Special Report: Why the Pennsylvania vote count might throw U.S. into political crisis

[October 23, 2020]  By Jarrett Renshaw, Simon Lewis and Brad Heath

PHILADELPHIA (Reuters) - Here in the birthplace of American democracy, election officials are scrambling to prepare for a presidential vote they fear could plunge the nation into a historic political crisis.

Philadelphia’s Board of Elections plans to move its counting operations to a 125,000-square foot space in the city’s convention center. Dozens of staffers, feeding expensive new machines to open envelopes and process mail-in ballots, will spend days tallying hundreds of thousands of votes - under intense scrutiny from partisan observers. The workers likely will discard thousands of ballots that are not properly completed or do not arrive in a special “secrecy envelope.” Outside, police officers redeployed from their neighborhood districts will conduct round-the-clock patrols to guard against violence among protesters, a police source told Reuters.

President Donald Trump last month called on supporters to monitor the city’s election apparatus because “bad things happen in Philadelphia” - one of his many unsubstantiated claims that Democrats are engineering a massive voter fraud.

Such comments prompted Philadelphia’s District Attorney Larry Krasner, a Democrat, to study the laws governing militias, in case gun-toting extremists show up at the polls to intimidate voters. If that happens, Krasner warned: “We’ve got a jail cell for you.”

In Pennsylvania and across America, retailers are reinforcing glass, hiring guards or retaining on-call teams that barricade and board up buildings. Citizens of all political stripes are snapping up guns and ammunition in record numbers.

These preparations underscore the fragile state of the election system in a nation long known as the global standard-bearer for democracy.

Trump is the first U.S. president to make attacking the integrity of the nation’s elections a central campaign theme. Those attacks - along with sudden shifts in state voting rules to deal with the coronavirus pandemic - have ignited a partisan ground war in swing states over the election process. The fight pits Republican allegations of fraud - accompanied by a Republican effort to toss out votes - against Democratic counter-charges of voter suppression, coupled with a Democratic effort to ensure votes are counted. (For a graphic on all states mail-in ballot rules, click https://tmsnrt.rs/3dEUqhY)

The conflicts are compounding the difficulty of conducting an election during a pandemic that has killed more than 220,000 Americans. The strains are acute in the crucial battleground state of Pennsylvania, whose 20 Electoral College votes are key to victory for both Trump and his Democratic opponent, former Vice President Joe Biden. (For a graphic explaining the U.S. Electoral College system, click https://tmsnrt.rs/3lUKcgv https://tmsnrt.rs/3lUKcgv).)

“It’s clear that the bullseye is scoping in on Philadelphia as the epicenter of the 2020 general election,” said Al Schmidt, a Republican election commissioner in the city. "We have to be prepared."

If neither candidate by election night secures the majority of the 538 Electoral College votes needed to win, the presidency could hinge on delayed results from Pennsylvania - a state Trump won in 2016 by less than 1% of the vote - or other battleground states that could take days to count mail ballots. (For a graphic on vote-counting processes, click https://tmsnrt.rs/2FRDxnT )

Trump campaign spokesman Tim Murtaugh did not respond to detailed questions on the campaign’s plans for election-monitoring or handling disputed results. Two senior Trump campaign officials, speaking on condition of anonymity, told Reuters that the campaign plans to field thousands of volunteers across Pennsylvania between now and Election Day on Nov. 3 to monitor ballot drop boxes, precincts and mobile voting centers. The unprecedented effort, they said, is necessitated by the sudden popularity of the new mail-in voting system and its potential to enable fraud.

The Biden campaign says it will deploy the party’s biggest-ever “voter protection” team to counter the Republican effort. This includes having voter-protection directors in 28 states, thousands of volunteers and 15 "voter hotlines" in key states.

Dana Remus, the Biden campaign’s general counsel, said it will field enough observers nationwide “to ensure that the work that we think needs to be done is done, and to make sure voters feel comfortable and protected.”

All the fighting over voting and counting rules could end on Election Day if one candidate wins in a national landslide, which would make fighting over the precise results or fraud allegations in individual states irrelevant to the outcome. A clear victory is a possibility for Biden, who has led national polls for months, but state polls show a close contest in many of the battleground states that will decide the election.

An unclear or disputed tally in Pennsylvania or other battleground states, election experts say, could trigger chaotic scenarios in which the result is determined by some combination of state courts, the U.S. Supreme Court, Congress, and state legislatures or governors.

The Supreme Court, for instance, could be asked to step in to stop a state recount - as it did in Florida, causing Democrat Al Gore to concede the 2000 election to Republican George W. Bush. The high court could also weigh in on state lawsuits over voting policies.

It is Congress, however, that renders the final verdict of the presidential election under the U.S. Constitution. That has almost always been a formality - with members of the House of Representatives and the Senate meeting in a joint session to sign off on electors’ votes that reflect popular vote tallies in each state. But the scenarios for how Congress might decide a contested election are fraught with legal uncertainties that could ignite a crisis, election experts say.

Some academics have outlined a scenario in which Trump, using fraud as the justification, calls on Republican-held legislatures in battleground states to appoint their own electors to compete with the electors typically certified by governors. Normally, a state sends to Congress a slate of electors nominated by the party that wins the popular vote in that state. Pennsylvania and three other battleground states - Michigan, Wisconsin and North Carolina - all have Democratic governors and Republican-controlled legislatures, raising the possibility of "dueling" slates of electors being submitted to Congress.

In that case, both the House and the Senate would weigh in on which electors are valid. But it remains far from clear what happens if they disagree, election scholars say, because of a lack of clarity in the 1887 law that outlines the process.

“We would be in uncharted territory,” said Lawrence Douglas, an election scholar at Amherst College in Massachusetts.

Dueling electors caused a crisis in the 1876 election, and Hawaii submitted two slates of electors in 1960. The Florida legislature was on the verge of submitting electors to support Bush before the high court shut down the state’s recount.

The two senior Trump campaign officials said the campaign had discussed getting Republican state legislators to submit electors, but only in a last-resort scenario the official said could likely be avoided. They said the campaign would more likely dispute results in court, if needed. Republican leaders of the Pennsylvania legislature said state law gives them no role to play in the choosing electors.

In another scenario, the House alone would pick the president and the Senate would choose the vice president. That process kicks in when no candidate gets a majority of the electoral vote - as in the case of a 269-269 tie. It could also result from one or several states’ electoral votes being challenged and excluded by Congress, according to a Congressional Research Service analysis.

In that case, Trump could have an advantage. Although Democrats have more members, Republicans control more state delegations - and each delegation would get only one vote.

Trump needled Democrats over the prospect of a House vote at a Sept. 26 rally in Middletown, Pennsylvania. “We actually have the advantage,” he said. “Oh, they’re going to be thrilled to hear that.”

All the contested-election scenarios would play out under the pressure of immovable deadlines requiring states to submit electors to Congress on Dec. 14 and a new president to be seated on Jan. 20.

Charles Wells, a retired Florida Supreme Court Justice who presided over the Bush-Gore recount case in 2000, wrote to friends in September warning that the 2020 election posed a grave risk to American democracy. In the email, seen by Reuters, he wrote: “A fundamental lesson I learned is that the law in respect to ‘contested’ elections is very confusing, outdated and fragile.”

An "I voted today" sticker is seen on the ground at Philadelphia's City Hall, an early voting location for the upcoming presidential election, in Philadelphia, Pennsylvania, U.S., October 20, 2020. REUTERS/Rachel Wisniewski

NEW LAWS - AND LAWSUITS

November will mark the first election for president since Pennsylvania overhauled its voting laws in 2019. The changes allow any voter to request a mail-in ballot without having to provide an excuse, such as illness or travel. Officials are expecting to receive about three million mail-in ballots statewide - 10 times as many as 2016. About 325,000 are expected in Philadelphia.

The surging demand threatens to bury election offices. In the Philadelphia suburb of Montgomery County, officials were so inundated by mail-in ballots in the June presidential primary that counting them took more than two weeks.

“Seventeen days to finish counting the ballots was just way too long,” said Ken Lawrence, a Democrat who chairs the county’s election board.

For the general election, the county spent $1 million on mail-opening machines and high-speed scanners and moved operations to a bigger space, where employees will work around the clock. Election officials in Philadelphia spent $5 million on new machines to open envelopes and process ballots.

Joyce Weber, an 81-year-old resident of Montgomery County, has already voted for Biden through a mail-in ballot. She trusts the state’s election system but believes Republicans will seek to intimidate voters at the polls.

“This is not the America I grew up in,” Weber said.

Trump supporter Bob Howard, 70, is concerned enough about the election’s integrity that he signed up to monitor the polls for Republicans in Allegheny County. He spent a good part of his recent days in an election office outside Pittsburgh watching voters fill out and hand-in ballots. He believes there’s ample cause for concern because of the sudden surge in mail-in ballots, but said he hasn’t encountered fraud watching the polls so far.

“From what I could see, things are going smoothly, aside from some technical glitches and poor training,” said Howard, who requested a mail-in ballot to vote.

More than 1.3 million mail-in ballots had already been cast in Pennsylvania as of Thursday afternoon. But state law forbids from opening or counting them until Election Day, Nov. 3. Democratic and Republican state lawmakers have been unable to agree on a date to start earlier. The delay ramps up the pressure on what election experts say could be among slowest state vote counts - especially if it gets bogged down in partisan legal challenges.

In a victory for the Trump campaign, the state Supreme Court ruled on Sept. 17 that officials must invalidate any ballot that arrives without being packaged in two envelopes - an external one and an inner secrecy envelope. The ruling on the so-called “naked ballots” could result in tens of thousands of votes getting tossed, election officials say. That could have an outsized effect on Democrats, who have cast nearly three-quarters of the ballots mailed in as of Thursday.

Republicans have argued the procedure, laid out in state law, was essential to voter privacy and fraud prevention. Democrats counter that the rule is a vestige of the past that Republicans are using to disenfranchise voters. The envelopes are not needed to protect secrecy, they say, in an era when machines open ballots and workers can’t identify the voter.

The state’s high court also ruled that officials can count ballots that arrive up to three days after Election Day if they are postmarked by 8 p.m. on Nov. 3. The U.S. Supreme Court let that ruling stand on Monday, rejecting a Republican appeal that argued for invalidating such votes. But the court’s vote was four to four - with politically conservative judges siding with the Republican argument. The split decision raised concerns among Democrats that the expected Senate confirmation of Trump nominee Amy Coney Barrett as the ninth justice could mean that the high court will side with Republicans if it rules on post-election disputes.

GIRDING FOR BATTLE

In 2016, Trump carried Pennsylvania by 44,000 votes - far less than the number of mail-in ballots that election officials believe could be invalidated this year because they do not arrive with the proper “secrecy envelope.” Estimates of rejections reach 150,000 votes or more.

“There’s a very real possibility that you will have more naked ballots than the margin of victory,” said Nick Custodio, Philadelphia’s deputy election commissioner and a Democrat.

If the margin of victory is within half of one percent, Pennsylvania law requires a recount. State law also allows voters to contest the outcome of any election they consider “illegal” within 20 days. Bruce Marks, a Republican election lawyer in Pennsylvania, said he expects his party to file lawsuits in each of the state’s 67 counties if the results are close.

Trump plans to field legions of observers and attorneys to watch election workers count mail-in ballots - making sure those without two envelopes are tossed, according to the two senior campaign officials. But the campaign will need to negotiate access for an unprecedented number of observers with county election officials who oversee poll places in Pennsylvania.

It will also need to negotiate the process for challenging the validity of a vote. Typically, a paid county worker inspects each ballot and only asks partisan observers to weigh in upon seeing something amiss. The two sides try to agree on the voters’ intent, but either side can challenge the ballot’s legality, forcing a ruling by the county board of elections. The Trump campaign is arguing for an opportunity to weigh in on the validity of any ballot – not only those flagged by county workers, one of the campaign officials said.

Negotiations over processes between local party leaders and county election officials can sometimes reflect a county’s partisan bent, one of the Trump campaign officials said. As an example, the official pointed to differing ways the state’s two largest counties deal with poll observers. The campaign was denied access to election offices in solidly Democratic Philadelphia – a decision that triggered Trump’s “bad things” comment – but Allegheny County, which has more Republican constituents, has granted partisan observers access. The differing rules within one state could serve as fodder for post-election lawsuits, the official said.

At Philadelphia’s convention center, the Trump campaign wants to place an observer at each of the more than 20 tables where ballots are opened and certified, the two campaign officials said, and plans to staff them around the clock.

Philadelphia election officials did not respond to requests for comment on whether they will approve the Trump campaign’s vote-count monitoring plans.

Beyond the Trump campaign, conservative groups are training volunteers in many states to challenge votes. Among them is FreedomWorks, a nonprofit group that helped organize protests against coronavirus lockdown policies this spring. FreedomWorks has prioritized Pennsylvania and plans to field a “large group” of election monitors to help ensure the election’s legitimacy, said its president, Adam Brandon.

Brandon said he expects Trump to lead Pennsylvania in results posted on Election Day but for that advantage to shrink as mail-in votes are counted - a potentially explosive dynamic in a deeply divided nation.

“It’s a powder keg right now, and I worry that as you see those margins shrink, people are going to be losing their faith in the overall integrity of the system,” he said. “I hate to say this, but I predict a mess … and potentially even the Supreme Court weighing in.”

(Reporting by Jarrett Renshaw in Philadelphia, and Simon Lewis and Brad Heath in Washington; additional reporting by Joseph Tanfani, Tim Reid, Joseph Ax, Jan Wolfe, Karen Freifeld, and Tom Hals; editing by Soyoung Kim and Brian Thevenot)

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