On the Horizon: Access to Mail in Ballots (PA)
The Pennsylvania Office of Open Records just issued a decision concerning access to mail-in ballots. Access to mail-in ballots and other election records is a hot button issue, particularly in Pennsylvania, because of the highly contested 2020 election results. The final resolution of this issue has the potential to open the door for a new wave of litigation regarding the 2020 election— or to close that door permanently.
RTKL or Election Code?
Typically, in Pennsylvania, any request to access public records is made pursuant to the Right-to-Know Law. However, because the Election Code sets out a separate process that governs access to election records, mail-in ballots are only accessible through the process established by the Election Code. By deciding this, the OOR clarifies that all of the broad-reaching perimeters for accessing records through the RTKL are replaced by a more specific, narrowed procedure from the Election Code.
Public Records vs Public Access
The Election Code and the OOR’s decision interpreting it are clear in one regard: mail-in ballots, ballot envelopes and ballot envelope signatures are public records. 25 Pa. Stat. Ann. § 3150.17(a). But just because these records are public does not automatically mean that the law grants free and unfettered public access to those same records. Public access to these records is determined by, and may be limited by, the Election Code and the procedures it establishes.
The first section of the Election Code that applies is the section that discusses mail-in ballots specifically. 25 Pa. Stat. § 3150.17. The OOR’s interpretation of this section declares that mail-in ballots and the accompanying declaration envelopes, including identifying signatures, are public records. The Election Code section regarding mail-in ballots goes on to say that “[t]he county board shall compile the records listed under subsection (b) and make the records publicly available upon request within 48 hours of the request.” 25 Pa. Stat. § 3150.17. This section requires that these records be maintained for two years.
What is not clear, and what the OOR properly declined to address since it falls outside of the Right-to-Know Law, is whether the section regarding mail-in ballot access should be interpreted as a stand-alone access process or whether the process to access mail-in ballots is subject to the limitations set out elsewhere in the Election Code that govern access to other election records.
Based on a plain reading of the law itself, access to mail-in ballots and related documents appear to be governed by 25 Pa. Stat. § 3150.17, an access procedure with no limitations.
Does the Requester have to be a “Qualified Elector?”
The second section of the Election Code that potentially applies is the section that provides for public access to general election records. 25 P.S. § 2648. This section governs the records of each county board of elections, except the contents of ballot boxes and voting machines and records of assisted voters.
The issue of which Election Code section governs the mechanism for access is ripe for a potential appeal. If the mail-in ballot access provisions from 25 Pa. Stat. § 3150.17 serve as a stand-alone procedure for access, then there are essentially no limitations to access mail-in ballots, including declaration envelopes and signatures. But there’s no nuts-and-bolts instruction from that section of the code as to how and to whom the records shall be made available, whereas 25 P.S. § 2648 suggests that only qualified electors can access records through the use of highly specific procedures.
The Limitations that Remain
Assuming that 25 Pa. Stat. § 3150.17 is interpreted as a stand-alone provision, there are still a few limitations that remain. As mentioned above, “no proof of identification shall be made public” even though mail-in ballots, declaration envelopes and signatures are designated as public records. 25 Pa. Stat. § 3150.17.
Additionally, information concerning a military elector is also confidential as revealing this information is “expressly forbidden by the Department of Defense because of military security.” 25 Pa. Stat. § 3150.17.
The Constitutional Questions
The larger question is whether the portion of the Election Code, as written, offends the Constitution, which states: “All elections by the citizens shall be by ballot or by such other method as may be prescribed by law: Provided, That secrecy in voting be preserved.” Pa. Const. art. VII, § 4.
The preservation of the secret ballot has been described as the “only requirement” as to methods of voting and laws surrounding the same. See McLinko v. Dep't of State, 279 A.3d 539, 576 (Pa. 2022). While we know from case law that the mail in ballot voting method doesn’t offend this requirement, there appears to have never been a challenge as to the mail in ballot public access provisions, and whether public availability destroys the secrecy of the ballot. The question will hinge on how the materials are provided. For example, one could see the names and addresses of the electors, and one might separately receive copies of the votes that were cast. As long as the two are never combined, there’s no way to tell who voted for whom—which is the primary concern of the constitution.
Another possible wrinkle for appeal would be Pennsylvania’s right to privacy. “The right to informational privacy is guaranteed by Article 1, Section 1 of the Pennsylvania Constitution, and may not be violated unless outweighed by a public interest favoring disclosure.” Pa. State Educ. Ass'n v. Commonwealth, Dep't of Cmty. & Econ. Dev., 148 A.3d 142, 158 (Pa. 2016). Although previously decided in the context of the Right-to-Know Law, the constitutional protections for informational privacy are not based on the RTKL, but are derived from an independent constitutional protection. Where the balance lies between public interest favoring disclosure and informational privacy regarding mail-in ballots is a completely novel issue of law that has not been determined. This determination is potentially within the scope of any appeal that results from this decision.
What Happens Now?
This landmark decision sets up an almost certain appeal. While we know that the question of public access will be decided under the Election Code, questions remain as to whether the mail-in ballot access procedures are subject to any of the general access procedures established for other election records. The constitutional protections for voter secrecy and informational privacy also potentially come into play. The result of the balancing test between public interest favoring disclosure and informational privacy regarding mail-in ballots will determine whether some records accessible under the Election Code remain sealed due to informational privacy.
Regarding records from the 2020 election, the clock is ticking. The Election Code requires that mail-in ballots and related records be retained for only two years. 25 Pa. Stat. § 3150.17. Since it is already October of 2022, the time period when these records remain accessible is very limited. Very shortly, the window of opportunity for public access of mail-in ballots and related records will close forever.
This blog is not intended to be legal advice, as the analysis might change depending upon your specific situation. For additional assistance, reach out to Joy Ramsingh, at email@example.com. Joy Ramsingh is an open records, open meetings, appellate advocacy lawyer and the founder of Ramsingh Legal.