More than a month after the midterm elections, Pennsylvania still hasn’t certified its results of the 2022 election. Recount requests are holding up a process that has been playing out in sometimes dramatic fashion at the county level — producing at least one scene that should set off alarm bells for anyone concerned about election deniers refining their strategy ahead of 2024.
The state’s counties were supposed to certify their results by November 29 under Pennsylvania law, but nine of them missed the deadline, including Allegheny County, which encompasses Pittsburgh. As of Monday afternoon, all but one county ended up certifying the results, but not without a fight. The state can only certify when all the counties have done so.
An impeding factor is the “significant increase in the number of unsupported recount petitions,” said Amy Gulli, a spokesperson for the Pennsylvania Department of State. A total of 172 precincts across the state were subject to recount petitions this year, seemingly as part of a broader effort by right-wing groups like Audit the Vote PA to undermine confidence in the results.
These petitions have to be filed by at least three voters from a given district claiming errors in the vote totals within five days of an election, typically before a state court. The Pennsylvania Department of State told the Associated Press that counties must certify election results except in cases where there is a “legally valid and properly filed recount petition.” Many of them were not legally valid or properly filed.
Open petitions led to a raucous Allegheny elections board meeting last month, where local residents made their case for recounts in the races for US Senate, Congress, governor, and lieutenant governor across 12 precincts, a small fraction of the county total that would not have impacted the outcome. They made broad allegations that “fraud or error, although not manifest on the general return of votes, was committed in the computation of votes cast or in the marking of ballots” — the same language that has been invoked by leaders of Audit the Vote PA in other challenges to the results. A county lawyer, speaking over the recount supporters’ heckling, argued that their petitions were deficient and advised the board to proceed in certifying the election results.
But the three-person board — composed of two county council members at large (one Republican and one Democrat) and a Democratic county executive — voted not to certify the results in those 12 precincts. It did so not just with the support, but at the urging of the Democratic council member who said she didn’t want to get ahead of a state court ruling on whether the recount petitions had merit.
“How can we certify when we don’t know what the court is going to do?” Democratic County Councilperson At Large Bethany Hallam said at the meeting, prompting applause from the audience and cutting against the attorney’s advice. “I just don’t feel super comfortable jumping the gun ruling for the judge because that’s kind of what it feels like we’re doing.”
Hallam and her Republican counterpart eventually voted not to certify. It’s a decision that provides a window into how former President Donald Trump’s unfounded allegations of election fraud in 2020 continue to reverberate, and how the integrity of US elections still hinges on the decisions of individual local officials to hold their ground against elections deniers.
In an interview with Vox, Hallam said she felt voting against certification would help election deniers see the error of their ways: “I think that the way to stop the election denier narrative is to show them why there is no cause for concern. … That’s the way to end these conspiracy theories.”
But Mike Mikus, a Democratic strategist in Pennsylvania, said that Hallam’s decision achieves the opposite. “This is a dry run for 2024 to create mayhem and steal an election,” he said.
Though election deniers lost up and down the ballot in 2022, even outside of political office, their movement is still very much alive, and the incident in Allegheny shows that they have the capacity to wreak havoc in the certification process at the local level.
It was only on December 9, after a state court dismissed the recount requests, that Allegheny County finally certified all of the results. Such delays continue to impact the certification of the statewide results. Gulli said there is “no statutory deadline” to certify statewide results and gave no further indication as to when that might happen.
The warning signs in Allegheny County
The Allegheny County Board of Elections’s decision not to certify all of the results during its November 28 meeting lent legitimacy to election deniers, which is especially troubling given that none of the results at issue weren’t even in doubt, Mikus said. Democratic Senate candidate John Fetterman, gubernatorial candidate Josh Shapiro, and candidate for lieutenant governor Austin Davis won their races by about 5, 15, and 14 percentage points, respectively. Democrat Summer Lee won Pennsylvania’s 12th Congressional District, which encompasses much of Allegheny County, by more than 12 percentage points.
“Instead of mollifying these groups, you’re empowering them,” Mikus said. “They’ll just continue to try and hold our elections hostage if they don’t like the results.”
The board’s decision also went against the advice of the county’s legal counsel: Allan Opsitnick, an assistant county solicitor, told the board at the meeting that the recount petitions made “boilerplate allegations” and were “defective both procedurally and substantively,” explaining that they didn’t include a $50 bond mandated by state law and that such petitions would have to be filed in every precinct across the county in order to seek recounts in statewide races.
He said that it was “proper for the board to certify the results,” especially given that recounts in those precincts would not change the outcome of the Senate or governor’s races.
Those comments prompted jeering from a dozen or so attendees in the audience, who had come to publicly air their grievances about the election. Amie M. Downs, a spokesperson for the county who was at the meeting, said that “there wasn’t wasn’t decorum at all.”
“People were speaking out and yelling while the solicitor was addressing the board, even after they’d spent 45 minutes addressing the board about their concerns and issues,” she said. “There were people yelling obscenities. There were people who had flipped off or made vulgar hand gestures to members of the board.”
On a video recording of the meeting, one person in the audience yells out, “This is a dereliction of duty.”
Democratic County Executive Rich Fitzgerald at one point threatened to “clear the room.” Downs said that their team also contacted the sheriff’s office, which is responsible for courthouse security, because “we weren’t sure what additional actions” the crowd would take.
Fitzgerald urged his colleagues on the board to follow Opsitnick’s advice. But ultimately, an unlikely alliance between Hallam, a self-described progressive, and Republican County Councilperson At-Large Sam DeMarco III doomed the certification of the results in the precincts subject to recount requests.
Hallam, who has been on the elections board since 2020, said in the meeting that she was worried about certifying all the results before a state court ruled on the matter. She told Vox that DeMarco was inclined to vote to certify the results anyway, but she took him aside and convinced him otherwise.
“I explained my point to him and told him that he shouldn’t just follow the leader and certify because the county executive said [so], but instead, we should follow the process of the law,” she said. “I thought it was improper to basically preempt a judge’s ruling by saying that this case had no merit.”
Hallam said that, particularly given that the elections board is composed of partisan elected officials, she wanted to be consistent in affording Republicans the same opportunity to petition for a recount as Democrats. But she also saw that vote as an opportunity to quell election deniers’ concerns, which she sees as fueled in part by election officials’ lack of transparency.
Hallam said, “We have been consistently having residents … submit questions, concerns, allegations of wrongdoing to us, and in my opinion, we have not been transparent … about addressing those concerns head-on.”
Mikus said that her approach is “opening up a Pandora’s box” in which election deniers believe they can hold up the certification process even with clearly deficient recount petitions.
“The fact that the courts may get involved down the road should have no bearing on what the Board of Elections does,” he said. “If there are clear winners, there are clear winners. And it’s incumbent upon the Board of Elections to certify those results.”
The Pennsylvania Court of Common Pleas eventually ordered the Board of Elections to certify all the results, but not before another week and a half and the legal deadline had passed.
It’s not clear that officials can prevent the same situation from happening again.
“Everybody has the ability, obviously, to avail themselves of the actions and options that are available to them under the election code. In this case, they didn’t follow [code],” Downs, the county spokesperson, said. “But, moving forward, if everything is filed appropriately, there isn’t anything that we can or should be doing.”
The conflict in Allegheny shows that election deniers will continue to test the limits of democratic processes, and that there are often only a few officials between them and success.
