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On Election Reform, a Tale of Two States
COMMENTARY
By Todd Carney
August 02, 2022
Early on during election night 2020, it appeared that Donald Trump might win reelection. This misimpression, of course, turned out to be a red mirage, as some election analysts dubbed it. What caused it? In part, it was the networks’ call of Florida for Trump while Pennsylvania stayed in the undecided column for days. You might think that Pennsylvania would reform its election policies in response. Yet, a year and a half later, the same problems seen in 2020 caused confusion over how many ballots remained uncounted and which candidate was ahead in the state’s 2022 Republican Senate primary.
By contrast, Florida is unlikely to see such problems when it holds its primary on August 23. Despite its recent Republican lean, the state will likely see competitive primaries and general elections for some of its offices – and without the vote-counting drama that Pennsylvania has endured. The difference comes down to the election policies the two states have adopted.
Florida knows something about election strife. In 2000, Florida was the site of the infamous Bush–Gore recount. In the aftermath of George W. Bush’s victory, many Americans lost confidence in the integrity of our elections. In response, Florida enacted the Election Reform Act of 2001. The law provided uniform guidelines for all Florida counties’ ballots and provided financial support for election infrastructure and training to all poll workers. Finally, the law centralized the review of recounts to prevent any county going rogue or avoiding accountability.
Over the next 18 years, Florida saw some close races, but none with major controversy. In 2018, the state saw its closest elections since 2000, with the gubernatorial, Senate, and agricultural commissioner races going down to the wire. It took more than a week to call the Senate and agricultural commissioner races, both of which went to recounts – and recounts do take time.
Florida made more changes after 2018. The state further tightened its standards on ballots to increase uniformity. It removed election supervisors in Broward County and Palm Beach County whose conduct in the 2018 recount had been questioned. To speed up recounts, Florida also required that all counties have recount machines that could handle multiple ballots at once.
Separately, the state took another step that would pay dividends in 2020: It allowed jurisdictions to count mail-in ballots before Election Day. In the last presidential election, Florida, like the rest of the nation, saw record mail-in voting, but unlike some other states, it was able to count these ballots swiftly.
And Florida has made further changes over the last year and a half. In 2021, the state banned ballot drop boxes and restricted who could drop off mail-in ballots. Florida also banned counties from accepting money from private organizations to run elections, as with the infamous “Zuckerbucks.” This year, Florida has enacted legislation to strengthen enforcement of election law. Though Florida had no voting problems in 2020, the state has been vigorous in responding to concerns that many voters had about elections.
Pennsylvania, meanwhile, is a different story. A long-time swing state like Florida, it managed to avoid election controversies for long periods. But 2020 changed that. Ironically, Trump’s winning margin in Pennsylvania in 2016 was narrower than his losing margin in 2020 – yet while the broadcast networks were able to call Pennsylvania for Trump on election night in 2016, they had to keep it in the undecided column for four days in 2020 before finally declaring it for Joe Biden. Trump even led the following morning, by a seemingly robust margin. His eventual defeat confused many and led some to conclude that Democrats had stolen the election.
Voting in 2020 posed unprecedented challenges, to be sure. Pennsylvania should have had a system in place to count ballots early, as Florida did, but like many other states, it did not. So in 2021, the Republican-controlled Pennsylvania legislature decided to make changes in election laws that mirrored many of the reforms in Florida and elsewhere. Gov. Tom Wolf, a Democrat, vetoed the legislation.
Then came this year’s Pennsylvania Republican Senate primary. It was a razor-close race, with surgeon Mehmet Oz running neck-and-neck with businessman David McCormick, and Pennsylvania’s election system was not up to the challenge. Counties lacked uniformity in terms of how they counted ballots and used drop boxes; one county did not report that it had a printing error until Election Day. Some Democrats urged voters not to abide by signature requirements on mail-in ballots. Philadelphia prevented some poll watchers from participating in the election. The primary was held on May 17; Dr. Oz was not declared the winner until June 8.
In the aftermath of another chaotic election, Republicans in the legislature alleged that they had tried to pass comprehensive reform legislation but that Gov. Wolf was refusing to cooperate. Another problem: Unlike in Florida, where election policies reflect agreements forged between the governor and the legislature, in Pennsylvania, it is the state Supreme Court that has made the election rules. Though the court’s members are elected, making election law is not their job.
Today, Pennsylvania finds itself the poster child of dysfunctional elections, as Florida once did. If the state government is willing to follow Florida’s example, however, it might yet rehabilitate its reputation – as Florida has done. Without such action, the Keystone State will remain the nation’s election punchline.
Todd Carney is a lawyer and frequent contributor to RealClearPolitics. He earned his juris doctorate from Harvard Law School.
Election Reform, a Tale of Two States
