Pennsylvania Set for Messy Election Aftermath, Including Court Challenges

Boxes of counted ballots are seen locked in the ballot storage area at the Philadelphia Convention Center in Philadelphia, Pennsylvania, on Nov. 6, 2020. Chris McGrath/Getty Images

Counting delays, contested voting rules, and voter roll accuracy issues are threatening to plague Pennsylvania, one of the most crucial swing states, in the aftermath of next week’s midterm election.

Those issues could lead to post-election challenges, particularly if the results are close, an election attorney told The Epoch Times.

Leigh Chapman, Pennsylvania’s acting secretary of state, recently set the stage for potential delays, saying mail-in ballots are only allowed by state law to be opened and canvassed starting on Election Day.

“When there are delays in counting,” she said, “it doesn’t mean that there’s anything nefarious happening.”

Even if delays on their own could be expected, however, further complications may pile up from disputes over voting rules regarding undated mail-in ballots as well as ballots from unverified voters.

Undated Ballots

The Department of State, which oversees Pennsylvania’s electoral process, issued guidance in May that mail-in ballots with missing or incorrect dates were to be counted—even though state law requires voters to put a date on the ballot envelope. While the U.S. Court of Appeals for the 3rd Circuit ruled earlier this year that undated ballots must be counted, the Supreme Court nixed that decision.

Chapman’s department then announced that such ballots still must be counted because the Supreme Court ruling didn’t affect a state court decision that requires it.

The legal argument for counting the ballots stands on a provision in the 1964 Civil Rights Act that prohibits throwing out ballots for minor errors. Republicans and other opponents have asked the Pennsylvania Supreme Court to weigh in on the matter, arguing the provision doesn’t apply to ballot errors in general, but only to situations in which ballot errors are used as an excuse to disenfranchise voters based on race or ethnicity (pdf).

Erick Kaardal, an election integrity lawyer with the conservative Thomas More Society, expects the court to rule on the matter this week.

“We want to have clarity with respect to how the rules work,” he said.

“One could say, ‘Oh well, the law doesn’t have to require dates.’ But Pennsylvania law does.”

His concern is that dissonance between the law and the secretary of state’s guidance may cause the uneven application of rules in which some election clerks will count the undated ballots, but others won’t since they may consider Chapman’s guidance unlawful.

Moreover, unless the issue is settled definitively, it opens the door to challenging the election results based on whether the ballots should or shouldn’t be counted, which already happened in the Republican primary earlier this year.

“It could affect a close election,” Kaardal said.

Unverified Voters

Pennsylvania requires mail-in voters to provide a state ID number or the last four digits of their Social Security number. The numbers are then matched against the state database and federal Social Security Administration data to verify the voter’s identity. But if the number doesn’t match, the state can still send the voter a mail-in ballot.

In fact, some 250,000 mail-in ballots were sent out to such “unverified” voters for the Nov. 8 midterms.

Kaardal’s concern is that people not eligible to vote, such as noncitizens, may be mixed in with the unverified voters.

Chapman’s deputy, Jonathan Marks, told state lawmakers in September that mail-in ballots from unverified voters would only be counted if the voter provides verifiable ID or Social Security digits.

Such ballots would be put in a “separate pile,” Kaardal explained, but it’s not clear how election workers are supposed to chase down as many as 250,000 voters post-election to get the correct ID information.

“Are we creating another procedure beyond that which the Pennsylvania laws provide?” he asked.

“I think the point of the registration system is to make sure that people who are not verified don’t cast a ballot. So by moving the [verification procedure] downstream it seems you’re inviting more confusion and more litigation about close election outcomes.”

Moreover, some county officials reported they “can and do count the ballots without the [verified] ID,” according to a letter to Chapman from 15 Republican state legislators.

“In addition, several counties report that they can and do ‘fix’ the invalid ID in the system and accept the ballot,” the Oct. 25 letter stated (pdf).

Pennsylvania’s Department of State didn’t respond to emailed questions by press time.

Having a pile of unverified ballots left after Election Day strategically benefits Democrats, Kaardal argued, because they have a more organized infrastructure for challenging election results, which they can use to dive into the pile for votes to potentially change an unfavorable result.

“I think they relish those challenges.”