Last month, I blogged about the mail-in ballot dispute in Pennsylvania. I noted that mandamus was not appropriate and the case was nothing like the recent Otero County, New Mexico case. That dispute took about 48 hours to resolve. Here we are, a month into the dispute, a second judicial hearing (the first one was a lengthy information-gathering one), and still no resolution–which, I think, shows my original take was right.
But there’s a new wrinkle, as reported in the LNP Lancaster Online (and the origin of this blog title). The Department of State argued that 3 of the 67 counties failed to include undated ballots in their certified vote totals. It certified the other 64 counties. But in a recent filing, Pennsylvania acknowledged that 1 of those other 64 counties also did not include undated ballots in the certified totals. Pennsylvania has no plans to “decertify” the results (not a great headline in 2022), and the court will now have to decide what to do with these other 3 counties. The State has already approved two different sets of results from the counties, so it becomes harder to claim the other 3 are doing something inappropriate. But the State still believes that it has the law on its side from the previous disputes (check out the original blog post to see the framing) and wants the remaining 3 counties to do what it wants.
This is extraordinarily messy. Pennsylvania has a deeply decentralized election system and a Secretary of State trying (so far, unsuccessfully) to exert more centralized control. The state legislature and the state executive are at loggerheads with one another, yielding a sclerotic legislative process for any tool that could resolve ambiguities or increase centralization. Absent some breakthrough, it is probably the single most likely source of election dysfunction ahead of the 2022 and 2024 elections. We’ll see how this process plays out and if it offers any clues for the near future.