How Pennsylvania can avoid 2024 electoral shenanigans

By Kyle Miller

During the most recent federal election in 2022, some troubling things unfolded here in Pennsylvania. Three counties — Allegheny, Berks, and Fayette — delayed certification of their primary election results until compelled to do so by court order, nearly two months after the statutory deadline. Certification is that usually mundane but critical process in which local election boards make official their vote tallies and send them on to the Secretary of the Commonwealth.

Following that November’s general election, over 170 recount petitions were filed in at least 27 counties. And these precinct recount petitions, in the races for United States Senate and governor, presented not a single specific allegation of fraud or error. In some cases these recount petitions were filed by the very same poll workers who signed off on the election night vote tallies they were now petitioning to be recounted.

Under Pennsylvania law, any three voters can file a recount request without providing a reason to compel a recount. The myriad recount petitions led to the most delayed statewide certification date in years — Dec. 22.

While these events had little to no impact on the outcome of the 2022 general election, similar baseless delays in certification this November could put the status of Pennsylvania’s presidential electors in serious jeopardy. By now, Pennsylvanians are familiar with the Electoral College, the vote-by-proxy system of choosing presidential electors, who assemble in Harrisburg on Dec. 17 to formally cast ballots for the prevailing candidate, based on the certified votes of Pennsylvanians.

These results are then transmitted to Congress for counting on January 6. But the transmission of electoral college ballots to Congress is the final step in a chain-reaction of procedures that begin well before a single vote is even cast.

That chain of procedures includes the initial tallying of precinct and mail-in vote totals on election night, the official canvass and reporting of county results to the Secretary of the Commonwealth, and final certification by counties on or before the third Monday following Election Day.

Each step requires tremendous effort and diligence on behalf of nonpartisan election directors and their staffs, elected and appointed poll workers, and the members of a county Board of Elections. Uncorroborated disruptions or delays in any of these steps could result in undermining, even overturning, the will of Pennsylvania’s nearly 7 million voters.

In 2022, Congress adopted the Electoral Count Reform Act, to prevent a repeat of the dangerous exploitation of ambiguities in the electoral college process that were leveraged up to and including January 6, 2021. Under the new law, Pennsylvania’s presidential electors, awarded to the candidate who received the most votes statewide, must be appointed by the Governor no later than December 11, 2024. And in order for that critical piece of the electoral process to happen, each and every one of Pennsylvania’s 67 counties must certify their election results.

If Pennsylvania experiences extended court challenges similar to those in 2022, thus pushing certification beyond December 11, what happens? Well, no one truly knows as the new law has not yet been tested (it includes an expedited federal court process to help resolve some certification problems).

But almost certainly, the Supreme Court of Pennsylvania could again be called upon to interpret Pennsylvania’s election code — and, again, potentially based on hundreds or thousands of recount petitions filed with absolutely no specific evidence or allegation of fraud having been presented.

Here’s the thing, there is a relatively simple solution to this looming (unnecessary) threat. The legislature must do what it can to help ensure that votes are counted and legitimate challenges resolved as quickly as possible and without baseless disruptions or delays.

That includes making minor, administrative tweaks to the election code, including simply to require that all challenges allege a specific case of fraud or error; and/or mandating that the monetary threshold to file such challenges reflect the actual cost associated with conducting a recount.

Currently, the fee for doing so is $50, which hasn’t changed since it was created in the 1930s. For perspective, adjusted for 2024, that fee would amount to over $1000.

If you’re thinking that such administrative tweaks seem logical and, hey, let’s get this done — agreed, but this requires a coalition of lawmakers from across the aisle to join together and resist their usual urge to add unnecessary amendments at the last minute. Given the historic lack of trust between the chambers, that, in itself, is no small task. But it’s achievable. And worth it.

In the 2020 election, local election officials did everything in their power — a truly Herculean effort in the midst of a pandemic — to assure that every lawful voter had the opportunity to safely cast their ballots. Going into 2024, Pennsylvania’s legislators are presented with an opportunity to make such easy and common-sensical fixes, to pass a bill that would be a win-win for their constituents, for themselves and for democracy.

Kyle Miller is a policy strategist at Protect Democracy, a nonpartisan anti-authoritarianism nonprofit organization. He previously served as an executive director for the Pennsylvania Senate State Government Committee and a leadership staffer for the Senate Democratic Caucus.