Pennsylvania Capitol Building in Harrisburg, Pa. (Photo by Amanda Berg for the Capital-Star).
A five-month fight over the GOP primary in a Luzerne County state House district officially ended Monday, but the state Supreme Court decision that resolved the dispute has Republican lawmakers questioning Pennsylvania’s automatic voter registration practices.
In a case involving provisional ballots cast in the House primary, the Supreme Court this month raised concern about the Pennsylvania Department of Transportation’s lack of authority to change the voter registrations of people who transfer vehicle registrations to a new address.
In a letter to Gov. Josh Shapiro on Friday, 65 members of the House Republican Caucus warned of widespread confusion as a result of the practice and urged PennDOT stop offering voter registration changes outside driver’s license and state ID updates or issuances.
The lawmakers also said the Department of State must contact every voter who changed their voter registration via interaction with PennDOT to ensure they meant to change their voter registration.
Pennsylvania adds automatic voter registration
“Failure to address these issues promptly will lead to avoidable disinformation and misinformation around the elections process directly because of actions by state government,” the letter says, adding that litigation would be another likely result.
Pennsylvania is among several closely-watched swing states in the Nov. 5 presidential election. Election procedures, including those involving provisional ballots and vote-by-mail ballots, have been the subject of lawsuits that are still pending before state courts.
Shapiro announced last year that residents who applied for a driver’s license or state-issued photo identification card would automatically be registered to vote. While people have been able to register to vote via PennDOT since 1993, when the federal “motor voter” law took effect, they were required to opt-in until last September.
Shapiro’s office and PennDOT did not respond to requests for comment by the deadline for this article.
The Luzerne County Board of Elections on Monday certified the results of the Republican primary for the 117th Legislative District, making Jamie Walsh officially the winner over incumbent Rep. Mike Cabell by a four-vote margin. Walsh previously had claimed victory in July by a five-vote margin, despite the ongoing court case.
The certification follows a Sept. 13 decision in which the Supreme Court ruled on whether provisional ballots cast by two voters should be included in the results. In the instance of a voter who failed to sign the outside envelope of his provisional ballot, the court found that it should not be counted.
But with regard to a voter whose voter registration was changed to another county several months before the primary election, the court ruled the voter’s provisional ballot should be counted. It reasoned that because the voter physically moved to his new address less than 30 days before the primary, the Election Code permitted him to vote in the election district for his old address.
The Supreme Court majority, however, questioned the validity of the method by which former Butler Township resident Shane O’Donnell’s voter registration was changed.
O’Donnell testified in an initial court inquiry that PennDOT must have changed his voter registration when he transferred the registration of his vehicle to the new address in McAdoo, Schuylkill County. An election official testified that was consistent with the agency’s practice, according to the court’s decision.
Writing for the five-justice majority, Justice Sallie Updyke Mundy, a Republican appointed to the court in 2016, said Pennsylvania’s voter registration law only allows PennDOT to provide an application for voter registration, including an update to an existing voter registration, in connection with an application to obtain or update a driver’s license.
“Any administrative decision by PennDOT or the Pennsylvania Department of State to transfer an elector’s voter registration without that person’s affirmative consent in conjunction with a PennDOT application to change a vehicle registration, as opposed to a driver’s license, is therefore of questionable validity,” Mundy wrote.
Justice David Wecht, who was elected as a Democrat in 2015, wrote a separate opinion in which he agreed that PennDOT’s practice appeared to lack any legislative authority.
“Although PennDOT’s rogue transfer of voter registration in this case ultimately did not deprive O’Donnell of the right to vote, it would be troubling if PennDOT has a practice of making such a transfer without statutory authorization, or even the voter’s consent,” Wecht wrote.
In the letter to Shapiro, the Republican lawmakers raised concern about the potential for additional cases like O’Donnell’s.
“Luckily, Mr. O’Donnell knew to ask for a provisional ballot, but how many other Pennsylvanians in the same situation know to do the same? We fear many more instances like this are waiting to be discovered – likely at the polls on election day,” the letter said.
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