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Election officials fear counting delays will help fuel claims of fraud

Nov. 7, 2022 Updated Mon., Nov. 7, 2022 at 4:52 p.m.

By Tom Hamburger, Yvonne Wingett Sanchez and Patrick Marley Washington Post

Officials in a handful of closely contested states are warning that the winners of tight races may not be known on election night, raising the possibility of a delay that former president Donald Trump and his allies could exploit to cast doubt on the integrity of Tuesday’s midterm vote.

In Pennsylvania, Arizona, Michigan and Wisconsin, officials have in recent days pre-emptively called for patience, acknowledging that some of the factors that bogged down the process in 2020 remain unresolved two years later. In some cases, partisan disagreements blocked fixes, and Trump’s own advice to voters on how to cast ballots may contribute to a longer wait.

Although the reasons for the delays vary from state to state, officials have been united in urging the public not to draw conclusions just because the count appears to be proceeding slowly.

“It’s going to take a few days,” acting Pennsylvania secretary of state Leigh M. Chapman said at a recent news conference. She added: “It doesn’t mean anything nefarious is happening.”

Trump and his supporters used long lag times in the count in 2020 to whip up false claims of a rigged process. They were aided by the “red mirage,” in which many Republican candidates took an early lead as votes were being tallied. The phenomenon occurs because Republicans disproportionately cast votes on Election Day and those votes are usually counted first, producing strong early margins for GOP candidates.

But that Republican lead is often eroded as absentee ballots, favored by Democrats, are counted in the hours – and in some cases days – after the polls close. Trump incorrectly claimed in 2020 that officials had stolen the election for Democrats as Americans slept, with the results whipsawing in Pennsylvania from a Trump lead on election night to a Biden advantage days later.

Experts are bracing for the former president and his allies to deploy a similar strategy in close races this year.

“I expect to see what we saw in 2020,” said Sylvia Albert, director of voting and elections for Common Cause, a nonpartisan voter education and advocacy group. “Election officials will be counting votes, some results will come in late and bad actors will be trying to play political games to undermine people’s confidence in the outcome.”

President Biden issued his own caution in a speech Wednesday night.

“In some cases we won’t know the winner of the election until a few days after the election,” he said. “It takes time to count all legitimate ballots in a legal and orderly manner. It’s always been important for citizens in democracy to be informed and engaged. Now it’s important for citizens to be patient as well.”

The slow-count warning is being issued with special vigor in Pennsylvania, where a delay in counting 2020 presidential votes became central to the fraud narrative adopted by Trump and his allies.

The ingredients are once again in place for a contentious post-election period for the commonwealth: a tight U.S. Senate contest that could determine control of the chamber, ongoing legal challenges that influence whether some votes are rejected, an angry partisan divide and, most significantly, an endemic sluggishness in counting mail-in ballots.

As in a handful of other states, officials in Pennsylvania are not permitted to begin processing mail ballots until Election Day. State data show that as of Saturday, nearly 1.1 million mail ballots had been received in Pennsylvania – mostly from Democrats. But election officials are not permitted to even start opening ballot envelopes before 7 a.m. on Election Day.

That rule explains in part why it took four days in 2020 to declare Joe Biden the winner in Pennsylvania. During that period, the Trump campaign lobbed repeated fraud allegations, particularly in Philadelphia, where Trump lawyer Rudy Giuliani and others baselessly claimed that there were massive problems with mail ballots that arrived after polls had closed.

One way to reduce delays is simple: Allow election officials to open mail ballot envelopes and prepare them for counting as they arrive, rather than waiting until Election Day to begin the process.

All but a handful of states permit early processing of mail ballots. A bipartisan group of legislators and election officials backed legislation last year to allow ballot pre-processing in Pennsylvania.

But the modification was never enacted. It was included in a bill approved by the Republican-dominated Legislature that was ultimately vetoed by the state’s Democratic governor, Tom Wolf, because it included what he saw as onerous voter identification, ballot deadline and other requirements.

“It’s incredibly frustrating to know that you are facing a problem with an easy solution that our state government has been unable or unwilling to fix,” said Al Schmidt, a former Republican election commissioner in Philadelphia who retired in 2021.

Schmidt called out both parties for the failure to fix the problem, suggesting the Legislature could have produced a cleaner bill and that the governor might have done more to negotiate.

Schmidt and other election experts say that ongoing litigation in the state may further delay and confuse the situation on election night. The Pennsylvania Supreme Court ruled this month that absentee ballots cannot be counted on Election Day if they are not properly dated by the voter, and left their ultimate status in limbo. Republicans had sued to have such ballots thrown out.

“This decision will slow down the tallying as counties check ballots to see whether voters dated the ballot appropriately,” Schmidt said.

Already this year, Trump has renewed his attacks on Pennsylvania’s system. In May, after the state’s primary resulted in a close contest between Mehmet Oz and his GOP rival, David McCormick, Trump urged Oz to declare victory before all the votes were counted.

“How long does it take to count votes,” Trump wrote on his social media site, Truth Social. “Stop FINDING VOTES in PENNSYLVANIA. RIGGED!”

Trump has also weighed in with advice for voters on how to cast their ballots. In Arizona, where the overwhelming majority of voters choose to vote by mail and state law allows for pre-processing, Trump has urged his supporters to show up at the polls.

“Vote in person on Election Day as opposed to sending in a potentially fake ballot,” Trump said at a rally in Mesa last month.

But that advice is at odds with the guidance from election officials, who have said voting early will lead to a quicker tabulation of results.

Arizona election officials have sought to set expectations for vote counting, saying the process could last up to 12 days in a state notorious for long counts.

In Maricopa County, home to most voters in the state, ballots have not come in as fast as in previous years. If that pattern holds, proportionately fewer ballots may be tabulated before Election Day compared with past votes – leaving election workers a bigger job in the days that follow.

Counting could also take time because the ballot is the longest in Maricopa County history, with as many as 87 races for some residents.

Stephen Richer, the county’s top election official, has encouraged voters who want quicker results to cast ballots as early in the process as possible.

“We know everyone would like results faster,” said Richer, a Republican. “If you want to help us out with that, well, then get your ballot back to us now.”

In recent days, some Republican candidates have joined that plea, despite the advice from Trump and his allies to wait.

In Michigan, the secretary of state’s office has said results in some races may not be known for a day after the election. In part, that’s because more than 1.7 million voters have requested to vote absentee, nearly double the number that voted absentee in the 2018 midterm elections.

Jake Rollow, chief external affairs officer for the secretary of state’s office, said additional delays may occur because some counties did not take advantage of late changes in state law that permitted hiring additional personnel to help with the pre-processing of mail ballots.

Other factors that could affect the count this year include ongoing disputes over election law. Just last week, the Michigan Supreme Court reversed a lower court decision that had blocked implementation of rules governing poll observers.

The legal limbo so close to the election creates uncertainty and can lead to delays, said Mark Brewer, a Michigan elections lawyer who once chaired the state Democratic Party. “Every day that goes by creates more confusion,” he said.

Since 2020, several states have taken steps to improve efficiency by purchasing new machinery to open envelopes and scan ballots and encouraging voters to return ballots early.

In addition, some states have enacted rule changes making it easier to prepare mail ballots for tabulation and to encourage voting before Election Day.

In Georgia, state law allows processing of absentee ballots as soon as they are received, and record numbers of people are voting early this year – nearly 2.5 million as of Sunday.

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