It’s Past Time to Overhaul Pennsylvania’s Election Code
Every year, Pennsylvania funds primary elections run by our county governments at a cost of over 20 million dollars to the taxpayer. However, a growing number of taxpayers are not permitted to vote in them. This is because Pennsylvania has a closed primary system, which only allows the two major parties and their voters to participate. Pennsylvania’s antiquated election laws restrict ballot access and primary participation based on vote-getting and party registration.
Pennsylvania election code, written in 1937, is full of outdated practices and contradictions with newer laws and Pennsylvania Supreme Court rulings. For example, the law requires polling stations to have lanterns and makes references to polling machines with levers, neither technology has been used in the commonwealth for over a generation. The code also requires the polls to be open during Eastern Standard Time, even though we hold elections in Spring during Eastern Daylight Time.
The code has been updated several times in the past 88 years with amendments that create contradictions or are silent on key questions. One example is the recent changes made in 2019, known as Act 77, which allowed for no excuse mail-in ballots, but is not clear on whether or not a voter may vote on election day if their mail-in ballot was rejected. It is also silent on whether or not voting officials can allow a voter to fix a problem that caused their ballot to be rejected, a process referred to as “curing”. This has led election officials in each county to make their own determinations on how to handle these situations and has led to unequal treatment of voters.
For example, in 2020, some counties contacted voters who cast ballots by mail and asked them to cure their ballots, while other counties simply rejected the ballots. The counties that contacted voters about mistakes on mail-in ballots were run by Democrats, leading to a lawsuit brought by the Republican party claiming that looking at the envelope of a returned ballot was “inspecting” the ballot, which is not allowed until election day by Pennsylvania law. The Commonwealth court punted on the matter, claiming that the county courts had jurisdiction and each county had to be sued individually at the local level. The decision not to get involved left the question up in the air and opened the door to more partisan lawsuits that have election officials worried about how to do their job.
In 2024, most counties decided to either contact the voter or at least update the voter information to show that the voter’s ballot was rejected, giving a voter a chance to vote a provisional ballot on election day. Over a dozen counties decided not to follow this practice, which means that voters are still being treated differently depending on which county they live in.
Court cases have ruled parts of the election code unconstitutional, but the legislature refuses to act to update the law. In 2000, the Supreme Court of Pennsylvania ruled that a provision in the law that prohibits convicted felons from voting for five years after they exit prison was unconstitutional. The ruling gave felons the right to vote as long as they are not in prison at the time of the election. The law has not been updated to reflect the ruling, and election officials must be educated on court cases rather than relying on the law as written.
Pennsylvania’s election code divides political organizations into three categories: political bodies, minor parties, and major parties. To become a political body, a group needs to register with the state. To achieve minor party status, you must win 2% of the vote cast for the winning candidate in a statewide race and obtain at least 2% of the vote in at least 10 counties. Once a group becomes a minor party, its name will appear as an option for voters to affiliate with on their voter registration. To become a major party, at least 15% of the registered voters in the state must choose to affiliate with a party when they register.
This old system of determining party status includes disparate rules for candidates and voters. To appear on a ballot in Pennsylvania, candidates must collect signatures from registered voters on ballot access petitions. For a major party candidate, there is a set number of signatures they have to collect regardless of changes in population or the number of votes cast in any given election. For all other candidates, the number of signatures is tied to the number of votes received by the highest vote-getter in the race. A major party candidate must gather 5000 signatures to be allowed on the primary ballot as a presidential candidate, where they will compete with other candidates from their party for the nomination to get on the general election ballot. A minor party or independent candidate must gather enough signatures to equal 2% of the number of votes received by the highest vote-getter in the district in the last election to get on the general election ballot, since they are not allowed to participate in the primary election.
The year before our election code was written, Franklin Delano Roosevelt won the state of Pennsylvania, receiving 2.3 million votes. Two percent of this tally would be forty-six thousand. This means that at the time the law was written, an independent or third-party candidate would need to gather at least forty-six thousand signatures to get on the ballot in Pennsylvania. In 2024, Donald Trump received 3.5 million votes. To get on the ballot as a presidential candidate in PA in the next election, an independent or minor party candidate for President would need to gather over seventy thousand signatures!
Independents fought for years to change the unfair ballot access signature requirements. In 2012, the Constitution Party won a lawsuit in the Pennsylvania Supreme Court in which the Court ruled the disparate treatment of candidates based on party affiliation was unconstitutional and mandated that candidates should be held to the same number of signatures. In a bizarre twist, the Court also ruled that the decision only applied to the Constitution Party and only to statewide races! The office of the Secretary of State of Pennsylvania adopted a policy in response to accept the smaller 5000 signatures for any candidate for President, but warns on the state’s election website that an opponent can challenge a candidate’s right to appear on the ballot if they do not collect the larger 2% still required by law.
To make ballot access even more difficult for independent and third-party candidates, Pennsylvania’s election code allows opponents to challenge petition signatures with lawsuits. Challenges are not only for suspicion of forged signatures or signatures of people who are not registered voters. An opponent can challenge an entire petition sheet for being printed on the wrong size paper, not following the rules about printing front to back, a voter abbreviating their address, or sloppy handwriting. If the challenger wins in court, the candidate will have those signatures thrown out and will be prevented from appearing on the ballot. To make matters worse, the opponent can then sue the candidate and demand that they pay for their legal fees.
The lawfare against candidates not only affects minor parties and independents. Last year, over twenty-five Democrat and Republican candidates were thrown off ballots in the primary elections. This resulted in most offices having only one candidate on the ballot. Primary voters were left with a meaningless box-checking exercise at the polls, with the option to vote for the only candidate or leave the office blank. There are districts in Pennsylvania where one party dominates and the primary is the meaningful election. In such a district, using your campaign war chest to eliminate competition on the primary ballot is the equivalent of purchasing a political office.
In 2016, the Constitution Party won another victory in the Pennsylvania Supreme Court. This time, the court ruled that major parties suing minor party opponents for their legal fees was unconstitutional. The ruling did not address independent candidates or major party candidates who lose ballot access lawsuits. This small band-aid helps to reduce the expenses of candidates running for office, but it is not enough.
The advice given to any candidate who wants to run for office in Pennsylvania is “get a good team of lawyers.” Most voters agree that there is too much money in politics. Confusing and conflicting election laws open the door to lawfare as a campaign strategy. For a well-funded candidate, frivolous court cases can be a way to drain the finite resources of an opponent with smaller coffers. Combined with the fact that there are no restrictions on campaign donations for state and local offices, our outdated election laws set up a system where big donors and dark money win.
On top of antiquated references to lanterns and outdated voting systems, the law preventing other candidates and their voters from participating in the primaries is also outdated. As late as 1998, the overwhelming majority of Pennsylvania voters were either registered as Democrats or Republicans, with only about 10% of voters registered as unaffiliated. The growing dissatisfaction with the two major parties has led to a steady rise in voters who have chosen not to register with either party. Today, over 16% of voters in Pennsylvania are registered as independent or unaffiliated. This percentage continues to rise every year and would likely be higher if voters were not forced to choose between registering with one of the major parties and being allowed to vote in the primary elections. If all independents joined together to create a new “Independent” party, they would be a high enough percentage of registered voters to qualify by state law as a major party. Despite representing a large enough portion of the electorate to qualify for their own ballot in primary elections, independent voters are still not allowed to vote in them!
We need to change the primary system to include all voters. Independents have pushed for years to open Pennsylvania’s primaries. Over the past few years, legislation offering semi-open primaries, which would allow unaffiliated voters to vote in primary elections by choosing either the Republican or Democrat ballot, has been sponsored in the state legislature, but has failed to gain enough support to pass. Many Republicans and Democrats do not want non-party members selecting their candidates. Semi-open primaries don’t solve the problem of disparate treatment of minor party and independent candidates. It also doesn’t offer independent voters the option to vote for candidates who represent their interests. A seat at the table to select the least bad choice isn’t representation.
A better solution would be to add a ballot for independents on primary day. This would allow third-party and independent candidates to run in the primary election and their voters would be able to vote on that ballot for a candidate they truly support. If independent and minor party candidates can run in the primary, we should be able to reduce the number of signatures that are required for them to get on the ballot to be equal to the current requirements for major party candidates. This solves the confusion over the Supreme Court ruling that only applied to one party. Instead of complicating the already confusing election laws, having a major party plus one primary would simplify Pennsylvania’s election code by treating all candidates equally.
It is past time to overhaul Pennsylvania’s election laws. We need to create a new set of laws that make it easier for good candidates to run and harder for opponents to abuse the courts. It has been 88 years since the election code was written, and times and the voting population of Pennsylvania have changed dramatically. The 1937 code, even with the band-aids offered piecemeal by the legislature and the courts, no longer serves the citizens. The current system of asking county election officials to interpret the law in light of court rulings and antiquated references creates confusion and unequal treatment of voters. The uneven application of the law opens counties up to lawsuits that undermine voters’ faith in the election results. The disparate treatment of independent candidates and lawfare enables candidates with more money to buy their way into office. Primaries for major parties only, disenfranchise a growing proportion of the voters who pay for them.
Join us on primary day at the polls as we talk to voters about the need for election reform. Visit the get involved page on our website and download our Primary Day flier. Take a friend and hand them out to voters. Sign our petition for election reform and let your state legislators know that they need to represent all of their constituents. The people of Pennsylvania deserve honest elections in which every voter and every candidate can participate fairly. We deserve good representatives. Money shouldn’t be the deciding factor in an election; the will of the people should be.