This article was originally published By Votea nonprofit news organization focused on local election administration and voting access.
by Carter Walker, Votebeat
When Republicans in the House called on Congress to reject Pennsylvania’s electoral votes Joe Biden in 2020, they didn’t cite voter fraud or illegal activity. Instead, they pointed to something seemingly harmless: guidance from the Pennsylvania Department of State.
State Republicans, including then-Speaker of the State House of Representatives Bryan Cutler accused agency undermining New absentee voting law in Pennsylvania. Jake Cormanthen the state senate majority leader called on former secretary of the commonwealth Kathy Boockvar go down, saying“It’s unthinkable that something like this would happen at 11 a.m..”
Corman was referring to guidance Boockvar issued the day before the November 2020 election that advised counties to notify voters of major defects in absentee ballots and allow them to vote provisionally at their polling place. Some counties have followed the guidance, and some have not.
Courts I found no merit to the argument that the department abused its authority, but the narrative that guidelines and directives issued at the end of the election cycle tipped the scales against then-President Donald Trump has remained on the right since then. Republican lawmakers held a nearly two-hour hearing in 2021, asking Boockvar about her tips and status Senator Doug Mastriano (R-Franklin) wrote a column During his 2022 gubernatorial campaign, he claimed that Democrats had “hijacked” Pennsylvania’s absentee voting law using his guidance.
The department regularly publishes guidelines and directives to clarify election procedures and state law, such as in the event of a novel court ruling or an Election Day issue the agency would like to avoid.
The two notices carry different weights. The directives have the force of law based on the powers of the Commonwealth Secretary under the Electoral Code. The guidelines set out the department’s view of best practices that counties should follow.
With the upcoming presidential election likely to be controversial, here are some things to know about the directives and guidelines:
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 — expressly grants him authority over a particular part of the election process.
This means that directives have the force of law; this legal basis is always established at the beginning of the directive.
An example of this is the recent directive issued on postal voting. July 1 Commonwealth Secretary Al Schmidt instructed Counties will print the full four-digit year on absentee ballot return envelopes.
This was more of a recommendation than a guideline because the state’s Election Code authorizes secretary to determine how to configure the return envelope.
What about counseling?
According to a spokesperson for the Pennsylvania Department of State, the guidance is issued “whenever it is determined it may be helpful in clarifying policies, procedures, and best practices for the administration of elections.”
Guidance often comes in response to a specific issue that arises during an election, when a lawsuit sets a precedent on some aspect of administration, or when several counties have similar questions on a particular issue.
For example, guidelines for postal and absentee voting updated April 2023 to reflect recent case law regarding unsigned and undated ballot return envelopes.
While the guidelines may apply to the electoral process required by law, the detailed recommendations in the guidance documents on how to conduct that process are not mandatory because Boockvar explained in 2021 testimony before the State House. In other words, the department can’t enforce the guidelines. That leaves it up to counties to decide whether to follow the recommendations.
How will guidelines and directives be incorporated into this year’s elections?
When the department issues directives or guidelines, it notifies all counties and offers training through its Reactive Training Program for County Election Directors.
A department spokesman said the guidelines and directives, which can be found on the state government websiteare “reviewed regularly” for any needed updates. More directives or guidance could be issued before the November election.
Schmidt, who was a Philadelphia city commissioner during the 2020 election, said recognizes frustration what problems last-minute guidance may cause for election officials and voters.
In response, he has repeatedly said he will not issue novel guidelines or directives within 45 days of the election unless a court ruling forces the state to do otherwise.
This possibility is not unlikely, as there are several essential cases currently pending in the courts and appellate courts in individual states often issue rulings just before Election Day.
Carter Walker is a Votebeat reporter in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.
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