describing secret ballot and voting privacy as bulwarks against twin evils of voter intimidation and election fraud
How later courts described this case
- describing secret ballot and voting privacy as bulwarks against twin evils of voter intimidation and election fraud
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michelle Previte, :
Appellant :
:
v. : No. 814 C.D. 2023
:
Erie County Board of Elections : Argued: April 10, 2024
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MATTHEW S. WOLF, Judge
OPINION
BY JUDGE CEISLER FILED: July 31, 2024
Appellant Michelle Previte (Previte) appeals from the Court of Common Pleas
of Erie County’s (Common Pleas) June 28, 2023 order. Through that order Common
Pleas ruled, in relevant part, that the Pennsylvania Election Code (Election Code)1
prevented Previte from using the Right-to-Know Law (RTKL)2 to obtain digital
images of absentee and mail-in ballots that had been cast in the 2020 General
Election. After thorough review, we reverse Common Pleas’ order in part.
I. Background
On August 1, 2022, Previte submitted three RTKL request forms to Appellee
Erie County Board of Elections (Board), through which she sought several kinds of
records that pertained to the 2020 General Election. The first request was for “an
electronic copy of the images of all mail-in ballots (including absentee ballots) from
1
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
the November 2020 election” (Item 1). Reproduced Record (R.R.) at 47a. The
second request was for “an electronic copy of the images of all outer envelopes
(containing each voter’s declaration) for the mail-in ballots (including absentee
ballots) from the November 2020 election” (Item 2). Id. at 48a. Finally, the third
request was for “an electronic copy of the images of all polling place ballots from
the November 2020 election” (Item 3). Id. at 49a. On August 2, 2022, the Board
invoked its right to extend the deadline for responding to this request by 30 days. Id.
at 43a.3 On September 2, 2022, the Board denied Previte’s request, because the
sought-after documents were not public records, per Section 308 of the Election
Code, 25 P.S. § 2648.4
Previte appealed this denial to the Office of Open Records (OOR), which
issued a Final Determination on October 20, 2022. See id. at 82a-90a. Therein, OOR
affirmed the Board with regard to Item 3 (polling place ballots), but reversed as to
Items 1 and 2 (mail-in ballots; absentee ballots; and those ballots’ outer envelopes).
Id. at 88a-89a.
The Board appealed OOR’s Final Determination to Common Pleas on
November 18, 2022,5 which then held a de novo hearing on the matter on February
3
Under certain circumstances, Section 902 of the RTKL permits an agency to extend the
permitted response time, which is normally 5 business days, by up to an additional 30 calendar
days. 65 P.S. § 67.902.
4
In relevant part, Section 308 provides that the records of “board[s] of elections, general
and duplicate returns, tally papers, affidavits of voters and others, nomination petitions, certificates
and papers, other petitions, appeals, witness lists, accounts, contracts, reports and other documents
and records in its custody, except the contents of ballot boxes and voting machines and records of
assisted voters,” shall be open to public inspection. 25 P.S. § 2648 (emphasis added).
5
Previte stated in her brief before Common Pleas that she no longer sought to obtain the
records she had requested through Item 2. See R.R. at 20a. This, coupled with Previte’s failure to
(Footnote continued on next page…)
2
10, 2023.6 Thereafter, Common Pleas issued an order on June 28, 2023, through
which it denied Previte’s request as to Items 1 and 2. Id. at 93a.7 In its accompanying
opinion, Common Pleas explained that it had done so for two reasons. First, Previte
had sought “images of ballots that, pursuant to the new voting system implemented
in Pennsylvania for the November 2020 election, are electronically kept within the
voting machines and stored as inseparable three-page documents.” Id. at 6a (cleaned
up). Common Pleas concluded that such images were the contents of voting
machines and, thus, were shielded from RTKL requests by virtue of Section 308 of
the Election Code. Id. Furthermore, Common Pleas stated Requester had failed to
provide “any evidence showing that she is a qualified elector of [Erie C]ounty.” Id.
Thus, even if the requested records were otherwise subject to release, Requester did
not have standing to request or obtain them from the Board. Id.
This appeal followed shortly thereafter.
II. Discussion
Previte offers several arguments for our consideration, which we reorder and
summarize as follows. First, Common Pleas erred by raising the question of Previte’s
standing on its own initiative and by failing to take judicial notice that Previte is a
registered voter in Erie County. Previte’s Br. at 13-14. Second, Common Pleas erred
appeal OOR’s Final determination, left Item 1 as the sole remaining disputed portion of her RTKL
request.
6
Common Pleas was the ultimate finder of fact in this matter, as ordained by the RTKL,
and consequently conducted a de novo, plenary review of OOR’s Final Determinations. See
Bowling v. Off. of Open Recs., 75 A.3d 453, 474 (Pa. 2013).
7
Common Pleas appears to have disregarded the fact that, by this point, Previte had already
abandoned her efforts to obtain records responsive to Item 2. See supra note 5.
3
by failing to recognize that Sections 1307-D(a)8 and 1309(a)9 of the Election Code
designate images of absentee and mail-in ballots as public records. Id. at 8-10.
Finally, digital images of cast absentee and mail-in ballots cannot be considered the
contents of voting machines, so Common Pleas erred by ruling that such images
where shielded from public disclosure by Section 308 of the Election Code. Id. at
10-13.
A. Previte’s Standing
We agree with Previte that Common Pleas erred by addressing the issue of
whether she had standing to request the aforementioned records. “Standing is a
justiciability concern—a threshold requirement that must be established ‘prior to
judicial resolution of a dispute.’” Pa. State Educ. Ass’n v. Pub. Sch. Emps.’ Ret. Bd.,
311 A.3d 1017, 1028 (Pa. 2024) (quoting Pittsburgh Palisades Park, LLC v. Com.,
888 A.2d 655, 659 (Pa. 2005)) (cleaned up). Generally speaking, a party must be
“aggrieved” to have standing, in that the party must have an interest in the matter
that is substantial, direct, and immediate. William Penn Parking Garage, Inc. v. City
of Pittsburgh, 346 A.2d 269, 282-83 (Pa. 1975).
A substantial interest is one in which there is “some
discernible adverse effect to some interest other than the
abstract interest of all citizens in having others comply with
the law.” William Penn, 346 A.2d at 282. A “direct”
interest requires a showing that the matter complained of
causes harm to the party’s interest. Upper Bucks Cnty.
Vocational-Tech. Sch. Educ. Ass’n v. Upper Bucks Cnty.
Vocational-Tech. Sch. Joint Comm., 474 A.2d 1120 (Pa.
1984). An “immediate” interest is something more than a
“remote consequence” and centers on the causal nexus and
proximity between the action complained of and the injury
to the party challenging it. William Penn, 346 A.2d at 283;
8
Added by the Act of October 31, 2019, P.L. 552, 25 P.S. § 3150.17(a).
9
Added by the Act of March 6, 1951, P.L. 3, 25 P.S. § 3146.9(a).
4
Skippack Cmty. Ambulance Ass’n, Inc. v. Twp. of Skippack,
534 A.2d 563 (Pa. Cmwlth. 1987). The requirement that the
interest be “immediate” is also met where it falls within the
“zone of interests sought to be protected by the statute or
constitutional guarantee in question.” Upper Bucks Cnty.,
474 A.2d at 1122. Finally, the rationale underlying the
requirement that the party be “aggrieved” or “adversely
affected” by the action at issue is to ensure that a legal
challenge is made by the appropriate party.
Pittsburgh Tr. for Cultural Res. v. Zoning Bd. of Adjustment of City of Pittsburgh,
604 A.2d 298, 303-04 (Pa. Cmwlth. 1992) (cleaned up). In matters such as this one,
where an individual has filed an RTKL request with a county board of elections,
Section 308 of the Election Code further restricts standing to seek such records to
“any qualified elector of the county[.]” 25 P.S. § 2648.10 In other words, someone
who is not a registered voter in a specific county does not have standing to seek
records from that county’s elections board. See Honey v. Lycoming Cnty. Offs. of
Voter Servs., 312 A.3d 942, 946 n.5 (Pa. Cmwlth. 2024).
Even so, it is well settled that “standing is not a jurisdictional question.” In re
Paulmier, 937 A.2d 364, 368 (Pa. 2007). Rather, it is a “prudential” concern that can
be waived in the event an opposing party does not raise it at the earliest possible
juncture. Pa. State Educ. Ass’n, 311 A.3d at 1028; Diop v. Bureau of Pro. &
Occupational Affs., State Bd. of Cosmetology, 272 A.3d 548, 559 (Pa. Cmwlth.
2022). A court cannot step into the breach in instances where a party fails to
challenge their opponent’s standing, and commits legal error if it elects to do so on
its own motion. In re Gun Range, LLC, 311 A.3d 1242, 1248 (Pa. Cmwlth. 2024).
10
Per Section 102(t) of the Election Code: “The words “qualified elector” shall mean any
person who shall possess all of the qualifications for voting now or hereafter prescribed by the
Constitution of this Commonwealth, or who, being otherwise qualified by continued residence in
his election district, shall obtain such qualifications before the next ensuing election.” 25 P.S. §
2602(t).
5
In this instance, the Board admits that it did not challenge Previte’s standing
until March 30, 2023, when it submitted post-hearing supplemental briefs. See
Board’s Br. at 30-32. The Board justifies this delay by asserting that “[s]tanding
could not have been challenged until after the evidentiary record was closed[,]”
ostensibly because Previte had failed to proactively offer proof at the February 10,
2023 hearing that she was a qualified elector in Erie County. See id. This argument
is without merit. To state the obvious, the Board is the local agency that is
responsible for administering elections in Erie County. See Section 301(a) of the
Election Code, 25 P.S. § 2641(a). It therefore has actual or constructive knowledge
of which registered voters reside within its domain. As such, there was nothing that
should have impeded the Board’s power to question Previte’s elector status as early
as its September 2, 2022 denial of her RTKL request, or its ability to raise that
question either before OOR or at an earlier stage of the proceedings before Common
Pleas. Furthermore, even if the Board did not have such actual or constructive
knowledge, it still claims that Previte never asserted to Common Pleas that she was
a qualified elector. This omission, which the Board dates to as early as December 8,
2022, certainly should have put the Board on notice that something may have been
amiss about Previte’s elector status. Accordingly, the Board waived its ability to
challenge Previte’s standing by failing to raise that issue at the earliest possible point,
and Common Pleas erred by both disregarding that fact and instead reaching the
merits of that question.
B. Public Records in the Context of Absentee Ballots and Mail-In Ballots
Moving on, we also agree with Previte that Common Pleas erred by
concluding that images of cast absentee and mail-in ballots are not public records
that are subject to disclosure in response to an RTKL request. Generally speaking,
6
the purpose of the RTKL is “to promote access to official government information
in order to prohibit secrets, scrutinize the actions of public officials[,] and make
public officials accountable for their actions.” Off. of Governor v. Raffle, 65 A.3d
1105, 1107 n.1 (Pa. Cmwlth. 2013). Accordingly, local agencies are statutorily
required to “provide public records [to individuals who request them] in accordance
with [the RTKL].” Section 302(a) of the RTKL, 65 P.S. § 67.302(a). However, that
does not mean that all local agency records are “public” and eligible for
dissemination upon request. Per Section 305(a) of the RTKL:
A record in the possession of a Commonwealth agency or
local agency shall be presumed to be a public record. The
presumption shall not apply if:
....
(3) the record is exempt from disclosure under any
other [f]ederal or [s]tate law or regulation or judicial
order or decree.
65 P.S. § 67.305(a); accord Section 102 of the RTKL, 65 P.S. § 67.102 (defining
“public record” in relevant part as “[a] record, including a financial record, of a
Commonwealth or local agency that . . . (2) is not exempt from being disclosed under
any other [f]ederal or [s]tate law or regulation or judicial order or decree”). In other
words, the RTKL’s presumption that all records possessed by a local or state agency
are public in nature, and are thus disclosable to a requester, yields where a statutory
exemption exists for a certain kind of record.
Through her second argument, Previte posits that Sections 1307-D(a) and
1309(a) of the Election Code dictate that images of cast absentee and mail-in ballots
are public records. This assertion presents a pure question of statutory interpretation;
thus, “our standard of review [here] is de novo, and our scope of review is plenary
and non-deferential.” Crown Castle NG E. LLC v. Pa. Pub. Util. Comm’n, 234 A.3d
665, 674 (Pa. 2020).
7
The object of statutory construction is to ascertain and
effectuate legislative intent. 1 Pa. C.S. § 1921(a). In
pursuing that end, we are mindful a statute’s plain
language generally provides the best indication of
legislative intent. See Com[.] v. McClintic, . . . 909 A.2d
1241 ([Pa.] 2006). Thus, statutory construction begins
with examination of the text itself. [Se.] Pa. Transp. Auth.
v. Holmes, 835 A.2d 851 (Pa. Cmwlth. 2003).
In reading the plain language of a statute, “[w]ords and
phrases shall be construed according to rules of grammar
and according to their common and approved usage.” 1 Pa.
C.S. § 1903(a). Further, every statute shall be construed, if
possible, to give effect to all its provisions so that no
provision is “mere surplusage.” 1 Pa. C.S. § 1921(a).
Moreover, although we must “listen attentively to what a
statute says[,] [o]ne must also listen attentively to what it
does not say.” Kmonk-Sullivan v. State Farm Mut. Auto.
Ins. Co., . . . 788 A.2d 955, 962 ([Pa.] 2001). We may not
insert a word the legislature failed to supply into a statute.
Girgis v. Bd. of Physical Therapy, 859 A.2d 852 (Pa.
Cmwlth. 2004).
Malt Beverages Distribs. Ass’n v. Pa. Liquor Control Bd., 918 A.2d 171, 175-76
(Pa. Cmwlth. 2007). “When the words of a statute are clear and free from all
ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its
spirit.” 1 Pa. C.S. § 1921(b). “However, if we deem the statutory language
ambiguous, we must then ascertain the General Assembly’s intent by statutory
analysis, wherein we may consider numerous relevant factors.” Bowman v. Sunoco,
Inc., 65 A.3d 901, 906 (Pa. 2013) (citing 1 Pa. C.S. § 1921(c)). “An ambiguity exists
when language is subject to two or more reasonable interpretations and not merely
because two conflicting interpretations may be suggested.” Tri-Cnty. Landfill, Inc.
v. Pine Twp. Zoning Hearing Bd., 83 A.3d 488, 510 (Pa. Cmwlth. 2014). Regardless
of whether a statute is deemed ambiguous or not, our rules of construction forbid a
8
court from adopting an interpretation that will produce “a result that is absurd,
impossible of execution[,] or unreasonable.” 1 Pa. C.S. § 1922(1). Furthermore,
[w]hen construing one section of a statute, courts must
read that section not by itself, but with reference to, and in
light of, the other sections. Com. v. Mayhue, 639 A.2d 421,
439 (Pa. 1994). Statutory language must be read in
context, “together and in conjunction” with the remaining
statutory language. [Pa. Gaming Control Bd.] v. Off. of
Open Recs., 103 A.3d 1276, 1284-85 (Pa. 2014) (citing
Bd. of Rev. of Taxes, City of Phila. v. City of Phila., 4 A.3d
610, 622 (Pa. 2010)).
....
A fundamental principle in statutory construction is that we
must read statutory sections harmoniously. Off. of Open
Recs., 103 A.3d at 1284-85. Parts of a statute that are in
pari materia, i.e., statutory sections that relate to the same
persons or things or the same class of persons and things,
are to be construed together, if possible, as one statute. 1
Pa. C.S. § 1932. “If they can be made to stand together,
effect should be given to both as far as possible.” Off. of
Open Recs., 103 A.3d at 1284 (quoting Kelly v. City of
Phila., 115 A.2d 238, 245 (Pa. 1955)). In ascertaining
legislative intent, statutory language is to be interpreted in
context, with every statutory section read “together and in
conjunction” with the remaining statutory language, “and
construed with reference to the entire statute” as a whole.
Bd. of Rev. of Taxes, 4 A.3d at 622. We must presume that
in drafting the statute, the General Assembly intended the
entire statute, including all of its provisions, to be effective.
1 Pa. C.S. § 1922. Importantly, this presumption requires
that statutory sections are not to be construed in such a way
that one section operates to nullify, exclude or cancel
another, unless the statute expressly says so. Cozzone ex
rel. Cozzone v. Workers’ Comp. Appeal Bd. (PA
Mun[.]/E[.] Goshen Twp.), 73 A.3d 526 (Pa. 2013); Off. of
Open Recs., 103 A.3d at 1284-85.
Tr. Under Agreement of Taylor, 164 A.3d 1147, 1155, 57 (Pa. 2017).
9
The validity of Previte’s second argument hinges upon the interplay between
three aforementioned Election Code provisions: Section 308, Section 1307-D(a),
and Section 1309(a). The first, Section 308, reads as follows:
The records of each county board of elections, general and
duplicate returns, tally papers, affidavits of voters and
others, nomination petitions, certificates and papers, other
petitions, appeals, witness lists, accounts, contracts,
reports and other documents and records in its custody,
except the contents of ballot boxes and voting machines
and records of assisted voters, shall be open to public
inspection, except as herein provided, and may be
inspected and copied by any qualified elector of the county
during ordinary business hours, at any time when they are
not necessarily being used by the board, or its employes
having duties to perform thereto: Provided, however, That
such public inspection thereof shall only be in the presence
of a member or authorized employe of the county board,
and shall be subject to proper regulation for safekeeping
of the records and documents, and subject to the further
provisions of this act: And provided further, That general
and duplicate returns, tally papers, affidavits of voters and
others, and all other papers required to be returned by the
election officers to the county board sealed, shall be open
to public inspection only after the county board shall, in
the course of the computation and canvassing of the
returns, have broken such seals and finished, for the time,
their use of said papers in connection with such
computation and canvassing.
25 P.S. § 2648 (emphasis added). The second, Section 1307-D(a), states:
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, nor shall information concerning a military
elector be made public which is expressly forbidden by the
Department of Defense because of military security.
25 P.S. § 3150.17(a) (emphasis added). Finally, the third, Section 1309(a), provides:
10
All official absentee ballots, files, applications for such
ballots and envelopes on which the executed declarations
appear, and all information and lists are hereby
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, nor shall
information concerning a military elector be made public
which is expressly forbidden by the Department of
Defense because of military security.
25 P.S. § 3146.9(a) (emphasis added).
The phrases “official absentee ballots” and “official mail-in ballots,” which
are of critical import in this matter, are neither defined in these statutory provisions
nor anywhere else in the broader Election Code. It is thus facially unclear whether
these terms refer to completed ballots or uncompleted ballots. Even so, the meanings
of each phrase is ultimately clear. All of the other items (applications, files, filled-
out envelopes, lists, etc.) mentioned in Sections 1307-D(a) and 1309(a) refer to
materials relating to the process that produces a completed ballot. It would be
unreasonable to conclude that the General Assembly would have omitted those
completed ballots themselves from this slate of covered materials. Furthermore, as
both statutory provisions expressly restrict dissemination of identifying voter
information,11 such concerns would not be present with regard to uncompleted
ballots themselves, as such ballots obviously do not contain cast votes. Given this,
the most logical reading of both “official absentee ballots” and “official mail-in
ballots” is that these phrases refer to completed ballots, rather than those that are
uncompleted.
11
As noted supra, both Sections 1307-D(a) and 1309(a) state in relevant part that “no proof
of identification shall be made public, nor shall information concerning a military elector be made
public which is expressly forbidden by the Department of Defense because of military security.”
25 P.S. §§ 3150.17(a), 3146.9(a).
11
This reading creates an apparent conflict between Section 308 and Sections
1307-D(a) and 1309(a). The former shields completed ballots and digital copies
thereof from RTKL requests once those ballots have been deposited into a ballot box
or recorded through a voting machine. See Honey, 312 A.3d at 950-54. The latter
two, however, flatly establish without qualification that completed absentee and
mail-in ballots are public records. The conflict, therefore, is between the general
terms of Section 308 and the more specific language of Sections 1307-D(a) and
1309(a). Per Section 1933 of the Statutory Construction Act of 1972:
Whenever a general provision in a statute shall be in
conflict with a special provision in the same or another
statute, the two shall be construed, if possible, so that
effect may be given to both. If the conflict between the two
provisions is irreconcilable, the special provisions shall
prevail and shall be construed as an exception to the
general provision, unless the general provision shall be
enacted later and it shall be the manifest intention of the
General Assembly that such general provision shall
prevail.
1 Pa. C.S. § 1933. In order to harmonize these ostensibly contradictory parts of the
Election Code, we conclude that Sections 1307-D(a) and 1309(a) of the Election
Code create exceptions to Section 308’s ballot protections. These exceptions
establish that completed absentee and mail-in ballots are to be treated as public
records once those ballots have been removed from the ballot box or voting machine,
and that those ballots can be obtained through an RTKL request as long as they
follow the Election Code’s rules of disclosure and do not include any information
that identifies (or is reasonably likely to facilitate the identification of) the
individuals who cast those ballots.
12
III. Conclusion
In light of the foregoing analysis, we conclude that images of completed
absentee and mail-in ballots are public records that can be obtained through an
RTKL request, and consequently reverse Common Pleas’ June 28, 2023 order in
part, to the extent that the lower tribunal ruled to the contrary.12
ELLEN CEISLER, Judge
12
We decline to reach Previte’s remaining argument, due to our resolution of these appeals
in her favor.
13
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michelle Previte, :
Appellant :
:
v. : No. 814 C.D. 2023
:
Erie County Board of Elections :
ORDER
AND NOW, this 31st day of July, 2024, the Court of Common Pleas of Erie
County’s (Common Pleas) June 28, 2023 order is REVERSED IN PART, with
regard to Common Pleas’ ruling that images of completed absentee and mail-in
ballots are not public records that can be obtained through a Right-to-Know Law13
request.
ELLEN CEISLER, Judge
13
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michelle Previte, :
Appellant :
:
v. : No. 814 C.D. 2023
:
Erie County Board of Elections : Argued: April 10, 2024
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MATTHEW S. WOLF, Judge
CONCURRING OPINION
BY JUDGE McCULLOUGH FILED: July 31, 2024
I fully agree with the Majority’s ultimate conclusion that digital images
of completed absentee and mail-in ballots are public records that can be obtained
through a Right-to-Know Law1 (RTKL) request. However, I continue to strongly
disagree with Honey v. Lycoming County Offices of Voter Services, 312 A.3d 942
(Pa. Cmwlth. 2024) (Honey), upon which the Majority relies, in part. I dissented to
that opinion, and I continue to disagree with the holding for the reasons set forth in
my dissent.
While I acknowledge that this Court’s decision in Honey found that
scanners were part of a voting machine and that scanned ballots and digital copies
were exempt from public disclosure, I continue to believe that Section 308 of the
Pennsylvania Election Code (Election Code)2 does not shield completed ballots and
1
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
2
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
digital copies thereof from RTKL requests once those ballots have been scanned by
an electronic voting system. In my view, the Election Code clearly provides all such
documents are subject to public disclosure.
The record in this case reflects that Erie County uses optical scanners
to scan, tabulate, and create an image of each cast vote and are part of the County’s
electronic voting system. (Previte’s Br., at 7.) As I explained in my dissent in
Honey, by definition, scanners are not ballot boxes or voting machines. They are
separate and distinct parts of the voting process, the purpose of which is to tabulate
vote data. Citing Honey, the Majority states that Section 308 “shields completed
ballots and digital copies thereof from RTKL requests once those ballots have been
deposited into a ballot box or recorded through a voting machine.” Previte v. Erie
County Board of Elections, ___ A.3d ___, ___ (Pa. Cmwlth., No. 814 C.D. 2023,
filed July 31, 2024), slip op. at 12. To the extent the Majority suggests that digital
images of completed ballots are protected from public disclosure in its discussion of
Section 308, I cannot agree with that portion of the Majority’s analysis. In other
words, digital copies that have been scanned through a scanner are not shielded from
public disclosure because scanners are NOT part of the voting machine, and,
secondly, there is no violation of secrecy in voting as no correlation could be made
between the votes on a digital copy and the identity of the voter.
Furthermore, I note my agreement with Judge Wolf’s observation in his
concurring opinion (CO) that the Majority’s construction of the Election Code is
potentially problematic because it, “when viewed together with our decision in
[Honey], treats in-person and mail/absentee ballots—and voters—differently[.]”
Previte, ___ A.3d at ___, (Pa. Cmwlth., No. 814 C.D. 2023, filed July 31, 2024)
(Wolf, J., concurring op.) slip op. at 1. In his CO, Judge Wolf goes to great lengths
PAM - 2
to discuss the confusion that is now created between the holding of the Majority in
Honey and this case. However, this confusion is not created by unclear terms in the
Election Code as the CO claims, but rather in not interpreting the Election Code in
accord with its plain meaning and definitions.
In my view, this discord between the holding in this case and in Honey
could have been avoided had this Court adopted the interpretation of the Election
Code that I outlined in Honey. Specifically, Section 308 of the Election Code
provides in relevant part:
The records of each county board of elections, general
and duplicate returns, tally papers, affidavits of voters and
others, nomination petitions, certificates and papers, other
petitions, appeals, witness lists, accounts, contracts,
reports and other documents and records in its custody,
except the contents of ballot boxes and voting machines
and records of assisted voters, shall be open to public
inspection, except as herein provided, and may be
inspected and copied by any qualified elector of the county
during ordinary business hours, at any time when they are
not necessarily being used by the board, or its employes
having duties to perform thereto[.]
25 P.S. § 2648 (emphasis added). Relevant to Erie County’s use of optical scanners
to tabulate votes, Section 1101-A of the Election Code states:
“Automatic tabulating equipment” means any apparatus which
automatically examines and computes votes registered on paper
ballots, ballot cards or district totals cards or votes registered
electronically and which tabulates such votes.
25 P.S. § 3031.1, added by the Act of July 11, 1980, P.L. 600, 25 P.S. §303.1
(emphasis added).
Clearly, scanners are used to examine, compute, and tabulate votes,
which places them within the ambit of Section 1101-A as “automatic tabulating
PAM - 3
equipment.” As such, the scanners are not ballot boxes or voting machines and must
be viewed as separate and distinct parts of the voting process, the purpose of which
is to tabulate vote data. Simply by virtue of the Election Code definitions, automatic
tabulating equipment cannot be construed as a voting machine or ballot box without
ignoring the clear intent of the legislature. Accordingly, Section 308 does not
exempt scanned ballots from public access.
The Majority’s holding today that absentee and mail-in ballots are
public records subject to public disclosure through RTKL requests is entirely
consistent with my interpretation of the Election Code as set forth in Honey. Per my
dissent in Honey, I would have held that digital images of in-person votes put
through a scanner are also public records subject to disclosure. How else could any
objector make a challenge to the computation or validity of votes if access to the
results is denied in this manner? The inconsistency noted in Judge Wolf’s CO
between the Majority’s treatment of in-person versus mail-in/absentee ballots could
have been avoided from the outset had we adopted this approach.
Lastly, with regard to our constitutional responsibility to maintain
secrecy in voting,3 there is clearly no infringement upon one’s right to vote in
secret by allowing digital copies of any ballot — whether cast in person or via
absentee/mail-in ballot — to be produced. There is simply no basis in the record
to identify the voter who cast each individual ballot or other identifying information
tying a ballot to its voter.
Therefore, I am only able to respectfully concur in the result.
________________________________
PATRICIA A. McCULLOUGH, Judge
3
See Pa. Const. art. VII, § 4 (stating: “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.”).
PAM - 4
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Michelle Previte, :
Appellant :
:
v. : No. 814 CD 2023
:
Erie County Board of Elections : Argued: April 10, 2024
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE MATTHEW S. WOLF, Judge
CONCURRING OPINION
BY JUDGE WOLF FILED: July 31, 2024
I join the Majority Opinion in full because I agree that, as a matter of
statutory construction, the Pennsylvania Election Code1 (Election Code or Code)
makes absentee and mail-in ballots and images thereof “public records” subject to
disclosure through the Right-to-Know Law2 (RTKL). I write separately to point out
that this does not result from the clear language of the Election Code, but rather from
interpretive rules we apply when statutes are less than clear. I also wish to explain
that this construction, viewed together with our decision in Honey v. Lycoming
County Offices of Voter Services, 312 A.3d 942 (Pa. Cmwlth. 2024), treats in-person
and mail/absentee ballots—and voters—differently, which may be problematic
when a fundamental right like the elective franchise is implicated.
1
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
2
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
Section 308 of the Election Code provides for public access to voting
records, but makes an exception for, inter alia, “the contents of ballot boxes and
voting machines,” which shall not be open to public inspection. 25 P.S. § 2648.
This was part of the Election Code when it was originally enacted in 1937. The
Code did not then, and still does not, define “voting machine.” When the General
Assembly amended the Code in 1980 to provide for the use of “electronic voting
systems,” it defined that term, but still did not define “voting machine.” See Section
1101-A of the Code.3 The Election Code was “not a model of clarity” as to what
constitutes a “voting machine” and has not improved in that regard across several
amendments. Honey, 312 A.3d at 950.
In Honey,4 the Court confronted that lack of clarity in a case of first
impression. There, the RTKL request was for digital copies, or reports, of ballots
cast in person. We construed Section 308’s exception for “contents of ballot boxes
and voting machines” to encompass any digital record of a cast-in-person ballot
contained within a component of an electronic voting system, such as an optical
scanner, because such a scanner is a “voting machine.” Id. at 953-54. As the
Majority here explains, our decision in Honey “shields completed ballots [cast in
person] and digital copies thereof from RTKL requests once those ballots have been
. . . recorded through a voting machine.”5 Practically, that holding permanently
prevents cast-in-person ballots and their digital representations from becoming
publicly available. Once within a voting machine, always within a voting machine,
and forever nonpublic.
3
Added by the Act of July 11, 1980, P.L. 600, 25 P.S. § 3031.1.
4
I take no position on the correctness of our decision in Honey because I had not yet joined
the Court when my learned colleagues heard and considered that matter.
5
Previte v. Erie Cnty. Bd. of Elections, ___ A.3d ___ (Pa. Cmwlth., No. 814 C.D. 2023,
filed July 31, 2024) (Majority Opinion), slip op. at 12.
MSW-2
This case presents a request for absentee and mail-in ballots, not for
ballots cast in person.6 And we reach a result directly opposed to Honey: images
of absentee and mail-in ballots are available through the RTKL after being cast and
tabulated, even though ballots cast in person are not.7 This is because after Section
308 of the Election Code initially provided an exception to disclosure for the
contents of voting machines, the Code was twice amended to address mail-in and
absentee ballots specifically. Section 1309(a) (regarding absentee ballots)8 was
added in 1951, and Section 1307-D(a) (regarding mail-in ballots)9 was added in
2019. Both provide that the relevant type of ballot (absentee and mail-in,
respectively) is “designated and declared to be [a] public record[].” The Majority
correctly concludes that these later amendments effectively override Section 308’s
protection of the contents of voting machines.10
In our cases on RTKL requests for ballots or ballot images, our Court
has done its best to faithfully construe the Election Code based on its text, including
6
Appellant Michelle Previte (Previte) initially requested electronic images of “polling
place ballots”—i.e., ballots cast in person—also, but that issue is not before us. Majority Opinion,
slip op. at 2. I read our Majority’s REVERSED IN PART order as being limited to the issue of
absentee and mail-in ballots, leaving undisturbed (thus effectively affirming in part) any portion
of the trial court’s disposition that denied Previte’s request for images of “polling place” ballots
cast in person, which the Majority refers to as “Item 3” of Previte’s request. See Majority Opinion,
slip op. at 2, 13.
7
See Majority Opinion, slip op. at 13.
8
Added by the Act of March 6, 1951, P.L. 3, 25 P.S. § 3146.9(a).
9
Added by the Act of October 31, 2019, P.L. 552, 25 P.S. § 3150.17(a).
10
The Majority applies the specific-controls-the-general interpretive principle from our
Statutory Construction Act of 1972 to reach this conclusion. See Majority Opinion, slip op. at 12
(quoting 1 Pa. C.S. § 1933). In my view, it is more significant that the amendments requiring
disclosure of mail-in and absentee ballots are later-in-time enactments, and thus should be read to
modify the earlier-in-time Section 308 to the extent they conflict with it, even without an express
intent therefor. See 1 Pa. C.S. §§ 1934, 1936. Either way, these amendments, fairly construed,
require that absentee and mail-in ballots and images thereof are public.
MSW-3
the relevant statutory definitions the General Assembly has afforded us within the
Code itself. Where those are absent (as they often are) we have resorted to
dictionaries. See, e.g., Honey, 312 A.3d at 951-52 (using 2024 dictionaries to define
the undefined 1937 statutory term “voting machine”). And where, as here, we find
irreconcilable conflict within the Code, we have employed canons for resolving
those conflicts. These tools of construction are permissible and important, but they
are not “the best” indication of legislative intent—that is always the explicit text of
the statute. Harmon v. Unemployment Comp. Bd. of Rev., 207 A.3d 292, 304 (Pa.
2019). In enacting Sections 1309(a) and 1307-D(a) of the Code, the General
Assembly could have given us the best indication of its intent by explicitly writing
into the amendments that Section 308’s “contents of voting machines” provision
does not apply to absentee and mail-in ballots in the same way that it does to
in-person ballots. It did not do so, and the Court’s construction here is emphatically
not based on the express terms of the Code alone. Nevertheless, what the Court
concludes is likely the best approximation of what the General Assembly intended.
If not, the General Assembly is, theoretically at least, “quite able to address what it
believes is a judicial misinterpretation of a statute.” Hunt v. Pa. State Police, 983
A.2d 627, 637 (Pa. 2009). In fact, the General Assembly is obligated to consider
whether it disagrees with our holding here when it next amends the Election Code,
lest this interpretation “become part of the subsequent legislative enactment” based
on its failure to act. Verizon Pa., Inc. v. Commonwealth, 127 A.3d 745, 757 (Pa.
2015).
The Court’s decision—that absentee and mail-in ballots and images of
them are available through the RTKL once removed from a voting machine—treats
those who vote by mail or absentee ballot differently from those who vote in person.
MSW-4
(The latter’s ballots are forever nonpublic once placed into an optical scanner.) In
my view, the General Assembly should consider whether it intended that result,
which flows from our holdings here and in Honey.
In general, a classification that publicly discloses some ballots and not
others, based solely on the manner in which the voter has offered to vote or cast the
ballot, will be subject to at least rational-basis scrutiny. There must be some
“legitimate state interest or public value” in treating the ballots differently. Lohr v.
Saratoga Partners, L.P., 238 A.3d 1198, 1211 (Pa. 2020). Is there some interest in
keeping ballots cast in person permanently nondisclosed, while disclosing other
ballots publicly? As the Majority notes, disclosing already-voted ballots risks
inadvertently identifying voters, and Sections 1309(a) and 1307-D(a) attempt to
mitigate that risk.11 Perhaps that risk is worth bearing (and mitigating) to pursue the
important end of election transparency. But see Honey, 312 A.3d at 958 (Wallace,
J., dissenting) (noting that “Article VII, [S]ection 4 of the Pennsylvania Constitution
expressly enshrines the secret ballot” and that the ballot record at issue in Honey was
“randomized, which alleviate[d] concerns that public inspection would reveal an
individual voter’s selections”). But why would the General Assembly subject only
absentee and mail-in voters to the risk of inadvertent identification, while insulating
in-person voters from the same risk?
In-person voting, mail-in voting, and absentee voting are all
constitutional—and equally legitimate—ways to vote. McLinko v. Dep’t of State,
279 A.3d 539, 582 (Pa. 2022), cert. denied sub nom. Bonner v. Chapman, 143 S. Ct.
573 (2023). The Pennsylvania Constitution “does not establish in-person voting as
an elector qualification or otherwise mandate in-person voting.” Id. at 582. The
11
See Majority Opinion, slip op. at 11 n.11 & accompanying text.
MSW-5
right to vote is a fundamental right for equal protection purposes. See Banfield v.
Cortes, 110 A.3d 155, 178 (Pa. 2015). Thus, burdens on the right to vote confront
heightened scrutiny, and the state may enact only “reasonable, non-discriminatory
restrictions to ensure honest and fair elections.” Id. at 176-77 (emphasis added).
Disclosing ballots voted by one method, while forbidding disclosure of ballots voted
by another equal method, may unreasonably burden the right to vote or burden it in
a discriminatory way.12 Although no constitutional challenge of this nature is now
before us, our decisions are cause for legislative scrutiny of the Election Code’s
requirements for public disclosure of ballots cast by different methods of voting.
__________________________________
MATTHEW S. WOLF, Judge
12
As discussed above, disclosure of voted ballots carries inherent risk of inadvertent
identification of specific voters, which would vitiate their right to cast a secret ballot. This would
predictably chill the franchise by enabling voter intimidation. See Burson v. Freeman, 504 U.S.
191, 206 (1992) (describing secret ballot and voting privacy as bulwarks against twin evils of voter
intimidation and election fraud); Sunoo Park, The Right to Vote Securely, 94 U. COLO. L. REV.
1101, 1122 (2023) (“Without ballot secrecy, voters could be coerced or persuaded to cast votes for
an outcome that does not correspond to their true preference—a serious threat to the legitimacy of
a democratic election.”).
MSW-6