WASHINGTON — Picture this: It’s the day after the election. Hordes of lawyers, journalists, and campaign operatives descend on Philadelphia and Harrisburg in the all-important battleground state of Pennsylvania. There, they spend days closely monitoring a dragged-out vote-counting process and preparing legal challenges to the final election result.
In this pandemic election year, as many as 80 million mail-in ballots are expected in the 2020 election, a new record for a U.S. election. Local and state election officials, the frontline workers in our democracy, are preparing for this flood of mail-in ballots and for the massive strain that processing all of those ballots will put on our decentralized election system, in some places possibly delaying the vote count for days or weeks after November 3rd.
Luckily, there’s a simple solution that can alleviate this problem. It goes by the wonky name of “pre-canvassing,” and it’s already in use in more than 30 states. Pre-canvassing lets election officials start processing, vetting, and sorting — but not formally tabulating — mail-in ballots before the night of the election, so that they can speedily count the ballots and make it less likely they’ll need additional time after the election to come up with a final vote tally.
However, a handful of states don’t allow election officials a head start. Three of those states are likely or possible battlegrounds this year: New Hampshire, Pennsylvania, and South Carolina. Whether those states — and especially Pennsylvania, on which the presidential outcome could hinge — take action to allow pre-canvassing could mean the difference between finding out the presidential election result a day later, a week later, or even a month later.
Right now, Pennsylvania law only allows election clerks to begin sorting ballots at 8 a.m. on Election Day. Such a policy makes sense in a state where absentee voting typically makes up a small percentage of all ballots cast. But with Covid-19 raging, more than 2 million Pennsylvanian voters have requested absentee ballots for this year’s elections, which would smash previous state records for mail-in voting.
“If I could just have a magic wand to wave over one issue, it would be this issue [pre-canvassing] that sounds somewhat arcane,” Rick Pildes, an NYU law professor and election law expert, said at a recent panel hosted by Penn State University.
“The goal here is to think about ways a state can reduce risk,” Ned Foley, an Ohio State University law professor and election-law expert, said at the same panel. Foley said adding precanvassing in Pennsylvania was “the one single most important thing to do to mitigate risk and avoid a problem” come Election Day.
Pennsylvania is poised to be not just one of the most decisive states in the 2020 presidential race. It’s also ground zero for the legal battle between Democrats and Republicans over voting rights, vote-by-mail rules, and ballot access.
Lawyers for the Democratic and Republican parties and allied groups have fought in state and federal court there for months now. In July, lawyers for Donald Trump’s reelection campaign sued Pennsylvania’s secretary of state and the election clerks in every county to ban the use of ballot dropboxes and to remove a requirement that poll watchers must live in the same county as the polling place in question. The GOP has sought to eliminate this requirement at the same time that the Republican National Committee is no longer bound by a consent decree blocking the national party from engaging in so-called election day operations and wants to enlist 50,000 volunteers to monitor polling places for the 2020 election. Beyond Pennsylvania, Trump’s campaign, the RNC, and GOP allies have filed dozens of suits in states across the country that would make it harder to vote by mail and restrict the amount of time election clerks can receive and process mail-in ballots.
Right now, Pennsylvania Gov. Tom Wolf, a Democrat, and the Republican-controlled legislature agree in principle that pre-canvassing would help the state avoid election-counting chaos and unnecessary delays in declaring the result. But they differ on how much time should be given to local election clerks for pre-canvassing prior to Election Day.
This summer, Wolf came out in favor of a 21-day pre-canvassing period given the expected surge in mail-in ballots this year. But negotiations between the Wolf administration and Republican state legislators over election-related reforms fell apart over the summer as Democrats and Republicans have fought in court over changes to state, including whether to extend the window of time after the election to accept mail-in ballots and to expand the use of ballot dropboxes. “The nation is watching Pennsylvania, and the legislature should swiftly pass legislation to allow counties to start pre-canvassing that large volume of mail-in ballots well before Nov. 3 so accurate results are available sooner,” a spokeswoman for Wolf tells Rolling Stone.
The GOP-led Pennsylvania state House recently passed legislation that would allow for a three-day pre-canvassing period. The GOP-led state Senate is now considering the legislation.
A spokesman for the Pennsylvania House Republican Caucus criticized Wolf for trying to change election law through lawsuits and not legislative negotiations but said Republicans in the legislature would still work with him on last-minute election reforms. “Our door remains open, but the House has already done its job in passing a bill that addresses the pre-canvassing issue and a host of other issues and concepts outlined by the governor’s Department of State in a report following the primary election,” the spokesman, Jason Gottesman, said.
A spokeswoman for the state’s Republican Senate majority leader said negotiations were ongoing with Gov. Wolf but declined to comment further.
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