Lancaster County plans to hold off immediately canvassing otherwise valid mail-in ballots received after Election Day, on the grounds that they could not be removed from the overall count if the U.S. Supreme Court later rules against including them.
"We're not trying to do anything not to count them," Commissioner Ray D'Agostino, the chairman of the county Board of Elections, told One United Lancaster Tuesday evening.
Rather, he said, the county is doing its best to comply with shifting and conflicting guidance.
Commissioner Craig Lehman, however, is calling for following the Pennsylvania state Department's latest guidance, which calls for counting late ballots promptly.
They should be counted "like all other legally cast ballots," he said online. "The ballots and counts will be maintained separately in case of a future legal challenge."
Lehman is a Democrat; his colleagues D'Agostino and commission Chairman Josh Parsons are Republicans.
At issue is whether the U.S. Supreme Court will overrule the state Supreme Court's ruling extending the due date for mail-in ballots. The state court said ballots postmarked by Election Day, or with no postmark or an illegible one, should be counted as long as they arrive within three days after Election Day.
The U.S. Supreme Court declined to render an opinion before the election, but may do so afterward. Justice Samuel Alito wrote that there is a "strong likelihood" that the state court's decision is unconstitutional.
Accordingly, Pennsylvania's Department of State instructed counties in late October not to process late ballots and to keep them "separate from voted ballots." On Sunday, however, the department told counties to go ahead and process late ballots "as soon as possible upon receipt."
The problem with that approach, Parsons wrote in a letter to Secretary of the Commonwealth Kathy Boockvar, is that it is "logistically impossible" for Lancaster County to remove the disputed ballots from the count once they've been processed — as they would have to be if the U.S. Supreme Court rules against their inclusion.
The state Attorney General, Parsons said, assured the court that Pennsylvania's late ballots would be kept apart pending a ruling. The state's new guidance, Parsons said, contradicts its earlier stance.
The Board of Elections is meeting Tuesday, D'Agostino said. A quick U.S. Supreme Court decision would be a huge help, "just so we can get this done," he said.
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