Pa. House State Government Chairperson Seth Grove, R-York (Facebook/City & State Pa.).
(*This story was updated at 9:45 a.m., Monday, 7/25/2022, to correct the description of plaintiffs in a lawsuit challenging Act 77.)
With hotly contested and closely watched elections for U.S. Senate and governor about three months away, Pennsylvania officials are pushing back on misinformation about voting provisions they say is harmful to public confidence in the process.
At the same time, a growing gyre of litigation has created uncertainty about the future of the most significant addition to ballot access in Pennsylvania in decades.
Three separate lawsuits in the U.S. Supreme Court, Pennsylvania Supreme Court and Commonwealth Court challenge the validity of the 2019 law that allowed Pennsylvania voters to cast ballots by mail without an excuse. The state Supreme Court is poised to issue a decision on the law’s constitutionality.
While state officials say they want voters to understand they can still vote by mail, some election officials say a late decision from one of the courts invalidating the law could wreak havoc in the November election.
Describing in broad strokes the contents of his latest report on elections in Pennsylvania, state Rep. Seth Grove on Tuesday said despite bipartisan support for his election reform bill before Gov. Tom Wolf vetoed it last year, a vote on a similar bill is unlikely this session.
Grove, R-York, the chairperson of the House State Government Committee, where election bills are shaped, has been criticized by Democratic Wolf administration officials as a purveyor of the “Big Lie” that ballot fraud cost former President Donald Trump reelection.
In a Capitol news conference, Grove listed county-level irregularities in the last three elections such as polling places running out of ballots, and procedural errors by poll workers as support for his bill. It includes provisions for voter identification, election audits and limitations on the number of ballot dropboxes in each county.
“It is July. The reality of any major election reforms passing during a major election year with few session days in the fall has dwindled to near impossible,” he said. “This is why the House and Senate Republicans put a priority on constitutional amendments.”
Grove also said there’s not enough support to pass a standalone bill that county election officials and Democrats say would do the most to bolster voter confidence.
Since no-excuse absentee ballots were first used in 2020, county leaders have called for the law to be amended to give election officials as much time as possible to tally vote-by-mail ballots.
Rep. Malcolm Kenyatta, D-Philadelphia, said delays in processing mail-in ballots in the 2020 election fed into misinformation about fraud because the late-counted ballots were added to the vote count days after in-person votes had been counted.
“If we know that voters want to get the election results quicker so that we wouldn’t have these two- or three-day delays, then why wouldn’t we want to fix the thing that bipartisan election officials have said they want us to fix,” Kenyatta told the Capital-Star.
Grove said Tuesday that starting to count mail-in ballots before election day – known as pre-canvassing – won’t be a fix-all solution.
“If you read through the report. It highlights many, many problems that aren’t solved by pre-canvassing. That is not a solution in itself. And that’s why there haven’t been votes to just do pre-canvassing,” Grove said.
Kenyatta said Grove’s goal is to pass a bill that makes voting more difficult.
“Seth is not unaware that the delay in counting votes diminishes people’s trust in elections. He is counting on that,” Kenyatta said. “He won’t allow the common sense proposals to move through because he is hoping that people will become so frustrated that they let the other stuff go through.”
Rep. Scott Conklin, D-Centre, who is the ranking Democrat on the State Government Committee, agreed.
“Everything else they’re talking about, you peel back the onion, it’s absolutely obvious that there was no question about the intent of the bill,” Conklin said. “Any elected official who is making you believe that someone who voted shouldn’t have voted doesn’t know what is going on or is trying to mislead you.”
Grove did not respond to requests for an interview this week.
Rep. Paul Schemel, R-Franklin, also a member of the State Government Committee, said the provisions of the wide-ranging election reform bill were developed after a series of hearings with officials from other states where mail-in voting has been used for years. The goal of the many of the bill’s provisions is to regularize election administration across the state’s 67 counties.
“I’ve said ‘Look there are a million accusations but I believe the problems with our elections are not ones that require investigation.’ They’re patent problems,” Schemel said. “It’s a matter of confusion because the laws aren’t tight enough.”
Although he said he takes care not to give his constituents the impression that elections are rigged, Schemel acknowledged that irregularities open the door to claims of foul play.
“Anything that casts doubt on the election gives the opportunity for the loser to say that’s why I lost and not because I really lost,” Schemel said.
Shortly after the press conference Tuesday, a group of 14 Republican lawmakers filed a suit in Commonwealth Court, asking judges there to find that the law allowing mail-in voting, Act 77, is invalid. Grove and the GOP lawmakers all won re-election in 2020 under its aegis.
The claim stems from a dispute over postal ballots in Lehigh County that were returned in the November 2021 election without a date written on the outer envelope, where voters are required to declare that they are the person casting the ballot. The questioned ballots were ultimately counted and decided a judicial race by five votes.
They also set in motion a series of appeals now before the U.S. Supreme Court, which must decide whether it will consider the case.
David Ritter, the unsuccessful Republican judicial candidate in Lehigh County, has asked the nation’s highest court to vacate a federal appeals court ruling that the date requirement can not be enforced. The 3rd U.S. Circuit Court of Appeals ruled it violates voters’ civil rights because the date has no bearing on a voter’s eligibility.
The case filed Tuesday in Commonwealth Court claims the 3rd Circuit ruling triggered Act 77’s non-severability clause, which says that if one part of the law is invalid, the entire law is invalid, and voting by mail should stop.
Acting Secretary of State Leigh Chapman responded this week to a letter by Grove asserting that Act 77 is no longer in effect as a result of the 3rd Circuit ruling. In a letter, Chapman noted that the challenge before the court was not to the validity of Act 77 but rather, the decision of the Lehigh County Board of Elections to not count the undated ballots. As a result, the non-severability clause is not triggered.
“While I am certain we will continue to debate election reform in Pennsylvania, I hope we can do so with the realization that our words and actions are not merely theoretical; instead, they have a tangible impact on the confidence Pennsylvania voters have in our democratic system. Your specious legal theory perpetuates disinformation,” Chapmansaid.
Wolf administration spokesperson Elizabeth Rementer said Grove’s letter led to harmful misinformation circulating on social media.
“The fact is, mail in ballots remain a safe, legal option for Pennsylvania voters and Rep. Grove’s recent latest effort to spread misinformation is shameful,” Rementer said.
Also pending is an appeal in state Supreme Court of a Commonwealth Court decision in January that no-excuse absentee voting is not permitted under the Pennsylvania constitution. The court heard arguments in March but has no timeline to issue a decision.
Dauphin County Director of Elections Jerry Feaser said election officials around the state are closely watching the courts.
“There is a lot of concern about the timing of some of these court rulings,” Feaser said.
While the counties are required to have all absentee and mail-in ballots delivered to voters two weeks before the election, most do so significantly earlier. Dauphin County plans to have mail-in ballots out to voters who have requested them by the end of September.
“If a court decision comes down after that, it would cause major problems,” Feaser said.
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