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HARRISBURG — As county officials in Pennsylvania rounded the corner on day two of counting the remaining mail ballots cast in Tuesday’s election, state Republicans and President Donald Trump’s campaign sharpened their legal attacks and made clear exactly which ballots they will challenge in hopes of winning the contested state.
State and federal legal filings take issue with two groups of ballots in the Keystone State: late-arriving mail ballots that the state Supreme Court allowed to be counted, and ballots that were cast or corrected before polls closed Tuesday because voters had been notified there was a problem with their original mail ballot.
Invalidating either group of ballots would likely hurt Vice President Joe Biden’s campaign, as Democrats voted by mail at a much higher rate than Republicans. But the total ballots in question could be small enough that their disqualification would only matter in an extraordinarily close finish, which is not out of the question.
“The eyes of the country are on Pennsylvania, but Pennsylvania has kept eyes off the absentee ballot counting process all along, and that must stop today,” Trump’s campaign said in a statement Wednesday.
Pennsylvania Democrats cast nearly 1.1 million more votes by mail than Republicans in this election, and as county officials continued counting ballots through Wednesday evening, the lead Trump secured from in-person votes was shrinking, even as he and his campaign sought to discredit the results of those mail ballots on Twitter and during a press conference in Philadelphia Wednesday afternoon.
Outside of the specific ballots Republicans have challenged, however, neither Trump nor the state Republican Party has provided any evidence undermining the validity of mail ballots in general. And Gov. Tom Wolf’s administration was unmoved by the allegations, pledging to ensure every vote cast would be counted.
“I’m going to fight like hell to protect the vote of every Pennsylvanian,” Wolf said at a press conference Wednesday evening. “That is simply wrong. It goes against the most basic principles of our democracy. It takes away the right of every American citizen to cast their vote. … These attempts to subvert the democratic process are simply disgraceful.”
By 7 p.m., with 92% of the in-person votes counted and nearly 59% of mail ballots counted, Trump was leading in Pennsylvania with 51.66% of the vote, unofficial results compiled by the Department of State showed.
The first group of contested ballots — those arriving between 8 p.m. Election Day and 5 p.m. Friday — is being challenged by the state GOP. While the law says mail ballots are due by 8 p.m. Election Day, the Democratic-dominated state Supreme Court said counties could accept ballots through Friday so long as they were sent by Tuesday.
Republicans took the matter to the U.S. Supreme Court, arguing that Pennsylvania’s justices essentially rewrote the rules for the election, a power that belongs solely with state legislatures. They also contended that granting the three-day extension violated federal law, which requires “uniform rules” for federal elections.
Pennsylvania Republicans initially asked the high court for a stay on the deadline. The justices deadlocked in a 4-4 vote, which meant the extension could stand. Court watchers have noted that, this time around, new Justice Amy Coney Barrett could side with the four conservative members of the court who wanted to, at least temporarily, block the extension.
The GOP then asked the high court to decide the case on its merits and to do so before the election. Although the justices did not grant the GOP’s request for a pre-election resolution, they left open the possibility of deciding the case after Election Day. The Trump administration on Wednesday sought to intervene in the case.
“Given last night’s results, the vote in Pennsylvania may well determine the next President of the United States,” the motion said. “And this Court, not the Pennsylvania Supreme Court, should have the final say on the relevant and dispositive legal questions.”
Citing the pending litigation, Pennsylvania’s top election official, Kathy Boockvar, ordered counties to segregate those late-arriving ballots, but it’s still unclear how many there will be, or if they would ultimately make a difference in the presidential race.
Elections officials in Lancaster and Allegheny Counties each reported upwards of 500 late-arriving ballots Wednesday, while Erie County reported about 50.
Our elections staff reports 523 late mail in ballots came in today. They have been segregated. By order of PA Supreme Court these are to be counted, if there is no order stopping it by US Supreme Court. By law (Act 77 of 2019) we have 8 days from Election Day to do so.
— Commissioner Josh Parsons (@CommissionerJP) November 4, 2020
Meanwhile, the other group of contested ballots — those that voters were allowed to correct, or “cure,” if county officials noticed an issue — are now the subject of an eleventh-hour lawsuit by a group of Republican candidates and voters. Some counties contacted voters directly, while others provided information to political parties to do outreach.
Still other counties did nothing at all to alert voters of problems, saying their read of state law and the state Supreme Court’s decision was that ballots sent without a secrecy envelope, and ballots lacking signatures on the outer envelope, should be rejected outright without any remedy.
The Republican challengers claim Boockvar gave counties faulty guidance when she told them they could share information with political parties. They also claim it was unfair for voters in some counties to have a chance to correct ballots, while those in other counties did not.
“There is no basis for this guidance in current law,” Senate President Pro Tempore Joe Scarnati (R., Jefferson) and Majority Leader Jake Corman (R., Centre) — who aren’t part of the lawsuit challenging cured ballots — said in a statement Tuesday while calling for Boockvar to resign. “The secretary created this new process out of thin air.”
At least seven counties — Philadelphia, Lehigh, York, Bucks, Erie, Montgomery, and Luzerne — said they either contacted voters directly, or alerted the political parties, according to a survey by Spotlight PA and The Philadelphia Inquirer.
“That was an opportunity for all parties, all candidates to choose to contact the voters to let them know that they had a deficiency,” Boockvar said Tuesday.
Cynthia Fernandez, Charlotte Keith, and Jamie Martines of Spotlight PA and Tom Lisi for Spotlight PA and Votebeat contributed reporting.
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