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