It could again take Pa. days to count mail ballots in November, despite lawmakers having since 2020 to address the issue

Election officials in Pennsylvania are warning that because of inaction in Harrisburg, the swing state’s votes may again take days to count, creating a window for bad actors to sow distrust in the results.

County election officials have been petitioning state lawmakers to update the state’s election code for years. They’ve also persistently asked the General Assembly to clarify questions surrounding which mail ballots can and cannot be counted to address voting rights litigation that has played out in Pennsylvania since no-excuse mail voting was authorized in 2019.

But as November approaches, little has changed since 2020 — when former President Donald Trump used the slow counting process to promote unfounded claims of voter fraud in the wake of his defeat.

After four years, state lawmakers are unlikely to make changes before Election Day, which adds additional stress for county officials and sets up a scenario to again put the state at the center of conspiracy theories and controversies in a close election between Trump and Vice President Kamala Harris.

“They should be ashamed of themselves,” said Forrest Lehman, director of elections in Lycoming County. “Counties have been asking repeatedly for some of this relief for years and we still can’t get it and then everyone seems fine with letting us take the blame for it.”

Meanwhile, litigation over what mail ballots to count and reject are working their way in court leaving officials unclear exactly which ballots they’ll have to count or reject in November while efforts to reform state law to allow more time to process mail ballots have failed to progress in the Capitol.

“They’re not doing their jobs. So then [counties] have to be the adults in the room and figure out how to interpret these ambiguities and come up with policies we think make sense.”

Under current law, county election offices cannot begin opening mail ballots and preparing them to be counted, a process called pre-canvassing, until 7 a.m. on Election Day.

The short window can create a strain on resources, requiring more Election Day staff to ensure mail ballots are ready to be counted by the time polls close at 8 p.m., and it also makes it more difficult for election officials to finish counting mail ballots that day.

The Department of State said in a statement providing more time should be nonpartisan. Pennsylvania Secretary of State Al Schmidt called the legislative inaction “frustrating” in an interview with the Washington Post last month.

In 2020, this strain was one of the reasons county election offices took several days to finish tallying mail ballots. And it also fueled unfounded claims of voter fraud.

When voters went to bed on election night, Trump was leading in Pennsylvania among ballots that had been counted. Biden ultimately won Pennsylvania because of his overwhelming lead in mail ballots, counted in the following days. Trump baselessly insisted this was evidence of cheating. Schmidt, then a Republican member of the Philadelphia City Commissioners, faced death threats after he pushed back against Trump’s false claims and the former president called him out by name on Twitter.

The former president has indicated he’s likely to claim fraud again in November if Harris wins the state. The Trump campaign launched a website last week called Swamp the Vote to encourage Republicans to vote early and by mail. The messaging on the website continues to argue, without evidence, that Democrats may cheat using mail ballots — even as Trump encourages his supporters to vote by mail.

“We never want what happened in 2020 to happen again,” Trump says in a video on the website. “But until then Republicans must win and we must use every appropriate tool available to beat the Democrats.”

Advocates worry that the legislature’s inaction on pre-canvassing will set the stage for misinformation to run wild again and create a potentially dangerous environment.

“The legislature’s failure to act is an absolute abdication of their responsibility to all Pennsylvanians, not just Pennsylvania voters, if not also the nation,” said Lauren Cristella, president of the Committee of Seventy, a Philly-based government watchdog.

City Commissioner Seth Bluestein, a Republican, said the window of time between a race being unofficially called by the Associated Press and TV networks and polls closing is an opportunity for misinformation to spread. The votes are not formally certified until counties hold their canvasses in the days and weeks following the election.

“If we had pre-canvassing we would be able to release the results from the mail ballots on election night alongside the in-person results and it would close and narrow that window of time when misinformation spreads.”

If turnout is high enough, and enough of those votes are cast by mail, election officials will be dealing with many of the same logistical hurdles they faced in 2020 that caused mail ballots to be tallied after election night. But the counting process is expected to be faster this year than 2020.

Fewer mail ballots are expected than 2020 when the pandemic spurred high rates of mail voting nationwide. The number of voters casting ballots by mail has dramatically reduced in recent elections.

Bluestein predicted the mail ballots would be counted within one or two days in Philadelphia this November.

In 2022 lawmakers passed a law offering more state funding to election offices, but in exchange outside funding was banned and election offices are now required to work around the clock until all ballots are counted. That means offices will have workers counting all night rather than taking breaks.

Additionally, election offices have had more time to adjust to Pennsylvania’s no-excuse mail voting law. Offices have purchased equipment that speeds up the ballot counting process and have found ways to count the high number of ballots more efficiently.

“I’m pretty confident we’re not going to see that long lag that we had in 2020,” City Commissioner Lisa Deeley, a Democrat, said. But she noted that when networks feel comfortable calling the race will depend in part on how many mail ballots counties receive and how tight the election is.

“It will take as long as it takes and how long that is and what that pressure point becomes is all reliant on the state of the race.”

State Rep. Seth Grove, a York County Republican, said Pennsylvania counties have had relatively few struggles counting ballots quickly since counties began working around the clock.

“The 7 a.m. [start time] mixed with the continuous count has really, I think, neutered the need for more additional days pre-canvassing these ballots,” Grove said, arguing addressing pre-canvassing alone could cause issues for county voting security measures.

Pennsylvania House Democrats in April advanced a bill that would have allowed for an additional week of pre-canvassing ahead of Election Day. But the bill stalled in the GOP-controlled Senate.

State Sen. Cris Dush (R., Jefferson), who leads election policy in the state Senate, did not respond to questions from the Inquirer about why he hasn’t taken up the bill, but Senate GOP leaders told VoteBeat in May that they wouldn’t discuss election changes without inclusion of a voter ID requirement.

Republicans passed a bill in 2021 that tied voter ID to pre-canvassing and other measures. It was vetoed by then-Gov. Tom Wolf, a Democrat.

“There are massive trust issues trying to find a compromise between Republicans and Democrats,” Grove said. “We don’t want to see a … where we negotiate in good faith and then have the Democrats come back and knock off those compromises in the legal processes.”

State Rep. Scott Conklin, a State College Democrat, blamed political gamesmanship.

“They’re setting it up so that if their man wins, they won in spite of the system. If their person loses, oh, it has to be ‘Look, they stole the election,’” Conklin said of GOP lawmakers.

Ahead of November’s election, Pennsylvania’s election code, and, specifically, statutes established when lawmakers approved no-excuse mail voting in 2019, remain under a flurry of litigation.

Pennsylvania law requires voters to sign and date their ballot and place it in a secrecy envelope in order for it to be counted.

The Pennsylvania Commonwealth Court issued a ruling Friday instructing election officials not to enforce the requirement that ballots be dated, finding it infringed on voting rights and did not serve a compelling government interest. The ruling could be appealed.

In addition to the ballot dating case, the American Civil Liberties Union has challenged the lack of notification in Washington County for when ballots are rejected. The litigation has led to often shifting guidelines and patchwork of responses across the state as counties interpret the case law in differing ways.

“In some respects, the legislature is essentially delegating to the courts,” said Thad Hall, elections director in Mercer County. “Now you get this huge difference based on where you live.”

The resolution of those lawsuits could bring more clarity on some of those items by Election Day, depending on rulings.

“Our goal is to have it clarified one way or the other before November,” said Marian Schneider, senior voting rights policy council at the American Civil Liberties Union of Pennsylvania.

But continued changes based on court rulings and county to county inconsistencies could cause confusion ahead of the election. Cristella, president of the Committee of Seventy, said it will be important that rulings come in a timely manner, so that voters can learn the new rules.

“It just adds a level of chaos that nobody needs,” she said.