With audit rejected, lawmakers shift focus to future changes to Pa.’s election code

By: - November 23, 2020 4:39 pm

(Capital-Star photo)

A bipartisan legislative research panel has rejected a watered-down House Republican proposal to complete a duplicative audit of the 2020 presidential election. 

The rejection was the latest in a running battle between Harrisburg Republicans and Democrats over the election’s administration, featuring tough rhetoric backed by scant evidence in preview of a 2021 voting reform push.

It started Monday morning, when the Legislative Budget and Finance Committee voted 2-1 to not conduct a risk-limiting audit of the 2020 election. The committee was also asked to track everything from wrongly mailed ballots to when each county began processing ballots.

The audit was the product of a resolution the Pennsylvania House passed last week in a 112-90 vote. Every Republican, joined by three Democrats, voted for the proposal.

But the LBFC rejected it after staff from the committee said it would be difficult to conduct it on such a short timeline, and would require the close cooperation of counties. The vote came the same day that counties across the state certified the results of the Nov. 3 election. 

The audit also would have recreated the work of Gov. Tom Wolf’s administration, which already had planned an audit of the 2020 election looking at many of the same administrative issues.

“Today’s actions put an end to a process that was fraught with politics from its inception and would have disenfranchised the thousands of Pennsylvanians who exercised their right to vote,” Rep. Jake Wheatley, D-Allegheny, the committee’s treasurer, said in a statement. He voted against conducting the audit.

Wheatley, joined by a fellow Democrat, voted no. Sen. Bob Mensch, R-Montgomery, voted yes. Another Republican member was absent, but in the event of a tie, the audit still would have been rejected.

The resolution allowed for the committee to outsource the project to an outside firm. But three different election audit experts interviewed by the LBFC all declined to run the audit themselves.

Overall, the audit would have required looking at 40,000 to 50,000 ballots for a statewide race. That work would have to be done by county election officials, who are some of the only individuals authorized to handle Pennsylvanians’ ballots under state law.

The committee staff is now taking a look to see if it could accomplish even parts of the requested audit.

“We need to have a better understanding of exactly we are being asked to do,” Patricia Berger, the committee’s executive director, said.

The Pa. House will review the 2020 election, but it’s unlikely it will change the results

All of this would have to be done by early January — weeks after Pennsylvania certifies its election results, handing President-elect Joe Biden 20 electoral votes on his way to the White House.

Rep. Jesse Topper, R-Bedford, sponsored the audit because of differences in county election policies. He told the Capital-Star he was frustrated by the decision and didn’t buy the roadblocks committee staff laid out for lawmakers.

With the measure’s defeat, Topper said the task of reviewing the 2020 election would fall to the House State Government Committee. Unlike the LBFC, the committee is weighted in the Republican majority’s favor.

And once the State Government Committee begins its work, “I don’t want to hear people b*tch and moan that that’s a partisan realm,” Topper told the Capital-Star.

That review is being led by Rep. Seth Grove, R-York, who was tapped by Republican leadership as the State Government Committee’s interim chairman two weeks ago.

It’s a tough task. Grove and Pennsylvania’s legislative Republicans are caught between two forces. 

On one side are conservative lawmakers and President Donald Trump’s supporters, who allege without evidence that Biden’s 80,000-vote advantage is built on fraud, and who are prepared to override it. 

But on the other hand, many legislative Republicans want to stay away from such a legally dubious and precedent setting course of action with just seven days until their terms expire.

The House does have subpoena power, a potentially powerful tool while reviewing the election. But Grove took subpoenas off the table for the near future last week. During an update of his review Monday, Grove said he’d rather work together than be “in an adversarial role” with election administrators.

Pa. conservatives’ hopes for subpoena-fueled election investigation quashed by political reality

Grove and Republican leadership in the House and Senate chambers have also repeatedly said they also do not have the legal authority to appoint electors under state law, or the time to even pass a change to that law before their terms end Nov. 30.

Even if they did pass a law, it would be vetoed by Gov. Tom Wolf, a Democrat. And Republicans lack the votes to override him.

Monday was also the deadline for Pennsylvania’s 67 counties to certify their results. Across the commonwealth, Republican members of local election boards voted “no” in many counties, some won by Biden, others by Trump, seemingly in protest.


Grove chalked up the negative votes as a “result of confusing guidance of the Department of State” on such matters as allowing voters to fix their mail-in ballots.

Still, nothing stopped Grove’s home county of York from certifying its results that same day, despite Grove floating a Trump-backed conspiracy theory about his county’s voting machines last week.

Trump’s legal campaign used a similar argument as Grove’s to ask for a federal judge to block Pennsylvania from certifying its election results. 

That case was rejected Saturday evening. District Judge Michael Brann asserted that differences in election administration among counties was normal and constitutional.

Some Republican officials, including U.S. Rep. Mike Kelly, have also filed a state court challenge to overturn Act 77, Pennsylvania’s vote-by mail law passed by Republicans last year, and signed by Wolf. The suit argues the law was unconstitutionally enacted.

Grove, who voted for the law, didn’t go as far, but he did say that the law might need revisions. As such, he released a preliminary report Monday morning that laid out the legal changes and challenges to Pennsylvania’s election code since early 2019 until today.

The 45-page report also did not contain any evidence of voter fraud. Grove said it was not his mission to prove or disprove such fraud.

Instead, Grove said his report was ground work for an early 2021 reform push, aimed at changing state election law by the May 2021 municipal primary.

Grove said among the changes he was eying was giving counties more time to pre-canvass ballots.

Rep. Kevin Boyle, of Philadelphia, the ranking Democrat on the House State Government Committee, told the Capital-Star that he could see common ground on the issue. 

Counties were only allowed to begin processing mail-in ballots on Election Day morning, despite a wave of pandemic-inspired mail-in ballots. Assigning blame for that failure of governance has become a popular Harrisburg hobby among politicos.

Act 77 also could be made clearer, Boyle said. He argued that drafting errors, not mismanagement by the Wolf administration, caused some of the election confusion Republicans have cited after Nov. 3.

But even amid compromise on the state’s laws, Boyle said, he would not fold on one thing.

“We Democrats need to be very aggressive against any accusations that there was not a free and fair election in Pennsylvania this November,” Boyle told the Capital-Star.

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Stephen Caruso
Stephen Caruso

Stephen Caruso is a former senior reporter with Pennsylvania Capital-Star. Before working with the Capital-Star he covered Pennsylvania state government for The PLS Reporter.