Imagine this scenario: incumbent President Donald Trump and Democratic presidential nominee Joe Biden are running neck and neck as results roll in on election night. Trump is once again losing the popular vote but winning enough states to give him a shot at a second term—and, as the night wears on, it becomes apparent that Pennsylvania's 20 electoral votes may prove decisive.
The race is so close—in 2016, Trump won Pennsylvania by less than 50,000 votes—that pundits are already raising the prospect of a recount, but there are numerous complications. Hundreds of thousands of mailed-in ballots that arrived at county election offices in the weeks before Election Day are only starting to be counted. More mail-in ballots will be delivered on Wednesday. And Thursday. And Friday. They will all be counted. Conservative media makes hay out of reports that Democratic state officials have ordered counties not to reject mail-in ballots that have mismatched signatures. As the days pass and the results tip toward Biden, allegations of voter fraud fly around social media, the president tweets angrily about Democrats stealing the election, and lawsuits are filed. It seems almost certain that the whole thing will end up before the Supreme Court.
There is no shortage of nightmare scenarios surrounding the 2020 presidential election. For the most part, however, there is little reason to get worked up about crises that may come to pass—that goes for both Republicans who fear mass voter fraud and Democrats worried by the possibility that Trump will refuse to leave the White House if he is defeated. Neither the Postal Service nor Russian agents are likely going to steal this election.
But if there is a nightmarish, chaotic ending to what's already been one of the most unpredictable campaign seasons in American history, there's a good chance Pennsylvania will be at the center of it. And there's a good chance that two under-the-radar decisions made earlier this month by the state's election officials and its Supreme Court will be the reason why.
On September 15, the Pennsylvania Department of State issued new guidance telling counties not to reject mailed-in ballots solely because of mismatched or missing signatures. That clarification was made in response to a lawsuit that was triggered by the fact that more than 26,000 mail-in ballots were rejected during Pennsylvania's primary election for signature issues. Now, counties will flag those ballots and give voters a chance to appear in-person to verify their ballots.
Then, on September 17, the state's Supreme Court ordered counties to accept mail-in ballots that arrive up to three days after the November 3 election, as long as they were postmarked on or before Election Day. But there's a potential wrinkle. Ballots "received within this period that lack a postmark or other proof of mailing, or for which the postmark or other proof of mailing is illegible, will be presumed to have been mailed by Election Day," unless there is some evidence to suggest that they were not, the court wrote.
Both decisions are driven by a desire to avoid accidentally disenfranchising some voters who cast their ballots by mail. As I've written before, in-person voting reduces common mistakes that voters sometimes make—like voting for too many candidates or failing to sign a ballot—that are more likely to happen with absentee ballots. This year's equivalent of the 2000 presidential election's Florida recount, which hinged on "hanging chads" and ultimately required the U.S. Supreme Court to step in, is likely to be the very inexact science of trying to determine whether a signature on an absentee ballot matches the one on a voting roll.
With these new rules on the books, "Pennsylvania voters can cast their vote without fear that their ballot could be rejected solely because an election official—who isn't trained in handwriting analysis—thinks their signatures don't match. Voting should not be a penmanship test," said Mark Gaber, director of trial litigation at the Campaign Legal Center, one of several voting rights nonprofits that had sued the state over the signature-matching issue. Those lawsuits were withdrawn after the Department of State issued new guidance earlier this month.
"Obviously the changes are disconcerting and do nothing to help voters but do open it up to fraud," Ray Zaborney, a Pennsylvania-based Republican campaign strategist, tells Reason. "But, like anything else, each campaign will have to adjust to the changes, but the partisan nature of the court should be chilling for everyone."
Even before those changes were made, Trump's campaign (and the president himself) has argued expanded use of mail-in voting due to the COVID-19 pandemic will be ripe for fraud. That's not true. In fact, studies show that absentee and mail-in ballots are no more vulnerable to fraud than in-person voting and that increased rates of mail-in balloting do not skew elections toward either Republicans or Democrats. When the Trump campaign tried to sue Pennsylvania earlier this year over its mail-in voting rules, it alleged voter fraud but couldn't produce any evidence to support the claim.
Still, rewriting parts of the state's election protocol just weeks before the election carries the stench of political favoritism—particularly when it is all being done by a Democratic administration and a state Supreme Court with a Democratic majority. (Judges in Pennsylvania are technically nonpartisan but are elected in partisan contests.) The perception of partisan politics shaping election rules could undermine the legitimacy of the election's outcome if it all comes down to Pennsylvania.
And it definitely could. The latest forecast at FiveThirtyEight predicts that Pennsylvania is the most likely "tipping-point state"—that is, the state that puts either Biden or Trump over the all-important 270 electoral vote threshold. "In fact, Pennsylvania is so important that our model gives Trump an 84 percent chance of winning the presidency if he carries the state—and it gives Biden a 96 percent chance of winning if Pennsylvania goes blue," writes election analyst Nathaniel Rakich.
If chaos unfolds in Pennsylvania in the days after November 3, however, save some blame for the state's Republican-controlled legislature, which has stubbornly refused to consider a number of simple changes that could have smoothed out problems in the state's election laws. Maybe the most important of those changes is a proposal to allow county officials to open and count mail-in ballots before Election Day—something that all but a few states allow and that could speed up the process of determining a winner.
Instead, it's almost certain that—barring a shockingly large landslide—Pennsylvania won't be able to declare a winner in the presidential race on election night, and probably not for days or even weeks afterward. If the state's 20 electoral votes could swing the election, all of America might be wondering why Pennsylvania made such a mess of things.
Republicans, Democrats, the state legislature, the state Supreme Court, and Gov. Tom Wolf will all share the blame if Pennsylvania becomes this election's Florida.