State and federal courts in the Keystone State have been working overtime in recent weeks to resolve a host of legal challenges over the logistics of mail-in voting, but in a state Donald Trump carried by less than 1 percentage point four years ago, experts expect bitter fighting ahead over how ballots are counted and when they should be rejected.
"This is a lot like watching a tidal wave coming at you from a mile away," said Matthew Haverstick, a government affairs and elections attorney with Kleinbard LLC. "You know it's coming, but you're stuck on the beach and there's nothing you can do until it crashes down on you."
Some have gone so far as to postulate that the outcome of the state's election — and, depending on the state of the race in the rest of the country, the presidency itself — could be decided in the U.S. Supreme Court in a potential Bush v. Gore
redux."My prediction is Pennsylvania is the new Bush v. Gore because it's got all of the signs and symptoms of the kind of chaos that ultimately had to be decided," said Tom Spencer, an attorney with the Lawyers Democracy Fund who served as counsel to the Bush campaign in Florida in 2000.
Under a rarely relied-upon statutory provision enacted in 2004, the state is automatically required to perform a recount when a candidate in a statewide race is defeated by less than half a percent.
According to the Pennsylvania Department of State, the provision has only been triggered a handful of times since it went into effect, and recounts have only actually been carried out twice after losing candidates waived their rights under the statute.
While the provision wasn't triggered in the presidential race in 2016, it came close. Trump bested Hillary Clinton in the state by a mere 44,000 votes, or 0.72 percent of the more than 6 million ballots cast.
Outside of the automatic recount provision, however, state law provides several other methods for challenging vote tallies both locally through county election boards and court systems, or through a petition filed with Commonwealth Court on behalf of 100 or more voters claiming the election was "illegal and the return thereof not correct."
Either through an appeal from a potential Commonwealth Court decision or directly through a petition for extraordinary jurisdiction, the Pennsylvania Supreme Court could also be tasked with weighing in on any legal disputes.
Given rhetoric from Trump suggesting widespread fraud in connection with mail-in voting, experts say they anticipate the campaign will try and challenge as many mail-in ballots as possible on as many grounds as possible.
"We expect, based on what's happening in other states and in counties across Pennsylvania, that there will be efforts, likely by the Republican Party — although they could come from anyone — to challenge ballots and to question the canvassing process," Hangley Aronchick Segal Pudlin & Schiller attorney Michele Hangley said during a recent Philadelphia Bar Association panel on election litigation.
Haverstick said he realized at least one potential complication after receiving a phone call from his daughter at college in Boston: the outer envelope she received to return the mail-in ballot she'd requested had somehow become sealed shut during its journey through the U.S. Postal Service.
"She had to gently rip it open to put the secrecy envelope in," he said. "I guarantee we're going to see ballots on Election Day that look like they've been opened or that were somehow damaged in the mail. I guess they'll be set aside, but who knows? What do you do with them?"
He said he also envisioned disputes about the ability of poll watchers to observe the rooms where mail-in ballots are stored prior to the pre-canvassing, when envelopes containing mail-in ballots are inspected and opened, and canvassing, when the ballots are actually counted.
Current guidance from the Department of State allows poll watchers to be present only when ballots are opened, counted and recorded.
And what about ballots where the inner secrecy envelope isn't sealed, or where the ballot is partly out of the envelope?
"These are all solvable problems, but they haven't been solved yet, and we won't even know what a lot of them are until Election Day," Haverstick said.
While some issues may only crop up locally in certain counties around the state, Haverstick said they could be used as leverage in a bid in Commonwealth Court to potentially stop or reset vote canvassing across the board in Pennsylvania.
But with virtually zero case law on how Pennsylvania courts should handle challenges to mail-in ballots, Haverstick said he expected a kitchen-sink approach to attempting to disqualify votes.
"Since our experience with them is so limited and there just haven't been good rules of the road established for what a good challenge looks like versus a bad challenge, I think we're going to see all kinds of challenges," he said.
The Department of State has issued limited guidance on when ballots should be set aside, focusing mostly on how to handle ballots that lack signatures, which would result in a ballot being tossed, or instances where a voter puts the wrong date on the outer envelope, which would not.
Per an email from the department's deputy secretary for elections last weekend, however, the DOS is leaving it up to individual counties to decide whether to reach out to voters before Election Day to give them an opportunity to vote in person on a provisional basis.
The extent to which counties are actually reaching out to voters who submitted ballots without signatures, however, is unclear, according to the head of the County Commissioners Association of Pennsylvania.
Additionally, the Pennsylvania Supreme Court recently ruled that votes can't be rejected based solely on the possibility of mismatching signatures on ballots versus those on the voter rolls.
In a potential preview of another challenge that could wind up before the courts, the Trump campaign lodged complaints with election officials in Philadelphia after photographing people dropping off more than one ballot at drop-off boxes in the city in potential violation of rules generally prohibiting third-party delivery of ballots.
The photographs earned a rebuke from Attorney General Josh Shapiro, who suggested the campaign's conduct could be considered a form of voter intimidation.
The campaign had previously raised the issue as part of a lawsuit in federal court in Pittsburgh challenging the state's use of drop boxes for voters to submit their ballots.
In support of their challenge, the campaign included photographs in its summary judgment motion depicting what it said were voters who were improperly dropping off multiple ballots to drop boxes in Philadelphia and Elk counties in violation of the state's rules.
In a ruling at the beginning of October, however, Judge Nicholas Ranjan concluded that the photos — which he said were the campaign's "best evidence" of potential wrongdoing — amounted only to speculation about the future possibility of multiple ballots being returned by single individuals.
He pointed to case law finding that "garden variety" irregularities in the administration of elections were to be expected to some extent, and that the Legislature's adoption of a widespread vote-by-mail system was a tacit acceptance of the fact that some problems could end up occurring.
"Even if the court assumed some 'forged' applications or ballots were approved or counted, this is insufficient to establish substantial, widespread fraud that undermines the electoral process," the judge said. "Rather, limited instances of 'forged' ballots — which, according to plaintiffs' definition, includes an individual signing for their spouse or child — amount to what the law refers to as 'garden variety' disputes of limited harm. As has long been understood, federal courts should not intervene in such 'garden variety' disputes."
A Trump campaign spokesperson did not respond to questions about whether they planned to raise the issue again in any subsequent proceedings.
Perhaps the biggest wild card, however, is whether the U.S. Supreme Court ultimately opts to review a decision by the Pennsylvania Supreme Court last month allowing counties to count ballots received up to three days after Election Day.
In a split 4-4 decision on Oct. 19, the high court shot down a petition from the state GOP aimed at staying the extension.
And then on Thursday, the justices denied a request for an expedited pre-election review of the decision — with the caveat that the court could take up the case on a less compressed schedule after Election Day.
In the meantime, state election officials have ordered counties to separate out votes received after Election Day in the event the U.S. Supreme Court ends up axing the deadline extension.
"The moral of the story for me is that everyone has to be patient," Hangley said. "It's going to take some time to count these mail-in and absentee ballots. There's no reason to panic if they're not counted by three or four days after the election, which they likely won't be."
--Editing by Philip Shea.
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