Eric Shawn: Fixing voters’ mistakes in mail-in ballots
From a red ‘x’ to giving ballots more time, states move to help bolster mail-in voting.
Top Republicans in Pennsylvania are pushing back after a report by The Atlantic alleged that they are planning to potentially have the state legislature disregard the popular vote and appoint electors for the state in the case that election returns are disputed or delayed, saying the report took their comments out of context.
“What they wanted to do I guess is to get people excited and fire people up to fit their narrative that Trump’s trying to steal the election, which couldn’t be further from the truth,” Pennsylvania Senate Majority Leader Jake Corman, a Republican, who was one people quoted by The Atlantic, said. “But there’s no role for the legislature in this process so how they got to this premise is beyond me other this is what they wanted to accomplish.”
The Atlantic story largely discusses President Trump, his comments on mail-in voting, potential litigation stemming from delays in counting mail-in ballots and predicts that Trump will not leave office if he loses the election — despite being asked repeatedly, Trump still has not unequivocally stated he will accept the result of the election.
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But later in the story, The Atlantic makes the allegation that the Trump campaign and state Republican parties are preparing for the possibility that if there is no clear winner in a state ahead of the Dec. 8 “safe harbor” day — the day by which states must appoint their electors to ensure they are certified — state legislatures might appoint a slate of electors before that date, disregarding the ballots cast by state voters. It quotes an anonymous Trump campaign adviser as saying that such a move would be possible.
Further, The Atlantic alleges: “In Pennsylvania, three Republican leaders told me they had already discussed the direct appointment of electors among themselves, and one said he had discussed it with Trump’s national campaign.”
“I’ve mentioned it to them, and I hope they’re thinking about it too,” the story quotes Lawrence Tabas, the Pennsylvania Republican Party chairman, as saying about the legislature appointing electors.
But Vonne Andring, a spokeswoman for the Pennsylvania GOP, told Fox News that quote was taken out of context — that Tabas had been asked about the importance of meeting the safe harbor date and that he said he’d discussed meeting the date, not the state legislature appointing electors, with the Trump campaign.
“When they brought up the subject during the interview, the chairman explained to The Atlantic that meeting the safe harbor date was critical. He noted that he worked day and night to make sure it wasn’t missed in 2016, the Jill Stein recount. It came in just like a few days under. So The Atlantic then asked the chairman if the Trump campaign was aware of the importance of the safe harbor date. And it was to that prompt that the chairman responded he had talked to them about it,” Andring said in an interview.
Andring also said Tabas’ interview with The Atlantic happened in late July.
The Atlantic’s report continued to quote Tabas as saying, “I just don’t think this is the right time for me to be discussing those strategies and approaches, but [direct appointment of electors] is one of the options. It is one of the available legal options set forth in the Constitution.”
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Andring said that line came later in the interview after Tabas, an election lawyer himself, brought up the possibility that the U.S. Congress might be forced to step in if Pennsylvania missed the safe harbor date.
“Then The Atlantic then advised the chairman that another possibility existed in which the state legislature could directly appoint electors. And they asked the chairman, they kept asking, ‘Well wouldn’t you like that? Wouldn’t that be a great strategy for Republicans? And that’s when the chair said, well, I wouldn’t discuss that kind of strategy with you guys,” Andring said.
The Atlantic then says Corman emphasized his desire for a quick and accurate vote count. But, the author writes, “If controversy persists as the safe-harbor date nears, he allowed, the legislature will have no choice but to appoint electors,” then quotes Corman as saying, “We don’t want to go down that road, but we understand where the law takes us, and we’ll follow the law.”
Corman said in an interview with Fox News that Pennsylvania specifically does not allow the state legislature to play any role in appointing electors.
“The election code very specifically lays out how electors are picked. Both parties submit electors to the Department of State prior to the election. When the Department of State certifies the winner, those electors from that party are now the electors. And that’s how it’s done,” Corman said. “And if there’s challenges in court and recounts and all that, that’s got to be a court process. The best of our knowledge, our best of our reading of the act, the legislature has no role.”
“It would go down to the courts to decide who the winner is,” Corman said of a potentially disputed count.
Fox News directly asked Corman if he could promise that the state legislature would not pick the state’s electors under any circumstance.
“By law, reading the law, I don’t see any format that allows us to do that. So, no, I would say we’re not going to pick the electors. Now, if some court says that somewhere along the way then I’ll listen to the court but I don’t see how that ever happens,” Corman said.
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Outside of the brief quotes from Tabas and Corman, The Atlantic quotes an anonymous Trump campaign legal adviser as speculating state legislatures might say they are protecting the will of the people by appointing electors.
“The state legislatures will say, ‘All right, we’ve been given this constitutional power. We don’t think the results of our own state are accurate, so here’s our slate of electors that we think properly reflect the results of our state,’” the adviser said, according to The Atlantic, though the adviser is not quoted mentioning specific moves are being made to this effect in any state.
The U.S. Constitution says that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” Pennsylvania’s election law — its direction by the legislature — lays out the state’s elector-selecting rules. Parties choose their electors, not lawmakers, and the law delegates the Court of Common Pleas of Dauphin County, the county in which the state capital Harrisburg resides, as the venue for deciding presidential election disputes.
Mail-in voting has been greatly expanded in many states, including Pennsylvania, during the coronavirus pandemic. Trump and many on the right have warned that it could lead to increased fraud, citing anecdotal examples like the election in Paterson, N.J., after which four people were charged with fraud and a redo election was called.
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But there is little history of fraud in mail-in balloting, especially on the scale that could tip a statewide or national election. What experts worry about is the time it could take to count a deluge of mail-in ballots that states are not accustomed to counting, and disenfranchisement from large numbers of mail-in ballots being invalidated due to voter mistakes — 100,000 were tossed in California alone during the March presidential primary, according to The Associated Press.
“There are a number of places that have lengthy experience with voting by mail, and they’ve had no problems and there’s been almost no fraud associated with that,” Darrell West, the vice president and director of Governance Studies at the Brookings Institution told Fox News in an interview earlier this year.
“I think there is some question about the states that are doing it for the first time, whether they’re going to have procedures in place,” West added. “I think one of the big issues this year is going to be the signature verification … I think this is the thing people should be focused on, because that’s where the litigation is going to occur and where the controversy is going to be.”
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