A Constitutional Crisis Is Brewing in Pennsylvania

Red background with three people running away with blue-toned mail-in ballots that say ERROR on them

To see the future of election subversion, look at Pennsylvania today. More than a month after the most recent primary election was settled, three counties are still refusing to certify accurate results. These counties offer an unfortunate preview of what to expect in the future.

It all started simply enough at the end of 2021 when the outcome of a local judicial election in Lehigh County hinged on whether a small number of contested undated mail-in ballots would be counted. These ballots were cast by eligible voters, received on time by the county and had properly signed return envelopes. However, the return envelopes were missing a handwritten date next to the voters’ signatures. In litigation over these ballots, a federal court of appeals ruled in May that the missing dates were legally immaterial (meaning unrelated to voters’ eligibility) and ordered the mail-in ballots to be counted. A month later in June, the U.S. Supreme Court rejected a last-ditch effort to block the ballots from being counted and the judicial race was decided.

While that case was proceeding, Pennsylvania held primary elections for the U.S. Senate on May 17. Once again, there was a close election where undated mail-in ballots were at issue. When a Republican candidate in the race filed a lawsuit to require the counting of the undated mail-in ballots, a state court, following the reasoning of the federal court’s order in the Lehigh County judicial election, ordered the mail-in ballots to be counted.

In normal times, this would be the end of the story. But we do not live in normal times.

Despite rulings from both federal and state courts and no active election dispute, two months after the election, three Republican-controlled counties — Berks, Fayette and Lancaster — continue to refuse to include the valid, undated mail-in ballots in their final 2022 primary election certification totals. Last week, Pennsylvania finally sued to force these counties to perform this simple, but vitally important, ministerial act.

This is not the first time this year we have witnessed local officials refusing to certify election results. It is an unfortunate trend that threatens to upend our election process. But this situation in Pennsylvania is far more disturbing than those we have seen elsewhere. 

Pennsylvania is in a constitutional crisis right now as three counties continue to delay the accurate results of a primary election held nearly six weeks ago.

First, this is not a case of a one-off rural county gone amok. The three counties in Pennsylvania have a combined population of over one million people. Second, the issue causing the counties to submit incomplete results has been fully litigated in both federal and state courts. In the state case, the defiant counties were parties and lost. 

Most importantly, these counties did not refuse to submit any election results at all. Worse, they submitted results that intentionally exclude lawful votes. Our decentralized method of running elections relies on precinct workers and county officials acting in good faith to ensure every lawful ballot is counted and included in accurately tabulated vote totals. When a county fails to submit results, it is easily detected. But, when a county presents incomplete results as complete, the risk of undetected election subversion increases.

Fortunately, in this instance, the issue of undated mail-in ballots had been contested in court and therefore the submissions of inaccurate results were immediately detected. But there is no guarantee that every inaccurate submission of vote totals will be caught in the future. 

It is also fortunate that Pennsylvania’s governor is a fierce advocate for democracy and free and fair elections. But, what if the next governor is not? The current Republican nominee for Pennsylvania governor, Doug Mastriano, attended the Jan. 6 “Stop the Steal” rally and is an unrepentant advocate for the “Big Lie.” And under Pennsylvania law, the governor appoints the secretary of the commonwealth who, along with the governor, signs the necessary certifications for federal elections. 

This is how Republicans are planning to steal elections in the future. By refusing to count lawful votes and then certifying incomplete and inaccurate results, Republicans hope to create a veneer of legitimacy around an illegitimate outcome. Our system is ill equipped to address this looming crisis.

Sometime soon, the remaining three counties in Pennsylvania will at last certify their election results for the 2022 primary. But the current stalemate is a warning siren of what is to come. Pennsylvania is in a constitutional crisis right now as three counties continue to delay the accurate results of a primary election held nearly six weeks ago. While this may be a low-stakes crisis given the dispute is over a now uncontested primary election, it is still a crisis nonetheless. We must learn from this and take steps to address it before November, when the stakes will be much higher.