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Pennsylvania Modernizes Its Election Code

Pennsylvania electors may now vote without travelling to their polling places as part of historic updates to the Election Code of 1937 (the “Election Code”) under Act No. 77 of 2019 (the “Act”). Those updates include mail-in ballots, financial assistance to Counties to purchase or lease verifiable paper trail election apparatuses, revisions to absentee ballot procedures, new terms for provisional ballots, later registration to vote, electronic registration and the most discussed feature, elimination of straight ticket voting. These changes help implement a more secure voting scheme at a time when transparency, claims of invalid votes, and questions about voting apparatus integrity have surfaced. The elimination of straight ticket voting also raises concerns about how voters will respond when confronted with the requirement to indicate all choices separately. It is important to understand these features of the Act so that Pennsylvania electors can be better prepared to exercise their right to vote.

First, the Act authorizes mail-in ballots for electors other than those eligible for absentee ballots. New Article XIIID of the Election Code allows prospective voters to apply for a mail-in ballot in person or by form prescribed by the County Election Board where the voter resides (“Board”) addressed to the Secretary of the Commonwealth (“Secretary”) or the Board. The application may be submitted at any time within fifty (50) days before a primary or other election with voter information such as name, address, time of residence in district, party affiliation in case of a primary, date of birth, address where ballot is to be mailed, relationship data requested by the Secretary and except where excused by illness or disability, signed by the prospective voter. The Secretary then forwards the application to the Board which verifies identity and capacity based on permanent records, and if approved, applies to it a chronological number kept in a registered absentee and mail-in voters file (“Voter File”) and affixed to the related ballot sent to the qualified elector. The application form will be available freely in both physical and electronic means. The submitted ballot will be deemed an application for subsequent mail-in ballot applications which the Secretary will send to the elector by the first Monday in February.

The Secretary may develop an electronic system (“System”) through which qualified electors may request mail-in ballots and be placed on a permanent mail-in ballot list. The System must be able to capture a digitized or electronic signature. The Board must treat each electronic application as if it were received on a Board form. The Board shall notify each elector of any denial and the reasons therefor. If the Board cannot verify identity, it must send to the elector a mail-in ballot with the requirement of the elector to return proof of identity with the ballot, failing which proof the ballot will not be counted. In election districts (each a “District”) where paper ballots are used or voting machines are used, the Board will prepare ballots in forms other than those prescribed for in-person use. In Districts where voting is done electronically, the Board may send to mail-in electors a form of ballot card. Blank forms are to be used for write-in mail-in voting or when candidates cannot be timely included on ballots. However, all constitutional and other questions must be included on the ballot card. Mail-in ballots are to be marked confidentially, folded and placed in a prescribed small envelope which is then placed in a prescribed second envelope bearing a voter’s declaration of eligibility together with a statement that the elector signing and dating has not already voted in the primary or other election. The two prescribed envelopes are then placed in a mailing envelope and mailed to the Board for receipt required by 8:00 pm on the date of the election or primary.

Second, the Act provides funding of up to $90 million to help Counties finance the purchase or lease of new voting apparatuses (“Machines”). If the Department of State of the  Commonwealth (“Department”) decertifies one or more Machines in use in a County, then the Department must apply to the Pennsylvania Economic Development Financing Authority (“Authority”) for funds to reimburse that County for replacement Machines.  Bonds issue for terms up to ten (10) years and repayment comes from a pledge in certain accounts funded by appropriations from the General Assembly but is not secured by the Commonwealth’s full faith and credit. Counties must apply for funds before July 1, 2020, and applications differ depending on whether the County seeks reimbursement for Machines in place at the time of the application or for Machines to be acquired. If approved by the Department, funding is by reimbursement or release of funds to be segregated by the County as set out in a grant agreement. The funds may not exceed 60% of the costs of the Machines. If the General Assembly appropriates a lesser aggregate amount, Counties receive proportionate reductions. Excess appropriations may be used by the Department to acquire election security equipment to be distributed to Counties. No County may receive funding or reimbursement unless it certifies that it has completed a program under 25 Pa. C.S.A. §1901(b)(1) relating to removal of electors and mailed within the prior 12 months notices required under 25 Pa. C.S.A. §1901(b)(3) relating to whether an elector not voting in the last 5 years still resides in the election district. The authorization to issue bonds expires December 31, 2020.

The Department could decertify a Machine following new standards announced April 12, 2018, by Acting Secretary of State Robert Torres. Counties must have voter-verifiable paper record voting systems selected by December 31, 2019. The Department approves electronic Machines that are made available to Counties. The vendor standards for those Machines are in a directive that can be found at https://www.dos.pa.gov/VotingElections/Documents/Voting%20Systems/Directives/Directive%20to%20Vendors_2018_Apr%202%20Final.pdf. Many electors experienced new voting procedures during the November 2019 election with the elector’s confidential vote on a paper that is scanned into an electronic reader. The Act in new section 207 prohibits the Department from disapproving or decertifying Machines in 50% or more of the Counties until it submits a replacement plan with reasons for decertification and costs of acquisition to General Assembly leadership at least 180 days before the effective date of the replacement Machines.

Third, the deadline to register to vote has been extended from 30 days to 15 days before a primary or election. The Act adds new section 1231 to the Election Code to assure this deadline for registration with a motor vehicle license, at a voter registration agency, or at another election commission (each, a “Commission”). Denials may be appealed to the Commission no later than the 8th day before the election. The Commission holds a hearing by the 5th day before the election. Any appeal to the Court of Common Pleas must be by the 3rd day before the election. Following a hearing, the Court may affirm, reverse or modify the decision of the Commission and award costs to the prevailing party but may not assess costs against the County or Commission.

Fourth, the Act eliminates straight ticket voting which allowed electors to select all candidates in one political party with one action at a Machine or on an absentee ballot (“Straight Party Ticket”). The term “Straight Party Ticket” previously appeared in and has been removed from the Election Code in many instances, including the form of ballot, requirements for voting machines, form of ballot labels, requirements for electronic voting systems, election day procedures, instructions of voters, count and return of votes, and what ballots shall be counted. No mail-in ballot is subject to a Straight Party Ticket. According to an article entitled, “Straight-party voting is gone in Pennsylvania. Who will miss it the most?” appearing in Penn Live/The Patriot News updated November 12, 2019,  SB 421, which became the Act, could be passed only with the support of Republicans: “Some said Republican lawmakers [made] elimination of straight ticket voting a condition of their support for [SB421].” Political analysts disagree whether the Straight Party Ticket benefitted Republicans or Democrats more, but most agree that the loss of the Straight Party Ticket will have an impact on ballot position of candidates. Candidates whose names appear at the top of the ballot get more votes than those whose names appear toward the bottom of the ballot. Therefore, the Straight Party Ticket benefitted most the down ballot candidates. Analysts ask whether electors will bother to analyze and execute votes for down ballot candidates without the benefit of the Straight Party Ticket feature.

Fifth, absentee ballot rights and procedures have been updated in a manner following the language for mail-in ballots. Application may be made in hard copy form or electronically. The Secretary may make the electronic System for mail-in ballots applicable to absentee ballots and permanent absentee status applications. Separate provisions apply to those seeking absentee ballots dues to military service or federal employment, location away from home due to business and those disabled or ill. The relevant Board coordinates absentee ballot applications through the Voter File. Absentee ballot procedures exist for otherwise qualified electors who realize late (after the first Tuesday before the primary or general election) that they cannot appear at the polls due to disability, business or illness. They may submit an application up to the closing of polls on the day of the primary or general election. Electors may submit absentee ballots and mail them for receipt by 8:00 pm on the date of the primary or election. This deadline is an extension of the pre-Act deadline of 5:00 pm on the Friday before the primary or election.

Finally, provisional ballots apply in newly articulated circumstances. Before the Act, provisional votes were allowed principally for electors who appeared at the polls to vote but whose names did not appear on the district register. Under the Act, an elector who appears to vote on election day having requested an absentee ballot or mail-in ballot and whose name does not appear on the district register as having so voted may cast a provisional ballot. The same is true for an elector having requested an absentee ballot or mail-in ballot but who does not receive that ballot on or before the election or primary. Boards rule on provisional ballots during the canvassing period following the primary or election.

 The Act began as SB 421 sponsored by Sen. Boscola (D Lehigh, Northampton). SB 421 was approved by the Senate on October 29, 2019 and by the House on October 30, 2019. The Governor approved SB421 on October 30, 2019 and it became Act 77 of 2019. Provisions of the Act take effect on various days following the Governor’s approval. Section 207 regarding decertifying Machines takes effect 180 days following the Governor’s approval. Section 908 regarding the signing of nominating petitions takes effect 60 days after the Governor’s approval. The remainder of the Act took effect immediately.  The Act is important because it provides the tools for electors to more fully participate in primaries and elections, for Counties to finance more secure Machines and for the Commonwealth to incent more electors to exercise their right to vote. “[SB421] modernizes our antiquated voting laws. Now a voter’s kitchen table can become their voting booth, and researching candidates can be done in real time,” said Sen. Lisa Boscola. “SB421 puts the political parties on the run, and gives voters more control. This law will bring polling to the people, and that is closer to a modern democracy: no excuses and no exclusions.”  

© 2020 Robert J. Hobaugh, Jr.