The delay was caused by a flaw in Pennsylvania's election law that prohibited mail-in ballots from being opened until 7 a.m. on Election Day. The close vote margin on Election Day in 2020, combined with an unprecedented number of people voting by mail because of the pandemic, resulted in huge numbers of uncounted ballots that election officials had to rush to finish counting. Pennsylvania, one of the biggest battleground states, is one of just seven states, including Wisconsin, another battleground state, that do not allow a precount, in which mail-in ballots are opened and processed before Election Day. Twenty-seven states allowed a precount in 2020. Since then, 16 more states have passed laws allowing a precount.
But not in Pennsylvania. Despite widespread calls for change, the state is still expected to take several days to announce the winner this year, alarming state election officials who worry the delays will create confusion, erode confidence in the process and make poll workers targets for harassment.
“If the Electoral College comes down to either Pennsylvania or Wisconsin, there could be a long period of time where we don't know who the winner is,” said Rachel Ollie, an election expert at the Bipartisan Policy Center.
Pennsylvania lawmakers had four years to change the law to allow early campaigning, but the legislative session ended. This month, they did not. The Democratic-led Pennsylvania House of Representatives passed a bill in May that would allow county officials to begin precounting mail-in ballots seven days before Election Day, as recommended by a bipartisan committee. But the Republican-controlled state Senate never brought the bill up for a vote, arguing the change was unnecessary or should have been included with other changes to election law.
“It's reprehensible that they didn't get it done,” Kathy Boockvar said. “This shouldn't be difficult. The reality is that if this bill doesn't pass, it will take longer to count votes and it will take longer to get election results,” said the Democrat, who served as Pennsylvania's secretary of state during the 2020 election.
State Rep. Scott Conklin, a Democrat who introduced the early count bill, said he asked county commissioners across the state for one election administration preference and they overwhelmingly said they wanted to be able to start processing mail-in ballots early.
Conklin refused to do so. This could once again allow election deniers to baselessly claim that mail-in ballots counted after Election Day are fraudulent. In the run-up to the 2020 presidential election, Trump and his supporters cast doubt on the legitimacy of mail-in ballots and urged their supporters to vote in person, creating what became known as the “Red Phantom.” After initially leading, Trump declared victory in Pennsylvania the day after the election, less than 24 hours after the polls closed. His campaign filed a lawsuit seeking to halt the count, despite nearly one million mail-in ballots still to be counted across the state. Then,–Trump lawyer Rudy Giuliani and other Trump supporters have alleged, without evidence, widespread fraud in mail-in voting.
“This is a perfect example of elected officials purposefully creating delays and creating an atmosphere of conspiracy, and doing so at the expense of good citizens who trust them,” Conklin said. He pointed to Republican lawmakers who blocked the bill.
Seth Bluestein, a Republican city commissioner in Philadelphia, served as deputy commissioner during the drawn-out 2020 vote count. He and his colleagues said they had about As pro-Trump protesters raged outside, 375,000 mail-in ballots were piled in disarray at the city's convention center. Bluestein and his colleagues said they had received death threats. Near the scene, police arrested two armed men who had driven from Virginia, where they said they were looking for counterfeit ballots.
“That's the extended period when the final outcome is unknown, which really creates an environment of harassment and intimidation,” Bluestein said. “Pre-election campaigning would really limit the opportunity for misinformation and disinformation to spread.”
Some Republicans did not vote for the early voting bill because they said it did not include any of their election priorities, such as stricter rules on the identification voters must show. Others argued that most counties recently installed automated machines to open mail-in ballot envelopes, making the process fast enough.
“Pre-campaigning is a solution to a problem,” the state legislator said.. Brad Lore (right), “If counties were opening envelopes by hand with letter openers like they did 100 years ago, we'd have a problem, but no one does that,” said McConnell, who represents the heavily Republican northwestern part of the state.
Senate Minority Leader Jay Costa, a Democrat, said he regrets not being more proactive about early polling places sooner after the 2020 election. “It should have been fixed then,” he said.
Costa pointed to the work of a bipartisan commission the state Legislature created in 2020 for the specific purpose of reviewing the state's election system and recommending improvements. In its first report to lawmakers, the commission listed precounting as a “top priority” for many members.
“The consensus is that pre-processing of mail-in ballots has the potential to resolve many of the issues that have contributed to concerns about the validity of votes in Pennsylvania,” the commission wrote in June 2021.
That year, the state Legislature passed a bipartisan bill that made sweeping changes to Pennsylvania's election law, including allowing county officials to begin processing mail-in ballots five days before Election Day. But the bill also included Republican-led priorities, such as stricter voter identification rules and limits on ballot drop boxes. Then-Governor Tom Wolf (Democrat) vetoed the bill, saying it would create barriers to voting.
Bluestein said even allowing a few days of grace to process mail-in ballots would help protect Philadelphia and other parts of the state from a repeat of what happened in 2020. Without it, he said, it would create another opportunity for election deniers to intimidate election officials and spread lies about the results before they are finalized.
Philadelphia election officials have said they are prepared to handle the volume of mail-in ballots expected this year, but that results will likely take a day or more in close races.
“Do you want to know the results on election night? Or do you want to wait a day or two?” said Philadelphia Democratic City Councilwoman Lisa Deeley. “If you want to wait, you can wait. You can't open your ballots until 7 a.m. on election day.”
