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- Laws governing the 2020 general election were established months or years in advance.
- Some legal challenges changed some procedures in the weeks or days before ballots were cast.
- State election officials, such as secretaries of state, issued guidance in the course of their duties.
Rep. Chris Jacobs, a Republican who represents suburbs around Buffalo and Rochester, said in a statement that he voted against certifying the electoral college vote because of election irregularities, and said states made changes to election processes that sowed distrust.
In an interview with WKBW, he told reporter Hannah Buehler: "There’s been a lot of questions about election integrity, but I was going in terms of my constitutional role," he said. "When you look at the Constitution of the United States, it gives specific power to state legislators to control, run and dictate the terms of elections in their states. There were several states where outside actors dramatically changed the rules of the road, so to speak, two weeks out, one week out, on how elections would be run."
We wondered about whether "outside actors" changed election procedures one or two weeks before the election.
We reached out to Jacobs’ spokesperson, who said that the "outside actors" Jacobs referred to are courts and officials outside of state legislatures. Spokesman Christian Chase referred us the U.S. Constitution, which states, in Article 1, Section 4: "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations."
Jacobs was referring to situations in Pennsylvania and Arizona, Chase said.
In Pennsylvania, the State Supreme Court extended by three days a deadline that had required ballots to be received when the polls closed, Chase said. This happened Sept. 17. Mail-in ballots in Pennsylvania had begun to be delivered in some counties in late September, according to the Philadelphia Inquirer.
He also said the Pennsylvania Secretary of State "waived a requirement in state law" that required signature verification on mail-in ballots. This guidance was issued on Sept. 11, and was upheld by the state Supreme Court, which found that the guidance was not in conflict with state law.
Jacobs’ spokesman also said that Pennsylvania "allowed for unequal curing of ballots by different jurisdictions." Factcheck.org found that there were inconsistencies when it came to curing ballots, or the process of allowing voters to correct mistakes so their ballots will be counted. Some counties did, and some did not. While the guidance from the state, which was issued close to the election, was uniform, it was applied inconsistently, the site found.
In Pennsylvania, the secretary of state is the state’s "chief election official," and is appointed by the governor and confirmed by the Senate.
In Arizona, Jacobs pointed to changes to the registration deadline by federal courts.
We asked election and voting experts about procedures in swing states.
The laws that were in place for the general election were in place for months, often years before the election, said David Becker, executive director and founder of The Center for Election Innovation & Research, a nonprofit organization that promotes election security and increased voter participation.
In states where lawsuits were brought -- Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin -- the changes were made by legislatures dominated by Republicans, Becker said.
The rules were set in advance, but there was some pre-election litigation, and voters had to rely upon whatever the final rules were, Becker said.
ABC News published a story less than a week before Election Day regarding state election officials who had to deal with the impact of last-minute litigation and the resulting court rulings. County election officials in Michigan and Wisconsin told the network that differing directives from courts had been confusing.
The U.S. Supreme Court also issued rulings affecting election procedures in North Carolina, Pennsylvania, and Wisconsin, in the days before Election Day. In Pennsylvania, on Oct. 19, a little more than two weeks before Election Day, the court allowed a three-day extension to count ballots to remain in place.
Amber McReynolds, chief executive officer of the National Vote at Home Institute, a nonpartisan organization that promotes voting by mail, told PolitiFact that secretaries of state are responsible for providing guidance and direction to local election officials, so it’s natural for them to provide guidance, especially in emergency situations.
States have different ways of administering elections, and legislatures can formalize these policies in statute, according to The National Conference of State Legislatures.
"State legislatures, with input from their governors, can make state laws about the administration of elections and make or initiate election administration amendments to their state constitutions," according to a 2019 Congressional Research Service report. "State laws and constitutions can also delegate or defer responsibility for decisions about the administration of elections to other state or local officials and to voters."
Jacobs said that he voted against certifying the Electoral College vote because he looked at the Constitution and it gives state legislatures authority over elections, but that he saw that "outside actors dramatically changed the rules of the road" within two weeks of the election.
State laws regarding election procedures were in place months, or years, before Election Day. There were some legal challenges and guidance from state election officials near the election. But secretaries of state and other state and local election officials have duties related to running elections and are not "outside actors." Courts are the place to hear legal challenges to election rules.
It's questionable that three-day registration deadline extensions, extending the deadline for ballots to be received, and offering voters opportunities to correct their ballots are "dramatic" changes to election procedures, as Jacobs states.
We rate this claim Mostly False.
Rep. Chris Jacobs, statement, "Jacobs statement on objecting to the certification of the electoral college," Jan. 6, 2021. Accessed Jan. 12, 2021.
WKBW, interview, "Chris Jacobs talks about election certification objection," Jan. 7, 2021. Accessed Jan. 12, 2021.
Email interview, Christian Chase, spokesman, Rep. Chris Jacobs, Jan. 12, 2021.
U.S. Constitution, Article 1, Section 4, via Congress.gov. Accessed Jan. 13, 2021.
Email interview, Amber McReynolds, chief executive officer, National Vote at Home Institute, Jan. 12, 2021.
Email interview, David Becker, executive director, founder, Center for Election Innovation and Research, Jan. 12, 2021.
PolitiFact, "Fact-checking Hawley’s claim about Pennsylvania’s election law," Jan. 8, 2021. Accessed Jan. 12, 2021.
Factcheck.org, "FactChecking the Electoral College Debate," Jan. 7, 2021. Accessed Jan. 12, 2021.
ABC News, "‘Like a yo-yo’: Election officials grapple with flood of confusing last-minute rule changes," Oct. 29, 2020. Accessed Jan. 12, 2021.
Associated Press, "High court allows 3-day extension for Pennsylvania ballots," Oct. 19, 2020. Accessed Jan. 12, 2021.
Associated Press, "Supreme Court issues flurry of last-minute election orders," Oct. 29, 2020. Accessed Jan. 12, 2021.
KPBS, "Pennsylvania Supreme Court Extends Vote By Mail Deadline, Allows Drop Boxes," Sept. 17, 2020. Accessed Jan. 13, 2021.
Philadelphia Inquirer, "Voting has begun in Pennsylvania’s messy, unprecedented 2020 pandemic election," Sept. 28, 2020. Accessed Jan. 13, 2021.
Supreme Court of Pennsylvania, Middle District, Opinion, In Re: Nov. 3, 2020 General Election, Petition of Kathy Boockvar, Secretary of the Commonwealth of Pennsylvania, Oct. 16, 2020. Accessed Jan. 13, 2021.
Pennsylvania Department of State website, About Us. Accessed Jan. 13, 2021.
AZCentral.com, "9th Circuit says Arizona voter registration must end in 2 days," Oct. 13, 2020. Accessed Jan. 13, 2021.
Congressional Research Service, report, "The State and Local Role in Election Administration: Duties and Structures," March 4, 2019. Accessed Jan. 13, 2021.
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