<aside> ‼️ Please Note: We share this information with the hope that it aids pro-democracy activists by highlighting specific process points to monitor for any subversive efforts. Due to the sensitivity of this information and the potential for it to be exploited by bad actors, this page and the links within it should not be shared outside of the pro-democracy community.
If you have any questions or feedback on these identified vulnerabilities, please contact us at info[@]informingdemocracy[dot]org.
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Pennsylvania has a number of protections in place to safeguard its election processes from those seeking to undermine democracy and circumvent election results. However, we have identified a number of potential vulnerabilities to the integrity of these processes. Some of these vulnerabilities are more systemic in nature. They are inherent in the design of the Pennsylvania election ecosystem—shaped by the state’s election laws and historical practice. Examples of this include the fact that there is greater local discretion in Pennsylvania compared to many other states and significant variation in local practices. The elector petition recount process is another example of this type of vulnerability.
On the other hand, there are vulnerabilities that only become areas of concern when they encounter motivated anti-democracy actors looking for weaknesses to exploit. Examples of this include Butler, Lycoming, and York counties’ votes to retroactively conduct extralegal audits of the 2020 election results, and Fulton County’s decision to grant electronic voting machine access to a third party—ultimately corrupting the machines for future use.
Pennsylvania’s decentralized system of election administration yields vote counting and election certification processes to the County Boards of Elections. While state law provides general uniformity in these processes, there are notable areas in which the Boards have broad discretion. Below are examples of ways in which these areas of discretion may threaten vote counting and election certification.
In Pennsylvania, the Secretary of the Commonwealth issues guidance documents to assist in interpreting election law, but these documents typically do not themselves have the force of law. “Election Directives and Guidance.”
County Boards of Elections have in the past issued their own guidance, sometimes contradicting the Secretary of the Commonwealth’s. “NBC Phil Undated Mail-Ins.” Some counties look to the courts to clarify the law rather than defer to the Secretary of the Commonwealth. “Dauphin County Meeting Minutes” & “Perry County Meeting Minutes.” This can lead to inconsistency across the state, and also contribute to confusion in election coverage by media or within the public perception.
For example, after the May 2022 primary, Butler, Fayette, and Lancaster Counties refused to certify mail-in ballots where envelopes were not dated or had incorrect dates. “Philly Inquirer Lai Breaks Standoff.” In this case, this was in contradiction of both Department of State guidance and a ruling from the Third U.S. Court of Appeals requiring them to count these ballots. Migliori v. Cohen, 36 F.4th 153, 2022 U.S. App. LEXIS 14655, 2022 WL 1701850 (3d Cir. Pa., May 27, 2022) & “DOS Guidance on Civilian VBM.” Nonetheless, it took a court order—issued in August of that year—to get the counties to comply and include these ballots in their certified totals. “Philly Inquirer Lai Breaks Standoff.” Further litigation of this issue—led in part by these counties who continued to be unhappy with this guidance—led to an eventual reversal. Ball v. Chapman, 2022 Pa. LEXIS 1879 (Pa., Nov. 1, 2022) & “DOS Guidance on Civilian VBM Updated Supreme Court Order.” In March 2024, he Third U.S. Court of Appeals in March 2024 that these ballots should not be counted. "Dem Docket, 3rd Circuit Mail-In Voting," "Dem Docket, Not Reconsider." Following that over the summer, the Commonwealth Court ruled that these ballots should be counted, however that decision was quickly voided on procedural grounds. “Votebeat, Philadelphia Must Count September.” On October 30, the Pennsylvania Commonwealth Court held that Philadelphia must count undated and misdated mail ballot from the September special election. However, the ruling of this case applies narrowly and not to the November General Election. “Votebeat, Philadelphia Must Count September.” However, if some counties on their own initiative decide to count these ballots while others do not, this could become an urgent legal issue following the election. Litigation over the undated and misdated mail-in ballot issue is active and could considered again by higher courts this year.
In addition to providing interpretive guidance that may undermine guidance from the Secretary of the Commonwealth, County Boards of Elections ****have the ability to decide staffing and resources ****for their counties. 25 Pa. Stat. Ann. § 2643.
Non-elected members of the District Election Boards are either chosen by the elected members of the District Election Boards (the clerks), or by the County Board of Elections (the Machine Inspectors). In counties that use central count, these election workers are also appointed by the County Board of Elections. As the volume of mail-in ballots increased, some counties also had to contract out to private mail processing companies. This discretion of the County Boards of Elections in how they decide staffing may result in the appointment of anti-democratic individuals, or could result in insufficient resources and staff or lack of properly trained staff if the County Board fails to properly anticipate or account for their needs.
Unless there is a controlling court decision, County Board of Elections members exercise their discretion during the pre-processing, pre-canvassing, and canvassing of absentee ballots such as the timing of these processes and other decisions, like curing, that can affect each ballot’s validity and impact whether or not that vote is counted. For examples, in 2020, seven of Pennsylvania’s 67 counties refused to process mail-in ballots until after the Wednesday after Election Day—even though Pennsylvania Secretary of State Kathy Boockvar had publicly encouraged counties to begin pre-canvassing as close to 7:00 a.m. on Election Day as possible. Following the enactment of Act 88, four Pennsylvania counties even declined to accept state elections funding due to requirements that counties receiving funds continually count ballots until the vote was complete, beginning at 7:00 a.m. on Election Day.
Similarly, counties have gone to different lengths in allowing ballot curing. For example, the Lancaster County Board of Elections voted down a measure allowing voters to fix clerical mistakes on their mail-in ballots in April 2023, while the Luzerne County Board of Elections voted in favor of ballot curing in a 4-1 vote in March 2024. According to Votebeat, at least 17 counties allow some form of curing, while others have argued they are not obligated to do so.
There is very limited discretion in the tabulation of votes generally. However, the results of an entire district can be thrown out by the County Board of Elections if they find a precinct where more voters are listed as having signed in to vote than there are registered voters for that area. This would presumably only be a vulnerability if there was illegality or serious error at the district level to cause this mismatch. However, it is worth keeping in mind, given past attempts to place fake ballots at polling places. “WSBTV Georgia.” Where the County Board of Elections can determine the proper results in the district (such as by resolving discrepancies on the rolls or identifying any fake ballots), it is supposed to include the correct results in the total count. However, a board controlled by anti-democratic members might use this as an excuse to throw out all votes in such a district instead.
Additionally, the County Board of Elections is authorized to investigate fraud, and to aid the District Attorney in prosecuting fraud, but there are few parameters placed on that power, leaving the possibility of abuse of that power by an anti-democratic County Board. 25 P.S. §§ 2642(i), 3555. The statutory language says that County Boards are required to compute and certify the vote “justly regardless” of fraud. 25 Pa. Stat. Ann § 3154. This power presents the potential for the vote total or outcome to be manipulated, including possibly that a County Board of Elections could either ignore clear evidence of fraud or error and try to willfully ignore problems, or could attempt to use the evidence of fraud to “correct” the vote total to try to certify what they believe is the “just” total for their county.