Pennsylvania’s Election Law Advisory Board has released an interim report making five recommendations for how the legislature can address grey areas in the state election code as it relates to mail-in voting.
In 2019, the Pennsylvania legislature passed Act 77, changing some of the rules in the state’s Election Code. Then in 2020, shortly before the presidential election, the code was amended to provide for temporary, emergency election procedures in response to the COVID-19 pandemic.
Since then, a flurry of lawsuits surrounding mail-in voting has raised questions about Pennsylvania’s election process.
The Election Law Advisory Board operates under the Joint Pennsylvania Government Commission, a non-partisan, bicameral research and policy development agency for the General Assembly.
Membership on the Election Law Advisory Board includes House and Senate leadership, the Secretary of the Commonwealth or their designees, and 18 individuals appointed by the Governor and confirmed by the Senate. No more than half the appointees may be registered with the same political party.
The January report stressed that although the board came to a consensus, it was not necessarily a unanimous agreement. There was much debate surrounding some provisions.
The board’s recommendations concerned mail-in voting lists, deadlines, secrecy envelopes, date requirements, and drop boxes.
Permanent Mailing Lists
The report suggested changing the term “permanent mail-in voting list” to “annual mail-in voting list.” One of Pennsylvania’s newer laws allows voters to request placement on a permanent mailing list to receive absentee and mail-in ballots. Each election, counties must send a ballot application to voters on this list. The voter fills out the application and mails it back to the county, which then sends the voter absentee or mail-in ballots for that year’s election cycle.
Some voters did not understand that “permanent” did not mean they would receive a ballot automatically each year. Once on the “permanent” list, these voters receive an application for an absentee or mail-in ballot annually, but must still fill out that application and return it.
“It is believed this confusion has led some voters to not apply for absentee and mail-in ballots in a timely manner, potentially disenfranchising them,” the report said. Using the name “annual mail-in voting list” more accurately reflects the process.
Deadline to Apply for a Mail-in Ballot
Currently, the deadline to apply for a mail-in ballot by mail is one week before election day. This is not enough time for counties to process the volume of last-minute applications received, the report said. And seven days cuts it close for the U.S. Postal Service to move a ballot from the county to a voter, and for the voter to send a completed ballot back to the county by 8 p.m. on Election Day.
The board recommends changing the deadline for requesting ballots to 12–15 days prior to election day. The board researched other states and found that 12 days is the deadline in most states.
However, the board said the deadline to apply in person for a mail-in or absentee ballot should remain the current seven days, as less mail time is needed.
Mail-in ballots should come with provided secrecy envelopes, the report says, but using that envelope should be optional for voters. Failure to use the envelope should not be a reason to disqualify a ballot from being counted.
Pennsylvania’s current election code requires counties to provide two envelopes for each mail-in ballot, sized so that one fits within the other. The smaller envelope is the secrecy envelope and must be stamped “Official Election Ballot.” The larger envelope must have the name, date, and address of the county board of election and the voter’s signature.
The larger envelope must be printed with the address of the county board of elections, as well as the form of the declaration of the elector, to be signed and dated by the voter.
The report noted that in the case of Pennsylvania Democratic Party v. Boockvar, the Pennsylvania Supreme Court ruled that a ballot must be placed inside the secrecy envelope for the ballot to be considered valid.
“One drawback of requiring a secrecy envelope is that some ballots will inexorably be voided due to some voters failing to put their ballot in the secrecy envelope,” the report said. “This disenfranchisement for what amounts to a technical error should be remedied.”
Requirement To Date the Ballot
The date, written by a voter, on the outer envelope of a mail-in ballot has become a highly litigated matter in recent elections. In many cases, the outer envelope did not have the required date or any date at all. Some Pennsylvania counties pulled those ballots out of the counting process. The issue amounted to whether a vote should count if a voter did not follow directions.
The report recommended that the requirement to date the mail-in or absentee ballot be clarified: first, to indicate that the correct date should be the date the ballot was signed, and second, that failure to provide a date should not disqualify the ballot if all other requirements, including the signature of the voter, have been fulfilled.
While Pennsylvania has no statute or regulation governing drop boxes, the guidance issued by the Secretary of State for the November 2020 presidential election remains in place. The board explored policy considerations surrounding drop boxes.
Among the issues the report considered was drop box hours of operation, for instance, whether drop boxes should be open around the clock, or only during waking hours.
Another major issue was drop box security, including prevention of box tampering or voter intimidation at the drop box.
An additional issue was ballot collection. The 2020 recommendation was to have a bipartisan team of two people collect ballots from drop boxes. However, in areas heavily dominated by one party, this could be challenging.
The report also looked at drop box numbers, noting that counties in some states set a minimum or maximum number of boxes.
It called for flexibility, leaving counties with the discretion to decide whether to provide drop boxes at all.
“If drop boxes are to be permitted, then the security of the drop boxes will be of paramount importance. The design of the drop box itself is one aspect affecting security,” the report said.
“Drop box security also includes a monitoring component, which can be a video surveillance system or a physical presence by county election office workers or law enforcement.”
Rules for collecting ballots from drop boxes should be uniform, the report stressed, and include record-keeping and chain of custody safeguards.
Other Issues and Next steps
Other mail-in ballot issues noted by the report included defining who may drop off a ballot.
“Some states have experienced significant problems with individuals or groups that have collected or gathered ballots of other persons and returned them en mass to the local elections office,” the report says. “This practice raises concerns about tampering with ballots, obtaining multiple ballots and voting multiple times. While this has not appeared to be a major occurrence in Pennsylvania, there have been instances where individuals return ballots for their family members along with their own ballots to drop boxes, which is prohibited by Pennsylvania law.”
The issue could use legislative clarification, the report said.
Another issue raised was postage for mail-in ballots. In the 2020 election, the Pennsylvania Department of State paid for postage on return ballots from voters. But in 2021, voters had to supply their own stamps.
“Requiring the counties to bear the cost of return postage is an unfunded mandate,” the report said. “Most counties, and especially smaller counties will smaller budgets, may not be able to afford another statutory mandate to spend money without the Commonwealth also providing funding. Even if the Commonwealth pays for the postage, it is an unfunded mandate to the counties to prepare the return envelopes (by stamping or affixing the postage).”
The report noted that those who vote in person must bear the cost of gas and possibly time off work to vote. Providing stamps for those who vote from home can create an inequity, the report observed.
The Pennsylvania General Assembly would have to debate these recommendations before making changes to the state’s election code.