Pennsylvania’s unusual election laws are again under the microscope as it is expected to be a close and decisive state in the 2024 presidential race.
First, there is the calculation. The state does not have early voting — instead offering the time-consuming and paperwork-intensive process of required mail-in voting. He too does not process mail-in ballots on the eve of election day.
So hours after polls close on Election Day, when many battleground states will be reporting early, mail-in and Election Day totals, Pennsylvania will be counting ballots around the clock in a mad dash to capture.
Then there is the “correction” or “treatment” of ballots with minor errors, such as mail-in ballots mixing up the signature. If there are errors on the ballot, each region of the state decides arbitrarily whether to allow voters to “correct” them, creating significant differences in voting policy across the state. (Most states have a state policy for treating ballots.)
And finally, problems can arise after the ballots are counted. Pennsylvania law provides many ways for residents to challenge and delay confirmation of results through recounts, appeals, and litigation.
Election experts say Pennsylvania’s laws create fertile ground for fraudulent election claims to flourish. They also emphasized that there is little reason to believe that unfounded allegations of voter fraud and any related litigation will actually stop the results from being certified.
“The Pennsylvania Legislature had numerous opportunities to clarify and improve the state’s election law,” said Nate Persily, an election law expert for NBC News and a professor at Stanford Law School. “It chose not to do it on purpose. The loopholes in the law create a void that is filled by conspiracy theories and require courts to conform to an inconsistent regime.
Former President Donald Trump and his campaign have already targeted Pennsylvania, falsely claiming large-scale “deception” and “voter fraud.”
Trump’s campaign has repeatedly described the long lines in Bucks County for mail-in voting as a form of voter suppression, which vice presidential candidate JD Vance called “voter fraud” by Democrats. (Republican Secretary of State Al Schmidt denied Vance’s claim.)
“They have already started cheating in Lancaster. We caught them by 2,600 votes,” the former president said at a recent rally, misrepresenting the real-life incident in Lancaster County, Pennsylvania, where hundreds of fraudulent voter registration applications were identified and denied.
This type of misinformation campaign is what worries Wendy Weiser the most. As vice president for democracy at NYU Law School’s Brennan Center for Justice, Weiser said he’s not worried that partisans will somehow block the certification of the results. “These are not fights that will succeed,” he told NBC News recently.
But he fears that Trump’s “campaign of disinformation” and “extensive propaganda efforts” will make people “think there’s something wrong with the election”: “That’s the big danger we’re already in.”
Once the results are tallied, the Trump campaign — if he loses — and his allies have several ways to challenge the results.
NBC News election law expert and professor Michael Morse said: “We should expect to see local litigation throughout the state immediately after the election, not because these lawsuits are meritorious, but because Pennsylvania law is rich with such possibilities.” at the University of Pennsylvania Law.
Morse said in an email that state law allows any “aggrieved” person who disagrees with how a county board handled its results to appeal to them within two days, which would temporarily delay certification. One thing that helped delay the certification of Pennsylvania’s 2022 results by weeks is that state law requires a limited recount by at least three voters in a precinct.
But the Pennsylvania Commonwealth Court has tightened the standard for such a recount, requiring petitioners to identify and show evidence that fraud or error occurred, Morse said.
Trump supporters in county councils across the country have tried to block the certification of election results in the past by voting against or delaying the certification.
All three experts agreed with the Pennsylvania courts have tools and legal precedents to compel confirmation of results in the absence of any credible allegation of large-scale voter fraud.
Provincial courts have also taken steps to ensure speedy resolution of legal challenges. The state Supreme Court has accelerated the election appeal period from ten days to three days to allow the state to certify the results by the Dec. 11 federal deadline created by the 2022 Election Counting Reform Act to clarify the counting of presidential election results.
“What concerns me is that there is less confirmation of a vote by December 11,” Morse said. “Rather than damaging voter confidence, which actors in bad faith can easily hit along the way.”