Election nullification, Pennsylvania-style

"... but this momentous question, like a fire bell in the night, awakened and filled me with terror. I considered it at once as the knell of the Union. it is hushed indeed for the moment.  

Thomas Jefferson, writing about the Missouri Compromise, 1820

Well, maybe it’s not quite THAT dramatic, but some recent county actions nevertheless are troubling. For more than three months after this year’s primary election, three Pennsylvania counties – Berks, Lancaster, and Fayette – refused to certify their primary election results due to minor irregularities in a handful of ballots, despite earlier lawsuits that made it clear such ballots must be counted.

The dispute pertained to about 800 ballots in these counties that were missing a date on the outer envelope. Pennsylvania has a law saying vote counters should ignore minor errors that don’t affect the integrity of the ballot and in fact, one Pennsylvania court and one federal court had already ruled – on cases in the exact same primary election – that these votes should be counted. As the website democracydocket.com notes:

Within the span of a week, a federal circuit court and a state appellate court both concluded that not counting undated mail-in ballots would violate the Civil Rights Act. The precedent for local officials to follow, if there was any prior doubt, was now clear.

But that wasn’t enough for the three counties. Basically, their rationale was “the courts are wrong.” Again quoting democracydocket.com:

To reiterate, all of the ballots the three counties are refusing to count were received on time. Pennsylvania election officials stamp the outer envelopes with a date as soon as the ballots are received in order to help them keep track of which ballots were timely. The handwritten date on the outer envelope is not used for this purpose. Additionally, voters often write the wrong date on the outside envelope, jotting down their birthday for example. Despite not including ballots whose envelopes are missing a date altogether, the three uncooperative counties all confirmed that they did, in fact, include “wrongly dated” mail-in ballots in their count. So, are mail-in ballots missing a date any different than mail-in ballots with incorrect dates? Both categories are irrelevant to a voter’s eligibility and the timeliness of their ballot. . . . The theme of the July 28 hearing was a complete disregard for the rule of law from the county officials, who admitted they were defying court orders on the personal belief that federal and state courts were “wrong.” 

This isn’t the only such case.  Earlier this year, three Republican commissioners in Otero County, New Mexico, refused to certify primary election results their county’s primary election results, based on conspiracy theories about the security of Dominion Voting Systems machines. Two of the three commissioners finally complied after a court ordered them to do their jobs.

The Pennsylvania Department of State and Secretary of the Commonwealth sued the three county boards of elections over their obstruction and in August they were ordered to certify.

The election system is highly vulnerable to this kind of nullification. Election administration in the United States is highly decentralized, so vote count nullification can happen at any level from precinct to  town, city or county board to state canvassing board. The public relies on the good faith of local and state election officials.

Democracydocket.com called the counties’ action “a blueprint for what election subversion could look like — it most likely will not be an absolute refusal to submit or certify results, but rather, and more insidious, a submission of incomplete results that exclude lawful votes.”

Obviously, this outcome was only possible because Pennsylvania’s governor, secretary of state, and attorney general are all pro-voting. If Sen. Doug Mastriano (R) or a similar candidate wins in the future, the door would be open for counties – or at least the Republican ones – to pick and choose which laws to obey – and which ballots to count.

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This series is written to promote political discussion and organizing. Permission is given to use this in fact sheets, talking points, letters to the editor, etc. We’d appreciate if you notified Gettysburg DFA (leonsreed@gmail.com) of any uses. Written by Leon Reed.

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