Routine election advice that became a target for 2020 • Spotlight PA

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When Republicans urged Congress to throw out Pennsylvania’s electoral votes for Joe Biden in 2020, they didn’t point to voter fraud or illegal activity. Instead, they pointed to something seemingly innocuous: guidance from the Pennsylvania Department of State.

State Republicans, including then-House Speaker Bryan Cutler, accused the agency of undermining Pennsylvania’s new mail-in voting law. Jake Corman, then the state Senate majority leader, called on former Secretary Kathy Boockvar to resign, saying, “It’s unconscionable that this kind of thing happens at the last minute.”

Corman was referring to guidance Boockvar issued the day before the November 2020 election, which recommended that counties notify voters of fatal defects in their mail-in ballots and have them cast provisional ballots at a polling place. Some counties followed that guidance, others did not.

Courts have not found merit in the argument that the department abused its authority, but the narrative that guidance and direction issued late in the election cycle tipped the balance against then-President Donald Trump has persisted on the right ever since. Republican lawmakers held a nearly two-hour hearing in 2021 to question Boockvar about his advice, and state Sen. Doug Mastriano (R., Franklin) penned an op-ed during his 2022 gubernatorial campaign arguing that Democrats had “hijacked” Pennsylvania’s mail-in voting law by using the guidance.

The department regularly issues guidance and directives to clarify election procedures and state law, such as when there is a new court ruling or an Election Day problem that the agency hopes to avoid repeating.

The two opinions have different force. The guidance has the force of law under the authority of the Secretary of the Commonwealth under the Election Code. The guidance describes the department’s view of best practices that counties should follow.

As what promises to be another contentious presidential election approaches, here’s what you need to know about the guidelines and directions:

What is a directive and when is it issued?

According to the Pennsylvania Department of State, the secretary issues directives when the Election Code – the law that governs voting in Pennsylvania – specifically gives him authority over that area of ​​election procedure.

This means that directives have the force of law; this legal authority is always established from the beginning of the directive.

An example of this is a recent directive issued on mail-in ballots. On July 1, Secretary of the Commonwealth Al Schmidt required counties to print the full four-digit year on mail-in ballot return envelopes in advance.

This was a directive rather than a guide, because the state election code allows the secretary to determine how this return envelope is configured.

What about orientation?

Guidance is issued “whenever it is deemed useful to clarify rules, procedures and best practices for the administration of elections,” according to a spokesperson for the Pennsylvania Department of State.

Guidance often arises when a specific issue arises in an election, when a lawsuit sets a precedent on an aspect of government, or when multiple counties have similar questions on an issue.

For example, during the November 2023 municipal election, some voters in Northampton County encountered a troublesome error with voting machines due to insufficient pre-election testing. To mitigate the problem on Election Day, some polling places asked voters to use emergency ballots, but polling places had limited supplies, some of which eventually ran out.

In March of this year, the department updated its guidance to recommend that counties stockpile emergency ballots at a rate of 20% of a polling place’s registered voters.

While the guidance may apply to a legally required election process, the specific recommendations in the guidance documents on how to conduct that process are not mandatory, as former Secretary Kathy Boockvar explained in testimony before the state House of Representatives in 2021. In other words, the department cannot enforce the guidance. That leaves it up to counties to decide whether or not to follow the recommendation.

How will the guidelines and directives be taken into account in this year’s elections?

When the department issues directives or guidance, it notifies all counties and provides training through its responsive training program for county elections directors.

A department spokesperson said the guidelines and guidance, available on the state government website, are “regularly reviewed” for necessary updates. Further guidelines or guidance could be issued before the November election.

Schmidt, who was a city commissioner in Philadelphia during the 2020 election, said he recognizes the frustration that last-minute directives can cause for election officials and voters.

In response, he has repeatedly said he will not issue new directives or guidance within 45 days of an election unless a court order requires the state to do otherwise.

This possibility is not unlikely, as several major cases are currently pending before the courts and state appeals courts routinely issue decisions closer to Election Day.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at [email protected].

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