Pennsylvania is quietly in the midst of an election results certification crisis.

Nearly two months after the May 17 primary election, three of the state’s 67 counties have refused to count “undated” mail-in ballots, defying both an earlier court order and Department of Justice requests. of Pennsylvania.

The other 64 counties certified the results with undated ballots, which were received on time but on which voters did not write a date as required by law. The department, which oversees the election, must either certify the results knowing the vote count is inconsistent — or find a way to force the counties into line.

But the state alone has no real power to organize or regulate elections; it can’t force counties to do much, much less certify results in a specific way.

On Monday, the state sued Berks, Fayette and Lancaster counties in Commonwealth Court.

The immediate fight is over which votes to count in this election – are they supposed to accept undated mail-in ballots or throw them away? — and how the law interacts with the decisions of state and federal courts.

It also further exposes weaknesses in the state’s electoral system that had already been made abundantly clear in the 2020 election. As the state has sought for weeks to break a standoff with the three counties, it has created a slow certification crisis.

“Three electoral boards are refusing to perform their mandatory duty to certify the results of the 2022 primary election based on a complete and accurate count of every vote legally cast,” the department wrote in its lawsuit.

Berks and Fayette counties declined to comment, as did the State Department. Lancaster County officials released a defiant statement.

“To be absolutely clear, the Lancaster County Board of Elections has properly certified the results of the 2022 primary election in accordance with ‘state law and court orders,’ they said. The county said it certified its results on June 6.

“The Commonwealth’s request is contrary to law or any existing court order,” the county said. “The county will vigorously defend its position to follow the law to ensure the integrity of elections in Lancaster County.”

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Similar clashes have sprung up in recent years, and election experts have warned that more could arise, especially as election denial gains power in local, state and federal offices. Pennsylvania’s certification process is fragile and there is no guarantee that it will hold up in the next election.

The ongoing fight is not only to certify the results of a primary. It’s about the role and powers of counties and the state in every election – and what happens when they disagree. This is the law. And it’s about the right to vote.

“The rule of law, our system of government, starts to break down if government actors decide to choose the laws they feel like following,” said Adam Bonin, a Democratic election attorney from Philadelphia, who has blamed the three counties for not counting the undated ones. ballot papers.

Matt Haverstick, a city-based Republican election attorney, agreed that counties should generally have the same policies. But the counties are doing their best to make the decisions given to them, he said. He blamed the state for not doing more in recent years to ensure uniformity in the first place.

“The crisis is a problem that, if not corrected, will repeat itself. And it’s not fair to voters,” Haverstick said. “The county you vote in shouldn’t determine how much election code you have to comply with, and that needs to be fixed.”

State law requires voters to write a date on the outer envelope when returning mail-in ballots. In a complicated decision in 2020, the Pennsylvania Supreme Court ruled that counties must reject undated ballots.

The undated ballots have been the subject of political fights ever since, including when Philadelphia election officials first sought to count those votes in last year’s primary, prompting impeachment threats from from Republican lawmakers.

But in a case about last November’s election in Lehigh County, a federal appeals court ruled that rejecting undated ballots violated federal civil rights law. The move came just days after the May 17 primary election, rocking the Republican Senate primary as it headed for a recount, and former hedge fund CEO David McCormick sued in state court for argue that undated ballots should be counted.

Mehmet Oz, the celebrity doctor who ultimately won the nomination, disagreed, joined by Republican parties state and nationwide.

The Commonwealth Court, however, supported McCormick and the federal appeals court’s finding, ordering counties to submit election results with and without undated mail-in ballots. (McCormick withdrew the case after conceding the race, but the judge refused to overturn the order, leaving it in place.)

After the U.S. Supreme Court declined to block the appeals court ruling, the state asked all 67 counties to include undated ballots in their certified results.

Berks, Fayette and Lancaster refused.

The counties organize elections. While many other states grant more authority to their Secretaries of State, Pennsylvania grants very little power to the state.

The State Department can ask, encourage, plead and intimidate counties to do what it wants, and it can issue non-binding guidelines to follow a certain reading of the law. But with most elements of election administration, there is little else the ministry can do.

Instead, 67 counties make 67 individual decisions, guided by their own attorneys.

This creates a patchwork of policies, an outcome that has repeatedly frustrated Republicans who argue the state needs greater uniformity. The right to vote should not depend on the county in which someone lives, they argue.

Some degree of difference is normal and, according to the courts, acceptable. But the current fight shows there is little the state can do about county differences when they arise.

The process of certifying election results was a largely tedious formality: after the votes were counted, county election commissions would certify those results and send them to the state, which certifies a final set of numbers.

The 2020 election changed that — as seen, at its extreme, in the attack on the Capitol on January 6, 2021 during a voter certification process that rarely made the news.

And in Pennsylvania, the certification process may be administrative, but it’s run by political actors.

Election administrators are generally civil servants who view their work as nonpartisan, but county election managers are not the ones who certify the vote. This is the business of the county electoral commissions. In most counties in Pennsylvania, the board is made up of the three county commissioners; in others, the commissioners appoint the council. And the State Department is itself part of the governor’s administration.

So the dispute over undated ballots raises troubling questions: What if the county-by-county patchwork is so inconsistent it could tip an election? What happens if a county does not certify any results? Or what if the state itself refuses to certify the results given to it?

The answers are unclear, and lawyers and election administrators have said they are worried about how they might be resolved in the future.