Opinion

R. Rossman v. DOS of the Com. of PA

Court
Commonwealth Court of Pennsylvania
Filed
Dec 8, 2025
Status
Unpublished
On the bench
Wolf. McCullough
Cited by
0 cases
Authority
More cited than 37.4%

The opinion

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Rossman, in his official :

capacity as member of the Potter :

County Board of Elections, :

Petitioner :

:

v. : No. 516 M.D. 2024

:

Department of State of the :

Commonwealth of Pennsylvania, :

and Al Schmidt, in his official :

capacity as Secretary of the :

Commonwealth, :

Respondents : Argued: October 7, 2025

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE WOLF FILED: December 8, 2025

Before the Court are (1) preliminary objections filed by the

Pennsylvania Department of State (Department) and Al Schmidt, in his official

capacity as Secretary of the Commonwealth (Secretary, and with the Department,

Respondents) to the original jurisdiction petition for review filed by Robert

Rossman, in his official capacity as a member of the Potter County Board of

Elections and Registration Commission (Petitioner); and (2) Petitioner’s and

Respondents’ cross-applications for summary relief.1 We conclude initially that

Petitioner has standing to bring this action, which challenges a directive issued by

the Secretary regarding Petitioner’s duties as an elected official when accepting

applications to register to vote. But we also conclude that the Secretary’s directive

is consistent with Petitioner’s statutory duties, so Respondents are entitled to

summary relief in their favor. Accordingly, we overrule Respondents’ first

preliminary objection, grant Respondents’ cross-application for summary relief, and

dismiss the petition for review.

I. BACKGROUND

Petitioner filed this petition for review in our original jurisdiction

seeking declaratory and injunctive relief. The petition alleges the following facts,

which are undisputed. Petitioner is an elected county commissioner of Potter

County. Pet. ¶ 10. As such, under the statute commonly called the Pennsylvania

Voter Registration Act (Registration Act),2 Petitioner is a statutorily designated

member of the “commission” that oversees the registration of electors in Potter

County. Pet. ¶ 10. Thus, Petitioner has powers and duties related to voter

registration. Id. The Department is authorized under the Registration Act to take

certain actions regarding voter registration, and the Secretary is the chief officer

charged with overseeing the Department and its duties, including prescribing voter

registration forms and “promulgat[ing] regulations necessary to establish,

implement and administer” the Statewide Uniform Registry of Electors (SURE

system). Id. ¶¶ 11-12 (quoting 25 Pa. C.S. § 1222(f)).

1

By May 29, 2025 Order, this Court determined that this matter involves purely legal

questions, ordered Respondents to file a cross-application for summary relief, and directed that the

cross-applications be considered simultaneously with the preliminary objections.

2

25 Pa. C.S. §§ 1101-1906.

2

Under the Help America Vote Act of 2002 (HAVA),3 all applications

for voter registration must include at least one of three pieces of identifying

information: a driver’s license number, the last four digits of a Social Security

number (SSN), or a statement that the applicant has neither a driver’s license nor an

SSN. Id. ¶¶ 13-15. HAVA does not require officials to reject an application if the

number provided does not match the applicant’s identity, but it does require that state

officials have access to Social Security and driver’s license databases and that they

determine that the application provides enough information to comply with state law

before accepting it. Id. ¶¶16-18. The SURE system, created by Pennsylvania statute

before HAVA, satisfies HAVA’s requirement for a statewide database that assigns

a unique identifying number to each registered voter in the state. Id. ¶¶ 19-21 (citing

52 U.S.C. § 21083(a)(1)(A)(iii)). In 2003, the Department promulgated regulations

governing the SURE system. See 4 Pa. Code Ch. 183.

The Registration Act and SURE system regulations establish the

following registration process. A voter registration application must have a space

for the voter’s driver’s license number or the SSN, 4 Pa. Code § 183.1(a); and the

application must be on an official form provided by the Secretary, by the

Pennsylvania Department of Transportation (PennDOT) if registering while

obtaining a driver’s license, or by the Federal Election Assistance Commission

(FEAC), 25 Pa. C.S. §§ 1323-24(a). Upon receiving the application, a registration

commission or commissioner must determine whether the application is “complete”

and “[w]hether the applicant is a qualified elector.” 25 Pa. C.S. § 1328(a)(2)(i)-(ii).

If it is not properly completed and the commission cannot with reasonable efforts

obtain the missing information, it must reject the application. Id. § 1328(b)(2)(i). If

3

52 U.S.C. §§ 21081-21085, 21101-21102.

3

the application “contains the required information indicating that the applicant is a

qualified elector,” the commission must accept the application. Id. § 1328(b)(3)(ii).

The commission must also use the applicant’s name and date of birth to check for a

duplicate registration in the SURE system; if it finds a possible duplicate, the

commission may use the driver’s license number, SSN, or the unique SURE system

identifier to determine if it is in fact a duplicate registration. 4 Pa. Code

§ 183.6(a)(2). If that information is missing from the application, the commission

uses the signature to investigate duplicates. Id. § 183.6(a)(3).

Since HAVA was enacted, the Department has issued guidance about

what a commissioner should do with the driver’s license number or SSN on an

application. Initially, the Department stated that the application must be rejected

unless the number given is “valid.” 33 Pa. B. 6340-59 (Dec. 13, 2003). But in a

2006 communication, the Department stated that “the failure to achieve a match

between a voter registration application and a record in the Commonwealth’s

driver’s license database or the database of the Social Security Administration is not

a reason to reject the application.” Pet. Ex. C, at 5.

In 2018, the Department issued a “Directive Concerning [HAVA]-

Matching Drivers’ Licenses or Social Security Numbers for Voter Registration

Applications” (Directive). Pet. ¶ 51 & Ex. D. The Directive states that a registration

application where the applicant’s name does not correspond to the identifying

numbers provided on the application “may not be rejected and must be processed

like all other applications.” Id. Ex. D (emphasis in original). The Directive

prohibits commissions from placing an application “in ‘Pending’ status while a

county is doing follow-up with an applicant whose driver[] license or [SSN] could

not be matched” and provides that such applications “MUST be accepted, unless the

4

county has identified another reason to decline the application.” Id. (emphasis in

original). The Directive purports to rely on “state and federal law” and was not

promulgated as a legislative regulation. Pet. ¶¶ 56-58.

According to a 2019 Auditor General’s report, of the 8.6 million voter

registrations in the SURE system, more than 600,000 lack a driver’s license number.

Id. ¶ 63 & Ex. E. The report identifies 37,000 potential SURE system duplicate

registrations, based on analysis of the driver’s license number and/or SSN. Id. ¶¶

64-65. Duplicate registrations could facilitate voters committing the criminal

offense of voting more than once in a single election. Id. ¶ 66. There have been

“rare” prosecutions for double voting in a few counties in 2024. Id. ¶¶ 67-68 &

n.4.

Petitioner, as a commissioner, faces potential criminal penalties for not

following the legal requirements of the registration process. For example, it is a

misdemeanor for anyone to “[k]nowingly and intentionally prevent an applicant who

is a qualified elector from being registered.” 25 Pa. C.S. § 1711(a)(1). For a

commissioner, it is a misdemeanor to “knowingly register[] or permit[] the

registration of an applicant not lawfully entitled to be registered,” id. § 1702(a), to

“[i]ntentionally fail to make a transmission under Section 1328 (relating to approval

of registration applications),” id. § 1712(a)(2), to “without reasonable cause, refuse[]

to register a qualified elector lawfully entitled to be registered,” id. § 1702(b), or “to

intentionally delay[], neglect[] or refuse[] to perform a duty imposed by [the

Registration Act],” id. § 1706. Pet. ¶¶ 71-73. The Secretary can also file an action

to withhold election funding from a county if a commissioner refuses to comply with

the Registration Act. Id. ¶¶ 75-76.

5

Because of the Directive, Petitioner has accepted applications where the

driver’s license number or SSN does not match the applicant’s information located

in the corresponding database. Id. ¶ 77. He believes that because he cannot reject

an application based on a mismatch between those numbers and the database, he has

been forced to create duplicate registrations. Id. ¶¶ 78-80. Absent the Directive,

Petitioner would reject applications where the driver’s license number or SSN do

not match the information in the relevant database, because in his view those

applications are “not ‘properly completed’” as the Registration Act requires. Id. ¶

84.

The petition for review seeks declaratory and injunctive relief in two

counts. In Count I, Petitioner requests a declaration that the Directive requires him

to violate Pennsylvania law, because the Directive requires Petitioner to ignore

incompleteness in voter registration applications and accept voter registration

applications that have less than the minimum data required by law. Petitioner

requests an injunction against “enforcement” of the Directive. Alternatively, in

Count II, Petitioner seeks a declaration that the Directive is an unlawful de facto

regulation and, therefore, is void and unenforceable. He seeks an injunction against

the Directive unless and until it is properly promulgated as a binding regulation.

II. ISSUES

Respondents raise two preliminary objections. First, they assert that

Petitioner, as a single commissioner, lacks standing to bring this action for the

commission as a whole. Second, they raise a demurrer to the legal sufficiency of

both counts of the petition for review. Respondents seek summary relief and

dismissal on those same bases, including their position on the merits that the

6

Directive does not conflict with state law. Petitioner seeks summary relief on both

counts, claiming no facts are disputed and he is entitled to relief as a matter of law.

III. DISCUSSION

When deciding preliminary objections, we accept as true all well-pled

material facts and all reasonable inferences from those facts. Phantom Fireworks

Showrooms, LLC v. Wolf, 198 A.3d 1205, 1214 n.6 (Pa. Cmwlth. 2018) (en banc).

We need not accept unwarranted factual inferences, conclusions of law, arguments,

or opinions. Id. To sustain preliminary objections, it must be clear that the law will

permit no recovery, even resolving doubts in favor of the non-movant. Id.

Further, we will grant an application for summary relief in our original

jurisdiction only if there are no disputes of fact. Phantom Fireworks Showroom, 198

A.3d at 1220. Summary relief “is appropriate where a party asserts a challenge to

the constitutionality of a statute and no material facts are in dispute.” Id.

A. Preliminary Objections: Standing

Our Supreme Court has explained the requirement of standing as

follows:

In Pennsylvania, a party to litigation must establish as a

threshold matter that he or she has standing to bring an

action. Standing in Pennsylvania is a jurisprudential

matter. In our Court’s landmark decision on standing, we

explained that a person who is not adversely impacted by

the matter he or she is litigating does not enjoy standing to

initiate the court’s dispute resolution machinery. William

Penn Parking Garage v. City of Pittsburgh, 346 A.2d 269,

280-81 (Pa. 1975) (plurality). This is consistent with our

jurisprudential approach that eschews advisory or abstract

opinions, but, rather, requires the resolution of real and

concrete issues. As we explained in In re Hickson, [821

A.2d 1238, 1242 (Pa. 2003)], the party to the legal action

must be “aggrieved.”

7

In determining whether a party is aggrieved, courts

consider whether the litigant has a substantial, direct, and

immediate interest in the matter. To have a substantial

interest, the concern in the outcome of the challenge must

surpass “the common interest of all citizens in procuring

obedience to the law.” Id. An interest is direct if it is an

interest that mandates demonstration that the matter

“caused harm to the party’s interest.” Id. Finally, the

concern is immediate “if that causal connection is not

remote or speculative.” [Fumo v. City of Phila., 972 A.2d

487, 577 (Pa. 2009)]. The “keystone to standing in these

terms is that the person must be negatively impacted in

some real and direct fashion.” Pittsburgh Palisades Park,

LLC v. Commonwealth, 888 A.2d 655, 660 (Pa. 2005).

Markham v. Wolf, 136 A.3d 134, 140 (Pa. 2016) (some citations and footnotes

omitted).

Respondents argue Petitioner lacks standing because he is a single

member of a collective body, the registration commission in Potter County. They

claim that, pursuant to the Registration Act, all actions by the commission are

collective in nature, so an individual official like Petitioner does not have control

over the commission’s decision whether to accept or reject an application. In

support, they cite cases where we have held that individual members of local elected

bodies lack standing to sue individually on behalf of that body. See O’Neill v. Phila.

Zoning Bd. of Adjustment, 169 A.3d 1241, 1245 (Pa. Cmwlth. 2017); Szoko v. Twp.

of Wilkins, 974 A.2d 1216, 1220 (Pa. Cmwlth. 2009). Respondents acknowledge

that this general rule has an exception, largely taken from our caselaw on legislative

standing: if the member of the body can show harm to his individual interest, such

as a restriction on his authority to act in his official capacity, he may have standing.

See Markham, 136 A.3d at 140-46; Allegheny Reproductive Health Ctr. v. Pa. Dep’t

of Hum. Servs., 309 A.3d 808, 844 (Pa. 2024). Respondents argue Petitioner has not

shown how his ability to act as a commissioner is impacted by the Directive.

8

Petitioner disagrees that the commission’s duties are purely collective.

He cites several sections of the Registration Act that require “a commissioner”

(singular) to, inter alia, initial for receipt of the application, examine it, and

determine whether it is complete. 25 Pa. C.S. § 1328(a)(1)-(2). The Registration

Act vests individual commissioners with power to investigate irregularities, id.

§ 1203, and criminalizes conduct by individual commissioners, as set forth in the

petition for review. Thus, Petitioner argues, because of these individual statutory

duties and corresponding individual criminal sanctions, his interest in understanding

the requirements of the law is greater than those of the general citizen, and he is thus

aggrieved by the Declaration. See Phantom Fireworks, 198 A.3d at 1215.

We agree with Petitioner that he has standing to bring this action under

the facts as alleged in the Petition. Although Respondents are correct that some

actions of the commission are purely collective, Petitioner’s allegations persuasively

show that other statutory duties relate to him acting as an individual. Petitioner’s

work as a commissioner is ongoing, and he must choose whether to follow the

Directive or his own interpretation of state law. Whether Petitioner’s individual

actions and choices are undertaken on behalf of the commission is immaterial in this

case, because unlike the statutes in many of the cases Respondents cite, the

Registration Act would possibly criminally punish Petitioner individually for failing

to discharge his duties in accordance with law. Under these allegations, that risk

gives Petitioner a substantial, direct, and immediate interest in knowing which

instruction he must follow. See Markham, 136 A.3d at 140.

Having determined Petitioner has standing to sue under the allegations

in the Petition, we will overrule Respondents’ first preliminary objection. We turn

to the substantive claims of the petition for review, which are the subject of

9

Respondents’ second preliminary objection and the cross-applications for summary

relief.

B. Substantive Claims

Petitioner seeks summary relief on Count I based on his view that the

Directive requires him to violate the Registration Act by accepting “incomplete” or

“not ‘properly completed’” applications. He explains that the Registration Act

commands rejection of an application that does not contain “the required

information” to show the applicant is a qualified elector of the county. 25 Pa. C.S.

§ 1328(b)(3)(ii). He argues this statutory language can only be construed one way:

“[T]hat county registration officials are prohibited from approving an application if

there is a mismatch between the identifying information listed on the application and

the information within PennDOT or Social Security Administration databases.”

Petitioner’s Appl. for Summary Relief at 23 (emphasis added). Petitioner claims

“properly complete” must imply that the applicant wrote not just “some 8-digit

number” in the blank space for the driver’s license number or “some 4-digit number

in the blank space for the SSN.” Id. at 25. Instead, he argues, complete means the

number must be known to correspond to the applicant’s identity in the SURE system

or a separate database before the application can be accepted.

Petitioner maintains that the unambiguous language of the Registration

Act requires this, but that it is also consistent with the purpose of the Registration

Act to maintain confidence in voter registration, by ensuring at the application stage

that the voter has provided an accurate driver’s license number or SSN. Petitioner

adds that the legal support cited in the Directive itself—that HAVA requires

accepting an application even if there is a mismatch—is not settled, so HAVA would

permit rejection of applications with mismatches.

10

Respondents seek summary relief on Count I because they view the

Directive as completely consistent with state law. First, Respondents point out that

the requirement for a driver’s license number or SSN comes from HAVA, not from

the Registration Act. Respondents acknowledge that the SURE system regulations

do require the form application to have a space for the applicant to give the driver’s

license number or SSN. See 4 Pa. Code § 183.1. But they emphasize that this is

not the same thing as requiring commissioners to reject an application, not because

it is missing those numbers the application requires, but because of a mismatch

between the numbers given and other voter information. Thus, Respondents argue,

Petitioner’s claimed interpretation of the Registration Act and its regulations—that

they require rejection based on a mismatch—is an overreading of state law.

Respondents also argue that the Directive is consistent with the

structure of the Registration Act. The Directive requires commissioners not to reject

an application based on a mismatch alone, which appears to be Petitioner’s view of

the statutory mandate. Instead, the Directive says that the proper response for a

county that receives an application with a mismatch is to investigate further, because

mismatches may have innocuous causes like sloppy handwriting or data-entry errors,

so they do not necessarily indicate ineligibility. They emphasize that the

Registration Act specifically requires such investigation as the remedy, and not

rejection, which is the same thing the Directive says. See Respondents’ Br. in

Support of Summary Relief at 10; Respondents’ Br. in Opposition to Summary

Relief at 28.

As to Count I, we are persuaded by Respondents’ arguments that the

Directive is not inconsistent with the Registration Act or its regulations. Under those

laws, the requirement is for the application to be “complete,” that is, that the

11

applicant has provided the information requested on the application form. Petitioner

appears to draw an inference that is one step beyond the statutory requirement: that

the information must not only be complete, but also correct, that is, not a mismatch.

And more tenuously, Petitioner claims the required remedy or response to that

mismatch under the law is to reject the application. As Respondents explain,

however, state law requires a different response: the commissioner must investigate

to determine if the mismatch relates to a duplicate registration. The statute and its

regulations give commissioners the power to investigate for just this reason,

including by using the applicant’s name and date of birth to check against the SURE

system. If the mismatch Petitioner invokes turns out, after investigation, to reveal a

duplicate, then both state law and the Directive require rejection. But state law does

not authorize an out-of-hand rejection based merely upon a mismatch in the driver’s

license or SSN databases, without investigation. The Directive, consistent with

those provisions, forbids that sort of summary rejection. It thus does not require

Petitioner to act inconsistently with his obligations under the Registration Act.

Accordingly, we conclude that the Secretary is entitled to judgment as a matter of

law on Count I.

Regarding Count II, Petitioner claims the Directive is an

unpromulgated-yet-binding regulation, and is thus invalid because it did not follow

proper procedure. Respondents contend the Directive is an interpretive regulation,

which creates no new legal obligations and merely clarifies how the Secretary

interprets the requirements of the Registration Act. Our courts distinguish between

legislative and interpretive regulations as follows:

[A] regulation may be either binding (legislative) or

merely entitled to deference (interpretive). Generally, a

legislative regulation establishes “a substantive rule

12

creating a controlling standard of conduct.” Borough of

Pottstown v. Pa. Mun. Ret. Bd., 712 A.2d 741, 743 (Pa.

1998) (Pottstown). A legislative regulation is valid if

adopted pursuant to delegated legislative power, in

accordance with the appropriate administrative procedure,

and is reasonable. By comparison, an interpretive

regulation merely construes and does not expand upon the

terms of a statute. See Pottstown, 712 A.2d at 743. An

interpretive regulation is valid if it “genuinely track[s] the

meaning of the underlying statute.” Id . . . .

Slippery Rock Area Sch. Dist. v. Unemployment Comp. Bd. of Rev., 983 A.2d 1231,

1236 (Pa. 2009) (citation omitted).

We agree with Respondents that the Directive is an interpretive

regulation, not a legislative, and thus did not require promulgation. As we have

determined, the Directive tracks the meaning of the Registration Act and its

regulations, and it does not obligate Petitioner to any conduct that would not

otherwise be required of him under extant state and federal law. Thus, Respondents

are entitled to judgment in their favor on Count II.

IV. CONCLUSION

For the foregoing reasons, we overrule Respondents’ first preliminary

objection, concluding that Petitioner has standing to bring this action. Further, we

grant Respondents’ cross-application for summary relief and dismiss the petition for

review.4

_____________________________________

MATTHEW S. WOLF, Judge

Judge Wallace did not participate in the decision in this matter.

4

Given this conclusion, we dismiss as moot Respondents’ second preliminary objection in the

nature of a demurrer and Petitioner’s application for summary relief.

13

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Rossman, in his official :

capacity as member of the Potter :

County Board of Elections, :

Petitioner :

:

v. : No. 516 M.D. 2024

:

Department of State of the :

Commonwealth of Pennsylvania, :

and Al Schmidt, in his official :

capacity as Secretary of the :

Commonwealth, :

Respondents :

ORDER

AND NOW, this 8th day of December, 2025, the preliminary objection

filed by the Pennsylvania Department of State and Al Schmidt in his official capacity

as Secretary of the Commonwealth (Respondents) regarding standing is

OVERRULED. Respondents’ Cross-Application for Summary Relief is

GRANTED and the petition for review filed by Robert Rossman, in his official

capacity as a member of the Potter County Board of Elections (Petitioner) is

DISMISSED. Respondents’ remaining preliminary objection and Petitioner’s

Application for Summary Relief are DISMISSED as moot.

_____________________________________

MATTHEW S. WOLF, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Robert Rossman, in his official :

capacity as member of the Potter :

County Board of Elections, :

Petitioner :

:

v. : No. 516 M.D. 2024

:

Department of State of the : Argued: October 7, 2025

Commonwealth of Pennsylvania, :

and Al Schmidt, in his official :

capacity as Secretary of the :

Commonwealth, :

Respondents :

BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

CONCURRING AND DISSENTING OPINION

BY JUDGE McCULLOUGH FILED: December 8, 2025

Because I believe the Directive issued by the Department of State of

the Commonwealth of Pennsylvania (Department) (together with Al Schmidt, in his

official capacity as Secretary of the Commonwealth, Respondents) sometime in

2018 is inconsistent with Pennsylvania voter registration law and is an invalid,

unpromulgated regulation, I must dissent in part.

Specifically, I concur with the Majority’s conclusion that Petitioner

Robert Rossman (Petitioner) has standing to challenge the Directive. I also concur

with the Majority’s conclusion that Pennsylvania voter registration law requires the

rejection of a registration application where irreconcilable inconsistencies in an

applicant’s identification numbers reveal a duplicate registration.

I dissent, however, to the Majority’s conclusion that rejection based on

inconsistent identification numbers is mandated only where a duplicate registration

is uncovered. To the contrary, Pennsylvania voter registration law mandates

rejection of applications where inconsistent identification numbers cannot, after

investigation, be reconciled for any reason. Because the Directive on its face flatly

prohibits rejection based on inconsistent identification numbers in all circumstances,

it is inconsistent with Pennsylvania law and is invalid.

I further dissent to the Majority’s conclusion that the Directive is a

valid, unpromulgated “interpretive” regulation. By its plain language, the Directive

mandates new rules of conduct for registration commissions and threatens financial

penalties for noncompliance. The Department was obligated to duly promulgate the

Directive in accordance with established procedures, which it undisputedly did not

do. The Directive thus is invalid on this additional ground.

A. The Directive Violates Pennsylvania Voter Registration Law

1. Pennsylvania Law Requires Rejection of Registration Applications with

Inconsistent Identification Numbers.

To begin, Section 303(a)(5)(A)(i) of the Help America Vote Act of

2002 (HAVA), 52 U.S.C. § 21083(a)(5)(A)(i), requires that voter registration

applications contain certain items of identifying information, including (1) a valid

driver’s license number (DLN), if issued; or (2) the last four digits of the applicant’s

Social Security number (SSN). If the applicant has neither of those numbers, a state

must issue to the applicant a unique numerical identifier for voter registration

purposes. Section 303(a)(5)(A)(ii) of HAVA, 52 U.S.C. § 21083(a)(5)(A)(ii).

HAVA further requires that top state election officials enter into information-

matching agreements with state motor vehicle authorities “to the extent required to

enable each such official to verify the accuracy of the information provided on

PAM - 2

applications for voter registration.” Section 303(a)(5)(B)(i) of HAVA, 52 U.S.C. §

21083(a)(5)(B)(i). State motor vehicle authorities must also enter into similar

agreements with the Social Security Administration. Section 303(a)(5)(B)(ii) of

HAVA, 52 U.S.C. § 21083(a)(5)(B)(ii). Despite these requirements, however,

HAVA authorizes state registration commissions to determine, “in accordance with

State law,” whether the identifying information provided in a registration

application meets HAVA’s requirements. 52 U.S.C. § 21083(a)(5)(A)(iii).

In this vein, Section 1382(a)(2) of what commonly is referred to as

Pennsylvania’s Voter Registration Act, 25 Pa.C.S. §§ 1801-1906, requires county

voter registration commissions to examine voter registration applications to

determine (1) whether the application is complete; (2) whether the applicant is a

qualified elector; (3) whether the applicant has an existing registration record within

the Statewide Uniform Registry of Electors, known as the SURE system1; and (4)

whether the applicant is entitled or qualified to receive a requested registration

transfer or change, if applicable. 25 Pa.C.S. § 1328(a)(2). Thereafter, the

registration commission must determine whether to either accept and process the

application or reject it. 25 Pa.C.S. § 1328(b). A commission may reject a

registration applicant for four reasons:

(i) The application was not properly completed and,

after reasonable efforts by the commission to

ascertain the necessary information, the

application remains incomplete or inconsistent[;]

(ii) The applicant is not a qualified elector[;]

(iii) The applicant is not entitled to transfer of registration

or a change of address[; or]

1

See Section 1222(a) of the Voter Registration Act, 25 Pa.C.S. § 1222(a).

PAM - 3

(iv) The applicant is not legally qualified for a change of

name.

25 Pa.C.S. § 1328(b)(2)(i)-(iv) (emphasis provided). If an application is rejected,

the commission must notify the applicant of the rejection and the reasons for it no

fewer than 10 days prior to the election succeeding the application’s filing, 25

Pa.C.S. § 1328(b). The applicant then may challenge the rejection.2

Consistent with both HAVA and the Voter Registration Act, Section

183.5(a) of The Administrative Code of 1929, 4 Pa. Code § 183.5,3 provides that

“[a] commission shall be responsible for making the final decision to accept or reject

an applicant's application to register to vote in accordance with [S]ection 1328 of the

[Voter Registration Act] (relating to approval of registration applications).” Section

183.5(c) of the Department’s regulations also consistently provides:

(c) Except as provided at subsection (d), a commission

shall use reasonable efforts to ascertain information

that is necessary for voter registration and is

incomplete, inconsistent, or unclear on an applicant’s

application form. Reasonable efforts shall include

mailing a notice to the applicant or contacting the

applicant by phone, if available. The commission shall

notify the applicant of the reason the application could

not be accepted and provide the opportunity for the

applicant to complete the form.

4 Pa. Code § 185.3(c) (emphasis provided); see also 4 Pa. Code § 185.3(f)(8)

(mandating a commission’s consideration of either (1) the last four digits of the

2

See Sections 1232(a) and 1233(a), (b) of the Pennsylvania Election Code, Act of June 3,

1937, P.L. 1333, as amended, added by the Act of October 31, 2019, P.L. 552, 25 P.S. §§ 3072(a),

3073(a), (b) (petition challenging the rejection of a registration application must be filed with the

commission by the eighth day preceding an election and, thereafter, with the court of common

pleas by the third day preceding an election).

3

Section 1201(4) of the Voter Registration Act, 25 Pa.C.S. § 1201(4), requires the

Department to promulgate regulations necessary to administer voter registration in Pennsylvania.

PAM - 4

applicant’s SSN or (2) the applicant’s DLN in determining whether to accept

or reject the application).

Thus, pursuant to the express provisions of HAVA, the Voter

Registration Act, and the Department’s regulations, a registration commission is

required to verify the information provided in a registration application, including a

DLN or SSN, to determine whether the information is incomplete or inconsistent

with established government databases. If, after reasonable investigation, the

commission is unable to obtain complete information or reconcile inconsistencies,

it must reject the application.4

2. The Directive Forbids Rejection of Applications Based on Inconsistent

Identification Numbers Where Pennsylvania Law Requires It

Because the Majority does not include it, I provide the language of the

Directive in its entirety:

Pursuant to Section 1803(a) of [the Voter Registration

Act], 25 Pa.C.S. § 1803(a),[5] the following Directive is

4

In our unreported decision in McLinko v. Department of State (Pa. Cmwlth., No. 1205

C.D. 2024, filed October 20, 2025), the petitioner challenged the Directive under HAVA only,

asserting that HAVA itself required rejection of applications where identification numbers in those

applications did not match corresponding numbers in government databases. A panel of this Court,

relying on our decision in PA Fair Elections v. Pennsylvania Department of State, 337 A.3d 598

(Pa. Cmwlth. 2025) (en banc), concluded that HAVA did not require rejection of such applications.

Id., slip op. at 10-11. The panel went further to conclude, however, that “a nonmatch or mismatch

in the DLNs or SSNs provided by the applicant is not a valid reason to reject an application under

the Voter Registration Act.” Id., slip op. at 11 (emphasis provided). Because the challenges

involved in both PA Fair Elections and McLinko were lodged only under HAVA, they are not

controlling here. Moreover, any conclusions in those decisions as to the requirements of

Pennsylvania voter registration law are nonbinding dicta.

5

Section 1803 of the Voter Registration Act, contained within Chapter 18

(“Enforcement”), provides as follows:

(a) General rule.--The [D]epartment shall have the authority to take

any actions, including the authority to audit the registration records

(Footnote continued on next page…)

PAM - 5

issued by the Department . . . to clarify and specify legal

processes relating to HAVA-matching of drivers’ license

numbers [DLNs] (or [Pennsylvania Department of

Transportation (PennDOT) identification] card numbers)

and Social Security Numbers [SSNs] when voters submit

new voter registration applications or an application to

reactivate a cancelled record.

This Directive underscores that Pennsylvania and

federal law are clear that voter registrations may not

be rejected based solely on a non-match between the

applicants’ identifying numbers on their application

and the comparison database numbers.

As stated in the Department[’s] . . . August 9, 2006 Alert

Re: Driver’s License and Social Security Data

Comparison Processes Required by [HAVA], HAVA

requires only the following:

(1) that all applications for new voter registration include

a current and valid [Pennsylvania DLN], the last four

digits of the applicant’s [SSN], or a statement indicating

that the applicant has neither a valid and current

[Pennsylvania] driver’s license or [SSN], and

(2) that voter registration commissions compare the

information provided by an applicant with [PennDOT’s],

driver’s license database or the database of the Social

Security Administration.

of a commission, which are necessary to ensure compliance and

participation by the commissions.

(b) Notifications.--The secretary shall notify the State Treasurer to

withhold funds in accordance with section 1804(b) (relating to

relief) if a commission fails or refuses to comply with the provisions

of this part.

25 Pa.C.S. § 1803(a), (b); see also Section 1804(b) of the Voter Registration Act, 25 Pa.C.S. §

1804(b) (requiring the State Treasurer, upon notice, to withhold “any part or all of the State

appropriations to which a county is entitled, including funding for the court of common pleas but

excluding funding for human services”).

PAM - 6

HAVA’s data comparison process “was intended as an

administrative safeguard for ‘storing and managing the

official list of registered voters,’ and not as a restriction on

voter eligibility.” Washington [Association] of Churches

v. Reed, 492 F. Supp. 2d 1264, 1268 (W.D. Wash. 2006).

Counties must ensure their procedures comply with

state and federal law, which means that if there are no

independent grounds to reject a voter registration

application other than a nonmatch, the application

may not be rejected and must be processed like all

other applications.

It is important to remember that any application placed in

[“]Pending[”] status while a county is doing follow-up

with an applicant whose [DLN] or last four of SSN could

not be matched MUST be accepted, unless the county has

identified another reason to decline the application.

Leaving an application in Pending status due to a

nonmatch is effectively the same as declining the

application while denying the applicant access to the

statutory administrative appeals process, and as described

above is not permitted under state and federal law.

(Respondents’ Br. in Opposition to Petitioner’s Application for Summary Relief, Ex.

A) (emphasis in original).

The Majority construes the Directive as follows:

If the mismatch . . . turns out, after investigation, to reveal

a duplicate [registration], then both state law and the

Directive require rejection. But state law does not

authorize an out-of-hand rejection based merely upon a

mismatch in the DLN or SSN databases, without

investigation. The Directive, consistent with those

provisions, forbids that sort of summary rejection. It thus

does not require Petitioner to act inconsistently with his

obligations under the [Voter] Registration Act.

Rossman v. Department of State (Pa. Cmwlth., No. 516 M.D. 2024, filed December

8, 2025) (Majority Op.), slip op. at 12 (emphasis provided). I agree with the

PAM - 7

Majority that the Voter Registration Act does not require an initial, facial rejection

of an application merely because an applicant’s DLN or SSN cannot be matched

with the applicant’s corresponding numbers in PennDOT or Social Security

Administration databases. Rather, the commission first must investigate

inconsistent identification numbers to determine whether they can be reconciled. I

also agree with the Majority that the Voter Registration Act mandates rejection of

an application if inconsistencies in those numbers, after investigation, ultimately

reveal duplicate registrations. At this point, however, I must part ways with the

Majority’s analysis because the Majority stops there and inappropriately limits

rejection to situations where a duplicate registration is discovered.

As set forth above, the Voter Registration Act and the Department’s

promulgated regulations require rejection of applications that contain inconsistent

identification numbers that cannot, after investigation, be reconciled. Neither the

Voter Registration Act nor the Department’s regulations limit rejection on this

ground to only those situations where the inconsistency results in the discovery of a

“duplicate” registration, as the Majority suggests. Rather, it is the commission’s

inability to reconcile the identification numbers in the application that requires

rejection. And this makes sense. Identification numbers that cannot be reconciled

after investigation could result from a host of causes, most of which likely are benign

and can be resolved via the commission’s investigation. However, disparate

identification numbers can result, not only from duplicate registrations, but also from

other kinds of identity fraud perpetuated on registration commissions. For example,

made-up identification numbers included in applications submitted with fictitious

names would have no analogue in government databases and would not produce a

duplicate registration. Similarly, incorrect identification numbers included in an

PAM - 8

application submitted unknowingly on behalf of an unregistered individual would

not produce a duplicate registration. I believe the Voter Registration Act and the

Department’s regulations plainly were crafted, in light of HAVA’s requirements, to

protect against such fraud by requiring rejection of applications containing

irreconcilably inconsistent identification numbers for any reason.

Despite this, the Directive plainly, and unlawfully in my opinion,

prohibits commissions from rejecting applications with irreconcilable identification

numbers (other than those that reveal duplicate registrations) for any reason and at

any point in the registration process, whether before or after the commission’s

investigation. In this regard, the Directive is inconsistent with Pennsylvania voter

registration law, which again requires rejection of applications containing

inconsistent identification numbers that cannot be reconciled for any reason. The

Directive does not quote or cite to any substantive provisions of either the Voter

Registration Act or the Department’s promulgated regulations to support its

commands and prohibitions and, for that reason, fails to properly guide registration

commissions. Rather, as is clear from the necessity of this lawsuit, it has only

confused them.

For these reasons, the Directive conflicts with both the Voter

Registration Act and the Department’s regulations by prohibiting rejection of

applications where the law requires it. I accordingly would conclude that the

Directive is invalid on that basis.

B. The Directive is an Unpromulgated and Invalid De Facto Regulation

In Count II of the Petition for Review, Petitioner challenges the

Directive’s validity as an unpromulgated, de facto regulation. The Majority, relying

on a quotation from the Pennsylvania Supreme Court’s decision in Slippery Rock

PAM - 9

Area School District v. Unemployment Compensation Board of Review, 983 A.2d

1231, 1236 (Pa. 2009), distinguishes between binding or legislative regulations and

interpretive regulations that are entitled to mere deference. It then construes the

Directive as an “interpretive regulation” which, according to the Majority, frees it

from any need to be promulgated by the Department. (Majority Op., at 12-13.) The

entirety of the Majority’s analysis on this issue is as follows:

We agree with Respondents that the Directive is an

interpretive regulation, not a legislative, and thus did not

require promulgation. As we have determined, the

Directive tracks the meaning of the [Voter] Registration

Act and its regulations, and it does not obligate Petitioner

to any conduct that would not otherwise be required of him

under extant state and federal law.

(Majority Op. at 13.) I cannot agree with either the analytical framework applied

by the Majority or its conclusion.

In Slippery Rock Area School District, our Supreme Court was

presented with only two questions: (1) whether a regulation duly promulgated by the

Department of Labor and Industry and codified in the Administrative Code was an

interpretive or a binding legislative regulation; and (2) whether the regulation was

valid. Id. at 1236. It did not consider, address, or conclude anything as to whether

a particular pronouncement of a Commonwealth agency, which undisputedly was

not a regulation promulgated in accordance with applicable procedures, was

nevertheless an invalid de facto regulation.

Instead, the framework to be applied when considering whether an

unpromulgated agency bulletin, statement of policy, or “directive” is an invalid de

facto regulation clearly has been set forth by this Court in multiple decisions,

including Northwestern Youth Services, Inc. v. Department of Public Welfare, 1

PAM - 10

A.3d 988 (Pa. Cmwlth. 2010). There, we considered whether an administrative

bulletin issued by the Department of Public Welfare was an invalid, unpromulgated

regulation. Id. at 990. Beginning in 2008, the Department of Public Welfare issued

administrative bulletins imposing new statewide cost-reporting forms and

procedures on county children and youth agencies. Id. at 990-91. If county agencies

did not follow the new procedures, the Department of Public Welfare would

withhold State funding for certain contracted-for services at the county level. Id. at

991. Certain providers of those services challenged the validity of one of the

bulletins in this Court, seeking a declaration that it was an unpromulgated and invalid

regulation. Id. The Department of Public Welfare argued in response that the

bulletin merely implemented the already-existing audit and reimbursement

procedures set forth in its regulations, which implementation could be accomplished

by a “directive” or “memorandum.” Id. at 992.

Thus, the central issue presented by the providers’ petition for review

was whether the bulletin “was an invalid regulation because it was not promulgated

pursuant to the requirements of what commonly is referred to as the Commonwealth

Documents Law (CDL).6 We then applied the following legal principles:

The determination of whether an agency’s

pronouncement is an unpromulgated regulation is a

question of law. If an agency fails to properly promulgate

a regulation in accordance with the CDL, we will declare

the pronouncement a nullity.

6

Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§ 1102-1602. The CDL imposes

formal requirements for the promulgation of an agency regulation, which include the publication

of notice, a statement of the statutory or other provision(s) authorizing the regulation, an

explanation of the regulation, and an invitation for written comments by interested parties. Section

202 of the CDL, 45 P.S. § 1202.

PAM - 11

We begin our analysis by distinguishing a regulation

requiring formal promulgation from a statement of policy,

which need not be formally promulgated. Our Supreme

Court has explained that an agency pronouncement

constitutes a regulation when it purports to create a

“binding norm”:

“The critical distinction between a substantive rule

and a general statement of policy is the different

practical effect that these two types of

pronouncements have in subsequent administrative

proceedings. . . . A properly adopted substantive

rule establishes a standard of conduct which has the

force of law. . . .

A general statement of policy, on the other hand,

does not establish a ‘binding norm’. . . . A policy

statement, announces the agency’s tentative

intentions for the future.”

Pennsylvania Human Relations Commission v.

Norristown Area School District, [ ] 374 A.2d 671, 679

([Pa.] 1977) (citation omitted). “Statements of policy are

agency pronouncements that declare, [the agency’s]

future intentions, but which are applied prospectively on

a case-by-case basis and without binding effect.” Borough

of Pottstown v. Pennsylvania Municipal Retirement

Board, [ ] 712 A.2d 741, 743 n.8 ([Pa.] 1998) (emphasis

in original). A statement of policy also tracks the

language of a statute and does not expand on its plain

meaning. [Borough of] Bedford [v. Department of

Environmental Protection], 972 A.2d [53,] 64 [Pa.

Cmwlth. 2009 (en banc)].

To determine whether an agency has attempted to

establish a binding norm, we must consider: (1) the plain

language of the enactment, (2) the manner in which the

agency implements it, and (3) whether it restricts the

agency’s discretion, Cash America Net of Nevada, LLC v.

Commonwealth, 978 A.2d 1028, 1033 (Pa. Cmwlth.

2009) (en banc).

PAM - 12

Id. at 993 (some internal citations omitted); see also Pennsylvania School Boards

Association, Inc. v. Mumin, 317 A.3d 1077 (Pa. Cmwlth. 2024) (setting forth the

same three-part test).

Applying this test, we concluded that the bulletin was an invalid,

unpromulgated regulation because (1) it was “replete with mandatory, restrictive

language that is indicative of a regulation” and conditioned Department of Public

Welfare funding on compliance; (2) it did not announce any future intent of the

Department of Public Welfare, but, rather, imposed new cost-reporting requirements

that were intended to have retroactive effect; and (3) it did not leave the Department

with any discretion to deviate from its terms. Id. at 994-95. See also Cary v. Bureau

of Professional and Occupational Affairs, State Board of Medicine, 153 A.3d 1205

(Pa. Cmwlth. 2017) (concluding similarly); Eastwood Nursing & Rehabilitation

Center v. Department of Public Welfare, 910 A.2d 134, 146-48 (Pa. Cmwlth. 2006)

(same).

Here, the Directive clearly fails this three-part test. First, the

Directive is unquestionably binding7 and purports to forbid county registration

commissions from ever rejecting registration applications due to mismatches

between DLN or SSN numbers provided in registration applications and those

contained in established databases. The Directive is issued pursuant to Section

1803(a) of the Voter Registration Act, which provides the Department with an

enforcement (but not regulatory) mechanism to compel compliance with the statute.

Section 1804(b) contains an accompanying enforcement mechanism through which

the Department can withhold funding from counties that do not comply with the

7

The Department’s counsel indicated at argument that the Directive is intended to be

binding on registration commissions.

PAM - 13

Voter Registration Act, presumably as the Department has purported to enforce it

via the Directive. The Directive contains no general statements of policy, suggestive

language, or predictions as to the Department’s future course of conduct but, rather,

clearly establishes a mandatory standard for registration commissions to follow, at

their financial peril if necessary.

Second, as to the manner in which the Directive was implemented, there

is no indication in the record that the Department provided the public with any pre-

issuance notice of the Directive’s mandates. The Directive is not signed or dated

and contains no official seal or other authorization of the Department. It could have

been mailed, emailed, or posted on the Department’s website, but it certainly was

not published in the Pennsylvania Bulletin or any other official publication. Despite

its informality, however, the Directive purports to establish binding norms for

registration commissions. That in no reasonable fashion can be construed as a mere

statement of policy or self-regulating interpretive rule.8

Third, although the Directive is aimed at local registration

commissions, it leaves the Department, to the extent applicable, with no discretion

at all as to how the Voter Registration Act must be implemented where identification

numbers in registration applications do not match those in established databases.

Because consideration of all three factors indicates that the Directive is

an unpromulgated regulation, it is invalid. The Majority does not perform this

8

The Directive is not an “interpretive rule” developed by the Department to aid in its own

consistent administration of the Voter Registration Act. See Slippery Rock Area School District,

983 A.2d at 1237; Bailey v. Zoning Board of Adjustment of the City of Philadelphia, 801 A.2d 492,

501 (Pa. 2002). Instead, the Directive, by its own name and language, is aimed at local registration

commissions and purports to direct them, in binding fashion, as to how they are to carry out their

obligations under the Voter Registration Act and the Department’s associated (and duly

promulgated) regulations.

PAM - 14

analysis, but rather starts with the conclusion that the Directive is a regulation and

then posits that, because it is “interpretive” (which it is not), it need not be

promulgated.9 That is not the appropriate test under our case law, and it has led the

Majority to the wrong conclusion in this instance.

In sum, and for the above reasons, I must concur in part and dissent in

part. The Directive does not follow Pennsylvania voter registration law and is

an invalid, unpromulgated regulation. Accordingly, I would overrule

Respondents’ preliminary objections, deny their cross-application for summary

relief, and grant Petitioner’s application for summary relief.

PATRICIA A. McCULLOUGH, Judge

9

As I have demonstrated above, the Directive is mandatory and does not track the meaning

of the Voter Registration Act. It therefore is not “interpretive” as the Majority suggests.

PAM - 15

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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