State of Democracy Spotlight Series: Pennsylvania
With the midterm election fast approaching, Movement Advancement Project (MAP)’s State of Democracy Spotlight Series profiles a different state each week.
This series provides an overview of the current voting landscape, key issues that are coming up in that state, and why it matters for the overall state of democracy in this country. These spotlights outline policies that will impact what voting may look like in a number of battleground states and summarize how voting and election laws have changed since the 2020 election, for better or for worse.
See the full state democracy profile for Pennsylvania, which ranks the state in the six categories of policies we track, and details voting and election laws Pennsylvania has in place. Previous State of Democracy Spotlights can be found here: Florida, Georgia, Michigan, and Arizona.
Pennsylvania is a key state to watch in the midterm election. As a state that saw an extremely close margin of difference of only 80,000 voters in the 2020 presidential election (with more than 6.8 million ballots cast) it is one that has been a hotbed of false election conspiracies since.
Pennsylvania is One of the Few Remaining States that Does Not Process Mail Ballots in Advance; Election Result Delays are a Certainty in November
The inability to pre-process a large volume of mail ballots in Pennsylvania in 2020 led to delayed election results, and combined with delays in other key states, opened a gap for misinformation and false theories of election fraud to fill. Despite calls from election officials in the state, the legislature in Pennsylvania failed to act and allow the advanced processing of mail ballots necessary to prevent delayed results.
Pennsylvania is now one of only eight states that does not allow pre-processing of mail ballots. (In Michigan, legislators reached a compromise earlier this month to allow pre-processing.)
The pre-processing of absentee ballots involves taking steps such as verifying voter signatures and opening ballot envelopes so that counting can later be done more quickly; however, it does not involve tallying or releasing results ahead of Election Day. The lack of pre-processing is particularly problematic given the rise in absentee voting and the ways in which vote count delays are now being used to sow doubt and undermine America’s democracy.
Pennsylvania lawmakers approved a new batch of funding for county election offices this year which requires counties to conduct uninterrupted processing and counting of mail ballots beginning at 7am on Election Day. This new requirement most likely will not prevent the delays in reporting election results seen in 2020, and some also expressed concern that the impetus on the speed of counting will lead to inaccuracies.
More than a million Pennsylvania voters have already requested mail ballots for the 2022 election. Given that more than 2.6 million voters cast absentee ballots in the 2020 presidential election, we should expect that the number of absentee ballots requested will increase in the coming weeks. The failure to implement a commonsense policy allowing pre-processing — which 42 other states already successfully utilize — has set the state up for a repeat of the chaos of the 2020 election.
Unsettled Legal and Policy Questions in Pennsylvania Around Mail Voting Will Lead to Voter Confusion and Potential Election Challenges
In 2019 Pennsylvania passed a bipartisan law establishing a system of no-excuse absentee voting in the state, which was heavily utilized by voters in the 2020 election. However, gaps and grey areas in the law — some of which are outlined below — led to a raft of legal challenges surrounding the 2020 election. The following gaps in the law have not been addressed in the two years since and the situation is ripe for a repeat in November, with the potential for massive voter confusion, further lawsuits, and election challenges.
Ballot Drop Boxes
Ballot drop boxes are a secure and popular option used by millions of voters during the 2020 election. However, following the 2020 election, drop boxes became a target for election conspiracies and false allegations of voter fraud, despite the fact that there is no evidence for these claims.
A Pennsylvania state court ruling in 2020 allowed the use of drop boxes on a county-by-county basis, but not all counties have chosen to utilize the option. Some counties in the state have even seized on unfounded allegations of fraud to remove drop boxes that were previously in use. Another county — Berks County — is posting sheriffs at drop boxes to question voters, raising the potential of voter intimidation. Ongoing lawsuits in other counties are also impacting drop box availability before November. This confusing landscape results in a situation where a voter’s options for returning their mail ballot can depend on the county they live in, creating unequal access across the state.
Ballot Curing
Ballot curing refers to practice and policy where voters are given an opportunity to correct issues with their mail ballots, such as missing or incorrect signatures, in order to ensure their votes are counted. Twenty-six states currently require that voters be allowed to correct these sorts of errors with their ballots.
The Pennsylvania Supreme Court has ruled that individual counties can decide whether to allow voters to fix errors with their mail ballots. This leaves a confusing patchwork where a voter in one county who had forgotten to sign their mail ballot would have the opportunity to fix the error and have their ballot counted, but a voter in the county next door would not be allowed do so and thus not have their vote counted. This grey area may have a particular impact on Democratic voters in Pennsylvania, who were more than three times as likely to utilize mail ballots in 2020 as compared to Republican voters.
Undated Mail Ballots
Yet another gap in Pennsylvania law that will impact voters in the state this November relates to the counting of mail ballots if the voter fails to put a date on the outer envelope of the ballot, or provides an incorrect date.
The U.S. Supreme Court recently dismissed a case on this issue resulting from the 2020 election; the Republican National Committee and the Republican Party of Pennsylvania have since filed another lawsuit in state court arguing that the lack of clarity in the law should require counties to not count undated ballots, or at the least segregate any such ballots in case subsequent court rulings impact their validity. Post-election legal challenges may well ensue. Democratic officials in the state have characterized Republican efforts to prevent the counting of undated ballots as an attempt to “sow confusion and seek to disrupt our voting process, just as the multiple failed attempts to invalidate election results through the courts have done.”
Despite the back and forth of legal challenges, according to the latest guidance from the Pennsylvania Department of State, mail ballot return envelopes will be counted regardless of whether they are undated or have an incorrect date, so long as they are received by the deadline.
Control of Pennsylvania Government to Be Decided in November Will Have a Significant Impact on Future Voting Policies
While the U.S. Senate race in Pennsylvania has dominated much of the headlines, control of the governorship and state legislature is also up for grabs this November. The party that ends up controlling the state government following this year’s election will have a significant impact on voting policies in Pennsylvania going forward.
In the last two years, the current Democratic governor has vetoed multiple bills passed by Republicans state legislators that would have implemented strict voter ID policies, limited early and mail voting options, and tightened voter registration deadlines. If Republicans gain a trifecta of control in the state, they are likely to pass similar restrictions next year.
Earlier this year Republican state legislators took the first step in a process to put a constitutional amendment on the ballot that would enact strict voter ID laws. (The details of the potential voter ID requirement are yet to be determined, but will likely mean that a voter would have to provide photo ID or take overly burdensome steps if they do not have the type of photo ID required.)
Pennsylvania law requires a subsequent vote of approval by the legislature next year before the measure goes to voters, as early as next year. State lawmakers also approved a separate amendment that would ban abortion through the same process.
As a result, this year’s election will have an outsized impact on democracy in Pennsylvania going forward.
Pennsylvania Ranks Below Average in Terms of Voting and Election Policies
Pennsylvania ranks 34th in the nation in our Democracy Tally for its voting, election, and democracy policies. Democracy Maps currently tracks 45 laws and policies for each state, which inform this tally.
Voter Registration
Pennsylvania ranks just above average in the policy area of voter registration.
- While the state has adopted positive policies in this area such as online voter registration and membership in the Electronic Registration Information Center, there are areas for improvement.
- Pennsylvania could improve its voter registration policies by allowing Election Day Registration and adopting Automatic Voter Registration (AVR). AVR is a commonsense policy currently used by 22 states and D.C. that is proven to increase registration rates and voter turnout. (See MAP’s policy spotlight on AVR for additional information.)
Representation and Participation
Pennsylvania ranks below average in the policy area of Representation and Participation.
- The state has a strong policy for the restoration of voting rights for formerly incarcerated people in which voting rights are automatically restored upon release from incarceration.
- Pennsylvania is one of only nine states where the primary system is completely closed to Independent voters.
- Pennsylvania also ranks just above average in terms of voter registration rate (22nd in the nation at 88%) and turnout (18th in the nation at 71%). These numbers could be improved by implementing policies like automatic voter registration.
In-Person Voting
Pennsylvania is also below average in the policy area of In-Person Voting.
- The state has an above-average number of early voting days (up to 43 days).
- Pennsylvania also has a non-strict ID policy, where voters can present numerous forms of non-photo ID and no additional steps are required for their ballot to be counted if they do not have the requested ID. The voter ID policy could well change next year, as discussed earlier in this spotlight.
- The state’s below-average ranking in this area results from a lack of policies like curbside voting for disabled voters. Curbside voting allows voters who are unable to physically enter their polling place to request that a ballot be brought outside of the polling place to an accessible location such as a vehicle. Twenty-seven states and D.C. currently require or allow curbside voting.
Mail Voting
Pennsylvania ranks above average in the category of Mail Voting.
- Mail voting access in Pennsylvania improved markedly following the passage of bipartisan legislation in 2019 which established a system of no-excuse absentee voting. However, the state Republican Party, the Republican National Committee, and the National Republican Congressional Committee have since advocated against mail voting. As a result the state could see rollbacks of policy progress in this area next year, depending on election outcomes.
- While Pennsylvania is one of 30 states that allow the use of ballot drop boxes for voters to return mail ballots, as discussed earlier in this spotlight, drop boxes are used on a county-by-county basis, leading to uneven access for voters.
- Pennsylvania is one of 31 states that allow voters to apply for absentee ballots through an online portal, which improves access for voters.
- Pennsylvania is one of 11 states that allow voters to sign up for a permanent absentee voter list, in which they are automatically sent applications for absentee ballots each year.
- Pennsylvania could improve further in this area by adopting all-mail elections and requiring prepaid postage to be provided for mail ballots.
Election Security
Pennsylvania ranks above average in terms of election security.
- Pennsylvania is one of 45 states and D.C. that have mail ballot tracking technology available for all voters. This technology allows voters to track where their mail ballot is located in the voting and counting process, and to be sure their ballot is counted.
- Pennsylvania also is one of 37 states that have secure voting technology available for the majority of voters, where voter-verifiable paper ballots are used. These systems prevent hacking and security breaches.
- The state conducts routine post-election audits that are independent and nonpartisan, which helps to secure vote counts and improve confidence in results.
- Pennsylvania could improve the security of its elections by adopting best practice risk-limiting audits, which are also nonpartisan and use statistical methods to verify election results.
Independence and Integrity
Pennsylvania is one of the lowest-ranked states in our Democracy Maps in the area of Independence and Integrity.
- Pennsylvania lacks almost all of the policies we track in this area, including efficient absentee ballot processing, independent redistricting, laws protecting election officials from threats, and a state-level voting rights act.
- The state could go even further into negative territory in terms of independence of elections if Republicans take full control of state government and enact, for example, laws that allow the state legislature to interfere in election administration for partisan purposes.
Pennsylvania will be a state to watch this November, with a Senate seat and governorship being decided on by voters, as well as control of the state legislature. Unsettled legal questions and gaps in state law related to mail voting have led to a situation where voters are unsure of the rules and may not have their ballot counted depending on the county they live in. The election will also have a significant impact on voting rules in Pennsylvania going forward, as Republicans are set to enact a gamut of restrictions if they gain full control of the state government. With the health of Pennsylvania’s democracy already below average, the 2022 election will decide if the state’s democracy will rebound or continue to decline in the years ahead.
