Act 77, the 2019 law that revolutionized Pennsylvania’s elections and ushered in mail-in voting, has made the elections process in the commonwealth like that of a river after a flood: the cause of the roiling might be over, but the sediment has not yet settled back down, and much of the water remains unclear.

This is the unsteady situation the commonwealth finds itself in as we are now barrelling towards the 2024 election, one in which Pennsylvanians’ votes will likely decide the presidency. As of this publishing, the website RealClearPolitics.com averages several polls which show former President Trump tied with Vice President Kamala Harris in Pennsylvania — the most narrow margin of any swing state.

If Pennsylvania is decided by less than one percent as it was in 2016, we guarantee there will be a new hurricane of scrutiny as partisans look for advantages. This will mean fresh lawsuits against the state or counties. Recounts will be requested. A flood of Right to Know requests will be unleashed, some of which will also end up in court.

This is hardly conjecture. Because of the razor-thin margins, partisans have complained about the integrity of the vote for multiple election cycles. In 2016, Hillary Clinton claimed the election was stolen and inferred the result was due to foreign interference. In 2020, Trump and his proponents filed 63 lawsuits challenging various election processes and certifications in the nation’s swing states. 

With the very real specter of a contested election as a backdrop, Broad + Liberty would like to highlight some past issues, questions, and complaints of elections procedures using Delaware County as an example. Our investigation shows that the system has become too opaque and overly complex given the divided nature of our electorate. Elements of standardization are desperately needed.

County officials and election directors are operating in an era in which not one but two objectives are paramount: conduct an election in which all legally cast votes are correctly counted, and also carry out the first objective in such a transparent manner that when a curious public examines the methods, means, and actions of the election officials, the public at large will have little choice but to be satisfied with the results.

Granted, this can be a towering task, but there are few things more sacred in a healthy democracy than the integrity of the vote. Today, too many voters are skeptical. And, discerning readers may be forgiven if, upon reading this report, they are confused, or otherwise unsatisfied with its conclusions. Therein lies the problem, we now have a system that is not sufficiently open or verifiable, which undermines the integrity of the voting process regardless of the efficacy of any counting process. 

But, there is hope, because enough lessons have been learned in recent years to make these two democracy-defining objectives a reality.

ISSUE ONE: ENVELOPE MARKING

Voter-integrity activists in Delaware County have examined the outer envelopes for ballots sent through the mail or deposited in drop boxes for several elections in a row now.

Focusing on the 2023 primary election that happened in May, those activists became alarmed when they realized many of those envelopes showed what appeared to be multiple timestamps from a ballot sorting machine used by the county.

The multiple timestamps, they said, raised the possibility that some ballots may have been processed multiple times.

The county denies that.

“​​Whether a Bluecrest [mail ballot sorting machine] prints no date or one or more dates is not a factor in whether an envelope, by law, is required to be processed,” Delaware County Elections Director Jim Allen told us. “We emphasized this repeatedly when the question was first raised about the difference between no date, one date or two dates being on an envelope. It makes no difference at all.”

Allen’s explanation that any stamps placed on a mail-in ballot (MIB) envelope do not affect the ballot’s legality (without testing the proposition in a court of law) sidesteps the transparency argument.

That the issue was raised at all highlights the two goals we previously stated: all legally cast ballots tabulated accurately, and done in a way in which the procedures are easily understood or “reverse engineered” by a public so as to have rigorous confidence in the tally. 

It is not enough that the process be legitimate: it must also appear legitimate. Transparency matters in building voters’ confidence in the system.

REFORM: Counties should be obligated as result of a standardized chain of custody process to timestamp envelopes received in the mail on the day they are received, and not more than that. If sorting machines are required to sort ballots several times, such as to sort first by municipality, then by precinct, and so forth, the envelopes should not be repeatedly marked unless new, discernible timestamps can be placed so that they are not on top of previous markings.

As a part of such a process, the county would also be required to keep a log of all envelope “runs” through the Bluecrest, or any other sorter, and this log would be public record.

ISSUE TWO: BALLOTS SENT BY USPS

After one election, activists won the right to review the outer mail envelopes, as they are considered public records. With that access, activists also took their own photos of the envelopes.

Those images show an orange marking on the ballots which look like what the US Postal Service calls a “Facing Identification Mark,” although the marks also appear in the wrong spot of the envelope the USPS typically places the FIM.

Many envelopes have these marks, many don’t, which is to be expected. Some of the ballots were mailed in, others deposited in ballot drop boxes placed around the county at the discretion of the county council. 

Yet, to the degree the county can help citizens see for themselves which ballots arrived through the mail versus which arrived through drop box collection, it should.

Nevertheless, Allen again brushed aside these concerns.

“Most things that we receive are not postmarked at all. Some things rarely are,” Allen said. “And then now you’re talking about the other mark, the series of bars that are like a pinkish orange, very faint color. But items like that are not determinative of whether or not we’re required to open and process [and] open that envelope and process the ballot inside. So it is irrelevant to us whether it comes through a dropbox or through the postal service.”

We concede the envelope markings have no bearing on the legality of the ballot inside. Our point is that when markings like this happen, the county should help citizens understand exactly what those markings may or may not represent, if they were delivered by the postal service or handled by a county employee at a ballot drop box. To the degree those markings can help establish certain timelines and chain of custody implications after the fact, they should.

Our reform suggestion is forthcoming, after we also discuss:

ISSUE THREE: DROPBOX CHAIN OF CUSTODY

Dropboxes remain a source of anxiety for voter integrity activists. And certainly, there is ample evidence of abuse of the Pennsylvania law requiring that a citizen only drop off his or her own ballot. Governor Tom Wolf himself violated this statute, and then-Philadelphia Mayor Jim Kenney nearly did, if not for the advice of an election official stationed at the drop box.

Video from Chester County in 2022 showed persons driving up to dropboxes and holding nearly a dozen ballots at a time reaching for the deposit slot. Videos like these spurred meaningful court-ordered reforms. For example, all of Chester County’s dropboxes are now manned by an election deputy of some kind for the hours that the drop box is open.

When Broad + Liberty asked Allen if it would be good for the county’s transparency to offer more granular procedures in order to show which ballots came from either the USPS or from a drop box, he rejected that notion.

“No, quite the opposite. There are no cameras on blue drop boxes,” he said. “Additionally, if you believe in chain of custody, going from the voter to the election authority [via dropbox] is the cleanest. Injecting the middle entity of the US Postal Service involving letter carriers, people who run the scanning equipment, the sorting equipment, all this other stuff, and then ultimately another carrier to deliver it or a pickup service, one of the two [of those options] injects a third party. So from a chain of custody perspective, the Dropbox is the cleanest — goes from voter to election authority.”

REFORM: Before Act 77, the average voter had a very clear understanding of where any particular vote came from — more than 99 percent were cast in-person at a precinct voting location.

Now, the sheer number of places in which a vote may originate offers convenience for the voter, but also possible confusion and lack of clarity when it comes to the tally.

The county could allay fears through several steps, most of which we feel are relatively low- or no-cost suggestions.

The county should segregate all ballots that arrive in the mail, and stamp them to identify them as mailed ballots and to identify the date each ballot arrived. A similar stamping should happen for each collection of ballots for each drop box. Those stampings should obviously have the date collected, but also the number or identification of each discrete drop box.

Ideally, as dropbox ballots are collected each day, their provenance would be demonstrated to designated poll watchers. Once finished, each day’s dropbox collection would be placed in its own container that is locked with a “cargo seal” — essentially a flexible “lock” that has a unique identifier on it. These containers would be reopened in front of poll watchers on the day before or the day of election.

Allen’s assertion that injecting another governmental agency into the chain of custody process is less than ideal because it eliminates the direct relationship between voter and election authority should mean that the county would want to be able to easily identify such ballots. Such an incursion, as Allen characterized it, would seem to warrant the ability to critically examine these ballots both upon receipt and in any retrospective auditing processes. 

James Fitzpatrick was part of the legal team that brought a lawsuit against Chester County for its handling of mail-in and drop box ballots. That suit resulted in some of the strongest election integrity measures in the commonwealth.

“Whether a mail ballot is received through the U.S. mail, through a dropbox, or via in person drop off, all properly cast and timely received ballots are counted. What the people of Delaware County deserve though is more transparency in this process,” Fitzpatrick said. “This means that reasonable questions about why certain ballots are postmarked in one way and others are not should be publicly addressed by the board of elections to ensure voter confidence.”

ISSUE FOUR: PHYSICAL ACCESS

Activists and election watchers make the claim that “counting centers” where votes are tallied are a new phenomenon.

It’s beyond doubt that Act 77 introduced numerous new physical elements to the entire collection and tabulation process that not only radically changes how a county reaches its final total, but also changes what designated poll watchers and election observers will see.

For example, receiving ballots by mail days before the election requires a level of storage that previously wasn’t needed. Populous counties like the collar counties now need machinery like envelope openers, et cetera, if it hopes to have a final tally on election night or the day after (setting aside obvious exceptions like military overseas ballots).

Or, look to Philadelphia, which created “satellite election offices” in 2020 — a thing manufactured completely by imagination and creativity given the fact that “satellite election offices” are not mentioned anywhere in Pennsylvania’s election law.

Indeed, Broad + Liberty obtained an email in which the Committee of 70 and Philadelphia officials discussed satellite election offices as “de facto early voting” — but again, Act 77 did not truthfully contemplate such a thing.

Delaware County has centralized its ballot tabulation center at a building called the Wharf in Chester.

Paul Rumley, who has been working as an election observer for several election cycles over the past two to three years says access in this building has not been ideal.

“The basic difference between now and when I started as an observer is that [the government has] continued to curtail our ability to observe to the point that in this year’s primary, we were not allowed to have our phones,” Rumley said. “And it is gotten to the point where they place us — if we want to look at the bins where they’re storing the counted ballots — they put us in a little four by four enclosure, and all of the material that we want to see is stacked perpendicular to where we’re standing and we can’t see a damn thing.”

Delaware County election director Allen says phones and any other recording devices must be prohibited because observers might be able to take a picture of an actual ballot, thus violating a voter’s secrecy.

In addition, Allen says the county provides a live video stream to the main counting room.

While the live stream is certainly laudable, it’s not perfect in what it offers, and the county has room to negotiate better access.

“Meaningful access during the mail ballot canvass is critical to transparency and election integrity. Although the election code states that observers are only entitled to ‘be in the room’ where the counting of mail ballots is occurring, I believe it is incumbent upon the local board of elections to permit access beyond the required baseline,” Fitzpatrick said. “Protecting our democratic process means allowing observers to monitor the process in a way that ensures confidence in the process rather than continued lingering questions.”

REFORM: First, the General Assembly needs to talk to county election and party officials and election lawyers to compile a glossary of terms that still need definition in the law.

Next, using this case study as an example, counties should enter negotiations with poll watchers and election observers to increase access in the counting areas. Observers should not be deprived of their phones so as to be able to consult with their team or attorneys if needed. Observers should be willing to show their phone’s photo album on entry and exit, and should be willing to put them in nearby “safe” boxes while observing. Observers should sign a form swearing that they are aware of the laws that surround a ballot’s secrecy and that they will not do anything to violate those laws, but if they do, the county will pursue all legal punishments available.

While there is no doubt that ballot privacy is an important consideration, the Commonwealth Court ruled in Previtts v. Erie County Board of Elections in late July that absentee and mail in ballot images are subject to Pennsylvania’s open records law. In other words: election observers may now file Right to Know requests to the county and obtain images of these ballots for public scrutiny. This nod towards greater transparency represents a significant departure from how, in this instance, Delaware County has interpreted the law. 

The call for transparency in election processes isn’t isolated to Delaware County. Chester County has also faced scrutiny over similar issues. Recently, in a case involving mail-in and absentee ballots, a Chester County judge ruled against the County’s appeal to redact voter information, highlighting that the Pennsylvania Election Code already provides clear access to such records without redactions. The court affirmed that signatures, addresses, and birthdates on voter documents must be disclosed, barring any constitutional protections. This decision underscores a broader pattern across Pennsylvania, where counties are struggling to balance transparency with privacy. If Chester County’s case is any indication, lawsuits and challenges in counties like Delaware are likely to continue surfacing until more standardized processes are put in place.

CONCLUSIONS:

If elections are defective, the entire democratic system is at risk.

—Commission on Federal Election Reform, 2005

“Elections are the heart of democracy. They are the instrument for the people to choose leaders and hold them accountable. At the same time, elections are a core public function upon which all other government responsibilities depend. If elections are defective, the entire democratic system is at risk.

“Americans are losing confidence in the fairness of elections, and while we do not face a crisis today, we need to address the problems of our electoral system.”

Those words are from Republican James A. Baker, III, and Democratic former President Jimmy Carter, in their 2005 bipartisan report, “Building Confidence in U.S. Elections.”

For nearly every example we’ve provided in this report, we could find numerous sentences or paragraphs in the Carter-Baker report that would support the argument as we’ve made it here.

It’s understandable if discerning readers feel confused by some of these arguments and the evidence presented, but if that’s the case, it only underscores the point: elections at the county level have shifted from a straightforward, verifiable system of in-person voting to a complex and opaque operation. It has gone from a single day operation to one that spans more than a month.

This should not be interpreted as saying election directors are purposefully injecting opacity into the operation. But the sheer number of new tasks creates opacity unless the tasks are carefully tracked and explained.

Go back to the beginning of this article and imagine now that Delaware County is the 2024 equivalent of Broward County, Florida in 2000 — and the election comes down to this one county.

Now, imagine further that Republicans discover that Delaware County was a forerunner of implementing the election grants in 2020 that have since been outlawed in the commonwealth; and that when Delaware County implemented the grants, one county councilor, upon finding out the grant-giver was more aligned historically with the left than the right, said that partisan bias was fine to ignore because, “I will deal with the blow back.”

Or, imagine when it is understood that lawsuits in Delaware County will determine the presidential winner, that news outlets discover the county’s handpicked third-party attorney has a history of partisan campaign work for President Obama, Hillary Clinton, and other Democrats.

If you think this is just picking on Delco, consider an alternative in Bucks County, where a county commissioner once raised the hypothetical of whether 100 mail-in ballots could legally be collected from a nursing home — and said there were ways to make that legal, even though guidance from the Department of State contradicted those ideas.

With such highly partisan figures, it’s no surprise that suspicions arise in the first place. Florida’s flawed processes led to a crisis in 2000. Pennsylvania’s problems could do the same in 2024. Florida fixed their process after the fact; we could fix ours now.

The average person with vested interest in legitimate democratic institutions and meaningful public trust should want elections to be more transparent, not less.

Election officials obsessed with accuracy should be lauded, and we do applaud them. They do Herculean work with too few resources.

But accuracy without transparency misses the point: it’s the transparency that inspires trust in the accuracy — and this trust is the linchpin of any democratic endeavor.