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Election Law @ Moritz Home Page

Election Law @ Moritz

Election Law @ Moritz


2008 Key Questions for Key States

Pennsylvania

The complete research by Election Law @ Moritz for Pennsylvania can be found below.

Institutional Arrangements

State Chief Election Authorities

Democratic appointee

Chief election authority: Secretary of the Commonwealth. 25 P.S. § 2621.

Method of selection: Appointed by governor with Senate confirmation. Const. Art. 4, § 8.

Current officer: Pedro A. Cortes (D). Second Annual National Digital Governmental Summit at Colonial Red Lion Hotel in Helena on Sept. 10, US State News, September 7, 2007, 2007 WLNR 19133804. (Last updated 1/1/08)

State High Court Composition

R leaning/elected

Method of selection: Elected. Const. Art. 5, §13. Unexpired terms are filled by gubernatorial appointment.

Justices: Ralph J. Cappy (D), Ronald D. Castille (R), Thomas G. Saylor (R), J. Michael Eakin (R), Max Baer (D), Cynthisa A. Baldwin (D), James J. Fitzgerald, III (R) (Last updated 12/22/07)

Sources:

  • Parties eac claim election edge but others see a wash _ and spin, AP Alert – Pennsylvania, November 8, 2007, 05:04:47.
  • No surprises in the suburban races, Philadelphia Inquirer, November 7, 2007.
  • Reformers’ next task: how to remain relevant, Morning Call (Allentown), November 8, 2007.
  • Election is putting Pa. court in play, Philadelphia Inquirer, September 23, 2007.

Local Administrator Training

One-time training/voluntary

The secretary of state, in consultation with the county boards of elections, must develop a certification program for local election officials. 25 PA CSA 2621. Participating in the training and certification program is voluntary.

However, there is one area of training that is mandatory. Local election officials must attend an intial training program concerning use of the state's centralized voter registration system, and further training on the system as deemed necessary by the Secretary of State. 4 PA ADC 183.9.

Who tallies precinct results?

Local election authority - bipartisan

The county board of elections tallies precinct results.  26 PS 3154. The county board of elections consists of the county commissioners or any officials who are performing the duties of the commissioners. 25 PS 2641.  If election does not result in representation by both political parties, a person from the minority party must be appointed.

Who counts provisional ballots?

Local election authority - bipartisan

The county board of elections determines whether to count provisional ballots. 25 PS 3050. By default, these boards consist of the three-member, elected county legislature, but counties may move to an appointment system by varying local law. 16 PS 401; 25 PS 2641. Where there is no minority-party representation, the county legislature will appoint a minority representative from lists submitted by the minority party.

Who performs state canvass?

Secretary of State - elected


The Secretary of the Commonwealth conducts the state canvass. 25 PS 3159.  However, in Presidential elections, the governor performs the state canvass. 25 PS 3166.

Local Administrator

County board - bipartisan

At the local level, Pennsylvania elections are administered by county boards of election. 25 PS 2641. By default, these boards consist of the three-member, elected county legislature, but counties may move to an appointment system by varying local law. 16 PS 401; 25 PS 2641. Where there is no minority-party representation, the county legislature will appoint a minority representative from lists submitted by the minority party.

Local Administrators' Party Affiliation

Unknown affiliation/elected

County Population Administrator/Affiliation Selection Voting Technology
Philadelphia County 1,470,151 Bipartisan board Elected Danaher 1242 touchscreen w/out VVPAT
Allegheny County 1,250,867 Bipartisan board Elected ES&S iVotronic touchscreen
Montgomery County 774,029 Bipartisan board Elected Sequoia AVC Advantage touchscreen
Bucks County 617,558 Bipartisan board Elected Danaher 1242 touchscreen (no VVPAT)
Delaware County 555,040 Bipartisan board ? Danaher 1242 touchscreen (no VVPAT)
Lancaster County 487,332 Bipartisan board Elected Hart Intercivic eScan/eSlate
Chester County 465,795 Bipartisan board Elected ES&S Model 100 OS
York County 401,613 Bipartisan board Elected Sequoia AVC Edge touchscreen
Berks County 391,640 Bipartisan board Elected Danaher 1242 touchscreen (no VVPAT)
Westmoreland County 368,660 Bipartisan board Elected ES&S iVotronic touchscreen
Total 6,782,685 (54.7% of total pop.)

*Note that, where election does not result in at least one seat for the minority party, a member of that party must be appointed.

Voter Registration

Registration Deadline

30 days before election

The deadline is thirty days before the election. 25 PaCSA 1326. Mailed applications will be timely if postmarked by this day and received at least 25 days before the election.

Notice of Registration Error

Yes

Regulations require that administrators notify applicants of incomplete application forms and give the applicants the opportunity to correct them. 4 PA ADC 183.5.

Opportunity to Correct after Registration Deadline

Unclear under state law

Pennsylvania law does not state whether corrections submitted after the registration deadline would be effective for the upcoming election.

HAVA matching standards

Hybrid standard

A report produced by the Brennan Center in 2006 states that Pennsylvania at that time intended to use a hybrid standard.  For voters who submitted their driver's license or state ID numbers, the number and the first two characters of the person's last name would have to match.  If those criteria were satisfied, local election administrators would look at the rest of the information to determine, based on their judgment, whether there was a match.  However, the Brennan report also stated that Pennsylvania intended to use an exact match standard for voters who did not submit driver's license or state ID numbers, but who submitted social security number instead.  A memo obtained from Pennsylvania's Secretary of the Commonwealth appears to confirm use of this hybrid match standard, although it is two years old.  A representative of the Secretary's office did not return calls.

Will the inability to verify social security number or driver's license number prevent registration?

No consequence

An internal memorandum issued by the Secretary of State in 2006 states that “ the failure to achieve a match between a voter registration application and a record in the Commonwealth’s driver’s license database or the database of the Social Security Administration is not a reason to reject the application.”  However, note that all Pennsylvania voters have to show minimum HAVA-type ID at the polls (current and valid photo ID, or current utility bill, bank statement, government check, paycheck, or other government document that shows the name and address of the voter).  In many other states, the main consequence of a failed match is having to present this kind of ID.

 

Challenges

Pre-election challenges

Challenge decided by other

There are two types of pre-election day challenges: one that occurs by mail, and one that occurs in person. Any qualified elector in the jurisdiction may initiate a mail-based challenge by filing an affidavit with the registration commission stating the reason for challenge. 25 PaCSA 1329. The challenged individual must respond in writing, at which point the county registration commission decides whether to cancel or keep the disputed registration. The in-person challenge may be filed by any qualified elector up to the tenth day preceding an election. 25 PaCSA 1509. The challenged voter is entitled to 24 hours notice of the hearing and the commission may cancel the challenged voter’s registration unless the voter appears and shows it would be error.

Election day challenges

Challenged voter may cast a regular ballot after having another voter vouch for his or her identity

On election day, challenges may be brought by any voter against another at the polls. 25 PS 3050. Challenged voters may cast an ordinary ballot, but only if they can find another registered voter to “vouch” for their identity in an affidavit. Voters cannot be challenged as to party affiliation, because the affiliation on the precinct list is conclusive. The decision of the county board in upholding or dismissing any challenge may be appealed within two days of the decision to the court of common pleas of the county upon a petition filed by any petitioner aggrieved by the decision of the county board. 25 PS 3050(a.4)(4)(v).

Provisional Ballots

Provisional ballot - name not in poll book

Ballot will count if voter was registered and eligible and signature matches one on file

Provisional ballots are counted if the voter was registered and entitled to vote and the signature on the provisional ballot envelope matches the signature on the voter's registration record.  25 PS 3050(a.4)(5)(i).  However, if a voter casts a provisional ballot outside of his or her election district but within the correct county, the ballot will be partially counted for the races in which the voter was eligible to vote.  25 PS 3050(a.4)(7)(i).  Provisional ballots with signature problems or that do not contain a secrecy envelope will not be counted.  25 PS 3050(a.4)(5)(ii).

Provisional ballot - voter cast ballot in wrong precinct

Ballot may be at least partially counted

Pennsylvania voters need only cast their provisional ballots in the county where they reside for it to be counted. However, their votes will only count for races in which they were eligible to vote. 25 PS 3050(a.4)(7)(i).

Provisional Ballot Casting Rate - 2006

.25-.5 percent of ballots cast at polls

0.41%

Provisional Ballot Counting Rate - 2006

60-70 percent

63.1%

Early and Absentee Voting

Convenience Voting

Neither early voting nor "no excuse" absentee voting

Pennsylvania does not have early voting.

Voters must have an excuse to cast an absentee ballot.  25 PS 3146.1.  Ballots may be requested starting 50 days before the election and ending at 5 p.m. on the first Tuesday prior to the election.  25 PS 3145.2a.  To count, completed ballots must be received by 5 p.m. on the Friday preceding the election.  25 PS 3146.8.

Voting Technology

Voting Technology

Mostly DRE

County Population Administrator/Affiliation Selection Voting Technology
Philadelphia County 1,470,151 Bipartisan board Elected Danaher 1242 touchscreen w/out VVPAT
Allegheny County 1,250,867 Bipartisan board Elected ES&S iVotronic touchscreen
Montgomery County 774,029 Bipartisan board Elected Sequoia AVC Advantage touchscreen
Bucks County 617,558 Bipartisan board Elected Danaher 1242 touchscreen (no VVPAT)
Delaware County 555,040 Bipartisan board ? Danaher 1242 touchscreen (no VVPAT)
Lancaster County 487,332 Bipartisan board Elected Hart Intercivic eScan/eSlate
Chester County 465,795 Bipartisan board Elected ES&S Model 100 OS
York County 401,613 Bipartisan board Elected Sequoia AVC Edge touchscreen
Berks County 391,640 Bipartisan board Elected Danaher 1242 touchscreen (no VVPAT)
Westmoreland County 368,660 Bipartisan board Elected ES&S iVotronic touchscreen
Total 6,782,685 (54.7% of total pop.)

*Note that, where election does not result in at least one seat for the minority party, a member of that party must be appointed.

Does state law require a VVPAT?

No

Currently Pennsylvania does not require VVPAT, but a current bill proposes to add this requirement. See 2007 PA HB 53.

Polling Place Operations

Who are poll workers?

Elected/unconstrained

In Pennsylvania, key poll workers are elected in municipal elections and serve four-year terms. The key poll workers are the head judge, the majority inspector, and the minority inspector. 25 PS 2671. The “minority inspector” is not necessarily of the minority political party, but is simply whoever received the second highest number of votes in the previous election for inspector. Thus, the statute creates no explicit requirement of bipartisanship (except where courts appoint poll workers to fill vacancies). 25 PS 2675. The three core poll workers may employ other clerks and helpers as needed.

Poll worker training

Frequency determined by local officials

Pennsylvania requires poll workers to be trained on the voting machines in precincts where voting machines are used. This is an old law as voting machines are now used in nearly every precinct in the country. 25 PS 2684. Pennsylvania code also lists training poll workers as a duty of local administrators to be done "whenever deemed advisable". 25 PS 2642(g). The secretary of the commonwealth must develop a poll worker training program but use of it by local officials is voluntary. 25 PS 2621.

There are no regulations on poll worker training.

Polling hours extension

Unclear

"At all primaries and elections the polls shall be opened at 7 A.M., Eastern Standard Time, and shall remain open continuously until 8 P.M., Eastern Standard Time, at which time they shall be closed." 25 PS 3045. Pennsylvania law contains provisions for moving polling places in case of emergency but says nothing about extending polling hours in case of election disruptions. 25 PS 2726. A Pennsylvania court was asked to extend polling hours in Philadelphia where machines had malfunctioned during the 2008 primary, but the request was denied. See http://www.phillyburbs.com/pb-dyn/news/103-04232008-1523304.html.

Pennsylvania also has a provision that has been read to allow court of common pleas judges to suspend voting if there is "a natural disaster or emergency on the date of election." General Election-1985, 109 Pa. Commw. 604, 531 A.2d 836, 1987 Pa. Commw. LEXIS 2508 (1987)(interpreting 25 PS 3046, defining duties of common pleas courts on days of election). However, it is not clear that this power would include the power to extend, rather than suspend, voting.

"When the hour for closing the polls shall arrive, all qualified electors who have already qualified, and are inside the enclosed space, shall be permitted to vote; and, in addition thereto, all those qualified electors who are in the polling place outside the enclosed space waiting to vote and all those voters who are in line either inside or outside of the polling place waiting to vote, shall be permitted to do so, if found qualified." 25 P.S. § 3060.

Polling place closing times - local times

8:00 PM local time

Polling place closing times - by Eastern time zone

8:00 PM Eastern time

Ballot Security

Voter ID requirements

Non-photo ID required only of first-time voters

Pennsylvania generally does not require ID of its voters. However, it does require ID of individuals who are voting for the first time in Pennsylvania. Note that this requirement applies to all first-time voters, not just those who registered by mail and whose registration information the state was unable to verify using database matching. 25 PS 3050; Pennsylvania Department of State: Voter Identification.

Acceptable forms of ID: 1) a valid driver’s license or identification card issued by the Department of Transportation; 2) a valid identification card issued by any other agency of the Commonwealth; 3) a valid identification card issued by the US Government; 4) a valid US passport; 5) a valid student identification card; 6) a valid employee identification card; or 7) a valid armed forces of the US identification card. 25 PS 3050. If the elector does not have a photo identification, the elector shall present one of the following forms of identification that shows the name and address of the elector: 1) non-photo identification issued by the Commonwealth, or any agency thereof; 2) non-photo identification issued by the US Government or agency thereof; 3) a firearm permit; 4) a current utility bill; 5) a current bank statement; 6) a paycheck; 7) a government check.

Consequences of failure to present ID

Voters must cast provisional ballot

If the elector is unable to provide identification, the elector may cast a provisional ballot. 25 PS 3050.

Follow-up required of voter

No followed-up required

If a voter casts a provisional ballot for lack of ID, the voter need not do anything (e.g., return with identifying documents) to ensure that the ballot is counted.  Rather, the ballot will be counted as long as the voter was registered and eligible and his or her signature matches the one on file.  25 PS 3050.

Emergency Preparedness

Natural Disasters or Emergencies

Election-specific emergency provision

County boards of elections may move polling places in case of an emergency.  25 PS 2726.

Pennsylvania also has a provision that has been read to allow court of common pleas judges to suspend voting if there is "a natural disaster or emergency on the date of election." General Election-1985, 109 Pa. Commw. 604, 531 A.2d 836, 1987 Pa. Commw. LEXIS 2508 (1987)(interpreting 25 PS 3046, defining duties of common pleas courts on days of election).

Pennsylvania's general emergency provision gives the governor power to suspend laws in case of emergency.  35 Pa.C.S. 7301(f)(1).

Ballot Shortages

Local officials will restock

Pennsylvania requires that county election officials keep a central supply of extra ballots on hand for distribution to precincts in case of shortage. 25 P.S. 2967.

Pennsylvania law states that “only official ballots furnished by the county boards of elections shall be cast or counted at any primary or election.” 25 P.S. 2961. A literal interpretation of this statute would prohibit use of makeshift emergency ballots on election day, but it is not clear that a court would treat the language so literally.

What if touchscreens break down?

Poll workers can create makeshift ballots

When voting machines break down, they should be repaired or replaced but, "in case such repair or substitution cannot be made, paper ballots, printed or written, and of any suitable form, may be used for the taking of votes." 25 PS 3017.

Post-Election Processes

State certification deadline

Upon receipt of local results

The Secretary of the Commonwealth computes and canvasses the votes after receiving the certified returns from the county boards. 25 PS 3159. For the election of presidential electors, the Secretary of Commonwealth submits the returns to the Governor who determines the number of votes for each person and delivers a certificate of election to person elected. 25 PS 3166.

Election contest deadline

Other

A presidential election must be contested within twenty days of the election. 25 PS 3456. However, courts have been willing to waive this type of deadline when an election contestant does not learn of an irregularity until the filing period has expired and the contestant's ignorance is not due to any fault or dereliction on his or her part. In re General Election for Dist. Justice, 670 A.2d 629, 635 (Pa. 1996); In re Twenty-Sixth Election Dist., Second Ward, Borough of Lehighton, 351 Pa. 544 (Pa., 1945).


NOTE: Article 7, § 13 of the Pennsylvania constitution provides that presidential contests will be heard in state court.

Local count deadline

Within 7 days of the election

The canvass begins at 9:00 a.m. on the 3rd day after an election to canvass the returns. 26 PS 3154. The board submits the unofficial returns to the Secretary of the Commonwealth by 5:00 p.m. on the Tuesday following the election. The board will certify the returns five days after the completion of the computation if there has been no petition for recount or recanvass.

Audit type

Other

Audits are conducted using manual, mechanical, or electronic devices of a different type than those used to obtain the original count.  25 PS 3031.17.

The county board of elections randomly selects the lesser of 2% of the votes cast or 2,000 votes to audit.  25 PS 3031.17.

Audit scope

2% of votes

The county board of elections randomly selects the lesser of 2% of the votes cast or 2,000 votes. 25 PS 3031.17.

Candidate-requested recounts

Upon request

Any group of three voters in an election district may obtain a recount by filing a petition with the local trial court. 25 PS 3261. The petition must be filed within twenty days of the election or five days after the county canvass is completed, whichever is longer. 25 PS 3262; 25 PS 3263; In re Recanvassing of Certain Voting Machines for Election of Republican Candidate for County Commissioner in the November, 1983 General Election, 475 A.2d 1325, 1328 (Pa., 1984).

Administrative Recounts

Local officials may order

The county board of elections may order a recount when they believe there is a problem with the count. 25 PS 3154. This type of recount can occur only before certification and becomes part of the certified returns.

Automatic Recounts

Triggered at 0.5%

Automatic recounts are available for statewide offices only and are triggered by any margin of victory of less than 0.5%. 25 P.S. 3154.

Defintion of a vote

Concrete standard

Pennsylvania law requires that a ballot be marked with a cross (X) or a check (/), but may be irregular in form. 12 PS 3063. This definition does not provide any guidance for the determination of whether a mark is an irregular cross or check or an invalid symbol.

Election Contest Scenario #1: Unverified Ballots

Depends

As an administrative matter, elections officials have discretion to, but are not required to, throw out the results of a precinct where excess ballots are cast. 25 P.S. §3154. However, if the issue ends up in court, there is no guarantee that such a decision will be upheld.

One Pennsylvania trial court has thrown out the results of a precinct due to unverified ballots. In re Dunmore Borough Election, 42 Pa. D. & C. 215 (Pa.Com.Pl., 1941). However, in the estimation of the court, that case involved fraud that was apparent from the face of the returns. Id. at 217.

Courts might hesitate to prescribe such a severe result where there is no indication of fraud. For instance, another state trial court in dicta said that precinct results should not be thrown out just because of unverified ballots where there had been no finding of actual fraud and other procedures had been observed. Appeal of Harner, 62 Pa. D & C. 56, 63 (Pa.Com.Pl., 1948). No case was found reconciling these unverified ballot cases. 

Election Contest Scenario #2: Provisional Ballots with Technical Mistakes

Unclear

Provisional voters must sign an affidavit and provide their name, date of birth, and current and former addresses. 25 P.S. §3050. The statute does not say whether or what kind of errors or omissions would prevent a provisional ballot from counting. It merely states that the ballot shall be counted where officials determine that “the individual… was entitled to vote at the election district in the election.” Id. When it is unclear whether a ballot should count, the ballot can be challenged and a hearing set up within seven days, with notice to the voter.

What Court Would Hear a Presidential Contest?

Intermediate appellate court

The judicial code states that the commonwealth court (a type of intermediate appellate court) has jurisdiction of Presidential election contests. 42 Pa. Cons. Stat. § 764. But see 25 P.S. § 3291 for a provision that arguably conflicts with this assignment of jurisdiction. Judges in Pennsylvania are elected. Pa. Const. Art. 5, § 13. Pennsylvania law specifically authorizes Presidential general and primary election contests. 25 P.S. § 3291. 

Who Performs Presidential recounts?

Depends

It depends whether the recount occurs before or after the counties in question certify their results. If the recount occurs before certification, the partisan composition of the recount officials is constrained. Such recounts are performed by district election boards. 25 PS 3154. District (or precinct) election boards are comprised of one election judge and a majority and minority inspector of elections. 25 P.S. 2671. All of these officials are elected. Id.

If the recount occurs after the affected counties have certified their results, the partisan composition of the recount officials is unconstrained. These recounts are performed by individuals appointed by the court of common pleas. 25 PS 3261.

There is no explicit check on “stacking” the recount team with partisan appointees. Political parties and candidates may attend or may send observers to attend both types of recounts. 25 PS 3154(e); 25 PS 3261.

The state administrative code provides no further details.