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Analysis: Pa.’s voting law is filled with obsolete provisions, internal conflicts

(Photo: Kyle Gamble)

(Editor’s NoteThis article was originally published by Votebeat, a nonprofit news organization covering local election administration and voting access. It also appears at Spotlight PA.)

Carter Walker | Votebeat and Kate Huangpu | Spotlight PA

On a rainy June Thursday, Pennsylvania lawmakers gathered in Harrisburg as the governor signed off on a complete revamp of the law that regulates elections.

One new rule the legislature had landed on: the need to have lanterns, or a proper substitute, in polling places.

The year was 1937, when electric lights were only in roughly two of every three American homes, and power was just starting to make its way to rural Pennsylvania.

Today, that rule is still on the books.

“If you want to sit and read the law, we are all in violation of that,” Washington County elections director Melanie Ostrander said.

Examples like these abound in Pennsylvania’s 270-page Election Code, which governs when, where, and how elections are run in the state. While county directors carry out elections on the ground, state law sets the rules they must abide by.

Many obsolete provisions, like the need for lanterns, are simply ignored these days. But some outdated sections aren’t as amusing.

A review of the Election Code by Spotlight PA and Votebeat found that numerous conflicts between sections have led to confusion and lawsuits, and fueled misinformation. The law also does not address key legal precedents or reflect how elections are run in 2023 with evolving technologies.

Going into the 2024 presidential election, old rules will likely remain on the books and important new precedents won’t, a product of the divided legislature failing to agree on even the most basic changes that have bipartisan support.

As in years past, this could contribute to electoral chaos, disenfranchise some voters, and attract more costly lawsuits.

Key points

  • Pennsylvania’s legislature hasn’t comprehensively updated the Election Code since 1937. So the officials who run elections must rely on an amalgamation of sources outside of the text of the code itself, including recent legal opinions and advice from county solicitors, other administrators, and the state.
  • Entire sections of the code are no longer in use, including directions on operating obsolete lever voting machines and language regulating the use of lanterns to light polling places.
  • The legislature has not regularly incorporated new case law into the code, which leaves inaccurate vestiges. For instance, a rule limiting felons’ ability to vote remains on the books, despite being found unconstitutional.
  • Newer election provisions and old code language conflict, causing confusion, lawsuits, and creating a patchwork of administration practices.

Conflicts, gaps in the Election Code

Pennsylvania lawmakers last overhauled the Election Code in 1937 — and they were facing many of the same issues as their modern-day counterparts.

The code hadn’t been updated since 1839, according to newspaper coverage from the time, and the secretary of the commonwealth called it “contradictory and confusing.”

In the near century since 1937, the legislature has amended different parts of the Election Code dozens of times. One of the most significant changes was Act 77. The 2019 law, signed by former Democratic Gov. Tom Wolf, expanded no-excuse mail voting in the commonwealth and eliminated straight-ticket voting.

But for the most part, the legislature hasn’t regularly incorporated current practices in election administration, modern technology, or new legal precedents into the Election Code.

A portion dealing with transferring voter records from one county to another presumes paper records are being handled, although nowadays this is done electronically. Another part requires voting results to be posted at each polling place, but not online where most voters look for them.

The code also does not allow police within 100 feet of a polling place except under special circumstances, a vestige of the electoral corruption of the early 1900s machine politics era. And an entire section of the code is devoted to procedures for using “voting machines,” a reference to devices like lever-action voting machines that haven’t been used in nearly two decades.

Another archaic rule caused problems last year, when more than 100 recount petitions were filed around the state challenging the gubernatorial and U.S. Senate races under a portion of the code dating to 1927. The $50 fee to file such petitions has remained unchanged over the past 95 years. Adjusted for inflation, that amount would be roughly $880 today. The influx of petitions caused a delay in certifying the results and litigation that took months to resolve.

The Election Code also has not been updated to incorporate some key state and federal court rulings. In 2000, for example, a state appellate court struck down a law that prohibited people convicted of felonies from voting for five years after being released from prison. Despite that decision, that provision remains in the code.

Key election cases

  • MIXON V. COMMONWEALTH: In 2000, Commonwealth Court found to be unconstitutional a Pennsylvania law barring residents from voting if they had been incarcerated for a felony in the past five years. While the law is no longer enforced, the legislature did not update the Election Code to reflect this ruling.
  • PENNSYLVANIA DEMOCRATIC PARTY V. BOOCKVAR: Two months before the November 2020 election, the Pennsylvania Supreme Court ruled that counties can deploy drop boxes for voters to use in returning mail ballots. Such ballot drop boxes are not specifically mentioned in the Election Code.
  • BALL V. CHAPMAN: Just days before the November 2022 election, the Pennsylvania Supreme Court ruled that ballots a voter failed to date or misdated can’t be counted. This is currently the law of the land, though an ongoing federal case may change that.
  • REPUBLICAN NATIONAL COMMITTEE V. CHAPMAN: In March 2023, Commonwealth Court dismissed a case questioning whether counties can allow voters to fix or “cure” mistakes like missing signatures or dates on mail ballots. The dismissal leaves counties to decide whether to allow or disallow such a practice until further litigation or legislation.
  • PENNSYLVANIA CONFERENCE OF THE NAACP V. SCHMIDT: This ongoing federal lawsuit deals with whether voters should be required to date their mail ballot envelope, and whether misdated ballots should be counted.

Lawsuits stemming from Act 77 have dominated the past few years and created a fresh wave of issues for election directors.

The law contradicts older portions of the code. Earlier this year, for instance, a group of voters sued Delaware County’s Board of Elections because it rejected certain provisional ballots.

Act 77 says that if a voter has returned a mail ballot to their county election office on time, they can’t also cast a provisional ballot. But an older section of the Election Code says that provisionals are only barred once a mail ballot is “cast,” which has been interpreted to mean once a ballot has been opened and scanned.

A judge recently ruled Delaware County should accept in-person votes from residents whose mail ballots were rejected, but the conflict within the Election Code remains.

Act 77 also created more confusion for election directors because the law is silent on how to handle different mail ballot scenarios.

Last year, Republican groups and voters filed a suit less than a month before the November midterms that argued undated or improperly dated mail ballots should not be counted. Election administrators were left in limbo as they awaited the ruling, unsure of how to proceed.

Similarly, the Election Code is silent on whether voters should be allowed to fix flaws with mail ballots, like a missing signature. The high court decided that ballot curing was allowed but not mandated.

It’s common for the courts to find that, lacking clarity in state law, county’s boards of elections and election administrators should interpret voting rules.

The lack of uniform guidance doesn’t just leave counties with election policies cobbled together from codes and court precedents; it leaves Pennsylvania with a patchwork of disparate voting practices that makes it harder for some voters to cast a ballot than others.

“Is it any surprise when you have an Election Code that is riddled with holes that have to be filled in with case law six ways to Sunday, and counties then come up with different interpretations?” asked Lycoming County elections director Forrest Lehman.

‘You can’t take the code at face value’

One of the most serious consequences of the outdated Election Code is that it makes the job of actually running elections much harder for county officials.

Spotlight PA and Votebeat spoke to five current and former election directors about their experience navigating Pennsylvania’s election procedures. They said they don’t rely solely on the Election Code to do their jobs. Instead, they consult with county solicitors, other local election directors, and state officials to determine proper election administration procedures.

“I think the key thing is you can’t take the code at face value,” said Thad Hall, who serves as election director for Mercer County, adding that court rulings have “made learning the code difficult.”

Hall mentioned issues like how to handle write-in candidates if they do not live in the jurisdiction where they were elected, which the code is not clear on, or the fact the code says independent candidates must submit nomination papers seven to 10 weeks before an election, a deadline that a court case changed to Aug. 1. Without talking with an attorney or peer with more experience, a new election director might not realize those nuances.

Leaving outdated sections on the books can also have consequences far beyond election office discussions, particularly regarding misinformation.

“When we’re dealing with election deniers they will say, ‘Well I talked to so-and-so in such county and that’s not how they do it,’ and they would say, ‘Well you’re breaking the law,’” said Ostrander of Washington County.

“You can go on the internet and read the Election Code in the form it was passed but there aren’t notation[s] for case law,” she added, noting that this can lead some to wrongly conclude that election officials are making up rules as they go along.

Why Pa.’s code is so outdated

Joshua Douglas, a law professor at the University of Kentucky who studies elections, said most states don’t undertake comprehensive overhauls of their election laws. Rather, they make “reform-specific” changes to individual sections of their codes, like Pennsylvania did with Act 77.

“Like if they do ranked-choice or vote by mail, they’ll update that section,” he said.

The consequence of this approach is codes filled with outdated language.

Pennsylvania’s, for example, stipulates that elections are to be scheduled using Eastern Standard Time, even though the commonwealth has used Eastern Daylight Time during its spring primaries for decades.

Spotlight PA and Votebeat asked eight political science professors, including Douglas, why Pennsylvania’s Election Code is rife with antiquated sections that have been invalidated by case law and references to obsolete technology. They repeatedly highlighted three factors.

Lawmakers, they said, tend to be reluctant to change an electoral system that resulted in their success. The politics of election administration have also steadily become more polarized since the early 2000s, with Democrats and Republicans taking opposite views on policies such as voter ID requirements, mail ballots, and election security.

And perhaps most importantly, Pennsylvania’s government is frequently split. In the past two decades, the only period of unified party control was from 2011 to 2014, in which Republicans held both chambers of the legislature and the governorship.

New Jersey, North Carolina, and Ohio, the academics posited, have had an easier time passing voting legislation and subsequently cleaning up outdated language because party demographics in those states lean strongly one way or the other, and therefore the majority party isn’t concerned with losing power.

An alternative to a code overhaul

In the absence of a comprehensive Election Code update, Hall of Mercer County suggested that having some kind of state manual or comprehensive training for election directors could lend itself to more uniform practices. Election directors around the state frequently communicate with each other via email to share information about how their counties are approaching various issues, but the process is informal.

Arizona, where he previously worked, empowers its secretary of state to update an elections procedure manual every other year with guidance on new legal precedents, laws, or other rules local officials must follow.

The Pennsylvania Department of State and its secretary can issue guidance to help counties navigate areas of the law that are confusing or lacking. But unlike the Arizona secretary’s manual, these directives do not have the force of law.

During confirmation hearings this year, Secretary of the Commonwealth Al Schmidt said he would like to see some kind of training manual for incoming directors, and state Sen. Cris Dush (R., Jefferson) — who leads the chamber’s influential State Government Committee — agreed with him.

The lack of such a manual is of particular concern ahead of 2024, given the precipitous loss of election directors across the state since 2020.

A spokesperson for the Department of State said it is already trying to better support election directors. It has hired additional employees for its election administration division, and has staff working with counties to update existing training materials for directors and create new tools, which could include in-person training, an Election Day preparation manual, and how-to videos.

Jeff Greenburg, a former election director in Mercer County who now works as a senior advisor on election administration for the Philadelphia-based nonprofit Committee of Seventy, said historically it has been hard to get the ear of state lawmakers on code issues. That’s improved in recent years with the introduction of quarterly stakeholder meetings hosted by the Department of State and the creation of the Election Law Advisory Board — a group of election administrators, voting rights advocates, and bipartisan legislators who make recommendations about the Election Code.

At a September meeting of the board, code issues came up during an unrelated conversation about how far campaign workers must be from polling place doors. Some members suggested the legislature change that distance from 10 feet to 100, but others were concerned that any adjustment could create a new conflict with another area of the code.

These issues come up all the time when board members unpack the layers of the Election Code, and Yvonne Hursh, counsel to the board, told them she is frustrated with how inconsistently the law has been amended over the years.

“The first thing listed in our charge is clean up this 1937 statute,” she said. “Get that language under control, get it modern, get it plain language, clean up that archaic 1930s grammar where you have run-on sentences and 20,000 clauses … just making it into a format that’s readable in the 21st century.”

But as another board member pointed out, the question of updating the code is purely hypothetical, as the divided legislature has been unable to make even basic, widely supported changes to the law.

The board has made several such recommendations in the annual reports it produces, including requiring new election directors to have 12 hours of training.

So far, lawmakers haven’t adopted any of these suggestions.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact him at Kate Huangpu is a government reporter for Spotlight PA.