Adam Lawrence

Adam B. Lawrence

With just nine days left until the election, much remains uncertain.

One thing we do know is that early voter participation is on track to break all records. Tens of millions of early votes reveal an enthusiastic electorate with more options to cast their ballots.

What can we expect in the final week of the campaign? Here are a few things to keep an eye on between now and Election Day and beyond:

Will the surge of mail-in ballots continue?

Approximately 84% of voters — 189 million Americans — are eligible to vote by mail. As of Wednesday, 42 million Americans had already voted: 30 million of these votes were cast by mail, and 12 million were cast in person.

One year ago, Gov. Tom Wolf signed Act 77 into law. It was a bipartisan bill that allows no-excuse mail-in voting; provides more time to register to vote; and gives voters the option to be placed on a permanent mail-in or absentee voting list. Whether motivated by fears of COVID-19 or attracted by the convenience of not having to travel to their polling location, millions of Pennsylvanians are choosing to vote by mail in 2020. So far, Pennsylvanians have requested 2.8 million mail ballots and have returned 1.2 million. There is a significant disparity in the party registration of voters who have returned their mail ballots. Democrats account for 847,000 of returned ballots; Republicans just 227,000.

How long will it take to count the votes?

Mail-in votes — preferred by Democrats more than Republicans — take longer to process than in-person votes. Election officials must verify signatures and open envelopes, and that process cannot begin before 7 a.m. on Election Day, according to Pennsylvania law. The counting and reporting of in-person votes will be completed on Election Day, but the counting of mail ballots will take longer.

Secretary of the Commonwealth Kathy Boockvar (Pennsylvania’s top elections official) told Spotlight PA that “the overwhelming majority” of mail ballots will be counted by the Friday after Election Day.

It is possible, then, that the results reported on election night, based on in-person votes, will show President Donald Trump in the lead in Pennsylvania. However, as more mail ballots are counted and reported, the president’s lead in the overall vote count may decline or disappear entirely. In such a scenario, the question will be whether former Vice President Joe Biden’s advantage in ballots cast by mail is enough to overtake Trump’s advantage in ballots cast in person.

The amount of time it takes to count mail ballots — which some may view as a sign of conspiracy, corruption or fraud — actually will be a function of the painstaking effort required to tabulate millions of votes and ensure an accurate count. Unfortunately, many voters do not understand that, or simply choose not to believe it. Elections officials are mindful of the importance of maintaining voter confidence and reporting election results in a timely manner, which is why Secretary Boockvar argued in favor of legislation that would have allowed local election officials to begin precanvassing — that is, inspecting, opening and counting, but not recording — mail ballots before Election Day.

What scenarios are most likely to lead to turmoil?

If either Biden or Trump emerges with a decisive majority on election night, both campaigns will probably accept the outcome quickly. But a close election will invite intense scrutiny.

Much like the 2000 presidential election, election lawyers from both campaigns will descend upon the states with the narrowest margins separating the candidates. As a battleground state with 20 electoral votes that allows mail-in voting and post-Election Day vote-counting, Pennsylvania’s vote will almost certainly be challenged if the vote is close. When it comes to mail ballots, every detail will be examined: the signature on the envelope, the postmark, the placement of the ballot inside the secrecy envelope and, of course, the ballot itself.

Last Monday, the U.S. Supreme Court, by a 4-4 vote, refused to grant a stay of a Pennsylvania Supreme Court order that requires election officials to count mail-in ballots received up to three days after the election, as long as they are not clearly postmarked after Election Day (in the event of a tie vote, the decision of the lower court stands).

In asking the nation’s highest court to grant the stay, Pennsylvania Republicans advanced two legal arguments.

The first involves a federal law that requires the election to take place “on the Tuesday next after the first Monday in November” (this year, Nov. 3). Pennsylvania Republicans argued that this requires “the 2020 general election to be consummated on Election Day.” Thus, they contended, any mail ballots that may have been mailed after Nov. 3 must be ignored.

The second refers to Article II of the Constitution: “Each State shall appoint, in such Manner as the Legislature thereof may direct,” members of the Electoral College. The argument is that the Pennsylvania Legislature, not the state Supreme Court, has the power to determine how the state’s electors are selected.

The most important thing about this case was the 4-4 vote, because it raises the question of what will happen after the almost certain confirmation of President Trump’s Supreme Court nominee, Judge Amy Coney Barrett. If a similar case reaches the Supreme Court, most legal experts believe that Justice Barrett would cast the fifth vote in favor of invalidating mail-in ballots received after Election Day.

If this were to happen, and enough mail ballots across the country are invalidated, it could not only change the outcome of the Pennsylvania vote, but it could be enough to change the winner of the presidential election.

Adam Lawrence is associate professor of government and political affairs at Millersville University and coordinator of the university’s Robert S. and Sue Walker Center for Civic Responsibility and Leadership.

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