For years, when registering to vote, Pennsylvanians could list driver’s license numbers or Social Security numbers that did not match government databases on their applications.
The Department of State and Secretary Al Schmidt instructed county boards of elections to stand down and refrain from verifying voters’ identities in the event of a mismatch, according to a lawsuit that seeks to remedy this.
On Oct. 7, the Commonwealth Court is expected to hear arguments in a case brought to address that flaw — or feature, depending on your point of view — in the voter registration system.
Schmidt and the Department of State are defendants in a civil lawsuit brought by Robert Rossman, a member of the Potter County Board of Elections. Rossman is represented by the voting integrity organization Restoring Integrity and Trust in Elections (RITE).
RITE President Justin Riemer told DVJournal that while there’s been other litigation on the topic, “they did not use the same legal claims.”
“The issue that we’ve identified, which is a directive from the state in 2018, [is] that the counties cannot reject voter registration applications where the driver’s license or the last four digits of the Social Security number do not match what’s found in the official government databases,” said Riemer. “The counties used to verify registrations. That the counties cannot reject those mismatched applications, it’s something that other groups have tried to pursue, but they’ve used a different theory than our case.”
“Our case is based entirely on state law,” he said. Others have brought litigation under federal statutes, like the Help America Vote Act (HAVA).
HAVA does say that election officials need to verify the voter information provided on the voter registration application. But it does not indicate what the states must do when the information is not matched properly. It defers to state law.
“I think the process of verifying voter registration information is critically important,” Riemer added. “It’s the point of entry to the voter’s participation in the system. And so, if you’re not verifying the identity and eligibility of these folks at the front end, then they’ve become registered voters and they’re permitted to vote by mail. They’re permitted to vote in person. There’s also risk that you duplicate registrations by not verifying the information.”
Perhaps a voter might move to another county, make a mistake on the form and remain registered at their former address.
“So, it’s just critically important at the front end that these verifications are performed,” even if in most cases it’s simply a voter’s error, he said.
Riemer said RITE only takes cases they believe they can win, resulting in a 60 percent victory rate.
“We focus on high-quality litigation, and we only take cases we think are viable,” Riemer said. “We’re not interested in press release lawsuits because we think they create bad law.”
Riemer said his Washington, D.C.-based group has won several cases in Pennsylvania.
“We sued the City of Philadelphia leading up to the 2022 elections for abandoning a process that fought double voting,” Riemer said. People were submitting mail-in ballots and then voting in person, he said. “And Philadelphia in the past counted some of those ballots.” Generally, the voter thinks their mail-in ballot did not arrive, so they vote in person, too. Their litigation in Commonwealth Court essentially shamed the City of Philadelphia into reinstating its audit process.
RITE also sued Montgomery County for operating a mobile voting van because the government was not giving proper notice as to where the van would be, he said. And in Allegheny County, they won a case where the Republican Party was not given notice of where drop boxes would be placed.
“We brought the original action on undated ballots,” he said. The state Supreme Court ruled mail-in ballots “needed to be dated in order to be counted.”
The Pennsylvania Department of State (DOS) sent its cross-filing for summary judgment when DVJournal asked for a comment. The DOS claimed its voter registration rule is “fully consistent with state law,” and that Rossman, as an individual member of the Potter County board, “lacks standing” to sue.
The state requested that the court dismiss the case.