We Must Question Internal Workings of Pennsylvania Vote Count
Post originally published on https://www.3PMonline.com, Third Party Mechanic (Nov. 8, 2020)
Can a state essentially erase its traditional “notary” function — and only temporarily — to alter an election? The national focus on Pennsylvania’s voting results for the 2020 general election ignore this significantly glaring question about the state’s electoral apparatus and decision-making.
- SEE: State of Pennsylvania’s official instructions for voters in the 2020 presidential election (“voter guidebook”).
We discuss two primary areas of concern, where regardless of the outcome the state must be held accountable for enforcing voting procedures that protect due process.
1. Sign Our Names
In the Pennsylvania voter guidebook, (Section: “How do I complete my mail ballot?”), state officials advise voters that they must sign their ballot or their vote simply may not count.
If the intent is to ensure that only the actual person casting the vote completed and signed the ballot, the only credible way of doing so is with a verification process (e.g., comparing signatures from prior years, contacting a random sample to confirm their signature and how delivered, etc.).
No such verification protocol is being deployed in PA. Why? Pennsylvania Secretary of State Kathy Boockvar (D) allowed county officials to remove the signature inspection requirement for mailed ballots. Officials do not have to compare signature with those on file.
- SEE: Pa. Supreme Court Rules Ballots Can’t Be Tossed Over Voter Signature, CBS Pittsburgh (Oct. 23, 2020)
The Pennsylvania Supreme Court issued a decision on Oct. 16, 2020 agreeing with Secretary of State Boockvar. In the decision, two Republicans judges joined five Democrats, declaring that the Pennsylvania Election Code not only omits a requirement for signature verification, it does not authorize it in the first instance. As articulated by the state’s high court:
We, therefore, grant the Secretary’s petition for declarative relief, and direct the county boards of elections not to reject absentee or mail-in ballots for counting, computing, and tallying based on signature comparisons conducted by county election officials or employees,or as the result of third-party challenges based on such comparisons.
The court proceeded to cite the PA Election Code (Section 3146.8(g)(3)) as its source of authority, which delineates the procedure for reviewing voting ballots. The Code states that the county boards must evaluate and verify “identification.”
Specifically, the Pennsylvania Election Code reads:
(3) When the county board meets to pre-canvass or canvass absentee ballots and mail-in ballots, . . . the board shall examine the declaration on the envelope of each ballot not set aside under subsection (d) and shall compare the information thereon with that contained in the “Registered Absentee and Mail-in Voters File,” the absentee voters’ list and/or the “Military Veterans and Emergency Civilians Absentee Voters File,” whichever is applicable. If the county board has verified the proof of identification as required under this act and is satisfied that the declaration is sufficient and the information contained in the “Registered Absentee and Mail-in Voters File,” the absentee voters’ list and/or the “Military Veterans and Emergency Civilians Absentee Voters File” verifies his right to vote, the county board shall provide a list of the names of electors whose absentee ballots or mail-in ballots are to be pre-canvassed or canvassed.
Using a textual analysis, which is usually employed by conservative legal scholars, the state court noted that nowhere in the plain text of that particular section of the Election Code is the word “signature” used. They concluded that the absence of that language meant there was no requirement to match signatures. The court ruled that county officials could complete the oversight protocols by verifying only addresses or other objective identifying data, without recourse to signatures. Proponents of this approach had advocated that the subjectivity of signature review both disparately impacted minorities and susceptible to impermissible partisanship from individual county officials trying to influence the election outcome.
However, the opinion conveniently ignores the entirety of the Election Code, including those portions that exactly identify the “information. . . contained in the ‘Registered Absentee and Mail-In Voters File.’” The section cited by the court does direct the county board to compare identification data, yet it is the other parts of the Code that actually define what precise data is preserved in the state’s files to prove identity.
For example, the definitions in the Pennsylvania Election Code provide as follows:
- “Registration card.” A registration record containing all information required on the registration application, including the elector’s signature, and suitable space for the insertion by the appropriate official of the following information:
(1) The ward and election district of residence.
(2) The registrant’s street address.
(3) Data required to be given upon removal from the registrant’s residence.
(4) The date of each election at which the registrant votes.
(5) The number and letter of the stub of the ballot issued to the registrant or the registrant’s number in the order of admission to the voting machines.
(6) The initials of the election officer who enters the record of voting in the district register.
(7) Whether the registrant needs assistance to vote and, if so, the nature of the disability.
- “Registration records.” The general register, district register and any other record of registration maintained by a commission. The term includes any record maintained by the commission on the Statewide Uniform Registry of Electors.
Signatures are thus a “record of registration maintained by” the state. Simply because the legislature used the all encompassing word “information” when instructing the county board of electors how to review individual ballots, rather than minutely delineating which of the items, already defined as state custodied identification data, was to be used for verification, does not mean signature matching is excluded. Indeed, the Code expressly directs that verification is to reference any of the state’s filed historical records for each voter without specifying any one metric (such as addresses). Yet, since the court concluded that address matching is a legitimate basis for rejecting ballots, although address review is also not expressly mandated in the Code by name, then why is signature matching disqualified?
Besides, why is the state retaining signatures in the voter registry if the signatures are never to be checked? The clear intent of the legislature is to provide sources of information for a reasonable review. Otherwise, maintaining the signatures of each voter is a needless exercise in government data collection, and perhaps intrusive.
The citizen groups that brought the original lawsuit against the Secretary of State, including the League of Women Voters, argued that requiring signature verification allowed county clerks to deny legitimate voters their First Amendment rights arbitrarily. There are petitions circulating online and rallies in the streets, all declaring that mismatched signatures are a “technicality” and that civil liberties require that “all votes” cast are counted.
Which is the priority: fraud identification to maintain integrity of the electoral process and outcome, or preventing abuse of power by individual bureaucrats who may wrongfully deny a voter?
A Parallel
In determining a possible answer, we look to a separate context. The functions that the Pennsylvania legislature instructed the county board to perform in verifying identity for ballots mirror another performed nationwide by county offices: notarization.
According to the American Association of Notaries, (“Verifying the Identity of the Signer”) (March 31, 2015):
When the signer presents his I.D. to you, . . . [s]ee if his appearance reasonably resembles the picture. Look at the descriptive details on the I.D. — does the age (based on the birth year shown) match the age of the person in front of you? Does the eye and hair color match? Does the signature on the I.D. match the signature on the document and the one in your notary journal? Does the name match that which is shown on the document? If you spot anything about the I.D. that makes you nervous, ask the signer to explain . . . .If you are not satisfied as to the signer’s identity, you must refuse to notarize the document.
Matching signatures is a typical and required method for county offices to verify identity. Actually, it is also regulated by the states, such that a notary who fails to review signatures would be subject to discipline. That fact may explain why the Pennsylvania legislator did not deem it necessary to spell out with heightened specificity how the county board should comply with the canvassing procedures for mail-in ballots. Signature review, as a matter of professional due diligence and the course of transactional dealing, is as expected as address review. The process of voting, especially for general elections at the national level, is a high volume transactional operation, similar to the execution of contracts for high volume stock trades.
The American public’s traditional and extensive experience with notaries raises another objection to the arguments advanced by the Pennsylvania courts. We always rely on individual bureaucrats to administer this exact type of identity check as part of their oversight and fraud detection role. We thereby routinely experience similar risks of erroneously (or maliciously) being singled out by a county clerk who questions our proof of identity, even with regard to the most sensitive and critical documents in our lives (e.g., marriage license, titles and deeds, court filings, adoption papers, citizenship applications, birth/death certificates, medical documents, etc.). Why then is it only now within the context of casting a ballot do some sectors suddenly perceive an impermissible risk that county officials will target individual voters for exclusion?
- SEE: Pennsylvania “Powers of a Notary Public,” Pennsylvania Department of State (Oct. 26, 2017)
Surely the state legislature understood when they drafted the Election Code that these are the same state employees performing the same function as they do any other day and time of the year (not just every four years). In fact, notarization is a state regulated function with a state licensing requirement, as well as penalties for notaries who fail to meet the professional obligation to verify signatures. Why then are the Pennsylvania Secretary of State and the Pennsylvania Supreme Court attempting to redefine and limit the county official’s typical governmental function (at the eleventh hour)?
Put another way, if the Secretary of State’s reasoning is correct, then the logical extension of her argument is that in every other context where a citizen may be erroneously deprived, county clerks should be precluded from scrutinizing a signature in connection with notarization. Why should voting ballots be the only documents where the requirement is waived as unreliable and susceptible to constitutional violations? Why are not all contracts filed with the government comparably erased? And if that were the conclusion drawn, then we certainly should not limit our analysis to government review. If a class action of minority citizens alleged that they were being discriminated against because bank clerks were excluding their signatures on loan applications at far higher rates than their peers, would the courts allow their suit to succeed?
- SEE ALSO**: Customer Authentication: The Evolution of Signature Verification in Financial Institutions, Journal of Economic Crime Management (Summer 2002, v.1).
EXCERPT: The case of Price v. Neal, which imposed limitations on the paying banks’ ability to recover looses on instruments with forged makers’ signatures, proved to be a landmark decision and it is the foundation of modern check law in the United States. The doctrine established by this case significantly facilitated the negotiability of all financial instruments because it established the liability on the paying bank for paying only those checks and drafts authorized by its customers. The decision addressed what is one of the most problematic and important areas of negotiable instrument law, the allocation of losses that result from a forgery.
- [**Note, we discuss only interactions between citizens and the government. Yet, signature verification procedures apply in the private context as well, such as the banking regulations explored in this reference article. The government and the courts insist that banks manage fraud, such that failure to catch a bad signature results in liability for the banking institution. It is an open question whether government entities should be able to evade responsibilities imposed by them on industry?]
Who Decides?
Assuming such limitations on the notary function are proper, can the Secretary of State unilaterally waive the requirement (either just for the electoral process or to extend to all contracts received by the government)? In 2019, the Pennsylvania legislature created the new law that allowed the entire state to be able to use mail-in ballots without a reason or excuse. If they further believed that the signature review (which was active at that time) was onerous or destructive of civil liberties, they could have addressed it with a simple provision to eliminate the longstanding practice.
Since the politically experienced citizen groups who filed the 2020 suit, such as the League of Women Voters, are highly cognizant and forcefully vocal about such legislative proceedings, why did they not raise the subjectivity of signature analysis when the 2019 laws were being liberalized? We suspect that they did. Assuming they tried, it is probable that they could not secure sufficient legislative support at the time to pass waiver of the signature verification requirement. Can the Secretary of State or the state’s high court now satisfy that political objective without breaching separation of powers? It simply is not the purview of state courts to write administrative protocols, especially when the act would subvert as essential a government function as notarization, which is embedded throughout every sector that must mediate government transactions and documents.
In fact, we can turn to the state itself to identify its overall priorities. In 2019, Pennsylvania embarked on an extensive overhaul of its electoral system, which placed special emphasis on election security. According to the Official Pennsylvania Government Website:
As Americans, we all share the magnitude of the importance of defending the integrity and security of our elections, to ensure both our right to vote and our confidence that our vote will be counted accurately. Reports of attempted foreign interference in our electoral process have only reinforced our dedication to protecting election integrity. Since 2016, the Pennsylvania Department of State has greatly intensified its election security efforts with increased monitoring, fortified voting system defenses, and added layers of protection to the commonwealth’s voter registration database.
The state collaborated with the Department of Homeland Security and other federal offices, all of the state’s own county boards, several private industry security outlets, and multiple social research organizations who focus on civil liberties (e.g., the Brennan Center for Justice at NYU School of Law, the Democracy Fund, and VotingWorks) to design post-election audit procedures. Pennsylvania’s Department of State managed a “post-election audit work group,” which ran pilots for transitioning from electronic voting to paper-ballots. According to the state’s reporting:
Both [project] pilots demonstrated how a risk-limiting audit can be used to provide a high-level of confidence and statistical verification that the outcome of the election is accurate. By 2022, all counties will be conducting post-election audits that exceed the current requirements set in the state’s Election Code.
This deployment of resources and capital is the direct opposite of a state legislature that had the appetite to waive election fraud thresholds.
- [NOTE ALSO: The financial research article cited above (Customer Authentication: The Evolution of Signature Verification in Financial Institutions) advises that various forms of physical identification strategies, such as matching signatures, are among the “least effective methods” of customer authentication. That is due in part to most of banking moving to online or other electronic platforms, as well as the challenge banks face in collecting and retaining massively voluminous private records on site. Since Pennsylvania reverted back to using paper ballots, with the specific intent to harden fraud defenses, the state mandates retention of signature files as a matter of course, and such files are far smaller in volume than most large banks’ records for transactional accounts, those defects are inapplicable to the electoral process. Furthermore, however, the article cautions that banks auditing customers’ driver licenses or social security cards is also a highly ineffective physical procedure because “Websites are available on the Internet that provide counterfeit identity cards to any requestor without demanding any proof of that person’s true identity.” Accordingly, the exact protocol implemented under advise and consent of the Pennsylvania court is, at the very least, as ineffective as the signature verification they rejected.]
Shared Burdens
In this week since the Nov. 3, 2020 election, media focus has been on whether President Trump can produce any “evidence” of fraud. The President is now thrust in a common position for civil rights groups, who consistently confront the challenge of meeting the heightened pleading burden that courts place on fraud claims. They demand affidavits, surveillance, fingerprints, smoking guns, press conferences, etc.: tall order for an election procedure that was to take place in the sanctity of a voter’s home. Where exactly was the security camera to have been rolling — under our beds?
Additionally, the press has castigated the campaign for criticizing the election process, “undermining” the reputation of the system, and allegedly damaging the reputations of the bureaucrats engaged in the vote tally, including Secretary Boockvar.
What the media is missing is that the questions we have raised above about election integrity do not require demonstrating a pattern of fraud, conspiracy, collusion, or outright racketeering. All that is required is a showing that the procedure implemented by the state’s Secretary Boockvar is illegitimate. A government procedure that is “arbitrary” and too highly “susceptible to abuse” can fail to meet constitutional standards for due process, which ironically is the crux of the argument presented by the advocates who challenged the signature review. Our democracy is built on fundamental fairness and freedom, and due process is the platform that sets the foundation.
Besides, when exactly did challenging the actions of government officials warrant such bleeding sympathy? What are the implications for the civil rights plaintiffs marching for justice in the streets against government actors? Yet another irony: if Trump succeeds, it will advance civil rights for future litigants against state government’s abuse of power; and if he fails, how onerous future burdens of proof?
Other Foot
The legitimacy of the Pennsylvania Secretary of State’s unilateral waiver of signature review extends far past this single election of 2020, these two seasoned presidential candidates, or these two behemoth political parties.
This time around, Pennsylvania’s new open access mail-in balloting allowed a diverse coalition to mount an offensive against a presidential candidate they all sought to defeat. Clearly, at some point or another, that unity will be tested. It is not difficult to conceive of a time when underrepresented minorities in a majority Pennsylvania district may find themselves without political allies on an issue of pressing socio-political concern.
When they are awaiting the tally from the county board of elections, perhaps on a ballot initiative about policing or school violence, they may well sorely and soberly crave anti-fraud protections, such as signature verification for each ballot. Mail-in voting already places a greater burden on minority constituents to secure allies because they can no longer rely on storming the ballot box on election day to rally a measure past the finish line. Available allies may leave something to be desired if the choice is the lesser of all “evils” or your enemy’s enemy. If there is no fraud screening, we may find ourselves back in the 1940’s and 50’s when the ballot box was often stolen from the underrepresented — under seal.
SEE AS AN EXAMPLE:
- In July 2020, the Republican majority in both houses of the Pennsylvania legislature passed SB-1166, “Pennsylvania Equal Rights Regardless of Race or Ethnicity Amendment.” It brings the state’s civil rights protections into line with the federal Constitution. However, the minority Democrat Party of both houses voted almost unanimously against it. The Pennsylvania General Assembly will need to approve the constitutional amendment again during the 2021–2022 legislative session to place the ballot measure before voters.
- Representative Harris (D) of the Pennsylvania Legislative Black Caucus stated: “ The words in this constitutional amendment calling for racial equality mean absolutely nothing without real action. These words are toothless without the supportive protection of continuing to rework how law enforcement interacts with Black and Brown communities, properly funding all schools so all children get a proper education regardless of ZIP code, and increasing access to capital for Black- and Brown-owned businesses, among other things. Without action, these words carry no weight in Pennsylvania.”
Question #1:
How reliable is a voter ballot that is mailed (without the person present to verify their vote) when the signature is also not verified? There is often great focus on gerrymandering when states draw redistricting maps. Yet, those are not implemented by the decision of one state official. On a scale of 1–10, let us know what you think the reliability index is for the unverified mail-in ballot procedure in PA.
2. Deliver By Your Hand Only
Pennsylvania’s official voter guidebook (Section, “How do I return my voted mail ballot?”) also cautions voters that “you must deliver your ballot yourself, and you cannot have someone else deliver your voted ballot for you.” The ballots must be delivered to the county board’s office or to a drop box designated by the county.
The Pennsylvania Supreme Court has ruled that ballot harvesting is illegal.
However, how does the Secretary of State and the court propose that the county verify whether the person who cast the vote actually delivered the vote to a drop box? In the absence of such deposit verification, signature verification takes on added importance.
A thought: if the postal service can get to every house, why is it insurmountable for election officials? The discussion on voter access during the COVID-19 pandemic seemed to focus exclusively on how voters can get their ballots to the state. We ask: why couldn’t states have picked up ballots from residences on assigned dates, using the exact same mail routes employed by the US postal service? Both parties could have had representatives or volunteers accompany the pick-ups, for third-party assurances.
Perhaps the cost would have been too prohibitive?
Then again, maybe something like that is exactly what happened. It seems inescapable that some ballot harvesting must have occurred, even if as a result of innocent voter misunderstanding (e.g., a fellow church member dropping off a ballot for a church elder; a mother making sure her teen delivered his first presidential ballot; a husband caring enough to make sure his wife, who is a front line worker working grueling shifts, got her ballot in). To many, this election meant everything, if for no other reason than there has been little else of national import to focus on during a traumatic global event. What harm to drop off a ballot in a drop box when so many fear leaving home? They did not know the law. They knew not what they did. It happened. We all know it did.
We only suggest individualized, state-sponsored delivery during the actual period of the global pandemic, and would not include any other upcoming national or local elections. Unlike the Pennsylvania Secretary of State, we question whether 100% voter participation is necessarily the right objective. There is much to be said for “people power,” when voters care so intensely about an issue that they mobilize all resources (including financial capital) to push a measure through the electoral process, while their compatriots — who could not care less — stay home. If the silent majority is activated, new ideas and diverse opinions could well be trampled in a stampede by the majority who have nothing to do but wait for a knock on the door.
Throughout history, the act of voting measures “something.” Those who arrive often care enough to brief themselves on the issues and the candidates before them. Moreover, “not voting” is itself an honored tradition for many Americans who, in a given cycle or always, feel that either the system or their options are too imperfect to render a choice possible. The “stay-at-home” vote is meaningful and has a voice (a la 2016).
Still, if the options are between drop boxes without delivery verification or having a state official at everyone’s doorsteps making the silent majority “woke,” what would you choose?
Question #2:
Would you support your state having drop boxes without delivery verification, if the state also declines to then verify the signatures on ballots it receives from such drop boxes?
Post originally published on https://www.3PMonline.com, Third Party Mechanic (Nov. 8, 2020)
