Updating the code

Forrest Lehman, an election director in Lycoming County, said his priorities have shifted since the 2020 election.

“If you had asked me this a few years ago, I think my list would have largely aligned with other directors,” Lehman said, referring to expanded pre-canvassing and other measures designed to give workers more time to process ballots.

But now, he’s more concerned with strengthening the system against misinformation.

“It’s not pre-canvassing anymore, it’s not tinkering around with deadlines or even with mail ballot requirements,” he said. “It’s protecting our post-election processes and our certification processes from people who want to prevent democracy from functioning.”

In the aftermath of the 2020 election, Lehman said he saw requests for recounts that he felt were based on “dubious” evidence and that were resulting in expensive litigation.

Lehman wants the state legislature to update the cost to file recount petitions to account for inflation. The state Election Code set the price at $50 in 1937, which is equivalent to over $1,000 in 2023. Both Lehman and Fernandez, the Erie County election official, said that amount would better reflect the cost to counties when they have to administer recounts.

Lehman also argued there should be a penalty for counties that fail to certify elections. Currently, the main recourse the state has against a county that holds up certification is a lawsuit. Lehman pointed to the federal Electoral Count Reform Act as a possible model; the bipartisan federal law raised the threshold for Congress to object to a slate of electors during presidential elections.

Lehman also suggested criminal penalties for anyone who harasses or tries to intimidate county election officials and poll workers, and he said he supports creating a process whereby counties could defend themselves in court if recount petitions were filed.

“I think all of us have a suspicion that [2020]’s all just a dress rehearsal for next year,” said Lehman. “And the expectation is that it’s all going to happen next year if we’re not prepared.”

Some election directors also say holistic updates to Pennsylvania’s Election Code would create a well-oiled election process and head off false claims of fraud.

The code is outdated. The bulk of its language was written more than 80 years ago, and some of its provisions are even older.

Because of this, counties’ actual administration practices sometimes must diverge from what is written in state law. Election directors rely on guidance from the state and their county legal counsel to navigate these gray areas in the law, but the situation can lead to misunderstandings and lawsuits from people confused about the law. It also leaves the door open for bad faith efforts to sow mistrust.

Thad Hall, election director in Mercer County, said one area that he thinks is particularly ripe for an update is language about technology, which is broadly inapplicable in the 21st century.

“The whole problem with the code is it’s written for paper, but we have an electronic process,” Hall said.

For example, the state Election Code currently requires each polling district to have two different workers keep lists of the voters who check-in. But Hall said that would not be necessary when using electronic pollbooks, which would record voters as they checked in.

“It makes it easier for everybody,“ Hall said. “Right now, I have to have two people go around and their whole job all day is just to write [voters’] names in a book. A lot easier if the system gave us leeway as to how we handle these check-ins.”

Hall added that electronic pollbooks also streamline communication between precincts and election directors, as they provide up-to-date information on the number of votes cast in each precinct, allowing him to instantly check if the right number of ballots is being uploaded for every precinct. If he saw a pollbook was offline, he would know there was an issue in that precinct.

The chance for change

All of the election directors who spoke with Spotlight PA questioned whether the state legislature would be able to pass any of the changes they’re asking for.

Fernandez was the most optimistic, saying she hopes that after the 2022 general election, Republicans would begin to support mail ballots and find areas of compromise with Democrats in the state legislature.

To some extent, her hopes came true — GOP rhetoric against mail voting has shifted slightly. That change could be seen shortly after state Sen. Doug Mastriano (R., Franklin), who badly lost his gubernatorial bid to Democratic Gov. Josh Shapiro, said in a post-concession radio interview that he didn’t see how Republicans could win elections without “embracing” mail voting.

But that change in attitude hasn’t translated to legislative progress on election issues.

As recently as October, the state legislature has been unable to pass an election reform bill. As part of an effort to move the date of the upcoming primary so it would not conflict with Passover, state House leaders tried to pass a proposal that also rolled in pre-canvassing along with a more contentious provision that would expand voter ID requirements. The bill overwhelmingly failed to pass the state House.

“They just literally can’t pass a bill that is nondescript, it’s like it’s not in their DNA. And I do not understand why,” Hall said of lawmakers repeatedly adding politically divisive elements to bills that could otherwise get bipartisan support. “Is there any political advantage to passing the bill? Absolutely not. Will it make elections work better? Absolutely, yes.”

Both Lehman and Bluestein echoed Hall’s sentiments, saying they doubt any election law would change in time for next year’s races.

“The state-level actors, the courts, the legislature will have no one to blame but themselves. We’ve been very clear about what we need. They all refused to provide it,” said Lehman. “The can just keeps getting kicked down the road. And as long as that keeps being the case, the counties are going to have to be the adults in the room.”

Spotlight PA is an independent, nonpartisan, and nonprofit newsroom producing investigative and public-service journalism that holds the powerful to account and drives positive change in Pennsylvania.