Act 77, Pennsylvania’s controversial voting law allowing no-excuse mail-in voting for all voters, caused more havoc in Tuesday’s primary election in the Keystone State, as election issues in Lancaster County fed the headlines.
Nearly 16,000 mail ballots––two-thirds of all mail ballots returned––had to be hand counted after a barcode issue prevented them from being scanned, undermining voter confidence and causing significant delays in what has become a razor-thin margin in the U.S. Senate primary. But while the defective mail ballots caused problems, some election officials have clarified the real problem is Act 77 and its proven inoperability.
“It’s not just Lancaster County,” an election official stated during a Lancaster County Board of Elections press conference on Tuesday. “Other counties have had similar problems, multiple times, over the past couple of years since Act 77 has been in place. Act 77 is untenable for us as counties to continue to run elections and not have problems like this.”
When the mail ballots were opened for processing on Tuesday morning, election officials discovered that tens of thousands could not be read by the voting machine due to a barcode issue. Fifty county employees were then tasked with hand counting the defective absentee ballots, a process that election officials claimed would delay election results until Saturday.
Pennsylvania is no stranger to these issues, according to the Chief Clerk of the Board of Elections, Christa Miller. “Unfortunately, we've done this before, but it worked, and we know how to do this. We're good at it." Ms. Miller was referring to how the county fired its previous vendor due a similar issue that occurred in the 2021 election.
But election officials say hiring a new vendor did not resolve the real problem, which is Act 77.
Since 2019, Act 77 has caused major election administration issues and has been the center of numerous lawsuits. The law is currently being challenged by several parties in the Pennsylvania Supreme Court. The challengers, including Bradford County Commissioner Doug McLinko, claim that it violates the Pennsylvania Constitution.
Act 77 massively expanded mail voting in Pennsylvania without giving election officials the tools needed to handle the huge influx of ballots, such as allowing ballots to be pre-processed - that is, opened and checked for errors but not counted before Election Day. A supermajority of 38 states allow election officials to pre-process ballots. Pre-processing allows election officials to prepare absentee ballots for counting before Election Day, and when enacted with procedures to protect the integrity of the process can significantly increase confidence in the election, promote timely election results, and allow officials to detect any issues.
Act 77, however, put Pennsylvania among the minority of states that only allow absentee ballots to be processed on Election Day. If Lancaster County officials would have been able to start pre-processing mail ballots five days before the election, the problem would have been identified earlier, preventing the Election Day scramble and headlines that undermined confidence in the election. Five days of pre-processing would have been the rule, except that Governor Tom Wolf vetoed a bill that would have provided for it that had garnered the support of both chambers back in 2021.
This mis-match — a massive influx of mail ballots without the tools to address it — has led to significant delays in election results for voters in Pennsylvania, including in 2020. The legislature’s stymied effort to adopt pre-processing would have helped Lancaster County’s problem Tuesday, but similar disruptions will continue for as long as Act 77 remains in place, particularly if efforts to reform election procedures continue to be rejected for partisan purposes.
Lisa Dixon is the Executive Director of the Lawyers Democracy Fund, and organization dedicated to safeguarding the right for eligible voters to vote.