Three counties in Pennsylvania are providing a preview of constitutional crises to come if election subversion by the Republican Party is not stopped now, while the Democratic-controlled Congress and White House still have the chance. Three county boards of elections (Berks, Fayette, and Lancaster) in Pennsylvania are refusing to certify some mail-in ballots for the 2022 primary election, which was conducted on May 17.
The primary is over. The results are uncontested. This precise issue—whether undated but otherwise valid mail-in ballots should be counted—has in fact already been contested in Pennsylvania and all the way up to the U.S. Supreme Court. Yes, the court decided in refusing to take up a separate challenge of ballots from the state, the lack of a date is not enough to invalidate a vote.
There are about 1 million voters in these three counties, which are now under a state court order to certify all of the ballots legally cast in the Republican primary, and they are refusing to do so. These officials, despite the fact that this is a settled issue, have decided that they are the sole arbiters of which votes should count. That’s a problem. A big problem—and a bad harbinger of what could come.
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Marc Elias of Democracy Docket details the core of the threat:
Most importantly, these counties did not refuse to submit any election results at all. Worse, they submitted results that intentionally exclude lawful votes. Our decentralized method of running elections relies on precinct workers and county officials acting in good faith to ensure every lawful ballot is counted and included in accurately tabulated vote totals. When a county fails to submit results, it is easily detected. But, when a county presents incomplete results as complete, the risk of undetected election subversion increases.
Our own Adam Bonin points to a closely related story out of Bucks County, Pennsylvania, where the Board of Elections received an “expletive-laden letter, filled with a suspicious substance” on Monday. “Since the 2020 election, people in Bucks County have been misled by baseless and unfounded allegations and our Board of Election employees have been subjected to unprecedented hostility as a result,” Board of Elections Chair Bob Harvie said. “Today’s incident was an example of the kind of idiotic and pathetic behavior which has been targeted at election workers around the nation.”
The elections officials in Berks, Fayette, and Lancaster counties are part of that problem in the state. Not necessarily because they believe in the Big Lie writ larger—every election without their preferred outcome is fraudulent—but because they’ve taken the further step of deciding that they get to pick and choose which votes count.
Which is exactly what is threatened on a larger scale by the U.S. Supreme Court when it takes up the “independent state legislature” theory this fall. In that case, the Court will decide if state legislatures have primacy in deciding federal elections—above state and federal courts, above everyone. Sort of like what those county officials are unconstitutionally declaring in Pennsylvania: that they have the final say.
The Senate is nearing an agreement that could help fight one aspect of this: the presidential electoral count. Reforming the Electoral Count Act of 1887 is one necessary means of protecting elections and it needs to pass. But it’s not nearly enough. not when threats and intimidation and a willingness to cheat to win pervades the Republican Party. It’s not just presidential elections that count—it’s all of them.
This election, the 2022 midterm, might be our last chance to stop them. We need a Democratic majority in the Senate big enough to end the filibuster and pass the democracy-saving legislation Republicans have shut down. We need a big enough majority—one that recognizes the scope of the threat we’re facing—to reform and expand the federal courts, but particularly the U.S. Supreme Court.
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