The two top Republican Senate hopefuls in Pennsylvania, former hedge fund manager David McCormick and TV personality and physician Dr. Mehmet Oz, have an awkward problem. Their vote totals are separated by just some 1,100 votes as of the time of this writing, with thousands of mail-in ballots still left to count and McCormick slowly eating away at Oz’s lead. These absentee ballots are precisely the kind that election deniers claimed during the 2020 election were somehow fraudulent, improper or illegal. It would be rather usual for either candidate to win without someone crying foul.
And right on cue, former President Trump has weighed in, in his typical reckless and dangerous fashion, posting on his platform “Truth Social” that his endorsed candidate, Dr. Oz, ought to name himself the winner now, before the remaining votes are even counted. “Dr. Oz should declare victory,” Trump posted. “It makes it much harder for them to cheat with the ballots that they ‘just happened to find.’”
Trump did not elaborate on who “they” are in this instance or how such cheating would occur. Presumably, he meant Democratic election officials and workers, though it is hardly clear which candidate “they” would even prefer to win, or why anyone would risk prosecution to ensure that one of the two equally problematic GOP candidates lost. Further, the notion that mail-in ballots simply magically appear when needed is a conspiracy that has been debunked repeatedly. But with election denier Doug Mastriano now the GOP candidate for governor, we are likely to see such claims resurface.
Logic and facts have never mattered when it comes to “stolen election” conspiracies. In the Pennsylvania election challenges, it is often forgotten that the court challenge to the mail-in ballots was not over fraud at all. Rather, it was over the very legality of using mail-in ballots in the first instance. Indeed, when he appeared before Judge Matthew Brann of the U.S. District Court, Rudy Giuliani admitted that the Trump Campaign’s amended complaint did not allege any instance of actual election fraud in the state.
But this didn’t stop Giuliani outside of court from spreading baseless claims that hundreds of thousands of “extra” mail-in ballots had been cast in the election. “You sent out in the Commonwealth of Pennsylvania 1,823,148 absentee or mail-in ballots,” Giuliani said falsely to a GOP “hearing” held in Gettysburg and organized by Mastriano in November of 2020. “You received back 1.4 million approximately. However, in the count for president, you counted 2.5 million. I don’t know what accounts for the 700,000 difference between the ballots you sent out and the number of ballots that ended up in the count.” In fact, data from Pennsylvania’s Department of State showed 3,087,524 mail ballots requested and 2,629,672 mail ballots returned and counted. (Giuliani’s law license was later suspended in New York for making wild and unsupported claims of fraud in his court statements without any evidentiary support.)
As for the legality of the mail-in ballot process generally, it’s also important to note that the broad use of no-excuse absentee ballots in the state had resulted from a Republican-backed bill—Pennsylvania Act 77–which had made it easier to vote by mail. Nearly every Republican in 2019 voted for that bill in the GOP-controlled legislature at the time. State Senate Majority Leader Jake Corman praised the bill then, saying “this is the most significant modernization of our election’s code in decades.” As part of the compromise around the bill, Republicans also got rid of “straight ticket voting” on ballots, which they claimed favored Democrats. This actually caused many Democrats to vote against the bill, with some worried that the loss of the straight-ticket option would hurt Democrats downstream. But the bill nevertheless passed, and no-excuse mail-in voting became the law in the state long before the election took place.
But in 2020, then President Trump began his drumbeat against the otherwise uncontroversial practice of voting by mail, even though he himself voted absentee in Florida. “Everybody thought [mail-in balloting] was a good idea—a great idea, in fact—until Trump spoke out against it,” said law professor Joe Mistick, of Duquesne University. When the pandemic hit, it was Democrats who disproportionately used mail-in ballots, while Republicans, many of whom had been conditioned by Trump to mistrust the mail-in voting system, largely became in-person election day voters.
This set up an unfortunate circumstance that the Trump campaign exploited. Under Pennsylvania law, mail-in ballots are counted after the same-day ballots, and counting cannot begin until after the polls are closed (a foolish and time-wasting process that invites trouble, but which the legislature and governor in the state have been unable to act together to remedy). In November of 2020, the totals at the end of Election Day appeared to give the state to Trump by tens of thousands of votes. But there were still hundreds of thousands of mail-in ballots left to be counted, and so the Trump campaign saw their lead slowly erode as those votes came in. This was normal and expected, given the far higher number of Democrats who voted by mail, and it is precisely what is happening to Dr. Oz’s lead today. But Trump nevertheless cited the shift as “evidence” of fraud—when in fact it was nothing but evidence of counting the remaining mail-ins.
Fearing how easy no-excuse absentee voting had become for many poorer communities, which typically skew Democratic, the Pennsylvania GOP undertook an awkward about-face to challenge the legality of the very bill they had passed back in 2019. They now claim Act 77 is unconstitutional because, they argue, changing who is allowed to vote by absentee ballot should have required a state constitutional amendment, not just an act by them in the legislature. The case is now pending before the Pennsylvania Supreme Court, which is likely to uphold the law.
Assuming mail-in ballots remain in place for the 2022 and 2024 general elections, we can expect Trump and other spreaders of the Big Lie to attack the process again and claim election fraud where there is none. Well in advance of Election Day, the media and civic leaders must remind the public that election results take time to finalize, especially in close races where a large percentage of ballots come in by mail and still need to be counted. Any premature claims of victory by candidates like Mastriano or Trump must be condemned and shut down quickly as vote counts continue, and any last minute attempts to use the state legislature or the governor’s authority to overturn the results of the popular vote must be challenged and halted immediately in court.