Pennsylvania risks becoming center of election chaos

Pennsylvania is shaping up to be the epicenter for election disputes in 2020, with both parties waging aggressive legal and political fights in the final stretch before Election Day.

The tumultuous fight over voting rules and procedures in the Keystone State threatens to upend the presidential election in a state that President Trump carried in 2016 by only 44,000 votes and that both he and Joe Biden see as a must-win in November.

“It has the potential to be total chaos,” said Mark Nevins, a Philadelphia-based consultant who served as Pennsylvania communications director for Hillary Clinton’s 2008 presidential campaign.

“This is like learning to ride your bicycle in the middle of a hurricane with a crazy person chasing you,” he added. “That’s basically what Pennsylvania is trying to do right now.”

The disputes have so far centered on the rules for casting and counting mail ballots. The Pennsylvania Supreme Court handed Democrats a win last week when it extended the deadline for voters to return mail ballots and expanded the use of ballot drop boxes, something the Trump campaign has sought to severely curtail.

But Republicans notched a win of their own after the state Supreme Court ruled that so-called naked ballots — mail ballots cast without being sealed inside an inner secrecy envelope — must be invalidated, a decision that has stoked concerns among Democrats and voting rights advocates that tens of thousands of ballots could be tossed out based on a technicality.

Nevins said that 2020 was already shaping up to be a unique year for voting in Pennsylvania, because it is the first election year in which all of the state’s voters will be able to cast their ballots by mail.

But the outset of the coronavirus pandemic earlier this year, months of civil unrest over racial injustice and intense legal battles over voting rules and processes have only added to the tension surrounding the 2020 election in Pennsylvania.

“It was already going to be challenging, but now you add to it the COVID-19 pandemic, you add to it the social and racial justice protests and civil unrest, and then add to it again just the chaos,” Nevins said.

In another twist, the Justice Department announced on Thursday that it is investigating a “small number of mail-in ballots” from military voters that had been discarded in Luzerne County in northeastern Pennsylvania.

The announcement was unusual, given that the probe is still ongoing. U.S. Attorney David Freed, whose office is conducting the investigation in conjunction with the FBI, also took the unusual step of disclosing that most of the discarded ballots had been cast for Trump.

The mounting disputes in Pennsylvania stand out in an election year already expected to be among the most heavily litigated in history.

Democrats are eyeing Pennsylvania with particular urgency, given Biden’s single-digit lead in the state in recent polls and the expectation that more Democrats will cast mail ballots than Republican voters. Guy Cecil, the chair of Priorities USA, the largest Democratic super PAC, called Pennsylvania “the tipping point state” that would likely decide the final outcome of the 2020 presidential race.

Already, some election officials in Pennsylvania are warning of the potential for a postelection dispute similar to the recounts in Florida during the 2000 presidential election. Those recounts left the outcome of the election unresolved for weeks until the U.S. Supreme Court intervened, ultimately handing the race to George W. Bush.

In a letter to Republican leaders in the state legislature on Monday, Lisa Deeley, who chairs the Philadelphia city commissioners, warned that the state Supreme Court’s ruling on naked ballots could result in tens of thousands — possibly more than 100,000 — ballots statewide being invalidated.

Such a scenario could “be the subject of significant post-election legal controversy, the likes of which we have not seen since Florida in 2000,” she wrote.

“This is not a partisan issue,” Deeley said. “We are talking about the voting rights of our constituents, whether they be Democrats, Republicans, or independents, whose ballots will be needlessly set aside.”

Democrats are already spending money to head off a potential naked ballot crisis in November. The Democratic National Committee (DNC) launched a digital ad on Thursday walking voters through the process of filling out and returning their mail ballots, placing particular emphasis on using the inner secrecy envelope.

Likewise, Biden’s campaign is sending mailers to voters underscoring the importance of the secrecy envelopes.

Adding to the potential electoral chaos in Pennsylvania is the fact that many ballots may not be counted for days after the election. Given the state’s status as a critical battleground, a delayed vote tally could leave the outcome of the election hanging in the balance.

Pennsylvania Secretary of State Kathy Boockvar said that she expects most ballots to be counted by the weekend following Election Day. But she conceded that an influx of mail ballots would make it unlikely that the state will be able to report its results on Nov. 3.

“Are we going to have results by midnight on election night if we have 3 million mailed ballots submitted?” Boockvar told the Allentown-based Morning Call newspaper in an interview this week. “No, we’re not.”

Pennsylvania is one of 11 states that do not allow election officials to begin processing mail ballots before Election Day. The Pennsylvania Department of State has urged lawmakers to pass legislation allowing officials to begin processing mail ballots ahead of Election Day, but Democrats and Republicans in the legislature have so far failed to reach an agreement on the matter.

The potential of a drawn-out vote count has already spurred concerns among Democrats. A Democratic data firm warned in an interview with “Axios on HBO” earlier this month of a “red mirage,” in which the election night vote could show Trump with a commanding lead only to have it evaporate once all mail ballots are counted.

Other election-related matters are still in flux. The four top Republicans in the state legislature filed a stay request with the Pennsylvania Supreme Court on Tuesday asking the court to temporarily halt enforcement of its ruling extending the deadline for voters to return mail ballots, indicating that they plan to ask the U.S. Supreme Court to weigh in on the case.

Republicans are also challenging the state court’s ruling allowing voters to return their mail ballots via drop boxes in federal court.

Pennsylvania officials and voting rights groups are scrambling to keep pace with the election changes and challenges. With agreements on legislation addressing issues like naked ballots and when to begin tabulating results unlikely to be reached before Election Day, outside groups said they are taking it upon themselves to educate voters.

“We really have an opportunity to kind of set the tone for the election,” said Suzanne Almedia, the interim chair of the watchdog group Common Cause Pennsylvania. “We can set out clearly what the rules are and advocate that voters have the tools to follow them.”