HARRISBURG, Pennsylvania — There's a lot of activity targeting flaws in Pennsylvania's vote-by-mail law. The problem is, it's happening in the courts, not the Legislature.
If the November election is as close as expected, the most populous presidential battleground states could become hotbeds of challenges and conspiracy theories.
The state's Senate race between Democratic incumbent Bob Casey and Republican challenger David McCormick will determine control of the chamber, but elections offices could come under increased scrutiny if lawmakers fail to break partisan deadlock and mail-in ballots slow vote counting.
“In Pennsylvania, the biggest battleground state in the country, everyone realizes how important the election results are,” said Lauren Cristella, president and CEO of the Philadelphia-based good government group Committee of Seventy.
The political impasse over Pennsylvania's election law dates back to 2019, when the Republican-controlled Legislature reached a compromise with then-Democratic Gov. Tom Wolf to significantly expand voting by mail.
Within months, then-President Donald Trump began accusing mail-in voting of being rife with fraud without evidence, turning Republicans against it and causing GOP lawmakers to back away from their support for it. Trump has taken a contradictory stance this year, both promoting mail-in voting and backing lawsuits against it.
Attacks on mail-in voting have spawned partisan fighting in Pennsylvania over attempts to fix it.
Democrats also want to restore the convenience of early voting that most states already have, something Republicans can't achieve. Unlike other states, Pennsylvania voters can't change election law because the state constitution doesn't allow residents to write their own ballots.
As a result, a flurry of election-related lawsuits have been filed in state, federal and county courts, most of which target mail-in voting.
Republicans across the country are trying more than ever to encourage voters to vote by mail, a stark shift for a party that stoked conspiracy theories about mail-in voting to try to excuse Trump's loss in the 2020 presidential election.
Still, mail-in voting remains largely the province of Democrats: In Pennsylvania, roughly three-quarters of mail-in ballots tend to be cast by Democrats.
One of the most significant proposed changes to the state's vote-by-mail law is one sought by counties: It would allow local elections offices to start processing mail-in ballots before Election Day, as is allowed in nearly every other vote-by-mail state, allowing for faster results on election night.
Democrats have also sought to resolve a firestorm of lawsuits by clarifying the law to allow mail-in ballots that don't have a handwritten date, signature or secrecy envelope to be counted. Democratic-leaning counties typically help voters correct errors so their ballots can be counted, but thousands of those ballots are discarded.
Without changes to state laws, Democrats expect chaos surrounding the 2020 election to repeat in November.
Pennsylvania Democratic Representative Sharif Street said the state has the ability to hold a fair and properly administered election under current laws, but he said Trump and his allies have no interest in that.
“He doesn't want a smooth election process in Pennsylvania or anywhere because he thinks chaos before the election is to his advantage because he can rally people together by saying 'there will be a steal' and then after the election he can point to fraud and say he's the rightful winner when in fact he lost,” Street said.
Trump has spent months sowing doubt about this year's election, and at a rally last weekend said only widespread fraud could prevent him from being re-elected. “The only way they're going to beat us is by cheating,” he told supporters in Las Vegas.
Unfounded allegations of fraud filled the void during the drawn-out vote count after Pennsylvania's 2020 election.
Charlie Gerow, a longtime Republican activist and strategist in Pennsylvania, said Republicans are prepared to report and document fraud in a way they hadn't anticipated in that year's election. To be clear, voter fraud is extremely rare, usually just a few fraudulent votes, and involves Republican voters, some of whom may have cast additional votes for Trump.
An Associated Press investigation in 2021 found fewer than 475 instances of potential voter fraud in the six states Trump fought to lose, far from enough to sway the election's outcome: In Pennsylvania alone, Biden won by more than 80,000 votes over Trump.
When Democrats brought a bill to a vote in the House that would allow counties to process mailed ballots before Election Day, known as a precount, Republicans warned that it “could lead to many forms of impropriety and fraud.”
Pennsylvania Secretary of State Al Schmidt, a Republican, said he had not heard of any state where such fraud had occurred.
The bill passed the Pennsylvania House of Representatives, which is narrowly controlled by Democrats, but has stalled in the Senate, where Republicans are demanding that the House first pass a constitutional amendment expanding voter ID requirements.
“I'm very concerned about the public perception and concern that our process is not safe, and we need to find opportunities to make that process safer,” said Senate Majority Leader Joe Pittman, a Republican.
Democratic House Majority Leader Matt Bradford said he also was concerned about the legislative gridlock and its potential impact in November.
“We went through a precount to let people know who the winners are as quickly and accurately as possible, and it's been held up,” Bradford said.
Meanwhile, battles over mail-in voting are mounting in the courts in the state.
One lawsuit filed by Republican lawmakers seeks to force mail-in ballots to be counted at polling places instead of at county elections offices, a move that county governments opposed, saying in court papers would “add significant complexity and burden to the administration of elections.”
Democrats and left-leaning groups have filed lawsuits in state and federal courts over the practice of discarding mail-in ballots that have missing or incorrectly handwritten dates on the outer envelopes.
At least two Republican-controlled counties are also being sued for failing to help voters fix technical errors in their mail-in ballots, such as missing dates or missing secrecy envelopes, to avoid having their ballots discarded.
One bright spot is that counties are getting better at counting mail-in ballots.
During the COVID-19 pandemic in 2020, 2.6 million voters, about 40% of the total Pennsylvania electorate, cast ballots by mail. This volume of ballots strained counties and led to nearly four days of post-election counting before a winner was declared and the outcome of the presidential election determined.
Since then, counties have purchased more high-speed processing machines and tweaked their Election Day operations to count votes more efficiently.
Allegheny County, which includes Pittsburgh, expects to have its results by election night instead of most of the next day in 2020.
Philadelphia plans to complete much of its vote counting this fall within about 24 hours of the polls closing, and with the capacity to process ballots before Election Day, the work could be finished by Election Night.
“This is a very normal practice that's done all across the country,” said Seth Bluestein, a Republican elections official in Philadelphia. “And because they can't do that in Pennsylvania, they're not going to count all the votes on election night. That's the only thing that's causing this, and the state legislature could have fixed this.”
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