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After the 2022 elections, a flurry of precinct-level recount petitions prevented Pennsylvania from certifying its election results until Dec. 22 — weeks later than usual.
This year presents an even more difficult scenario: a new federal law that says states must certify their slate of presidential electoral votes by Dec. 11. That’s about five weeks after Election Day.
Election officials and policy advocates are concerned that another influx of recount petitions after a much busier election could make it harder for Pennsylvania and its counties to meet the tighter timeline.
If the state can’t comply, they worry, the courts may have to get involved and force certification, providing fodder to those looking to challenge the state’s results in a year when the margin of victory is expected to be much closer than that of many midterm races.
“Because of the challenges we saw in 2022 and 2023, the concern is we’ll see a repeat,” said Kyle Miller, a policy advocate with the nonpartisan group Protect Democracy. If the petitions number in the hundreds or thousands, “that could cause delays in the courts or to certification.”
What ECRA requires, and what state law allows
The new federal deadline came out of the Electoral Count Reform Act of 2022, a law that Congress passed and President Joe Biden signed as a way to try to prevent the kind of post-election chaos that then-President Donald Trump and his allies created after the 2020 election, culminating in the Jan. 6, 2021, attack on the Capitol.
The law cleared up much of the ambiguity created by the original law governing electoral vote certification, the Electoral Count Act of 1887, said Derek Muller, an election law professor at Notre Dame Law School. In particular, the reform requires a firm deadline by which executives in each state must certify presidential election results and provide them to the National Archives.
Previously, there was only a functional deadline by which states were expected to provide their certified slate of electors, known as the “safe harbor” date.
Under the ECRA, Pennsylvania’s Department of State and Gov. Josh Shapiro are required to certify the state’s slate of presidential electors by Dec. 11.
To meet that deadline, the state has told counties — which are responsible for conducting the election, counting results, and providing original certification — that they must certify their general election results by Nov. 25.
That timeline is already effectively written into state law: Pennsylvania’s Election Code states that counties must certify by the third Monday after the election — this year, that’s Nov. 25.
But the rule has not been strictly observed, or enforced.
“Historically, we have not seen the enforcement of that date,” said Miller, of Protect Democracy. “There’s no mechanism for the secretary [of the commonwealth] to force counties to certify or take up the certification themselves, absent a court order.”
And according to the Election Code and Department of State guidance, if a county is facing a recount petition, it may delay its certification.
“Frankly, Pennsylvania has some issues when it comes to things like recounts. It’s a very decentralized process,” said Muller, the election law professor. “It's not an ideal situation to be resolving disputes on a statewide basis in a timely fashion.”
Why the courts may have to step in
In 2020, the state had no issue certifying its election by late November. But after the 2022 midterm election, groups of voters statewide filed more than 100 petitions, seeking to have ballots recounted at the precinct level in the gubernatorial and U.S. Senate races. Most of those petitions were filed not with any specific claim of fraud or error, but rather based on the petitioners’ belief that something improper occurred.
The petitions appeared to be part of a loosely coordinated effort by online groups of supporters of that year’s Republican gubernatorial candidate, according to The Inquirer.
For weeks after the election, many of the petitions wound their way through county courts. Judges offered varying opinions on whether evidence of fraud was needed or if the petitions needed to be filed in every precinct where the election took place. For statewide contests, that would be over 9,000 precincts.
Forrest Lehman, the election director for Lycoming County in north central Pennsylvania, said he had hoped the legislature would shore up vulnerabilities in the post-election process in response to Congress passing the Electoral Count Reform Act, though that now seems unlikely.
“We need to look at what needs to be clarified, maybe what parts need to be hardened a little bit so that someone can’t take advantage of them,” he said. “The recount petitions are one example, but also [there’s] the potential for a repeat of what we saw previously, where a county simply refused to certify its results and they had to be taken to court.”
Lehman was referring to a dispute between the Pennsylvania Department of State and several counties after the spring primaries in 2022. Berks, Fayette, and Lancaster Counties refused to include mail ballots without handwritten dates in the certified results they provided to the state, despite a federal court ruling that the date was immaterial to a voter's eligibility.
The department sued the counties, and eventually got a court order compelling the counties to include the votes. But the process took over two months.
A similar scenario could play out this year, according to Muller. If a county misses the Nov. 25 deadline, or if it fails to include all ballots in its certification, the Department of State could file suit in state court.
The Department of State could also be the target of legal action if it misses the Dec. 11 federal deadline.
In this scenario, Muller said, the presidential candidate who won the state would likely sue in state court for an order forcing the department to certify the results.
The courts would need to move quickly, as members of the Electoral College meet in each state to vote six days later on Dec. 17.
Even if the certification came after that date, it would still be legally valid, Muller said. The Electoral College Reform Act requires Congress to accept a certificate ordered by a court.
Still, such a delay could provide fodder for members of Congress to challenge the state’s slate of electors when they meet to ratify the Electoral College vote on Jan. 6.
A court-ordered certification could spark a political dispute over the role of the judiciary in the process.
In 2020, Republicans at the state and federal levels criticized state courts for taking actions they viewed as an overstep of authority. For example, state GOP leaders claimed the Pennsylvania Supreme Court had opened “the door to serious questions about the integrity of the process” when it ruled that counties could count mail ballots postmarked, but not received by Election Day. The number of ballots affected by that ruling was not enough to sway the presidential race.
In a statement, the Department of State said it has been working to educate courts and county officials “and to highlight the need for elections returns to be certified by the Electoral Court Reform Act’s deadline and for all post-election legal proceedings to be expedited to ensure deadline mandates can be met.”
Recount petitions are easy to file
The likelihood of precinct-level recount petitions being used again this cycle is high, as the barrier to file them remains low. The fee to file a recount is just $50, the same as it was in 1927. Adjusted for inflation, the equivalent is $887 today.
Susan Gobreski, vice president of policy at the League of Women Voters of Pennsylvania, said there needs to be a balance between making it possible for voters to challenge results when something is wrong and making sure those challenges are not specious.
“It shouldn’t be so expensive or so complicated that someone with valid concerns can't raise them, but they have to be credible concerns,” she said. adding that it frustrated her in 2022 that many of the people who filed petitions based on fraud claims did not report their claims to law enforcement.
Democrats in the state House proposed changes to the petition process as part of a larger group of amendments to a bill seeking to move the 2024 primary. However, those amendments ultimately sank the entire effort.
Miller, of Protect Democracy, said advocates are again pushing this year for changes to the recount process that would create a firm requirement for specific allegations of fraud and increase the filing cost. But he’s not counting on them happening.
“It’s very unlikely, in my opinion, that the General Assembly would take up any legislative efforts on the Election Code that take effect by the 2024 election.”
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