Battle for Pa. election transparency plays out in state courts

Fighting against full transparency is Pennsylvania’s top elections official, Secretary of the Commonwealth Al Schmidt.

By PAULA REED WARD
TribLive

A battle for election transparency is being waged across Pennsylvania’s court system.

Against a backdrop of the “stop the steal” movement and persistent accusations of a broken electoral system, an unlikely alliance of GOP lawyers and grassroots democracy advocates is pushing to open elections to greater public scrutiny.

Their goal: to allow anyone to review the millions of ballots cast by mail and in person, as long as voters cannot be identified.

“It’s transparency. It’s election integrity,” Thomas Breth, a Butler County lawyer who has done extensive work for Republican causes and is involved in several ongoing appellate cases, told TribLive. “It gives the public confidence to know elections are being conducted competently and fairly.”

Susannah Goodman, the director of election security with Common Cause, a nonpartisan pro-democracy group, said her organization supports publication of castvote records and ballot images “In general, we really support transparency and the ability to observe and follow along with post-election audits,” she said.

On Tuesday, the Commonwealth Court ruled in favor of two Allegheny County residents who sought to obtain digital copies of mail-in ballots cast in the 2020 general election.

The county elections office had denied the request, finding that the images are considered “contents of ballot boxes” and therefore not viewable under Pennsylvania’s election code.

Commonwealth Court, however, took the opposite view, basing its rationale on the same election code.

The court cited a section of the code that reads: “All official mail-in ballots, files, applications for ballots, and envelopes on which the executed declarations appear, and all information and lists are designated and declared to be public records and shall be safely kept for a period of two years, except that no proof of identification shall be made public …”

The state objects

Fighting against full transparency is Pennsylvania’s top elections official, Secretary of the Commonwealth Al Schmidt.

In a friend-of-the-court brief in the Allegheny County case, the state’s Office of General Counsel argued that completed mail-in and absentee ballots should not be subject to the state’s Rightto- Know law.

Commonwealth Court, the state’s lawyers argued, got it wrong in ruling that the ballots are subject to review.

“The impact of that decision causes a real threat that mail-in and absentee voters in smaller precincts will need to sacrifice their right to cast a secret ballot in exchange for choosing to vote in a certain manner,” the state wrote.

In the 2024 primary, the secretary argued that in smaller precincts, anyone looking to identify a voter could do so in more than 1,400 instances.

“Disclosure of this information, then, not only violates these voters’ constitutionally guaranteed right of secrecy, but also could certainly chill citizens from exercising their right to vote in this manner in the future,” they wrote.

The secretary further argued that it is “unreasonable” that the Legislature sought to treat mail-in ballots “somehow less deserving of secrecy” than those cast in person.

The Pennsylvania Department of State did not make anyone available for an interview .

Goodman of Common Cause agrees that ballot secrecy is paramount.

“We really need to have the secret ballot so people aren’t bullied, harassed, threatened with job loss or coerced,” she said. “It means people really vote their conscience.”

Goodman believes there are ways to ensure anonymity, including redacting identifying information or combining smaller precincts into larger ones.

“A remedy has to be engineered so you can publish them and not be able to trace them back to the voter.”

As for whether ballots are subject to open-records laws, the American Civil Liberties Union says they are.

Marian Schneider, an ACLU attorney who has a case on mail-in ballots pending with Commonwealth Court, said the state election code makes it clear they are public records.

Once the ballots are taken out of their outer envelopes, Schneider said, there’s no way to track them back to the voter.

“Those secrecy concerns can be addressed,” she said.

Schneider believes the reason the Legislature treated mail-in ballots differently in the election code is because there is already public scrutiny of in-person voting, including through the use of judges of elections and poll workers.

“There are procedural safeguards there to prevent any shenanigans,” Schneider said.

The ACLU believes all ballots should be made public.

“There need to be other procedural safeguards to ensure the integrity of the election,” Schneider said. “The answer to people who express skepticism or distrust in elections is not less transparency. It’s more transparency.”

Wanting scrutiny, she said, isn’t about believing anything nefarious is happening.

“There are valid reasons to check on the work.”

Transparency elsewhere

According to The Elections Transparency Project, Humboldt County, California, began digitally scanning ballots for public review in June 2008.

Following the 2008 presidential election, it found “significant errors” that led to the results — and voting equipment — being decertified.

Since then, according to its website, a group of citizen volunteers works with the county elections department to scan the ballots and make them publicly accessible.

As they are audited, each ballot is imprinted with a unique number that allows it to be matched with an individual ballot “so that anyone can count the votes cast.”

Scanning the ballots, the website says, is more practical than providing public access to thousands or millions of ballots.

“We believe it has helped the citizens of Humboldt County maintain high confidence that the elections office results accurately reflect the cast ballots,” the website says.

And in Boise, Idaho, the elections office this year for the first time is publishing all 271,186 ballots cast in the general election on an interactive website using the Ballot Verifier program.

According to its website, the program “ensures transparency and accountability in the voting process.”

Users can view cast ballots, sort them by precinct, contest or candidate.

In Pennsylvania, according to Common Cause, there have not yet been efforts like those to scan all ballots and put them online to allow public scrutiny.

But the outcome of the current slate of cases at — or being considered by — the state Supreme Court could change that.

The Pennsylvania Commonwealth Court has ruled in at least two cases that scanned images of mail-in ballots are public records, and a third case on that same issue is pending.

One of those cases, out of Erie County, is pending acceptance by the state Supreme Court.

That court also has agreed to hear a case on whether the reports from in-person voting machines are public record.

Another case, addressing whether digital images of cast, in-person ballots are public, was accepted by the court but is currently on hold.

Jessica Goughnour, the office manager for the Westmoreland County elections department, said taking such a step to scan every ballot and put it online seems unnecessary.

“We’re very transparent in our county,” she said. “Our numbers would match without ever seeing a ballot.”

Moving forward

Breth, the lawyer involved in several of the appellate cases, said a growing number of states are opening their ballots to public scrutiny.

“It doesn’t in any way jeopardize the privacy of the ballot,” Breth said.

He called that argument “a red herring.”

By allowing ballots to be scrutinized, Breth said, it also allows scholars and politicians to see data and trends at a granular level.

“It has a wide variety of uses. All of this, with today’s technology, ought to be available to the public.”

Breth said he believes there’s bipartisan support for transparency.

“It gives the public confidence,” he said. “The public can make their own minds up.”

Schmidt, Breth said, is wrong on the issue.

“Saying ‘just trust us’ isn’t how we operate as a society or as a country,” Breth said.

Goodman, of Common Cause, said she is not at all surprised there is bipartisan support for increased ballot transparency.

She said it started in 2004 when Democrat John Kerry lost to Republican George W. Bush and Democrats questioned the election results, pushing for audits and paper ballots.

The same thing happened in 2020, she added, only that time it was Republicans with concerns.

“There’s always going to be some way to cast doubt on an election outcome. Transparency is a value that takes hold across the board,” Goodman said. “The point of paper ballot audits and transparency is to convince the losers they lost so we can move forward.”