Preventing Problems at the Polls: Pennsylvania

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American democracy was born in Philadelphia, and Pennsylvania was founded on principles of tolerance.1 In recent years, however, this historic city has struggled with incidents of voter intimidation or coercion and problems stemming from the state’s antiquated election laws, established in 1937.2 Recent political rhetoric, some of it focused particularly on Pennsylvania, has led to growing concern about intimidation at the polls.3 However, the Secretary of State’s office has issued guidance on voter intimidation, discriminatory conduct, and the rules in effect at polling places on Election Day that should help protect voters and ensure they can have their voices heard.4

Some Pennsylvania communities have experienced problems with voter intimidation and frivolous challenges to voter eligibility. During Philadelphia’s 2003 mayoral election, city police received 84 calls about voting-related incidents, including “assaults, disturbances, threats, harassment, vandalism,” and a “polling-place brawl,” according to the Philadelphia Inquirer.5 One of the candidates faced accusations that he “put together a team of men dressed in official-looking attire—dark suits, lapel pins bearing insignia of federal or local law-enforcement agencies” to drive around in unmarked vans and spread misinformation about voting.6 During the 2004 election, students voting at a University of Pittsburgh polling place had to wait in long lines as Republican poll watchers challenged their eligibility.7 Four years later, the U.S. Department of Justice obtained an injunction against a member of the New Black Panther Party after he was reported to be carrying a nightstick outside a Philadelphia polling site.8

The integrity of elections in the United States demands that every eligible American is able to cast a ballot and trust that it will be counted. Americans have the right to choose their representatives and take part in electoral decision-making. But across the country, thousands of voters have not had their voices heard—either because of targeted voter suppression laws or poor election administration decisions.9 While the vast majority of Americans will vote without encountering difficulties, in recent election cycles, voters have faced preventable problems and unnecessary hurdles. Failures at the polls may deny individuals their right to participate in the democratic process.

This series of issue briefs assesses potential problems for voters in states that have experienced issues with election administration or recent changes to voting rules. Each brief analyzes steps to improve election performance and the voting experience. Ongoing lawsuits have led to significant changes in recent weeks, as federal judges have ruled that many provisions of new voting laws discriminate against voters of color and collectively burden voting rights for hundreds of thousands of Americans.10 Understanding the potential burdens that voters may face is a first step toward ensuring that voting is free, fair, and accessible for all Americans.

While some states have responded to similar incidents by strengthening their protections against voter challenges and voter intimidation, Pennsylvania has not.11 In fact, a bill recently proposed in the state legislature could make the problem worse by allowing voters to serve as poll watchers anywhere in the state—not just in their own counties, as current law requires.12 State Rep. Brian Sims (D) warned that the bill’s “intent is to create a situation at polling locations that make voters uncomfortable.”13 Just last week, state Republicans filed a complaint in the District Court for the Eastern District of Pennsylvania to allow poll watchers to cross county boundaries.14

Many voting rights advocates are concerned that heightened rhetoric will lead to voter intimidation and frivolous challenges from poll observers in this year’s election.15 Despite extensive multiyear investigations failing to prove voter fraud, Republican candidates and legislators have warned of voter fraud and election rigging, and many have called on their supporters to watch the polls.16 The Pennsylvania League of Women Voters has cautioned that “overly aggressive poll watching can … be a source of voter intimidation and suppression.”17

Other voting rights advocates have expressed concerns that such activity could target African American communities.18 Recent presidential elections have seen steadily rising turnout by voters of color in Pennsylvania.19 Black voter turnout grew to 66 percent in 2012, compared with 59 percent in 2004.20

What to watch for at the polls 

Laws governing voter challenges and poll watchers

Because Pennsylvania places the burden on challenged voters to prove their eligibility, a 2012 report from Demos and Common Cause found: “Pennsylvania law is challenger-friendly and does not adequately protect the rights of those challenged inappropriately.”21 State law does not, however, allow challenges based on a voter’s race or ethnicity.22 Recent guidance from the Pennsylvania Department of State makes clear that “No election official may knowingly refuse the vote of a registered voter.”23

Before Election Day, any Pennsylvania voter may be challenged by another voter registered in the county through two avenues—either through an affidavit or a petition.24 If challenging via affidavit, the challenger only has to give a reason for the challenge and does not have to substantiate the allegation. Rather, the challenged voter then has to respond in a sworn statement and bears the burden of providing “evidence as may be required to satisfy” the election official that they are qualified.25 By contrast, a petition to challenge a voter’s eligibility, which can be filed by any voter in the county up to 10 days before an election, must be submitted “under oath” and include “sufficient grounds for the cancellation” of a voter’s registration.26 The petition must state that it was delivered to the voter at least 24 hours before being filed or that the challenged voter no longer resides at the residence listed, according to that residence’s current occupant.27 Just as with an affidavit, however, the burden of proof shifts to the challenged voter, and election officials must cancel the voter’s registration unless the voter “appears and shows cause why this action should not be taken.”28

On Election Day, voters can be challenged by election officials, poll watchers, and other voters.29 Voters can only be challenged on two grounds—if a challenger has a good faith reason to question a voter’s identity or a good faith reason to believe a voter has changed their residence. If a voter is challenged they must find a witness who is also a registered voter in the county to testify to their qualifications.30 Voters challenged on Election Day are allowed to cast provisional ballots, but they must show up for a hearing within a week after the election if they want their votes counted.31

Pennsylvania grants poll watchers “powerful and perhaps intrusive powers,” as noted in a recent law review article summarizing state laws on poll watchers.32 However, county and state political party leaders have said that they will not issue poll watching certificates to people who will challenge voters without a reason. State law allows poll watchers and all voters to “challenge any person making application to vote and to require proof of his qualifications.”33 Poll watchers are allowed to examine the list of registered voters and keep a list of voters who turn out.34

The Pennsylvania Department of State recently issued guidance outlining who is allowed in a polling place: “Watchers may not engage voters or otherwise interfere with the orderly process of voting.”35 The guidance describes the obligation of each precinct’s judge of elections to “not permit routine or frivolous challenges that are not supported with a stated good faith basis.”36 The department’s guidance specifies that returned mail does not qualified as a “good faith basis” for a challenge.37

Candidates can appoint two poll watchers for each election district, and political parties can appoint three watchers in any election that includes their candidates.38 Although every poll watcher must be a registered voter in the county, recently proposed legislation would allow voters to serve as watchers anywhere in the state.39 Only one watcher for each party is allowed to be in a polling place at any given time until voting is complete.40 During counting, all watchers may remain in the polling place.41 Each watcher must be certified and must “show their certificates when requested to do so.”42

Laws governing voter intimidation

The Pennsylvania Secretary of State’s office has provided important guidance about rules for polling places and what constitutes voter intimidation and discriminatory conduct. Importantly, the department notes:

Election officials are prohibited under federal law including the United States Constitution, the Voting Rights Act, and the Americans with Disabilities Act, from discriminating against voters based on race, ethnicity, national origin, language, disability or religion, or from allowing any discriminatory conduct by private actors to affect voters.43

As mentioned above, many voting rights advocates fear that poll watchers could exceed their authority by harassing or intimidating voters. Pennsylvania law prohibits any attempts to intimidate or coerce someone into voting for a particular candidate or not voting.44 The state also forbids the use of fraud in influencing voters.45 Legislators have recently considered bills to strengthen penalties for voter intimidation.46 Under current state law, individuals who intimidate voters into not casting a ballot can be fined up to $5,000 and face two years in prison.47 Federal law also prohibits any attempts to intimidate, threaten, or coerce voters.48 Attempts to intimidate, threaten, or coerce voters are illegal under federal law.49 There are also specific federal laws against conspiring to deprive a person of his or her right to vote, and a person convicted of conspiring to interfere with a person’s right to vote can face up to 10 years in prison.50

State law prohibits the presence of police officers at polling places, unless election officials or three voters request their presence to address a disturbance.51 Voters licensed to carry firearms can legally carry them in polling places, except for polling places in schools or courthouses.52 The Pennsylvania Department of State mandates:

Individuals inside or outside the polling place who behave aggressively with a firearm or who ostentatiously demonstrate that they are carrying a firearm and that behavior either is intended to or has the effect of intimidating voters will be removed, reported to the appropriate authorities for investigation and prosecution.53

Wait times

Pennsylvania voters, on average, have not faced long lines in recent general elections. Voters waited an average of nine minutes in 2012 and 15 minutes in 2008.54 This is well within the bipartisan Presidential Commission on Election Administration’s recent recommendation that no citizen should have to wait more than 30 minutes to vote.55

In Philadelphia and on some college campuses, however, voters have faced much longer wait times. A report from the Advancement Project found that students at historically black Lincoln University “waited more than 6 hours and some waited 8 hours to cast their ballots” during the 2008 election after election officials moved a polling site without adequate notice and as a result of “unlawful challenges.”56 Election officials settled a lawsuit reversing their earlier decision to move a polling place off the Lincoln University campus.57

Election administration budgets and plans

As in other states, Pennsylvania elections are administered by county boards of elections. In Philadelphia, the three city commissioners—an office created in 1854 after the consolidation of the city and county of Philadelphia—are responsible for administering elections.58 The commissioners are elected, but they must include at least one Democrat and one Republican.59 There have been calls to replace this system with appointed election professionals.60

After the 2012 election, Philadelphia Mayor Michael Nutter (D) created a “fact-finding team” to analyze the problems that many of the city’s voters faced.61 The team found that delays or errors in processing registration applications caused “thousands of properly registered voters” to be omitted from voting rolls.62 Voters who registered to vote near the end of the registration period faced a “strong likelihood” that their names would not appear in the poll books or on the “supplemental sheets” with lists of voters who registered later.63

Moreover, the registrations of 607 first-time 18-year-old voters were not activated due to an administrative error.64 “The fact that hundreds of first-time voters potentially had a negative voting experience … undermines voter confidence in a new generation of voters,” the team wrote.65 Other problems included “inconsistent” poll worker training, confusion over the invalidated voter identification law, and ineffective assistance with voting machine problems.66

The city has addressed some of these problems, and the state of Pennsylvania created a new voter education program this year.67 The Pennsylvania Department of State has offered guidance to counties on creating election administration plans that include provisions for processing registration applications and poll worker training.68

Use of provisional balloting

Due to the problems in 2012, 4 percent of Philadelphia voters cast a provisional ballot.69 The statewide percentages were much lower.70 In 2008, 0.54 percent of Pennsylvania voters cast a provisional ballot, though the number grew to 0.85 percent in 2012.71 The report from Mayor Nutter, however, found that Philadelphia voters were “eight times more likely to have to use a provisional ballot” than voters in any other jurisdiction in Pennsylvania, and half of those provisional ballots resulted from errors in election administration.72

The mayor’s report highlighted the experience of one voter in particular: Margaret Grace. Grace and other voters argued with the judge of elections and poll workers who requested photo identification, even though the state’s voter identification law had recently been struck down.73 Only after some delay and after Grace refused to fill out a provisional ballot was she able to cast a standard ballot by machine.74

A 2014 Center for American Progress report found that in 2012, in Pennsylvania and 15 other states, the counties with the most voters of color used the most provisional ballots.75

Election programs and technologies

A recent report from the Brennan Center for Justice found that although Pennsylvania election officials had discussed the need for new voting machines, the state had not yet allocated any funding for updated technology.76 Most of the voting machines in the state are more than 10 years old.77

In Philadelphia in 2012, many paper poll books and their accompanying supplemental sheets were incomplete, due to the delay in processing paper voter registration forms.78 The state has since started to use online registration.79 Some, but not all, jurisdictions in the state have electronic poll books.

While Philadelphia has not moved to electronic poll books, a city official recently recommended that the city should investigate the possibility.80 Mayor Nutter’s report on Philadelphia’s experience in 2012 found that nonfunctioning machines caused long lines, noting that the city’s voting machines “were made by a company … that no longer manufactures or services voting machines.”81 Many poll workers reported problems obtaining technical assistance from the city commissioners’ office.82

Conclusion

While the majority of voters will not encounter problems, the City of Brotherly Love could see voters and poll watchers clashing at the polls, as it has in past elections. The state’s laws allow any voter to challenge other voters, and the burden is on challenged voters to prove that they are qualified to cast a ballot. Properly registered voters should not have to fight to prove that they are who they claim to be or find a neighbor who can testify to election officials. But the state’s guidance on voter intimidation, discriminatory conduct, and rules governing polling places on Election Day should help prevent problems. A nonpartisan national coalition has an extensive, coordinated, on-the-ground network of volunteers working to assure that all eligible voters have a smooth voting experience. Any voter who has questions or problems can call 866-OUR-VOTE for assistance.

Given the recent inflammatory rhetoric and tensions over observers, it is critical that voting rights advocates and state elections officials promote necessary public education in advance of the election to prevent problems at the polls in Pennsylvania this November.

Billy Corriher is the Director of Research for Legal Progress at the Center for American Progress. Liz Kennedy is the Director of Democracy and Government Reform at the Center.

Endnotes

  1. Gary B. Nash, “Philadelphia or Boston: Who is the ‘Cradle of Liberty?,’” Constitution Daily, June 24, 2011, available at http://blog.constitutioncenter.org/2011/06/philadelphia-or-boston-who-is-the-cradle-of-liberty/; Pennsbury Manor, “William Penn and American History,” available at http://www.pennsburymanor.org/history/william-penn-and-american-history/ (last accessed October 2016).
  2. Erick Trickey, “How Hostile Poll-Watchers Could Hand Pennsylvania to Trump,” Politico Magazine, October 2, 2016, available at http://www.politico.com/magazine/story/2016/09/2016-election-pennsylvania-polls-voters-trump-clinton-214297.
  3. Ashley Parker, “Donald Trump, Slipping in Polls, Warns of ‘Stolen Election,’” The New York Times, October 13, 2016, available at http://www.nytimes.com/2016/10/14/us/politics/trump-election-rigging.html?ref=politics; Dave Davies, “Can Pro-Trump Poll Watchers Disrupt Voting in Pennsylvania?,” NPR, October 9, 2016, available at http://www.npr.org/2016/10/09/497195812/can-pro-trump-poll-watchers-disrupt-voting-in-pennsylvania.
  4. Pennsylvania Department of State, “Guidance on Rules in Effect at the Polling Place on Election Day” (2016), available at http://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/DOS%20GUIDANCE%20ON%20RULES%20IN%20EFFECT%20AT%20THE%20POLLING%20PLACE%20ON%20ELECTION%20DAY%2010-16.pdf; Pennsylvania Department of State, “Guidance on Voter Intimidation and Discriminatory Conduct” (2016), available at http://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/DOS%20Voter%20Intimidation%20Guidance%2010.14.16.pdf.
  5. Clea Benson, Cynthia Burton, and Jacqueline Soteropoulos, “Chaotic day marks end of tense campaigns,” Philadelphia Inquirer, November 5, 2003, available at http://articles.philly.com/2003-11-05/news/25462319_1_polling-place-poll-workers-katz-campaign.
  6. Farhad Manjoo, “Voter terrorism,” Salon, September 21, 2004, available at http://www.salon.com/2004/09/21/intimidation/.
  7. Trickey, “How Hostile Poll-Watchers Could Hand Pennsylvania to Trump.”
  8. Ibid.
  9. Zoltan Hajnal, Nazita Lajevardi, and Lindsay Nielson, “Voter Identification Laws and the Suppression of Minority Votes” (San Diego: University of San Diego, forthcoming), available at http://pages.ucsd.edu/~zhajnal/page5/documents/voterIDhajnaletal.pdf; Isela Gutierrez and Bob Hall, “Alarm Bells from Silenced Voters” (Durham: Democracy North Carolina, 2015), available at http://nc-democracy.org/downloads/SilencedVoterAlarm.pdf.
  10. Ian Millhiser, “The State of America’s Voting Rights, In One Map,” ThinkProgress, September 1, 2016, available at https://thinkprogress.org/the-state-of-americas-voting-rights-in-one-map-663bc79741cd#.urrvnkyn8. This series of issue briefs explain legal developments as of their dates of publication.
  11. Ibid.
  12. Daniel Craig, “What are poll watchers, and what can (and can’t) they do in Pennsylvania?,” PhillyVoice.com, October 7, 2016, available at http://www.phillyvoice.com/what-poll-watchers-can-cant-and-might-be-able-do-pennsylvania/; Pennsylvania Department of State, “Guidance on Rules in Effect at the Polling Places on Election Day.”
  13. Ibid.
  14. Complaint for petitioner, Republican Party of Pennsylvania et al., v. Pedro A. Cortes (Oct. 20, 2016), available at http://www.pagop.org/wp-content/uploads/2016/10/PH1-5081372-v1-RPP_v_Cortes.pdf.
  15. Lauren Etter and Jason Hanna, “Trump Supporters Monitoring Polls Alarms Voting-Rights Groups,” Bloomberg Businessweek, October 13, 2016, available at http://www.bloomberg.com/politics/articles/2016-10-13/trump-supporters-monitoring-polls-alarms-voting-rights-groups.
  16. Eric Lipton and Ian Urbina, “In 5-Year Effort, Scant Evidence of Voter Fraud,” The New York Times, April 12, 2007, available at http://www.nytimes.com/2007/04/12/washington/12fraud.html?_r=0; Etter and Hanna, “Trump Supporters Monitoring Polls Alarms Voting-Rights Groups.”
  17. League of Women Voters of Pennsylvania, “Election Law Review and Update,” June 7, 2015, available at https://www.palwv.org/election-laws-review-and-update/ (last accessed October 2016).
  18. Etter and Hanna, “Trump Supporters Monitoring Polls Alarms Voting-Rights Groups.”
  19. William H. Frey, Ruy Teixeira, and Robert Griffin, “America’s Electoral Future: How Changing Demographics Could Impact Presidential Election from 2016 to 2032” (Washington: Center for American Progress, 2016), available at https://www.americanprogress.org/issues/democracy/reports/2016/02/25/131844/americas-electoral-future/.
  20. Ibid.
  21. 25 Pa. Cons. Stat. § 1329; 25 Pa. Cons. Stat. § 1509; Liz Kennedy and others, “Bullies at the Ballot Box” (Washington: Demos, Common Cause, 2012), available at http://www.demos.org/sites/default/files/publications/BulliesAtTheBallotBox-Final.pdf.
  22. Pennsylvania Department of State, “Guidance on Rules in Effect at the Polling Place on Election Day.”
  23. Pennsylvania Department of State, “Guidance on Voter Intimidation and Discriminatory Conduct.”
  24. 13 Pa. Cons. Stat. § 1329; 13 Pa. Cons. Stat. § 1509.
  25. 25 Pa. Cons. Stat. § 1329.
  26. 25 Pa. Cons. Stat. § 1509.
  27. Ibid.
  28. Ibid.
  29. 25 Pa. Stat. Ann. § 3050.
  30. Ibid.
  31. Ibid.
  32. Eli Geffin, “Watching the Watchers: An Analysis of Poll Watcher Statutes in the United States,” Student Works, June 16, 2015, available at http://digitalcommons.law.uga.edu/stu_papers/2.
  33. 25 Pa. Cons. Stat. § 2687.
  34. Pennsylvania Department of State, “Guidance on Rules in Effect at the Polling Places on Election Day.”
  35. Department of State, “Guidance on Rules in Effect at the Polling Place on Election Day.”
  36. Ibid.
  37. Ibid.
  38. 25 Pa. Cons. Stat. § 2687.
  39. Craig, “What are poll watchers, and what can (and can’t) they do in Pennsylvania?”
  40. 25 Pa. Cons. Stat. § 2687.
  41. Ibid.
  42. 25 Pa. Cons. Stat. § 2687.
  43. Pennsylvania Department of State, “Guidance on Voter Intimidation and Discriminatory Conduct.”
  44. 25 Pa. Cons. Stat. § 3547.
  45. Ibid.
  46. Stacy M. Brown, “Tougher Pa. voter intimidation penalties proposed,” Pocono Record, September 23, 2016, available at http://www.poconorecord.com/news/20160923/tougher-pa-voter-intimidation-penalties-proposed.
  47. 25 Pa. Cons. Stat. § 1710.
  48. 18 U.S. § 594.
  49. Ibid.
  50. Pennsylvania Department of State, “Guidance on Voter Intimidation and Discriminatory Conduct.”
  51. 25 Pa. Cons. Stat. § 3047.
  52. Department of State, “Guidance on Rules in Effect at the Polling Place on Election Day.”
  53. Ibid.
  54. Lauren Harmon and others, “The Health of State Democracies” (Washington: Center for American Progress Action Fund, 2015), available at https://www.americanprogressaction.org/issues/courts/reports/2015/07/07/116570/the-health-of-state-democracies/.
  55. Presidential Commission on Election Administration, “The American Voting Experience: Report and Recommendations of the Presidential Commission on Election Administration” (2014), available at https://www.supportthevoter.gov/files/2014/01/Amer-Voting-Exper-final-draft-01-09-14-508.pdf.
  56. Advancement Project, “Advancement Project Public Comments Submitted to the Presidential Commission on Election Administration for its public meeting in Philadelphia, Pennsylvania on September 4, 2013” (2013), available at  http://b.3cdn.net/advancement/6822bf1d312ae9905d_lrm6ivp6z.pdf.
  57. Ibid.
  58. Office of the Philadelphia City Commissioners, “About the Philadelphia City Commissioners,” available at http://www.philadelphiavotes.com/en/about-us (last accessed October 2016).
  59. Claudia Vargas, “Compared with others, Phila. spends more on election commissioners,” Philadelphia Inquirer, February 22, 2016, available at http://www.philly.com/philly/news/politics/20160222_Compared_with_others__Phila__spends_more_on_election_commissioners.html.
  60. Committee of Seventy, “Committee of Seventy Calls for an End to Elected City Commissioners,” Press release, January 22, 2016, available at https://www.seventy.org/publications/2016/01/22/committee-of-seventy-calls-for-an-end-to-elected-city-commissioners.
  61. Mayor Michael Nutter’s Election Day Fact-Finding Team, “Election Day Fact-Finding Report” (2013), available at  http://www.phila.gov/Newsletters/ElectionDayFactFindingReport2013.pdf.
  62. Ibid.
  63. Ibid.
  64. Ibid.
  65. Ibid.
  66. Ibid.
  67. “The Rundown: Pennsylvania ramps up voter education efforts,” Reading Eagle, August 29, 2016, available at http://www.readingeagle.com/news/article/the-rundown-pennsylvania-ramps-up-voter-education-efforts.
  68. Pennsylvania Department of State, “Election Preparation Checklist” (2014), available at http://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/Election%20Preparation%20Checklist_2014.pdf.
  69. Mayor Michael Nutter’s Election Day Fact-Finding Team, “Election Day Fact-Finding Report.”
  70. Harmon and others, “The Health of State Democracies.”
  71. Ibid.
  72. Mayor Michael Nutter’s Election Day Fact-Finding Team, “Election Day Fact-Finding Report.”
  73. Ibid.
  74. Ibid.
  75. Joshua Field, Charles Posner, and Anna Chu, “Uncounted Votes: The Racially Discriminatory Effects of Provisional Ballots” (Washington: Center for American Progress, 2014), available at https://cdn.americanprogress.org/wp-content/uploads/2014/10/ProvisionalBallots-report.pdf.
  76. Lawrence Norden and Christopher Famighetti, “America’s Voting Machines At Risk” (New York: Brennan Center for Justice, 2015), available at https://www.brennancenter.org/sites/default/files/publications/Americas_Voting_Machines_At_Risk.pdf.
  77. Ibid.
  78. Mayor Michael Nutter’s Election Day Fact-Finding Team, “Election Day Fact-Finding Report.”
  79. Pennsylvania Department of State, “PA Online Voter Registration,” available at https://www.pavoterservices.state.pa.us/pages/VoterRegistrationApplication.aspx (last accessed October 2016).
  80. Philadelphia Office of Innovation and Technology, “Request for Information for Voting System Modernization for the City of Philadelphia” (2014), available at https://eac926.ae-admin.com/assets/1/Documents/RFI%20Voting%20System%20Modernization%20Philadelphia.%20Final.pdf.
  81. Mayor Michael Nutter’s Election Day Fact-Finding Team, “Election Day Fact-Finding Report.”
  82. Ibid.