Op-Ed: Learning from Pennsylvania’s Election Chaos

Originally published at RealClear Policy.

What do you do with a ballot that arrives after Election Day, with no postmark and a signature that doesn’t match the voter’s record? Count it — according to the Pennsylvania Supreme Court.

This suspension of common sense and legal standards is driving Pennsylvania’s postelection chaos, forcing citizens to question the integrity and legitimacy of the voting system.

Here’s the story behind the current confusion. 

Last year, as a compromise between Democratic governor Tom Wolf and the Republican-controlled legislature, the state enacted election reforms that eliminated straight-ticket voting and implemented mail-in ballots for anyone who preferred to vote by mail, regardless of their eligibility for an absentee ballot.

Before any election occurred under the new law, though, Wolf and Pennsylvania’s Democratic-majority Supreme Court ignored and even suspended voting deadlines and restrictions. First, a day before the June primary, Wolf issued an executive order that granted a one-week extension for mail-in ballots received in several counties. Then, in July, the Pennsylvania Democratic Party filed a lawsuit against the state, demanding an extension of the general election deadline for mail-in ballots, the allowance of “drop boxes” for casting those ballots, and a ban on lifting residency restrictions for election observers. The Wolf administration asked the state court to back the Democrats’ lawsuit against the governor.

In a September 17 ruling, the court delivered a Democratic victory. The justices granted a three-day extension for the delivery of mail-in ballots postmarked by the evening of Election Day, approved the use of unstaffed drop boxes and satellite election offices, and required election officials to process mail-in ballots with no postmark. The court acknowledged that the post-election deadline violated state constitutional law, but cited COVID-19 and postal-service delays as reasons to proceed with the unprecedented process. In a subsequent ruling, the court affirmed a Wolf administration order that county officials “are prohibited from rejecting absentee or mail-in ballots based on signature comparison.”

In its rulings, the court may have intended to prevent the disenfranchisement of legitimate voters. In reality, though, the court suspended existing law and established its own standards — creating an opportunity for fraud, or at least the perception that the justices tried to manipulate the election results for partisan gain. A governor or court should not suspend or ignore election law just because the Post Office is slow. Instead, the state should ensure that every individual has the opportunity to vote, while also protecting the integrity of elections.

Now, as the vote-counting continues, the court’s actions have fueled what could become a drawn-out legal fight in Pennsylvania. Last week, the U.S. Supreme Court declined to take up a petition challenging the state ruling. Justice Samuel Alito implied, however, that the justices could revisit the issue, noting “a strong likelihood that the state Supreme Court decision violates the Federal Constitution.”

We shouldn’t rely on courts to fix Pennsylvania’s election issues. Instead, changes to election timelines and processes should be enacted by the state legislature, not through executive actions or court orders. In Pennsylvania, one reform had advanced in the legislature, but Wolf threatened to veto the bill — as he has done with 14 other proposed laws this year.

In the future, Pennsylvania should enact election reforms that ensure that mail-in ballots are counted with the same level of scrutiny and oversight as in-person voting. This stricture should include requiring poll workers to verify the identity of each person voting and the presence of election observers while ballots are opened and counted.

Pennsylvania should also follow other states in adhering to strict deadlines for the completion and delivery of mail-in ballots, which should be received by Election Day. Local officials should then process these ballots—but not report results — three days before Election Day to ensure timely results. Throughout the counting process, officials should follow provisions to verify that mail-in ballots are legitimate, while also creating — in law — a remediation process for ballots that are incomplete, incorrectly completed, or technically flawed.

By putting these measures into place, Pennsylvania can prevent another election fiasco. As for 2020, a fiasco is what we’ve got – and it’s a direct consequence of a governor and state court inhibiting a fair and transparent process for counting every vote.