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HARRISBURG — For weeks, the nation has been watching and waiting as county officials count ballots and prepare to deliver Pennsylvania’s final election results.
Republicans attempting to cast doubt on Pennsylvania’s results and question the election process have failed to provide evidence of fraud. On Monday, those results will be one step closer to becoming official when counties certify them to the state’s top election official.
It’s an important step in all elections — one that officials in all states are taking before presidential electors meet in their capitals on Dec. 14 — but particularly in this one, as President Donald Trump and his campaign allies try to inject controversy into routine administrative steps taken after an election. Trump campaign lawyers have asked a federal court in Pennsylvania to stop the certification, though election law experts said they are extremely unlikely to succeed.
By law, county boards of elections must receive precinct results and certify them to the secretary of the commonwealth, Kathy Boockvar, by the third Monday after the election.
Those boards of elections are generally made up of three county commissioners, and they have to include someone from both the majority and minority parties (counties with home rule charters may have a slightly different setup). Members sign a piece of paper certifying the results during a public meeting. Many boards, including those in Bucks, Lehigh, and Lackawanna Counties, plan to meet on Monday to certify.
“It really comes to the end of the journey, so to speak, and telling the state we’ve done our due diligence,” Erie County Clerk Doug Smith said. The Erie County Board of Elections unanimously voted to certify its election results Thursday without any fanfare.
Smith said that because of COVID-19, this is the first time the certificate will be sent to Boockvar digitally.
It’s also the first time the county will send a series of digital files covering four different “computations,” or buckets of votes: votes received by Election Day, including ballots cast in person and mail ballots; postmarked ballots received between 8 p.m. Election Day and Nov. 6, as allowed by the state Supreme Court; and ballots that arrived between those days with no postmark or with an illegible postmark, which the high court also permitted as long as there wasn’t a preponderance of evidence to show they were sent too late.
“So this has been like everything else in the 2020 election cycle,” Smith said. “It’s things we’ve never even seen before.”
Delaware County may not be able to certify one race’s results by Monday, and WITF reports that Berks, Luzerne, Schuylkill, and Westmoreland Counties are also experiencing minor delays. The Department of State did not immediately respond to a request for comment. A spokesperson on Thursday said all 67 counties are “actively working on their certification documentation and tabulations.”
Despite ongoing litigation regarding a state Senate election, Bethany Hallam, an Allegheny County Board of Elections member, said the board plans to certify results Monday at 10 a.m. Any pending lawsuits don’t affect the county’s requirement to certify results 20 days after the election, she said.
Recounts can sometimes cause delays in certifications, said Marian Schneider, a voting rights and election law consultant with the American Civil Liberties Union of Pennsylvania and the former deputy secretary of state. She recalled one such instance, during a 2006 state House of Representatives election in Chester County, that was delayed when a judge ordered a hand recount of 23,000 ballots.
Boockvar said last week that no automatic recounts would take place in statewide races, including for president. At least one petition for a recount has been filed in Delaware County in the 165th House District.
“A hearing has been scheduled in Common Pleas Court for Monday afternoon,” a spokesperson for Delaware County said. “Our lawyers are assessing the effect, if any, the petition has on the certification process.”
Once Boockvar receives the certified results from boards of elections, she certifies them herself and passes them along to Gov. Tom Wolf.
The commonwealth secretary and the governor don’t have a hard legal deadline for certification under state law, but there are some real-world deadlines, Schneider said. For one, the Pennsylvania Constitution calls for the new General Assembly to be seated Dec. 1.
After state certification, the rules guiding the presidential race fall under the U.S. Constitution. President-elect Joe Biden’s victory in Pennsylvania means the governor must certify the 20 electors he nominated for the Electoral College, so they can cast their official votes for president on Dec. 14.
But federal law stipulates that if a state certifies its presidential electors at least six days before that Dec. 14 vote, those electors are essentially locked in and can’t be challenged by anyone, said Adav Noti, senior director at Campaign Legal Center. That rule is often called the “safe harbor” deadline — Dec. 8 this year.
For the presidential election results, Wolf prepares a Certificate of Ascertainment for the National Archives and Records Administration with the names of the appointed electors and the number of votes cast for each.
Chris Deluzio, policy director of the University of Pittsburgh Institute for Cyber Law, Policy and Security, said there’s no way boards of elections can’t certify the votes, as some members of a bipartisan county canvassing board in Michigan tried to do last week — they’d be breaking the law.
“The requirement to certify is exactly that,” he said Thursday during a panel discussion with the National Task Force on Election Crises. “Should there be some effort to not do that, presumably there are ways to mandate how to do the certification,” such as the state taking the board to court.
“These aren’t suggestions from the Election Code,” Deluzio added.
There are penalties in the state code for anyone who intentionally interferes with, hinders, or delays election officials’ duties — an election board member obstructing the secretary’s ability to certify the vote, for example — and in those cases, the attorney general or a county district attorney can prosecute.
Democratic attorney Cliff Levine said the only real remaining question mark that would affect the state’s certified vote count is the fate of some 10,000 mail ballots received by counties after Election Day.
The U.S. Supreme Court declined to take up a challenge to those ballots brought by Pennsylvania Republicans on an expedited basis but left open the door to revisit the issue. Justice Samuel Alito earlier this month ordered counties to keep those late-arriving ballots separate, something Boockvar had already told election officials to do.
But Levine said certification can still move ahead when the number of ballots still up in the air wouldn’t change the outcome of a race. In the presidential election, Biden was leading Trump by more than 81,000 votes as of Saturday, according to unofficial results published by the state.
“Obviously it won’t affect the presidential race,” Levine said.
Inquirer staff writer Jonathan Lai contributed to this article.
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