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Worst-case election scenario: A Pennsylvania counting meltdown

By Mark Niquette, Bloomberg News on

Published in Political News

The Pennsylvania House passed a bill on Sept. 2, now before the Senate, that would allow counties to begin processing mail-in votes three days before the election. But its future is uncertain since Democratic Governor Tom Wolf has threatened to veto the measure because it would also ban drop boxes and make other changes that Democrats oppose and Republicans are livid about recent election rulings by the Democratic-majority state Supreme Court.

"We're operating under the assumption that nothing's going to change," Harvie said.

None of these preparations address another significant potential problem: mail delivery of ballots. The U.S. Postal Service warned the Pennsylvania secretary of state in a July 29 letter that the commonwealth's requirement for all mail-in ballots to be received by 8 p.m. on Election Day and the ability for voters to request a ballot as late as seven days before the election "appear to be incompatible" with USPS delivery standards. While the state Supreme Court's extension of the timeframe for accepting ballots aimed to address that, risks of delays remain.

Mail service continues to be slowed in the Philadelphia area, despite a pledge from Postmaster General Louis DeJoy to halt changes blamed for poor service until after the election, said Nick Casselli, president of Local 89 of the American Postal Workers Union.

Slow mail could be a double whammy. Many mailed ballots need to move through the system twice, once to get to the voter and again, after being marked, to reach election officials.

Edward Foley, a professor and director of an election law program at Ohio State University, has studied disputed elections and said he is most concerned about Pennsylvania this year because it may be the most important state in determining the Electoral College winner, all the issues with mail-in voting, and election statutes that could allow the vote-counting process to be drawn out by ballot challenges and appeals.

Foley wrote a paper last year titled "Preparing for a Disputed Presidential Election" in 2020 that outlined a scenario with a delayed result in Pennsylvania sending to Congress votes from two different slates of electors to the Electoral College and no resolution by Jan. 20, 2021, when the next president is supposed to be inaugurated.

In an article published in The Atlantic on Wednesday, Lawrence Tabas, chairman of the Republican Party of Pennsylvania, suggested the commonwealth's GOP-controlled legislature could choose its own slate of electors if there are "significant flaws" in the election.

 

"They're creating a false scenario because they want to be able to have ballots come in after Election Day," Tabas said in an interview of Democrats.

One factor is what Foley calls a "big blue shift," when mail-in votes that favor Democrats flip the unofficial result from election night from mostly in-person votes. With Trump railing against mail-balloting as rife with fraud, requests by Republicans are down this year - raising concerns by Democrats that Trump will declare himself the winner based on election night returns and seek to reject or delegitimize the uncounted mail-in ballots.

Of the almost 2 million mail-in and absentee ballots requested in Pennsylvania through Sept. 17, 67% were from Democrats and only 24% from Republicans, according to the Department of State.

Pennsylvania could be in store for a situation similar to the recount fight in Florida in the 2000 presidential election that ended with a U.S. Supreme Court ruling, said Benjamin Geffen, a staff attorney at the Public Interest Law Center in Philadelphia.

"That is absolutely a possibility," Geffen said. "It's something that concerns everybody who's working on elections and voting rights in Pennsylvania."

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