Featuring open seats for Governor and the U.S. Senate, Pennsylvania’s 2022 general election will be the most closely observed non-presidential election in a generation. The Pennsylvania Election Code provides access to an array of election records such as ballots, returns, and voter rolls. To ensure timely access to election records, journalists and other observers must know certain nuances of Pennsylvania law.
The Pennsylvania Election Code trumps the Pennsylvania Right-to-Know Law
Access to most public records in Pennsylvania is governed by the Right-to-Know Law. Under that law, records documenting government activity are presumed public. Requesters may request and receive public records in approximately 30 days. Due to the time sensitive nature of election matters, the Right-to-Know Law is not the most efficient vehicle to obtain election records. Where there is a conflict with the Right-to-Know Law, the Election Code controls.
As discussed below, the Election Code provides more immediate access than the Right-to-Know Law to certain election records. The Election Code prohibits the use of election records for commercial or other improper purposes. Journalists or other observers must sign a verification affirming proper use before assessing election records. Personal information such as home addresses and dates of birth may not be redacted from election records.
Access to Election Records
The Election Code makes certain election records accessible for public inspection by qualified electors during regular business hours (e.g., returns, nomination petitions, voter lists, reports, etc.) 25 P.S. §§ 1207, 1401-1406, 2622, 2648. Sample ballots are open to public inspection and must be posted online five days before each election. 25 P.S. § 2968. Returns are available for public inspection as soon as votes are counted and the returns are certified by the county board of electors. 25 P.S. § 2968. Voter rolls including name, residential address, mailing address, date of birth, and political party affiliation are available for download for a small fee from the Department of State. Contents of ballot boxes and voting machines are not public records. 25 P.S. §2648.
Access to Campaign Events and Polls
During the current election cycle, political campaigns have attempted to limit journalists from attending campaign events or restrict the publication of content. Generally, journalists may attend campaign events that are open to the public and do not need permission to publish content. It is anticipated there will be increased litigation surrounding the right of the press to attend campaign events in coming years.
Polls are closed to the public in Pennsylvania except for persons lawfully assisting voters (e.g., election officers, clerks, etc.) and designated poll watchers. 25 P.S. § 3060(a)-(d). Practices differ across the state, as some election officials allow journalists to access polls for news gathering purposes. Journalists have also been designated as poll watchers in some venues. Regarding exit polling, the Third Circuit has upheld a 10-foot barrier around “polling places” meaning “the room provided in each election district for voting.” PG Publishing Co. v. Aichele, 75 F.3d 91 (3d Cir. 2013). Some election officials treat the “polling place” as the entire building where voting takes place, but this interpretation is not supported by statute or precedent.
Ballot Selfies are Not Illegal in Pennsylvania
Per a FAQ by Pa. Dep’t of State, voters may take selfies if cell phones are permitted in polling place. Voters should take care to not disclose selections of another voter. No law prevents news media from publishing ballot selfies in Pennsylvania, although privacy concerns should be vetted and it is advisable to get permission to use third party content before publication.
Nauman Smith’s Media Law practice group is experienced in assisting journalists and other election observers in obtaining election records and in preserving the freedom of the press. Please contact Craig Staudenmaier or Josh Bonn for assistance.