Pa. Secretary of State Al Schmidt answers questions about the election

Al Schmidt is Pennsylvania’s secretary of state and, although each county runs its own election, his office oversees election administration in the state. This transcript is from Schmidt’s appearance at the Majestic Theater in Gettysburg at an event called “Unpacking the Vote: A Q&A with Election Experts.” The event was put on by The Eisenhower Institute and WITF, and received funding support from America Amplified.

The transcript has been edited for clarity and conciseness by Scott Blanchard, WITF’s director of journalism. About 65 people attended the event and had the chance to ask Schmidt questions. He began with a short opening statement.

Al Schmidt: "...(Elections) have never been more safe and secure with a voter verifiable paper ballot record of every vote that’s cast in Pennsylvania. Whether you vote by a hand-marked paper ballot or use a ballot marking device in some counties, you end up with a … verifiable paper ballot record of every vote that’s cast that, as was just discussed, is used in not one but two audits after every election to ensure that the results are accurate."

I wondered if you would feel comfortable speaking to the situation that occurred in Fulton County in the 2020 election – how that situation evolved and what can be done to maybe prevent a repeat of that situation in a future election.

Al Schmidt: “So, Fulton County had an issue after 2020 where the county allowed outside entities to have access to their voting system. Because that’s compromising the security of their voting system, the Pennsylvania Department of State decertified those devices.”

Schmidt noted there has been litigation related to the issue.

“(Recently) there was another court decision which has ordered the county to pay the Pennsylvania Department of State and the one voting system, more than a million dollars, so far, in legal services. And that tab is running.

“The county has a total budget of, I believe, about seven million dollars. So that’s, a million dollars is a lot of money no matter what county you’re in, but that’s a lot of money. And while I feel it’s really important to have accountability in this process when it comes to accusations with no basis in fact that result in election systems being compromised, I also want to be mindful – it’s taxpayers in that county who will largely be on the hook for the decisions that were made.”

(My question is) about the mail in ballots and that may be discounted if they have the incorrect date or are not signed. What are people doing and what will get it restricted? And is there something else that … may kick this all out?

Al Schmidt: “That’s a really excellent question, and it’s consumed a lot of our attention and county attention and voter attention and media attention and all the rest.

“Just to update the background on the question, there has been litigation, as you might have seen about whether mail in ballots should be counted or not if the voter signed but did not hand- date the declaration envelope. The law says, and the way the law is written by the legislature is very clear, it says voter must sign and date it.

“That being said, zero counties out of 67 use that date for any purpose whatsoever other than to see that it’s hand dated by the voter. Counties know when they mail the ballot out and they know when they receive it back. So that’s why it’s been involved in federal and state litigation going back and forth over this issue.

“A Commonwealth Court decision not that long ago found that those ballots should be counted, since that date serves really no purpose. But the Supreme Court ruled on Friday that there was a jurisdictional issue with the Commonwealth Court’s decision or the party’s ability to bring that case to the Commonwealth Court.

“So the Supreme Court of Pennsylvania did not rule on the issue one way or the other. … so I wouldn’t be surprised if it goes back to commonwealth court and sort of takes into account the jurisdictional issues raised by the Pennsylvania Supreme Court, but we’re not sort of like waiting around for courts to make those decisions.

“The law is clear and we clearly communicate to counties that if the voter did not sign and hand date it, the vote can’t be counted unless it’s hand-dated within the range of when the ballot was sent out.”

Schmidt says they looked at data on this mistake on mail-in ballots. He said 1.4 percent of ballots from voters 70 years old and older were not counted because the voter didn’t correctly date the outer envelope. Frequently, they write in their birthdate.

“Obviously, the ballot was not sent on, you know, January 8th, 1946. It’s not a question of whether it’s an eligible voter. It’s not a question of whether it’s their ballot and they voted it or that it was returned on time. But the law is clear. And right now, the law is that ballot can’t be counted unless it’s hand-dated by the voter.

“We might see litigation in the weeks ahead. The window is really closing fast for decisions on all of that. We were disappointed by that court decision the other day.”

What plans are in place to stop efforts to derail certification of electoral results by the political party of the losing candidate?

Al Schmidt: Schmidt noted that in 2022, three counties did not certify their election results by the deadline.

“So the Pennsylvania Department of State took them to court. It took some number of days and then they were compelled to certify the election results.

“It’s pretty clear in the election code. You are required to certify those results. If you’re aware of voter fraud or allegations of voter fraud, if you’re aware of any evidence of election irregularities or all the rest, you don’t ignore it. You refer it to law enforcement for investigation and for the courts to determine. But the counties, it’s very clear, are required to do that certification process. In the event that there are counties that don’t fulfill their ministerial responsibility in certifying the election results, then I would expect that we would immediately seek a court order requiring them to do their job, which would be to certify the election results in that county.”

“I think this is the first time I’ve quoted Donald Rumsfeld in my life, but, I don’t entirely understand what the end game of that would be – like, a county not certifying would not, in the end, result in some other magical thing happening that’s going to change the outcome.

“The only result of that would be a chaotic environment, where you do have all this sort of playing out where you do have questions or an opportunity for people to continue to try to undermine confidence in election results despite there being no evidence, assuming there is no evidence of voter fraud or election irregularities at all.”

Are there any extra or renewed efforts to address polling-place intimidation?

Al Schmidt: “…the Shapiro administration set up something called the election threat task force. It’s really brought about from a lot of the lessons that were learned, especially in 2020 when it came to threats of violence or intimidation, targeting voters, targeting election workers, whether at the polling place or at the county level.

“So that a task force, which I lead, meets regularly to make sure that everyone knows what everybody else’s responsibilities are and the lines of communication are open. So in the event any of that ugliness that we experienced in 2020 returns, everyone knows what everybody’s responsibilities are.

“And so that law enforcement can do its job to investigate.

“Frequently, at the county level, especially if the district attorney is not on the ballot, usually the district attorney’s office is the first one sort of on the scene to respond to any threats targeting voters, voter intimidation or anything else like that. I know I worked closely in Philadelphia with the district attorney’s office in multiple administrations (and) with U.S. Attorney’s office (and) the Attorney General’s office. (So if) there were threats targeting voters or efforts to intimidate them or threats, violence or intimidation toward poll workers or anything else like that, that we’re prepared to respond to make sure that we could defend their right to vote.

“In Philadelphia County alone, where I was election commissioner or city commissioner for 10 years, there are 1,703 precincts with 8,000 election board workers and 1.1 million voters. And unless there’s an issue with wheelchair accessibility, that polling place is otherwise required to be in that precinct so that a voter could walk down the street or walk a couple of blocks to that rec center, to that church basement, to that school so that they can cast their vote."

Would you discuss the right to cure procedurally defective ballots?

Al Schmidt: Schmidt noted that some counties have “the ability to reach out to the voter one way or another to alert them that their mail in ballot won’t be counted” if there is a defect with the ballot.

“Different counties have approached this differently. Allegheny County, and I believe Dauphin County beginning this election … Allegheny County has always sent that ballot back to the voter to say, you failed to sign it. If you sign it and return it by 8 p.m. on election day, that ballot will be counted.

“Philadelphia County, where I was, simply posted a list of voters who submitted mail in ballots where that ballot had an obvious fatal defect and wouldn’t be counted. So the voter could either come into the Board of Elections, request a replacement ballot and have that other ballot voided, and complete the replacement ballot, or show up at the polling place, as happens in most states.

“Many other counties … vote by a provisional paper ballot at the polling place. So if the voter voted by mail (and) the ballot wasn’t counted, their provisional ballot would be counted. If the voter voted by mail and that ballot was counted, then the provisional ballot would be set aside. So the courts have decided that the counties have the ability to cure, but it’s one of the many ways in Pennsylvania in which election administration is not run in a completely uniform way.

“And I think that causes sort of confusion. Some counties are sort of going the extra mile to make sure that voters can cast their vote and have their vote counted, and other counties deciding that the appropriate thing to do is to not reach out to the voters at all or allow them to cure their mail in ballot."

Why?

Al Schmidt: “You know, it’s interesting testifying in front of the Pennsylvania House and Pennsylvania Senate because they … kick my teeth in and say why aren’t our counties doing all the same thing? It’s really, respectfully, the legislature’s decision to pass a law. I don’t pass laws. They pass laws, and I’m sure there are many of them that would not like whatever decision that I would make one way or another, or my predecessor, or successor … It’s really up to the legislature if they want greater uniformity to pass laws that result in all counties doing the same thing.

“Now, remember, all these counties, even though the approach is different, they’re all operating within the confines of the Pennsylvania Election Code. They’re not operating outside of the confines of the Pennsylvania Election Code. And that has certainly been litigated plenty.

“There has been litigation recently to compel counties, if counties can obviously see that the ballot won’t be counted, compel them to update the system to say it won’t be counted or compel counties to count provisionals if the mail in ballot won’t be counted. But it certainly can be confusing for voters where you have 67 counties, sometimes it feels like doing 67 different things, but all within the confines of the law.

“When those cases were originally filed, the Pennsylvania court system scheduled the hearings for like mid- to late-September, I think, which was absurd to us. So we threw a fit and begged them by throwing a fit. We’re begging them, like, please, resolve these matters expeditiously. And they did.

“They called all the hearings for the next week and then I think decided by the end of that week and then they went to appeal to the Pennsylvania Supreme Court. Almost all those judgments were on Friday of last week. The last one was a few hours ago, and then the Pennsylvania Department of State did what’s called certifying the list of candidates. So now the counties can begin sending their mail in ballots out to get printed so that they can be mailed out to the voters as soon as possible.

“And also if you sign up for a mail in ballot and provide your email, it’ll provide you updates. So there’s a way for you to track it. For a mail in ballot, whether it’s a paper application or electronic through vote, pa. gov, where you can register to vote. … You can register to vote. You can apply for a mail in ballot. You can find where your polling place is. You can do everything at that one stop kind of shop to exercise your right to vote.

“So when your mail in ballot has been approved, you get an email that it was approved. When it’s mailed out to you, you get a message that’s mailed out to you. When it’s received back by the Board of Elections, you receive a message saying it’s received back by the Board of Elections. When it’s counted, you receive a message saying your ballot has been counted.”

A voter said that in Adams County, several dozen voters applied for a mail ballot but did not receive one, and either had to go to the elections office to fill out a ballot, or get one in the mail and mail it back.

Al Schmidt: “If your county has Board of Elections drop boxes, you can return it to your county Board of Elections drop box.

“Some counties have one at the county courthouse, and that’s their decision. Other counties have more Board of Elections boxes so that the ballot is returned directly to the board of elections instead of going into the mail on the way back. … The deadline to apply for mail in ballot is only seven days before election day. By eight p.m. (on election day) it has to be received back. If you do vote by mail, please don’t wait for the deadline.

“(If you) get your ballot in the last couple of days before election day … It might be better to either return your ballot to the Board of Elections to a drop box if they have one or the Board of Elections office itself, or you can also vote in person.

“If you’re able on election day where you bring those materials with you, you essentially surrender them to the people working for the day to make sure that you can cast your vote … and then you’ll be able to vote on the voting system, whether it’s a hand marked paper ballot or about marking device.

“If you don’t bring it with you … you could also go to the polling place and the polling place will give you a provisional ballot, which is essentially a paper ballot for you to complete.

“And if you did not return your mail and ballot, then your provisional ballot would count. All this sounds very complicated, but all this is really ways in which Pennsylvania does everything it possibly can to make sure that people can cast their vote and have their vote counted."

Schmidt turned to discussing Pennsylvania counties’ attempt to get the legislature to allow them to prepare mail ballots before 7 a.m. on Election Day.

Al Schmidt: “The County Commissioner Association, the Shapiro administration, basically anyone in my experience who is professionally involved in election administration, has advocated for legislation that will allow Pennsylvania county boards of elections to begin processing mail in ballots earlier than 7 a.m. on election morning. We are pretty unique in Pennsylvania for a lot of really good ways, and this way, which is not a good way … All sorts of other states, red states, blue states, even Florida, which in my lifetime has not been a model of election administration, even Florida allows that process to begin earlier. That’s not counting a single vote before Election Day. That’s doing all of the process, all of the assembly line (work) to make sure that that is done with integrity where they’re reviewing the signature, the date, extracting the secrecy (envelope) from the outer envelope, extracting the ballot from the secrecy (envelope), flattening the ballot before the ballot is counted.

“That takes time. So when you hear on election night, what’s the delay in Pennsylvania? … There isn’t a delay. It takes time to count millions of votes, and Pennsylvania is (at) a unique disadvantage because that process can’t begin, like other states, earlier. So in Florida, you might know their mail and ballot results, except for the ballots that came in that day.

“You’ll know them by, let’s say, around midnight, and in Pennsylvania, it can take longer.”

What role do county elections offices and your office, the Department of State, have in working with USPS to ensure the timely and accurate delivery of ballots?

Al Schmidt: “So we have worked pretty closely with them on this this last year, and in seeing the data for rejected rates and all sorts of other things like that, we redesigned the appearance of the declaration envelope.

“Of all things, Department of State has the authority over the appearance of the outer declaration envelope. So now, it’s colored in a way that it’s very distinct, so that the Postal Service can see it when it’s moving through the postal stream, that it is a mail in ballot. It really stands out. We worked with them on the color. We worked with them on the design. We worked with them on all of that to make sure those ballots really stand out. And in many counties, if not most, the Postal Service won’t do one delivery during the day on Election Day, they’ll do two, to make sure the ballot is returned back.

“And I know your question is really about the voter getting it on the front end, but that’s also part of it. So those ballots really stand out to make sure that they make their way to to the voter.

“We also redesigned it in a way to minimize opportunities for voters to make mistakes when completing it. So it’s got sort of graphics. We redesigned the instructions that the counties will include so it is clear as could possibly be that the voter must sign it and the voter must date it. And here’s where you sign it. And here’s where you date it.”

Based on the mail in ballot requests that you’ve received so far, and based on what you saw in 2022, any sort of net change from 2020-2022, what is your best estimate, again, based on the limited data that you have right now, on what the timeline is going to look like in terms of counting those ballots?

Al Schmidt: “…obviously (we’ll) have the (same issue as in 2020) with the technical problem, which is not being able to process mail in ballots earlier.

“A couple of things have changed, even though the legislature hasn’t changed the law. One is because of counties investing in elections and because of Act 88, which provided a funding stream for the counties to acquire additional equipment. Many counties, especially larger counties, have acquired equipment that will assist in the processing of mail in ballot envelopes.

“Another thing is, counties have gotten better at it in 2020. I mean, we had obviously absentee ballot voting for many, many decades, if not well over a century. It was the first time the counties were really doing it at that scale. So since then, I think there have been a lot of lessons learned about how to set up that assembly line. So those ballots can be processed expeditiously, but with integrity and observers present while all that is going on.

“And thirdly, mail and ballot voting, as you know, was passed in 2019 by a Republican House and a Republican Senate and signed by a Democratic governor before COVID was on the horizon. But undoubtedly, the COVID environment in 2020 resulted in more voters embracing mail and ballot voting. So in Philadelphia, half of our voters voted by mail and about half voted in person.

“That percentage has decreased since 2020, probably closer to where it otherwise might organically have otherwise been if it were introduced as it was in other states where there’s, let’s say, the first year you have 15%, and the next year you have 20 or 25. It’s settled, it seems, so far in, I think, the thirties, in most counties for percentage of voters who are casting their vote that way.

“…those things have changed. Counties have gotten better at it. They’ve invested in equipment and the percentage of votes cast by voters has decreased since 2020 or votes cast by mail has decreased since 2020.

“So hopefully we’ll know the results earlier. But ultimately, it always comes down to how close elections are and always has. Even if there were only 2,000 absentee ballots, it took many days if the difference between the winner and the loser was less than the number of votes left to count.

“I don’t even mean hundreds of thousands, let alone, you know, millions. That’s why it can take so long. And there was a question earlier about, like, did they stop counting when it’s clear who won and who lost. It has really never been the case. It’s just people stopped paying attention. But those election workers are still working around the clock for up to 20 days after election day to make sure that every vote is counted, whether the outcome of that election is clear or not.”

Do you track a registration by age, and if so, are there any trends with newly eligible (voters)?

Al Schmidt: The Shapiro administration on September 19th of last year implemented automatic voter registration in Pennsylvania. And really what that was, it was changing it from an opt-in process, which is when you see the screen and it says, would you like to register to vote? It basically changes it to an opt-out process that says you’re now about to be registered to vote. If you don’t want to be registered to vote, you don’t have to be.

“…it’s resulted in a pretty decent increase in newly registered voters as a result of that process at PennDOT where you’re showing up, you’re providing all of your information, far more information than you need to register to vote, all in that place.

“There have been different trends that we’ve seen in terms of activity. When I worked for the Republican party, I don’t know how long ago it was, 15 years ago, something like that. There were about a million more registered Democrats than Republicans in Pennsylvania.

“I think that number is down to 300 and some thousand more Democrats than Republicans in Pennsylvania. That didn’t just change yesterday. It didn’t change last week. It didn’t change last year. That’s been a trend over the past 15 years, but you can see those trends sort of like shifting.

“And then there was a real percentage increase in more Republicans registering than Democrats after the first debate, and then it sort of swung back after the president decided not to run for re-election. There were more Democrats registering than Republicans, but generally what’s going on in the environment affects those kind of voter registration trends. And obviously you can’t vote if you’re not registered to vote. And this in no way minimizes how important that is. But in my experience, politically, and in terms of being an election administrator, voting patterns, voter registration is a lagging indicator.

“People already start voting some way. Their views have changed or they have those views and then register with that party after the fact. People don’t usually change their party affiliation and then decide to vote that way. So when you see those balances changing, it’s frequently voter registration, I think, catching up to the reality of voter behavior."

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