Pennsylvania Supreme Court decision to not count undated ballots could impact thousands of votes for Democrats

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HARRISBURG, PA – We’re just days away from the midterm elections and the big question will be which party gets control of Congress. However, that answer might not come on election night because of how close some races are in key swing states, like Pennsylvania.

The Senate race between Dr. Mehmet Oz and the state’s democrat Lieutenant Governor John Fetterman is one of the tightest races in the nation.

The latest polling comes from Monmouth University and shows Oz is gaining more support from independents, going from a combined 29% to 41% in Monmouth’s polling since September. The poll, which is the first to be conducted entirely after the debate between the two candidates, finds Fetterman has 48% of the vote and Oz has 44%.

Because of how close this race is, it’s likely every single vote will need to be counted for the winner to be clear. The state is already warning voters we probably won’t know the full results on Tuesday night, but that doesn’t mean there is any wrongdoing behind the scenes.

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The Pennsylvania Acting Secretary of State Leigh Chapman says the delay is related to state rules that don’t allow mail-in ballots to be pre-processed until 7 a.m. on Election Day.

“When there are delays in counting, it doesn’t mean anything nefarious is happening,” Chapman said in a recent media briefing. “It’s just what the law is in Pennsylvania.”

The majority of Pennsylvania’s 67 counties should have results tabulated on election night, but the closer the race is between Oz and Fetterman, the more eligible votes received after Election Day, such as overseas military ballots, will need to be counted.

“We don’t leave here until all the votes are completely tabulated on Election Day,” said President Commissioner Julie Wheeler, who oversees the Board of Elections in York County, Pa. “Not every county is able to do that. If the race is too close to call, you’ll need all 67 counties unofficial results in.”

There are also provisional ballots that could come into play. These are ballots that are flagged on Election Day so county election officials can determine the eligibility of that vote.

For example, voters that report to the wrong precinct, don’t report a change of address to their election office, or don’t have an ID will be required to cast a provisional ballot.

The midterms also come at a time when national polls show some voters are losing trust in America’s election system.

In an October New York Times and Siena College poll of registered voters, when asked how much do you trust the results of the 2022 midterm elections will be accurate, 18% said ‘not too much’ and 10% said ‘not at all.’

In the same poll, 29% of voters said they believed Donald Trump was the legitimate winner of the 2020 election.

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This mistrust has led more voters to submit ‘Right to Know’ requests with their county election offices. Pennsylvania and other states, like Ohio, saw a swarm of these election-related public record requests earlier this year.

“We were getting them so fast we couldn’t even keep up with them,” said Sean Drasher, the Director of Elections in Lebanon County, Pa. “The right to know process is a fantastic process, but what we didn’t foresee is that it can be abused. You had a group or an individual that would file dozens or more of right to know requests back to back to back.”

Drasher believes his office was inundated with these requests as part of a coordinated effort from voters who disagree or question the validity of the 2020 election.

“Many of our requests were from people pulling from an online source, and they were being told what to ask for,” Drasher said. “We noticed a lot of our requests were copy and paste boilerplates.”

Meanwhile, undated mail-in ballots have been at the center of a legal battle in Pennsylvania between Democrats and Republicans. After the RNC filed a lawsuit, the state Supreme Court ruled Tuesday that these ballots should not be counted in the upcoming election.

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“Where it looks like we are now is that we’ll have those ballots that are undated, and we are easily able to segregate them out and we can have the results with those included or we can submit the results without, and we’ll follow the court’s guidance from there,” Drasher said.

The Pennsylvania Supreme Court says election officers should set aside and preserve those votes. They could be counted if federal litigation reverses this decision after the election, requiring the votes to be counted.

Historically, Democrats are more likely to vote by mail than Republicans. Therefore, this Supreme Court decision could impact thousands of votes for Democrats across the Commonwealth.

The Pennsylvania Department of State says voters who are concerned they made a mistake on their mail-in ballot, should check with their county elections office or call the state’s voter hotline at 1-877-VOTES-PA.

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The Department of State has also issued guidance that all counties do a post-election recount of 2% of the votes cast, or 2,000 ballots.

In York County, the Board of Elections will do a hand recount and a second count by a tabulator that is a different machine than used on Election Day. The recount will be for the governor and Senate races only. Election officers will ensure the vote tallied by hand match the results tabulated by the machine.

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“This is an example of York County being transparent with our voters and assuring the will of the voters is what is cast,” Wheeler said. “We did a hand count in the primary of this year and the numbers of the recount matched what we got from the machine.”