Pennsylvania's Election Law: What Broke And Why?

Pennsylvania's election laws have been a topic of debate, with lawmakers disagreeing on the necessary changes to be made. The state's Election Code, last overhauled in 1937, contains conflicting sections, outdated provisions, and language that does not reflect modern election processes. The code's inconsistencies have led to confusion, lawsuits, and the spread of misinformation. While there have been calls for reform to address these issues and improve election integrity, the debate has been poisoned by former President Donald Trump's false claims of widespread fraud in the 2020 election, thrusting voting into the centre of America's culture wars.

Pennsylvania's 1937 Election Code is outdated and contradictory

Pennsylvania's 1937 Election Code, which was last significantly amended in 2019, is outdated and contradictory. The 1937 Code, which covers general, municipal, special, and primary elections, is in need of reform to address lessons learned and shore up the system for the future.

The Code's age is evident in its failure to keep up with modern voting methods, such as mail-in ballots, which were introduced in Pennsylvania for the first time in 2020. This led to a slow vote count and created an opportunity for false claims of malfeasance. The Code also includes outdated terminology and provisions, such as the requirement for machine inspectors and the definition of "dependent" added in 1963, which no longer reflect current practices or societal norms.

The 1937 Election Code is also contradictory, with provisions that overlap or conflict with other legislation. For example, the Code's provisions on the duties of election officers and the computation of election returns may overlap with the responsibilities of other government bodies or officials. The Code's penalties for refusing to permit election officers, clerks, and machine inspectors to act may also be contradictory, as they could potentially conflict with other laws or regulations on freedom of movement and assembly.

In addition, the Code's provisions on the nomination and election of public officers may be contradictory to other laws or regulations on the same topic. The Code's approval of an 1899 act, which amends the computation of election returns for certain district officers, may also be contradictory to other provisions or laws on the same topic. The Code's provisions on the duties of voters, election officers, and law enforcement officials, as well as forms of punishment for violations, may also be contradictory or inconsistent with other laws or regulations.

Overall, Pennsylvania's 1937 Election Code is outdated and contradictory, leading to confusion and disagreement among lawmakers and the public. A thorough review and reform of the Code are necessary to ensure smooth and fair elections in the state.

Lawsuits filed by the Trump administration

The Trump campaign filed several lawsuits in Pennsylvania over the counting of election results and election practices. Here are the key suits:

Republican Party of Pennsylvania v. Boockvar

The GOP protested the state Supreme Court's decision to allow mailed-in ballots three additional days to arrive, claiming it violated federal law and the U.S. Constitution. The U.S. Supreme Court voted 4-4, allowing the lower court ruling to stand. The GOP petitioned for another review, and a motion from the Trump campaign to intervene is pending.

Trump for President v. Boockvar

Trump's campaign sued the Pennsylvania Secretary of State, saying the deadline for mail voters to supply missing proof of identification should be November 9, not November 12. The court ordered ballots received in the extended period to be segregated.

Trump for President v. Philadelphia County Board of Elections

The Trump campaign sought an emergency injunction to stop the vote count in Philadelphia until Republican observers were granted better access to the canvassing tables. An agreement was reached, with both the Trump and Biden campaigns entitled to 60 observers to watch the count.

In Re: Canvassing Observation

An appeals court ordered Philadelphia to make it easier for observers to watch ballot handling, briefly halting the count. Philadelphia asked the state Supreme Court for an appeal, which is pending.

In Re: Motion for Injunctive Relief of Northampton County Republican Committee

A group of Republican candidates sued over pre-canvassing and the release of names of people whose ballots were rejected and needed to be cured.

In addition to these lawsuits, the Trump campaign also dropped a key request in another lawsuit seeking to stop the certification of election results in Pennsylvania. The campaign maintained its claim that Democratic voters were treated more favorably than Republican voters and targeted the practice of allowing voters to fix mail-in ballots that would otherwise be disqualified for technicalities.

Pennsylvania's mail-in ballot counting laws

Pennsylvania's mail-in ballot laws have been a contentious issue, with lawmakers and voters expressing differing opinions on the matter. The state's election laws have been subject to scrutiny and proposed changes by legislators from across the political spectrum. While Republicans have focused on election security and integrity, Democrats have advocated for expanding access to voting.

In the 2024 primary election, two Butler County voters who had made errors on their mail-in ballot envelopes submitted provisional ballots at their polling places. However, the county board of elections initially refused to count these ballots. The Commonwealth Court of Pennsylvania ruled that the county had no legal basis for disqualifying the provisional ballots, and this decision was upheld by the state Supreme Court, setting a precedent for the entire state. This ruling affirmed the right of voters to cast provisional ballots if they made mistakes on their mail-in ballots, ensuring that eligible voters would not be disenfranchised due to technical errors.

Additionally, in the case of Baxter v. Philadelphia County Board of Elections, the Pennsylvania Commonwealth Court ruled that disqualifying timely votes due to missing or incorrect handwritten dates on mail-in ballot return envelopes is unconstitutional. The court agreed with the ACLU of Pennsylvania, the national American Civil Liberties Union, and the Public Interest Law Center, who argued on behalf of voters that were disenfranchised due to minor errors. This decision upheld the fundamental right to vote and reinforced that disqualifying voters for insignificant mistakes is a violation of the state constitution.

Despite these rulings, there have been disputes over counting mail-in ballots in Pennsylvania. In the 2024 Senate race between Dave McCormick (R) and Bob Casey (D), Democratic officials in several counties, including Philadelphia, Bucks, Centre, and Montgomery, defied a state Supreme Court ruling and counted disqualified ballots. The court had previously decided that mail-in ballots lacking formally required signatures or dates should not be included in official results. However, Democrats argued that rejecting votes due to clerical errors violated the constitutional rights of voters. This led to clashes between the McCormick and Casey campaigns, with the Republicans accusing the Democrats of attempting to steal the Senate seat by breaking the law.

Pennsylvania's handling of voting machines

In April 2018, the Department of State addressed this issue by informing counties that they must select and implement new voting systems that meet specific criteria by the 2020 primary election. These new systems were required to produce voter-verifiable paper records and meet enhanced security, auditability, and accessibility standards. As of the June 2, 2020, primary election, all 67 of Pennsylvania's counties had deployed these updated voting systems, ensuring a more secure and modern voting process.

However, a dispute arose in Fulton County regarding "unauthorized third-party access" to the new voting machines. In 2021, two Republican county commissioners permitted Wake Technology Services Inc. to examine and obtain data from the Dominion voting machines. This action resulted in the decertification of the county's voting machines, as it was considered a security compromise. The county sued the secretary of state, arguing that they had broad authority over the voting machines.

Ultimately, a Pennsylvania court ruled in favour of the state, affirming that the secretary of state has the authority to direct counties to prevent unauthorized access to voting machines. This decision highlighted the importance of maintaining the security and integrity of voting systems, with the court recognizing the secretary's role in ensuring "statewide consistency and safety" regarding electronic voting systems.

Pennsylvania's voting laws and the role of the legislature

Pennsylvania's voting laws are governed by the state's Election Code, with county governments running elections under state oversight. To register to vote in Pennsylvania, an individual must be a citizen of the United States for at least one month before the next primary, special, municipal, or general election. They must also be a resident of Pennsylvania and the election district in which they want to register and vote for at least 30 days before the election. Finally, they must be at least 18 years of age on or before the election day.

Pennsylvania offers four options for casting a vote: absentee, mail-in, in-person, or provisional ballots. Absentee ballots require the voter to provide a reason for their request, whereas mail-in ballots do not. Both mail-in and absentee ballots must be returned by 8:00 pm on election day. For in-person voting, polls are open from 7 am to 8 pm on election day, and individuals in line by 8 pm can vote. Provisional ballots are for registered voters whose eligibility to vote at their polling place is uncertain.

The Pennsylvania General Assembly is the state's legislature, seated in the state's capital, Harrisburg. It has been a bicameral legislature since 1790, consisting of the upper house, the Pennsylvania State Senate, and the lower house, the Pennsylvania House of Representatives. The General Assembly is responsible for passing the state budget, which must be balanced, and for drawing congressional district boundaries, subject to gubernatorial veto.

The legislature also plays a role in election oversight, with Republicans in the legislature signalling that election law would be a top priority. This has led to concerns about voter suppression, particularly in the wake of Donald Trump's false claims of widespread fraud in the 2020 election.

Pennsylvania Democrats fear that Republicans are more interested in relitigating the 2020 election and conducting a witch-hunt against state and county officials to appease their base. Republicans, meanwhile, say they want to examine what happened and work with Democrats to improve state law. The role of the legislature in elections is thus a contentious issue in Pennsylvania, with Democrats pushing for expanded access to voting and Republicans seeking to tighten voting processes and implement stricter voter ID requirements.

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