Pa. should protect its vote

Pennsylvania’s June 2 primary wasn’t quite so bad. Counting was complete on June 29, four weeks later.

Four weeks, though better than six, should still make officials nervous.

There are a couple of key December deadlines that Congress has set for the Nov. 3 election.

Dec. 8, five weeks after Election Day, is the “safe harbor” deadline. It is optional, but highly advantageous. Congress has promised states that if they complete counting ballots by that date, then Congress will not second-guess the state’s final numbers when Congress meets on Jan. 6 to accept the state’s Electoral College votes.

Dec. 14, six days after the “safe harbor” deadline, is not optional. It’s the date Congress has set for each state’s Electoral College meeting. Congress picks the date, but the Constitution requires that the “day be the same throughout the United States.”

Simply put, if Pennsylvania wants to participate in the Electoral College, its electors must cast their votes for president on Dec. 14. And if Pennsylvania wants electors appointed based on ballots cast on Nov. 3, then it must complete counting those ballots by Dec. 14.

Some say a state could miss the Dec. 14 deadline as long as it finishes ballots before Congress meets on Jan. 6. This is a mistake. While perhaps Congress could accept Electoral College votes that violate the constitutional requirement of being cast on the “same” day nationwide, it would be dangerous for a state to expect Congress to contravene this constitutional command.

In fact, this issue was decisive in the disputed Hayes-Tilden election of 1876. Florida had recounted its ballots in favor of Tilden after its Electoral College meeting. Justice Joseph Bradley, sitting on the Electoral Commission created to resolve the dispute, explained the Commission’s ruling for Hayes as based on the principle that any change Florida made after the nationally uniform day of Electoral College meetings was “unconstitutional and void.”

Thus, failing to finish counting ballots by Dec. 14 would be most perilous.

Don’t worry, you might think—surely, there is little risk that counting votes will take so long, since the state finished its June counting in four weeks. But not only will there be more mailed ballots to count in November, they are more likely to be subjected to challenges, as is permitted by state law.

Without wading into the details of Pennsylvania’s procedures for permitting challenges to mailed ballots, and appeals from denials of those challenges, there is a risk that those challenges and appeals could bog the process down to the point of endangering the state’s ability to meet the Dec. 8, or even Dec. 14, deadline.

The best way to reduce this risk is for Pennsylvania’s legislature to enact a law, as other states have (including Indiana, Ohio, and Virginia), that requires vote-counting procedures in a presidential election to be complete by the federal “safe harbor” date. This kind of explicit law would both obligate and empower officials to expedite challenges and appeals as necessary to finish on time.

Pennsylvania’s legislature is currently considering revisions to its ballot-counting rules to speed up the process. One change would permit the “pre-canvassing” of mailed ballots before election day. That’s a good move, but it’s not sufficient to eliminate the risk of missing the December deadlines. Instead, the legislature should supplement this sensible measure with the added requirement that none of the state’s various vote-counting procedures—not recounts, ballot challenges, or otherwise—may be permitted to deprive Pennsylvania of the congressionally promised “safe harbor” status.

Pennsylvania’s legislature should enact this measure for the sake of the state’s own voters. In doing so, it would make the presidential election go more smoothly for the benefit of the whole nation.

(Edward B. Foley directs the Election Law program at The Ohio State University.)