Pennsylvania helped Donald Trump win his election four years after it helped Barack Obama to a second term. Now that the swing state is leaning back toward the Democrats, the Republican party is doing everything in its power to thwart voters, in an effort to eke out another victory for Trump.
As of Friday, Democratic challenger Joe Biden leads Trump by five to six points in Pennsylvania, depending on the poll aggregator. Biden has maintained a comfortable lead over Trump throughout the weeks leading up to the election, and it is widely thought he will win the popular vote. Of course, Americans do not directly choose their next president ― the Electoral College does, and Pennsylvania’s 20 presidential electors represent a top prize for both parties because it can be hard to predict which way voters may send them.
With a series of lawsuits, Republicans are attempting to tip the scales in Trump’s favor by targeting the unprecedented number of Americans choosing to vote by mail — a pool of voters that will likely skew Democratic.
It’s a battle that has turned particularly heated in Pennsylvania. The state presently has a Democratic governor, Tom Wolf, but a Republican-controlled legislature that could exert outsized influence on the results if they are not certified by early December.
Here’s what’s going on.
By law, Pennsylvania officials can’t start counting votes until Election Day. This makes Democrats nervous.
Pennsylvania is not the only state with hands tied from counting ballots until Nov. 3, but election leaders in many other areas of the country are trying to do as much advance prep as they can ― even if it’s just opening the envelopes and flattening the ballots for easier scanning. Pennsylvania Democrats tried to take that simple step but were blocked by Republican legislators.
Statewide, 3 million Pennsylvanians requested a mail-in ballot this year, roughly double the number cast by mail in 2016. It is simply going to take more time to tally the votes this year because processing mail-in ballots takes longer.
Bob Harvie, a Democratic county commissioner in Bucks County, told The New Yorker how frustrating it was to count primary ballots earlier this year.
“What took us the longest was to open the envelope, then open the secrecy envelope, then flatten the ballot as much as we could before it was counted. It was an endless process,” Harvie said.
That could pose a problem for Democrats. One fear, which was amplified by Supreme Court Justice Brett Kavanaugh earlier this week, is that Trump and his supporters are going to cast heavy doubt on the election results the longer they take to arrive. Trump has already been doing his best to spread the idea that voting by mail invites rampant fraud, which has no basis in the reality of American elections, and is pushing to declare a winner on election night.
The next president, however, will almost certainly not be known for at least a day or two afterward because each state has its own way of processing results. Some states allow votes to be counted if they are received days or weeks after Nov. 3 ― so long as they were postmarked by a certain time. Nationwide, voters could appear to favor Republicans earlier on, only to shift toward Democrats as more mail-in ballots are counted across the states.
Pennsylvania Democrats have secured a three-day leeway period for counting votes, and they were handed a slight win this week when the Supreme Court told Republicans they could not speed up their case against that expanded tallying period. Secretary of the Commonwealth Kathy Boockvar has said she expects “the overwhelming majority” of Pennsylvania votes to be counted by Nov. 6.
Pennsylvania ballots need to be returned in a very specific way or risk being tossed out.
Mail-in ballots across the state are sent in two envelopes: one outer one with the voter’s name and address, and one inner “security” envelope. In theory, the inner envelope allows election officials to check to see whether a person has already voted without seeing who they voted for. A ballot is therefore considered “naked” without the inner envelope and can be tossed out, according to a late September ruling by the Pennsylvania Supreme Court.
Democrats scored a win last week, however, on the issue of ballot signatures. The state supreme court ruled unanimously that ballots may not be disqualified if a voter’s signature looks different than the one on their registration form.
Republicans are using cameras to watch ballot drop boxes, and claiming people are dropping off multiple ballots inappropriately.
After unsuccessfully suing to ban drop boxes, the Trump campaign drew criticism for videotaping voters at ballot drop-off locations in order to try to catch people submitting more than one ballot, alleging it represents widespread fraud. The campaign has gone so far as to submit photographic evidence of a few voters in a lawsuit aiming to crack down on people dropping off ballots for friends or family unless specifically authorized to do so. (People with disabilities, for example, may have others submit their ballot for them.)
Reporting from The New York Times, however, found that at least one of the images included in one of the GOP suits ― a social media post of a man holding two ballots ― was misrepresented. The man told the Times that his husband was standing just outside of the frame, not wanting to be in the photo, and the second ballot belonged to him.
State Attorney General Josh Shapiro, a Democrat, has been encouraging Pennsylvanians to use the drop boxes in order to lessen the strain on the postal system and has been speaking out against the Trump campaign’s cameras.
“Our entire system of voting is built on your ballot being private and your choice to vote being a personal one,” he said in a previous email to HuffPost. “Depending on the circumstance, the act of photographing or recording a voter casting a ballot could be voter intimidation — which is illegal.”
Trump is encouraging his supporters to watch the polls — which could constitute voter intimidation.
Trump has been urging his supporters to “go into the polls” and “watch very carefully” for any “shenanigans.” During his recent Pennsylvania barnstorming, Trump has focused his ominous threats on the state’s leadership.
“We’re watching you, Governor Wolf, very closely,” he said at one stop. At another point, Trump warned, “We’re watching you, Pennsylvania. We’re watching you at the highest level.”
State law prohibits electioneering within 10 feet of any active polling place, and federal law also offers voters protection from intimidation. While each party is allowed to nominate a handful of poll watchers to each district, there are limitations on how they can interact with voters.
Showing up to polls to make a noisy display of support for a candidate ― as Trump supporters have been doing around the state ― “most certainly may constitute voter intimidation” if “these individuals are targeting Black and brown voters in Philadelphia, and seeking to discourage them from freely casting their ballots,” Kristen Clarke, president of Lawyers’ Committee for Civil Rights Under Law, told HuffPost in an email.
Pennsylvania’s Republican legislature may only have to stall a few weeks to sway the results.
Republicans will likely attempt to drag out the results by contesting various aspects of the process as illegitimate, likely giving the Supreme Court ― with its newly minted 6-3 conservative majority ― the chance to weigh in on different elements.
If the results are not certified by Dec. 8, however, Pennsylvania’s state legislature could step in directly using powers appointed to them by the U.S. Constitution.
Dec. 8 is considered the “safe harbor” deadline for appointing the people who will make up the Electoral College, which meets six days later. In ordinary circumstances, the governor of each state sends the national archives a Certificate of Ascertainment naming the electors “as soon as practicable” after the results are settled. In this election, though, the results may be picked apart and fought over right up until that deadline ― potentially allowing state legislatures to invoke Article II of the Constitution, which allows them to ultimately decide how electors are selected if the popular vote is undecided.
Pennsylvania’s Republican-controlled legislature could claim there had been widespread fraud and choose electors loyal to Trump. This scenario is already being discussed, according to a lengthy feature in The Atlantic citing several Trump campaign officials and Republican leaders. A reporter for The New Yorker also explored the possibility.
“The state legislatures will say, ‘All right, we’ve been given this constitutional power. We don’t think the results of our own state are accurate, so here’s our slate of electors that we think properly reflect the results of our state,’ ” a legal adviser to the Trump campaign told The Atlantic. The unnamed adviser spoke as if the states only had two choices during an election in an unprecedented public health crisis: “So pick your poison. Is it worse to have electors named by legislators or to have votes received by Election Day?”
(At least one of those quoted by The Atlantic, Pennsylvania state senate majority leader Jake Corman, has distanced himself from the article, later telling the York Daily Record that the process of choosing electors “DOES NOT INVOLVE THE LEGISLATURE.”)
And Pennsylvania isn’t alone.
The swing states of Michigan, North Carolina and Wisconsin also have Democratic governors and Republican-controlled legislatures ― potentially setting up scenarios where those lawmakers step in to sort out the issue of electors if the popular vote is undecided by Dec. 8.
Republicans are also pursuing lawsuits to crack down on whose votes may count in other states, such as Wisconsin, where ballots received after Nov. 3 are to be thrown out in accordance with a recent U.S. Supreme Court decision benefiting the GOP.
Kavanaugh’s dissent in the Wisconsin case hinted that the court may favor Trump’s arguments against counting any votes that come in after Election Day. The justice said it could cause “chaos and suspicions of impropriety” if “thousands of absentee ballots flow in after election day and potentially flip the results of an election.”
Reid Hoffman, the billionaire LinkedIn founder and big Democratic donor, has poured $1 million into a musical ad campaign simply encouraging battleground state voters to be patient with the election results. The Facebook spots will target voters in Arizona, Florida, Iowa, Michigan, North Carolina, Ohio, Pennsylvania and Wisconsin, according to Axios.
Its lyrics are refreshingly candid: “Chill the fuck out ... it’s gonna take some time to count!”
This article originally appeared on HuffPost and has been updated.