaintiffs wrote in their petition to the Supreme Court.
There’s a reason the Republican National Committee, National Republican Congressional Committee and Republican Party of Pennsylvania joined this case on the side of the election administrators: In Pennsylvania about three-fourths of mail-in ballots are typically cast by Democrats.
Republicans will be less thrilled with another decision the state Supreme Court made the same day earlier this month: It will not take up the Republicans’ challenge to the “notice-and-cure” process, where voters are informed of disqualifying mistakes on their ballots and given the chance to fix them. There is a patchwork of those policies across the commonwealth; some counties let voters cure their ballots, others don’t even notify them about disqualifying mistakes.
A similar challenge to the curing process is wending its way up through state courts, though the court expressed disinclination to change the rules so close to the election in its recent orders.
The overall picture is a level of delay likely to mimic that which the country experienced in 2020, for largely the same reasons. It’s the result of conscious policy choices, both aimed at making voting more difficult and at keeping the window in which one of the largest swing states does not report its results open for as long as possible.
Lisa Schaefer, executive director of the county commissioners association of Pennsylvania, told TPM that it all manifests in tremendous pressure on individual officials.
“We’re going to be running not only the in-person election, but also processing those mail-in ballots on Election Day,” she said. “And that takes time and that takes resources.”
