Judge rules Philadelphia shouldn’t be forced to change its vote-counting plan for Nov. 8 election, but the case isn’t over

The city wants to discontinue a procedure used to catch people who vote both by mail and in person, arguing it’s duplicative of other effective measures.

• Katie Meyer/Spotlight PA
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  Focus: Governor’s office, legislature, elections
  
  Meyer covers government and elections, with a focus on the money and powerful interests that can shape policy decisions, and the ways those decisions affect Pennsylvanians. She also plans coverage and edits Spotlight’s government team.
  Previously, Meyer was political reporter for WHYY Public Radio in Philadelphia, and covered state politics and government for WITF Public Radio in Harrisburg. She lives in South Philly.

Spotlight PA is an independent, nonpartisan newsroom powered by The Philadelphia Inquirer in partnership with PennLive/The Patriot-News, TribLIVE/Pittsburgh Tribune-Review, and WITF Public Media.

Philadelphia does not need to change a significant aspect of its vote-counting plan hours before the 2022 general election, a judge ruled Monday, but the case isn’t over yet.

It revolves around the city’s commissioners’ plan to discontinue a time-consuming procedure they previously used to catch people who vote both by mail and in person. The commissioners, who administer Philadelphia’s elections, argue it’s duplicative of other effective measures.

Two elected poll workers who are Republicans are plaintiffs in the case. They’re asking the commissioners to reinstate that security measure.

In her decision Monday morning, Common Pleas Judge Anne Marie Coyle wrote that the suit came “too close in time to the upcoming general election” and that forcing Philly to change its plans now would “cause greater measure of harm to the electoral process.”

Litigation is ongoing, however. The GOP attorneys who brought the suit confirmed to Spotlight PA that they have already appealed it to Commonwealth Court — and the Philly judge’s order gives them plenty to use in that appeal.

Coyle said the GOP attorneys who brought the suit had “sufficiently established” the merits of their case, and she harshly criticized the Philadelphia commissioners’ decision to forego the double-voting check — which is known as poll book reconciliation — and their decision to delay announcing the change until just before the Nov. 8 election.

The commissioners “failed to consider the harm to public perception of our electoral process that could reasonably result” from their late announcement of the change, Coyle wrote, going on to say that “fraudulent voting” could “reasonably result from” the change in process, and that the commissioners “unwisely discounted the inherent deterrence of fraudulent voting value [and] fraud detection value” that poll book reconciliation provided.

The process has never caught much double voting — which is defined, in this case, as voters casting ballots both by mail and in person. It’s one of a number of measures Philadelphia takes in order to make sure nobody votes twice, and it’s a measure that has, since 2020, gone beyond the checks that most counties conduct.

Additionally, the check turned up zero instances of double voting in the past three elections, according to commissioners. That’s a key part of their argument, though in her order, Coyle noted that she believes it is “illusory” because those elections were “poorly attended and minor races” that don’t compare to this year’s midterm.

Philadelphia’s commissioners — two Democrats and a Republican — and voting rights groups said they see this suit as part of a pattern of litigation they believe is intended to sow mistrust in elections.

The goal, ACLU attorney Marian Schneider said, seems to be to “make people think that double voting is rampant … double voting is not rampant.”

The suit comes via a group called RITE — Restoring Integrity and Trust in Elections — that GOP operative Karl Rove, former Trump U.S. Attorney General Bill Barr, and others founded relatively recently. RITE claims the integrity of Philly’s count is at risk, and that commissioners “are refusing to keep double votes out of the ballot box.”

What is poll book reconciliation?

The procedure at the heart of this dispute is known as poll book reconciliation.

Since 2020, Philadelphia has paused its ballot counting after in-person polls close on Election Day to scan poll book data from in-person voting into Pennsylvania’s Statewide Uniform Registry of Electors (SURE) system.

SURE tracks vote history, and has up-to-date data on whether a person has requested or returned a mail ballot. By feeding in-person data into SURE, Philly has been able to check that a voter didn’t cast ballots both by mail and in person.

There are already other procedures used around the commonwealth to catch double voting.

Ahead of Election Day, counties print up poll books for each polling place that show which voters have requested mail ballots, and which have returned them. Because these poll books are printed early, there are also supplemental poll books that show additional people who have requested and sent in mail ballots. Poll workers generally get new updates on Election Day.

Poll workers are trained to check all in-person voters against these poll books. If a person who shows up to vote has already requested or returned a mail ballot, they can’t vote as usual unless they bring that mail ballot to be spoiled — i.e. a poll worker marks it down as invalidated in the rolls. Otherwise, their only option at the polling place is to cast a provisional ballot, which will only be counted post-election if that person is confirmed to have not voted previously.

When expanded mail voting was new, Philly officials began conducting poll book reconciliation before releasing results as a redundancy — one of few counties to do so. The system was new, officials say, and they wanted to make sure double votes weren’t getting through due to human error.

Now though, they say things have changed.

Why is the city changing its process?

In the 2020 primary and general election, the city found a few dozen double votes — which weren’t enough to swing any election results — and investigated the people who cast them.

In the three elections they’ve conducted since 2020, though, Philly commissioners say they’ve found no double votes at all.

That’s one of the reasons commissioners now say they don’t plan to pause their count for poll book reconciliation — poll workers are now used to the system and aren’t making mistakes. Another reason is that it’s time-consuming, and with the city frequently criticized for the amount of time it takes to count ballots, they say they want to speed things up.

But the most pressing reason has to do with a new state law that gave county election offices new funding.

As part of this year’s budget, Pennsylvania lawmakers passed Act 88, which doled out funding to counties to run elections with the requirement that counties tabulate ballots continuously until they’re finished — an effort to speed Pennsylvania’s count.

Because Philly’s double-counting check requires pausing the count, commissioners are concerned it would give the state cause to claw back the money. It’s not a baseless worry — GOP state Rep. Seth Grove of York County, who heads the state House committee most involved in election law, sent a letter to the commissioners noting that he thinks their process conflicts with Act 88.

Grove, along with fellow Republican state Rep. Martina White of Philadelphia, also filed briefs in support of the case, and want to force commissioners to conduct poll book reconciliation. Their argument in the case differs from the one Grove made in his initial letter.

“I feel like Philadelphia was put between a rock and a hard place,” Schneider said.

Before the lawsuit, Philly still planned to load its results into the SURE system. It would have just done it when most other counties do — after it finished its tabulation. If there were any double votes, they would have been found then and investigated, a county official confirmed.

‘Why is anybody against that?’

In its initial complaint, RITE attorneys pointed to the double votes Philadelphia found in 2020 and claimed the city’s need to issue supplementary poll books to note new mail voters creates “multiple possible points of system failure.”

Though poll book reconciliation isn’t explicitly required in law, RITE attorneys argue the Philly commissioners still have to do it because they “have a legal duty not to willfully certify a polluted vote tally,” and this is their only way to assure that happens.

Matt Haverstick, one of the lawyers for RITE, described the suit as being based on the idea that if the double-check was put in place before, there’s no reason to get rid of it now. “Why is anybody against that?” he asked.

But attorneys for the city and intervening Democrats say there’s no basis for the argument that poll book reconciliation is the sole way of assuring Philly’s vote count is accurate.

“No provision in the Election Code, including those cited by Plaintiffs, specifically mentions the practice of poll book reconciliation,” the city’s attorneys wrote. “In addition, it ignores that, in the five elections that have occurred since the enactment of Act 77, the vast majority of counties have never employed this practice.”

The city’s attorneys also argued that forcing the commissioners to keep doing poll book reconciliation would do more harm than good. It’s a slow, expensive process, they said, and it would give credence to common conspiracy theories that a count that takes days is somehow suspect.

“There is little doubt that Philadelphia’s mail-in ballot canvassing will be closely watched during this election by third parties eager to scrutinize, criticize, and challenge the county’s election,” they wrote.

The suit from RITE has indeed come just ahead of a likely flood of election litigation — part of a new, post-2020 norm in which mostly Republican candidates and attorneys routinely sue to contest election procedures, laws, and results.

Attorneys on both sides of the case told Spotlight PA that they expect to be involved in a slew of cases starting during and immediately after tomorrow’s election. This one is just the start.