Pennsylvania’s in an election results certification crisis over the primary, and the state just sued three counties

Pennsylvania’s quietly in the middle of an election results certification crisis.

Nearly two months after the May 17 primary election, three of the state’s 67 counties have refused to count “undated” mail ballots, defying both an earlier court order and the Pennsylvania Department of State’s requests.

The other 64 counties did certify results with the undated ballots, which were received on time but on which voters didn’t write a date as required by law. The department, which oversees elections, either has to certify the results knowing the vote counts are inconsistent — or find a way to force the counties into alignment.

But the state has no real power on its own to actually run or regulate elections; it can’t force counties to do many things, let alone certify results a specific way.

On Monday, the state sued Berks, Fayette, and Lancaster Counties in Commonwealth Court.

The immediate fight is about which votes to count in this election — are they supposed to accept undated mail ballots or throw them out? — and how the law interacts with state and federal court rulings.

It also further exposes weaknesses in the state’s electoral system that had already been made clear in the 2020 election. As the state has sought for weeks to break a stalemate with the three counties, it’s created a slow-rolling certification crisis.

“Three boards of elections refuse to execute their mandatory duty to certify the results of the 2022 primary election based on a full and accurate count of every lawfully cast vote,” the department wrote in its lawsuit.

Berks and Fayette Counties declined to comment, as did the Department of State. Lancaster County officials issued a defiant statement.

“To be absolutely clear, the Lancaster County Board of Elections properly certified the 2022 primary election results in accordance with” state law and court orders, they said. The county said it certified its results June 6.

“The Commonwealth’s demand is contrary to the law or any existing court order,” the county said. “The County will vigorously defend its position to follow the law to ensure the integrity of elections in Lancaster County.”

» READ MORE: Fights over Pa. election rules that seemed settled after 2020 have now come roaring back

Similar standoffs have popped up in recent years, and elections experts have warned more could come, especially as election denialism gains power in local, state, and federal offices. Pennsylvania’s certification process is a fragile one, and there’s no guarantee it will hold in future elections.

The ongoing fight’s not just about certifying results in one primary. It’s about the role and powers of counties and the state in every election — and what happens when they disagree. It’s about the law. And it’s about the right to vote.

“The rule of law, our system of government, starts falling apart if government actors decide to pick and choose which laws they feel like following,” said Adam Bonin, a Democratic elections lawyer from Philly who blamed the three counties for not counting the undated ballots.

Matt Haverstick, a Republican elections lawyer based in the city, agreed that counties should generally have the same policies. But counties are doing their best to make the decisions they’ve been tasked with, he said. He put the blame on the state not doing more in recent years to ensure uniformity in the first place.

“The crisis is this is a problem that, unless it’s corrected, is going to repeat. And it’s not fair for voters,” Haverstick said. “The county in which one votes shouldn’t determine how closely you have to hew to following the election code, and this needs to be fixed.”

State law requires voters to write a date on the outer envelope when returning mail ballots. In a complicated decision in 2020, the Pennsylvania Supreme Court ruled that counties should reject undated ballots.

Undated ballots have been the subject of political fighting ever since, including when Philadelphia elections officials at first sought to count those votes in last year’s primary, prompting impeachment threats from Republican lawmakers.

But in a case about last November’s election in Lehigh County, a federal appeals court ruled that throwing out ballots for being undated violates federal civil rights law. That decision came just days after the May 17 primary election, jolting the Republican Senate primary as it headed to a recount, and former hedge fund CEO David McCormick sued in state court to argue that undated ballots should be counted.

Mehmet Oz, the celebrity doctor who ultimately won the nomination, disagreed, joined by the state and national Republican Parties.

The Commonwealth Court, though, backed McCormick and the finding of the federal appeals court, ordering counties to submit election results both with and without the undated mail ballots. (McCormick withdrew the case after conceding the race, but the judge declined to vacate the order, leaving it in place.)

After the U.S. Supreme Court declined to block the appeals court’s ruling, the state asked all 67 counties to include undated ballots in their certified results.

Berks, Fayette, and Lancaster refused.

Counties run elections. While many other states provide their secretaries of state with more authority, Pennsylvania puts very little power in the hands of the state.

The Department of State can ask, encourage, beg, and bully counties to do what it wants, and it can issue non-binding guidance to follow a certain reading of the law. But with most elements of election administration, the department can’t do much else.

Instead, 67 counties make 67 individual decisions, guided by their own lawyers.

That creates a patchwork of policies, a result that has repeatedly frustrated Republicans who argue the state needs greater uniformity. The right to vote shouldn’t depend on which county someone lives in, they argue.

Some degree of difference is normal and, courts have ruled, acceptable. But the current fight shows there’s little the state can do about differences across counties when /they arise.

The process of certifying election results used to be a largely boring formality: After counting votes, county boards of elections would certify those results and send them to the state, which certifies one final set of numbers.

The 2020 election changed that — as seen, at its most extreme, in the Jan. 6, 2021, Capitol attack during an electoral certification process that used to rarely make news.

And in Pennsylvania, the certification process may be an administrative one, but it’s run by political actors.

Elections administrators are generally public servants who see their work as nonpartisan, but the county elections directors aren’t the ones who certify the vote. That’s a matter for the county boards of elections. In most Pennsylvania counties, the board is made up of the three county commissioners; in others, the commissioners appoint the board. And the Department of State is itself part of the governor’s administration.

So the dispute over undated ballots raises troubling questions: What happens if the county-by-county patchwork is so inconsistent it could swing an election? What if a county doesn’t certify a result at all? Or what if the state itself refuses to certify the results it’s been given?

The answers are unclear, and the lawyers and elections administrators said they worry how they might be resolved in the future.