A voter casts her early voting ballot on October 17, 2020 in Philadelphia. In-person early voting by using mail ballots, enabled millions of voters to cast their ballots. (Photo by Mark Makela/Getty Images)
For more than two tense weeks in November 2020, election workers in Philadelphia tallied votes in the presidential election. The slow process of opening and scanning more than 370,000 mail-in ballots delayed certification of Pennsylvania’s election and fueled conspiracy theories that former President Donald Trump’s supporters grasped at in hopes of overturning the results.
Four years later, with the world watching, election workers across the commonwealth have had more practice working within the confines of Pennsylvania’s still-relatively new vote-by-mail system and new technology has been deployed to streamline the process.
But Act 77, the state law that allowed no-excuse voting by mail for the first time in 2020, remains unchanged. It forbids preparing mail ballots to be counted before polling places open at 7 a.m. on Election Day.
That means election workers face the prospect of processing upwards of 2 million mail-in ballots statewide on Election Day, raising the prospect that the winner of Pennsylvania’s presidential election won’t be known for days after voting ends.
And because questions remain about when mail-in ballots should be disqualified for flaws or counted notwithstanding errors by voters, court challenges could drag on for weeks.
“The message is please be patient,” Secretary of the Commonwealth Al Schmidt told a national audience in an interview on CBS’ “60 Minutes” earlier this month. “Our counties are working night and day to count their voters’ votes. They’re doing so as quickly as they can, and with integrity.”
With 19 electoral votes in play and polls consistently showing the race in Pennsylvania between Vice President Kamala Harris and Trump neck-and-neck, the Keystone State will likely earn its nickname again in this election, deciding the outcome of the race.
Lauren Cristella, executive director of the Philadelphia-based democracy watchdog group Committee of Seventy, said the last four years have brought improvements and election officials are well-prepared.
“Pennsylvanians have every reason to believe that the election will be free, fair, safe and secure,” Cristella said.
Problems have emerged across the state, however, with voters in Erie County not receiving mail-in ballots they had applied for, voters who hoped to apply for on-demand mail ballots being turned away in Bucks County, and authorities in Lancaster, Monroe and York counties investigating suspected fraudulent voter registration applications.
Confusion over mail ballots at Bucks County election office leads to long lines, frustrated voters
Trump and supporters have cited the irregularities as evidence of cheating or voter suppression.
In his daily election update on Thursday, Schmidt said that since 2022, the state has provided $45 million in grants each year that counties can use for election administration improvements such as purchasing equipment to expedite mail ballot processing or hiring additional staff.
At the height of the COVID pandemic, about 40% of Pennsylvania voters availed themselves of the ability to vote without going to a polling place resulting in 2.7 million mail-in ballots being cast. This year, the number of mail ballots is closer to 2.2 million, Schmidt said.
“New equipment, more people, more experience, and fewer votes to count,” he said
And if counties are still counting ballots at midnight on Election Day, they must report the number of ballots counted and the number remaining to count, Schmidt said, which helps tamp down false claims that ran rampant in 2020 about vote tallies changing overnight.
Philadelphia City Commissioner Seth Bluestein, one of the three Board of Elections members, said those measures will allow the city to speed up vote counting significantly compared to 2020.
“It won’t take until the Saturday after the election,” Bluestein said in a press briefing last week. The election was decided for President Joe Biden four days after polls closed despite the ongoing count in Philadelphia.
But the legal restraint on preparing ballots to be counted — known as pre-canvassing — remains a major vulnerability in Pennsylvania’s election system, Bluestein warned.
“The window of time for when polls close until the race can be called, is the biggest window of opportunity for mis- and disinformation and harassment threats. That’s just a fact,” he said, adding that even though counties have worked to make the process faster, “it is absolutely unacceptable that we do not have pre-canvassing in Pennsylvania prior to election day.”
Forty three states, including Florida, allow election workers to begin processing ballots before Election Day, Bluestein said.
Pennsylvania Democratic Party suing Erie Board of Elections over thousands of missing mail ballots
Cristella and others said the failure of the Legislature to pass that and other reforms was “a complete abdication of their responsibility” to ensure public confidence in the election system.
Republican lawmakers, who passed a comprehensive overhaul of the state Election Code when the GOP controlled both chambers in 2021, blame former Democratic Gov. Tom Wolf for vetoing the bill.
Wolf said in his veto letter that while the legislation included some improvements such as giving counties more time to prepare ballots to be counted and increasing poll worker pay, it was “incurably riddled with unacceptable barriers to voting.”
Among many criticisms, Wolf cited House Bill 1300’s inclusion of voter ID requirements that had already been found unconstitutional by Pennsylvania courts, burdensome requirements for mail-in voting, requiring signatures on mail-in ballots to match those on file and eliminating the use of ballot drop boxes.
“This bill is ultimately not about improving access to voting or election security, but about restricting the freedom to vote,” Wolf said at the time.
Since the start of the current legislative session in 2023, when Democrats took control of the state House and Republicans retained a majority in the Senate, progress on election administration has become more deeply mired in partisan politics.
An Election Code amendment to give counties more time to pre-canvass mail-in ballots passed the House as a standalone measure in May but is likely to die in the Senate when the legislative session ends next month.
“We have asked for this bill numerous times,” House Majority Leader Matt Bradford (D-Montgomery) told the Capital-Star, noting that it has been requested by county officials and voting rights advocates. “It seems as though there are those who would prefer to cast doubt and sow seeds of division heading into a contentious election and have failed to learn the lessons of the 2020 election denialism.”
Schmidt tours Philadelphia election warehouse to emphasize confidence in ballot counting
State Rep. Seth Grove (R-York) said Thursday that Democrats are responsible for creating weaknesses in the election process, “and they want to exploit these weaknesses for political gains.”
Grove also pointed a finger at the state courts, which he accused of “creating election laws days before an election” and at Democratic-led counties, which he said must “not implement ad-hoc policies to benefit their preferred candidate.”
Philip Hensley-Robin, executive director of Common Cause PA, said the protracted court battles and inconsistent practices between counties are the direct result of omissions and ambiguity in the original language of Act 77. Stakeholders and lawmakers have tried to fix them only to see bills derailed by amendments that were unacceptable to one caucus or the other.
Since the April primary election, state appeals courts have heard arguments and rendered decisions in a range of cases dealing with mail-in ballots. The central issues, left unresolved, are whether mail-in ballots returned on time but with mistakes, such as missing or incorrect dates on the return envelopes or voters not using secrecy envelopes, should be counted.
How counties handle such ballots has been inconsistent since 2020 and although courts at every level have weighed in, none has done so conclusively.
“Those things have resulted in litigation because the underlying legislation isn’t making clear that these shouldn’t be fatal defects,” Hensley-Robin said.
Most recently, the state Supreme Court vacated a Commonwealth Court decision that the dating requirement violates the state Constitution’s guarantee of the right to vote. The high court declined a request to resurrect the case, saying deciding the issue so soon before an election risked confusing voters. As a result, for this election voters must follow the requirement to write the date on the return envelope of their mail-in ballots.
GOP asks SCOTUS to halt Pa. Supreme Court ruling in Butler County provisional ballots case
Cases on tangential questions about mail-in ballots are still alive, however, days before election officials are to begin counting. In one case now on emergency appeal to the U.S. Supreme Court, the state Supreme Court said county officials must allow voters who make mistakes on mail-in ballots to cast provisional ballots and have them counted. In another, the state Supreme Court agreed to hear a GOP appeal on whether election officials must tell voters if their mail-in ballots are fatally flawed.
And on Wednesday, a Commonwealth Court panel ruled, yet again, that the Philadelphia Board of Elections violated voters rights by disqualifying undated mail-in ballots in a September state House special election. The GOP on Thursday asked the state Supreme Court to stay or modify the lower court’s decision to ensure that it does not influence the Nov. 5 election.
Vic Walzak, legal director of the American Civil Liberties Union of Pennsylvania, said Commonwealth Court decisions generally apply across the state. Speaking last week, before the Commonwealth Court’s most recent decision, Walczak said he struggled to understand the reluctance of courts and litigants to decide the issue.
Resolving the issue before the election avoids the skepticism and distrust inherent when a court’s decision determines the outcome of a close election, he said.
“It’s just not as good a look for the courts to be making decisions when everybody can sort of look and say, we kind of know what’s going to happen if these ballots are counted,” Walczak said.
YOU MAKE OUR WORK POSSIBLE.