ELECTION LAW

REVIEW AND UPDATE

ADOPTED BY LWVPA STATE CONVENTION, JUNE 7, 2015

Deadline for Local Leagues to submit consensus question responses: March 1, 2017.

i

Table of Contents

Introduction p. 1 1. Voter Registration p. 5 2. Election Day Procedures p. 11 3. Alternative Election Systems Study Guide p. 21 4. Primary Elections p. 47 Appendix – Local Government in Pennsylvania: A Supplement to the Election Laws Review and Update Study Guide p. 59

Introduction

LEAGUE OF WOMEN VOTERS OF PENNSYLVANIA ELECTION LAW REVIEW AND UPDATE

As recommended by the State Board, delegates to the June 2015 State Convention voted to approve the following update:

“Review and update Election Laws Positions, focusing specifically on apportionment and redistricting, election procedures, registration requirements, alternatives to closed primaries and alternatives to ‘winner take all’ election systems.”

Rationale for recommending the update:

“While both LWVUS and LWVPA have positions on many aspects of election law, there are many areas of concern not adequately addressed by either. It is unclear when our current Election Laws position was adopted. Some changes have been made in recent years including the addition of a ballot access position, a position supporting voter verifiable paper ballots as the official ballot, support for no excuse necessary absentee voting and dropping our support for the closed primary. However, the rationale behind many of the other positions is unclear, making it difficult to lobby in their support. Over the past decades there have been many changes in registration and voting technology and election administration which suggest that a comprehensive review of our present position is needed.”

Following the Convention, the Board formed an Update Committee to prepare materials for Local Leagues to use in preparing their members for participation in and arriving at consensus. First, the committee reviewed the current LWVPA positions, as presented in Where We Stand, the LWVUS position as presented in Impact on Issues, and various other LWVUS and LWVPA documents. This included testimony presented at the national and state levels.

The committee found that existing materials already covered well most of the issues presented for review and update. Knowing that LWVPA could take action at the state level, based on national positions, the committee narrowed the scope of the study to 25 topics, grouped into four broad categories:

1. Voter registration: o election day voter registration, o youth pre-registration, o primary voting at age 17, o national voter registration act, o automatic voter registration, o universal automatic voter registration, o non-incarcerated felon voting rights, and o documentary proof of citizenship requirements for registration.

2. Election day procedures: o poll watchers and election day challenges of voters, o no-fault absentee voting, early voting and vote by mail, o emergency absentee ballots, o prison voting, o straight-party voting option, and o internet voting.

3. Alternative election systems:

LWVPA ELECTION LAW REVIEW AND UPDATE

2 Introduction

o instant runoff voting, o the Borda count, o approval voting, o range voting, o mixed-member proportional vote, o single transferable vote, o limited voting, and o cumulative voting.

4. Primaries: o open, closed, semi-open and semi-closed primaries and o top two and top four primaries or blanket primaries.

The study materials also include a summary of the myriad local government structures used in Pennsylvania. Some of the proposed alternative election systems might be more suitable for adoption at the local level. However, one size will not fit all.

In reviewing these materials, members might want to remember these principles.

The League of Women Voters believes that voting is a fundamental citizen right that should be guaranteed.

Elections should be accessible, transparent, fair, and secure.

Voters should have meaningful choices when they go to the polls.

Election policies should aim to achieve universal voter participation.

Access to voting should be barrier-free.

Every vote should count, and every vote should matter.

Outcomes should reflect the values and opinions of all Americans.

Timeline for the Update

June 2015: The Election Law Review and Update was proposed and passed at the biennial Pennsylvania League of Women Voters Convention in Pittsburgh, PA.

August 2015: The committee was selected and approved by the LWVPA Board of Directors.

September 2015 to June 2015: Update materials, consensus questions, resources and timeline under development

June 2016: Consensus questions were approved by the LWVPA Board of Directors.

July-August 2016: Presentation materials were prepared and posted on the LWVPA website.

September 2016 – February 2017: Local Leagues meet to review and discuss materials and come to consensus.

March 1, 2017: Consensus reports due to LWVPA website at www.palwv.org

March – April 2017: Committee analyzes the data from consensus and writes a revised Election Law position paper.

May 2017: Board of Directors reviews the consensus results for comment and approval of revised Election Law position.

June 2017: The new Election Law position is distributed at the LWVPA 2017 Convention with ideas for education and advocacy.

LWVPA ELECTION LAW REVIEW AND UPDATE

3 Introduction

Update Committee

Co-chairs:

Carol Kuniholm ckuniholm@verizon.net, LWV of Chester Co. and State Board, Election Reform and Social Media

Lora Lavin, lavin@steuber.com, LWV of Central Delaware County, Former State Board, Representative Government

Voter registration:

Nancy Nixon, LWV of Carlisle Area

Alternative election systems:

Jack Nagel, LWV of Central Delaware County, Professor Emeritus of Political Science at the University of Pennsylvania, where he taught courses and conducted research on electoral systems

Lora Lavin, LWV of Central Delaware County, covered election law issues and Representative Government Specialist for LWVPA

Primaries:

Mark Lafer, LWV of Centre County, previously served on the county-level response to the issue of K-12 high-stakes testing in Pennsylvania

Tina Smith, LWV Abington-Cheltenham-Jenkintown. Past president of LWV of Northeast Montgomery County, 28 years Voters Guide editor

References

Brennan Center for Justice, Voting Rights and Elections, www.brennancenter.org/issues/voting-rights-elections.

Election Laws Background, http://www.palwv.org/wp-content/uploads/2014/03/157_ElectionLawsBackground.pdf.

Election Laws Detailed Position, http://www.palwv.org/wp-content/uploads/2014/03/158_ElectionLawsPositioninDetail.pdf.

Fair Vote, http://www.fairvote.org/.

League of Women Voters of the United States, Impact on Issues, A Guide to Public Policy Positions, http://lwv.org/content/impact-issues.

League of Women Voters of Pennsylvania, Where We Stand, Positions on Issues, Pennsylvania Department of State. Bureau of Commissions, Elections & Legislation. Administration of Elections. Statutory Reference Guide, http://www.dos.pa.gov/VotingElections/Documents/Elections%20Division/Administration/Election%20statutory%20reference%20guide.pdf.

Pennsylvania Department of State, Pennsylvania Election Reform Task Force, Final Report on Executive Order 2004-11. http://www.dos.pa.gov/VotingElections/OtherServicesEvents/Events/Documents/PERTF_Final_Report_051705_Website.pdf.

LWVPA ELECTION LAW REVIEW AND UPDATE

4 Introduction

Pennsylvania Department of State. The Pennsylvania Manual.

Constitution of Pennsylvania, http://www.dgs.pa.gov/State%20Government/Print,%20Design%20and%20Mail%20Services/Documents/Vol%20121%20-%20Section%202.pdf.

Elections, http://www.dgs.pa.gov/State%20Government/Print,%20Design%20and%20Mail%20Services/Documents/Vol%20121%20-%20Section%207.pdf.

Local Government,

http://www.dgs.pa.gov/State%20Government/Print,%20Design%20and%20Mail%20Services/Documents/Vol%20121%20-%20Section%206.pdf.

Pennsylvania Department of State, VotesPA, www.votespa.com.

Pennsylvania Election Code, http://www.legis.state.pa.us/WU01/LI/LI/US/PDF/1937/0/0320..PDF.

Suggested Reading

The American Voting Experience: Report and Recommendations of the Presidential Commission on Election Administration, https://www.supportthevoter.gov/files/2014/01/Amer-Voting-Exper-final-draft-01-09-14-508.pdf

Improving Elections in the United States: Voices from the Field, A Report of the National Commission on Voting Rights, September 2015, http://votingrightstoday.org/ncvr/resources/electionadmin

Verified Voting - Internet Voting, https://www.verifiedvoting.org/resources/internet-voting/

LWVPA ELECTION LAW REVIEW AND UPDATE

5 Registration

1. Voter Registration

Since its founding, the League’s primary activity has been to encourage informed citizen participation in government starting with participation in voting. In almost all states, citizens must register to vote. Therefore, local and state Leagues have supported programs to make voter registration more accessible and to have active voter registration outreach programs made possible by the institution of registration by mail. These include setting up voter registration tables at events such as meetings, street fairs, new citizen naturalization ceremonies, places frequented by coming of age voters, such as high schools and colleges, and places where unregistered citizens might congregate, such as hospitals. Some Leagues have also set up voter registration events for employers and public housing residents.

The League has also participated in programs calling attention to voter registration, such as National Voter Registration Day and Rock the Vote. Most importantly, the League advocated for enactment of the National Voter Registration Act, sometimes nicknamed Motor Voter, which requires state governments to offer voter registration to citizens applying for government assistance and driver’s licenses. The National Voter Registration Act established the responsibility of government to offer voter registration to citizens actively rather than passively expecting citizens to apply.

The League also supported the Help America Vote Act, which requires states to setup centralized voter registration databases. Pennsylvania calls this the Statewide Uniform Registry of Electors (SURE). The Act also requires anyone showing up to vote, whose name is not on the voter rolls, to have the opportunity to cast a provisional ballot, which is counted later if the voter’s registration is verified.

It also assists voters who have changed their address of registration. Their provisional votes count for those national and statewide candidates who are on the ballot at both the old and new address, such as president, U.S. Senator, and governor, and possibly members of Congress and the state legislature.

The League has also advocated for programs allowing citizens to register online, and has supported allowing citizens both to register and to cast a ballot on the date of a primary or general election. The latter has significantly increased voter participation in states that have it.

Local Leagues can be active in registering voters in several ways.

1. Attend naturalization ceremonies and register new citizens during the reception that follows the ceremony.

2. Visit local nursing homes and retirement communities and register residents.

3. Set up a table on move-in day at a local college or university to register students, and to remind them that, if they want to vote in their home election district, that they will need an absentee ballot.

4. Ask the PTA at local schools to allow registration of voters at their first meeting of the year. Many parents move over the summer, and this is a good time to find them.

5. Colleges often have a day when they introduce new students to the school’s co-curricular offerings. A voter registration table works well at these events.

6. Develop a program in your local jail, in conjunction with the Department of Corrections, to register inmates and to provide absentee ballot applications. Inmates jailed for

LWVPA ELECTION LAW REVIEW AND UPDATE

6 Registration

misdemeanors or awaiting trial are eligible to vote. Those reentering society after incarceration can also receive registration applications.

LWVPA Position on Voter Registration

According to “Where We Stand,” the League supports:

increasing the ease and accessibility of registration, and

maintaining accurate and current voting lists.

Adding the following actions can expand the LWVUS position:

allowing citizens to both register to vote or change their registration status on the day of a primary or election, and

allowing voters to provide information that was missing on their voter registration forms on the day of a primary or election.

Election-day voter registration

In 14 states voters can both register to vote or change their registration status and cast a ballot on the day of a primary or general election. This makes voting more accessible for first-time voters and those who have changed their name or address, and for those who wish to change their party affiliation. In 2012, voter turnout was 10 percent higher in the 14 states that have same-day registration.

Providing registration information on Election Day (LWVUS supports)

Voter registration offices are required to try to contact applicants if their registration forms are missing information. Sometimes attempts to obtain the information are unsuccessful. This policy would allow applicants, who show up to vote but are not on the rolls because of an incomplete application, to supply the missing information and cast a provisional ballot.

National Voter Registration Act (NVRA)

The National Voter Registration Act (sometimes known as motor voter), requires Pennsylvania and other states to offer voter registration to eligible citizens whenever they apply for or renew a driver’s license, at all offices that provide public assistance, and at all offices that provide state-funded programs primarily engaged in providing services to persons with disabilities. The Pennsylvania Department of State publishes an annual report documenting compliance with this requirement. Now that Pennsylvania has begun to implement online voter registration, it should be possible to link Department of Motor Vehicles and other offices to the Department of State online system, making compliance easier and more efficient. Furthermore, under the settlement of a lawsuit, school districts must offer voter registration to students with disabilities as part of their transition to adult life. Again, school districts can satisfy this requirement by offering voter registration to all eligible students.

NVRA requires that citizens, who sign up for health insurance under the Affordable Care Act, receive an offer of voter registration. This is happening in most states that have state-run health care exchanges. However, citizens applying for health insurance in states using federal exchanges do not receive this opportunity. LWVUS is working to expand the reach of NVRA by requiring the offering of voter registration in connection with all applications for insurance under the Affordable Care Act.

LWVPA ELECTION LAW REVIEW AND UPDATE

7 Registration

Non-incarcerated felon voting rights

In Pennsylvania, ex-felons no longer incarcerated, inmates jailed for misdemeanors, and jailed inmates who are awaiting trial may vote. Only incarcerated felons may not vote. However, there is no program for offering voter registration and absentee ballot applications to eligible inmates and to inmates upon their release from jail.

Documentary proof of citizenship requirement for voter registration (LWVUS opposes)

Kansas, Alabama, Arizona, Georgia, and Tennessee are looking to require proof-of-citizenship for voter registration. These laws face legal challenges, and the LWV is a party in some of these cases. Advocates say this requirement would prevent fraudulent voting by non-citizens, such as illegal immigrants, and is necessary. In most states, registrants affirm their citizenship on the registration form, and there have been virtually no instances of fraud. The requirement would affect new registrants and others, including, those who change their surname at marriage or their address, and those who wish to change their party affiliation.

Documentary proof-of-citizenship is either a birth certificate, a passport (which you need a birth certificate to receive or a naturalization certificate. Many people do not have or do not have easy access to a birth certificate. The requirement would put an undue burden on would-be voters. Furthermore, it would preclude community-based voter registration drives that have added millions of voters to the nation’s voting rolls.

LWVPA’s Position on Registration Could be Expanded by Adding the Following Issues

Youth pre-registration

High schools would be the primary place for pre-registration for 16 and 17-year-olds. The League’s High School Voter Registration Project currently applies only to 18-year-olds. Hawaii and Florida are the only states that offer youth pre-registration. The NVRA requires special education offices within public school districts to offer voter registration to special education students when they become eligible. Special education offices can offer voter registration during annual Individual Education Program (IEP) meetings with students and their parents. As an alternative, school districts could satisfy this requirement by implementing a school-wide program for all voting age students that would include assistance in filling out the forms.

According to LWVUS’s “Empowering the Voters of Tomorrow,” approximately three-quarters of young people, who register, end up voting in major election years. Youth pre-registration would reach more people who do not frequent places that hold voter registration drives. Furthermore, too many young people report that it is lack of information and access – not lack of interest – that keeps them from voting. http://lwv.org/files/Empowering%20the%20Voters%20of%20Tomorrow.%202015.%20LWVEF.%20Full%20Manual.pdf

Primary voting at age 17

At least 21 states and the District of Columbia allow citizens who will be 18 on or before Election Day to vote in the corresponding primary or caucus. They are barred from voting on ballot issues or in special elections that may be on the primary ballot. Currently, Pennsylvania 17-year-olds who will be eligible to vote on Election Day do not have a voice in determining who will be on the ballot. Allowing students to vote while still in school reinforces what they are learning in their civics classes, and they can participate in voting with their peers. This policy could establish a habit of voting that carries throughout life.

LWVPA ELECTION LAW REVIEW AND UPDATE

8 Registration

Automatic voter registration (AVR)

Under an AVR program, a state department of motor vehicles automatically shares its database of the names and addresses of license holders with election officials. Entries include applications for original, renewal, lost or stolen licenses, and changes of name or address. Election officials then inform these prospective voters by mail that automatic registration will occur in 21 days, unless they opt out. Thus, as opposed to merely offering registration, the burden of registration shifts to government agencies rather than citizens.

On January 1, 2016, Oregon became the first state to implement AVR. The Election Division mails to each eligible voter a card and a stamped return envelope. If the recipients do nothing, they become a registered, non-affiliated voter (not a member of a political party.) To vote in primaries, they indicate their chosen party and mail back the card. Alternatively, they may opt out by so stating on the returned card. The institution of automatic registration added 34,000 new voters in the first three months of the year.

This program, as well as the current non-automatic motor voter programs in the other states, is currently limited to applicants for driver’s licenses, who are usually owners of automobiles. African Americans are five times less likely than whites are to own cars. Residents of urban areas are also less likely to own a vehicle. Therefore, AVR leaves out these segments of the population. Senator Bernie Sanders introduced an ARV bill on August 15, 2015, that would require each state to designate additional agencies that would transfer prospective voter information electronically to election officials for automatic registration. Former U.S. Attorney General Eric Holder has called for automatic voter registration since 2011 and, on May 18, 2016, stated, “Governments can, and should, automatically register citizens to vote by compiling –from existing data bases—a list of all eligible residents in each jurisdiction.”

LWVUS thinks automatic voter registration is a good idea but has concerns over current proposals that would rely on the use of department of motor vehicle records. One concern is the possible automatic registration of those who are not citizens. In order for automatic voter registration to work, it must connect to citizenship status.

Using lists of citizenship status raises concerns regarding privacy and the accuracy of the lists used. Additionally, this becomes a civil rights issue. Automatically registering non-citizens could expose them to prosecution and deportation by putting them in a position for which they are not responsible. Oregon has addresses these concerns in the following ways.

The system ensures that it automatically registers only U.S. citizens, because you must provide proof of legal status in order to obtain a driver’s license.

The Election Division will only mail out registration cards to people who have provided documentation that they are citizens.

Privacy is not a concern, because DMV records are not generally public. Only police and other agencies may access them and only for legitimate government purposes

More information about automatic voter registration appears at https://www.scribd.com/doc/289377031/Automatic-Permanent-Voter-Registration-How-It-Works

Universal automatic registration

Most democracies make voter registration automatic at age 18, or the age of majority. Therefore, the government, rather than its citizens, carries this responsibility. Government officials typically possess a large and current database of citizens, including names, addresses, and dates of birth. By using data-matching technology widely deployed in the private sector, it is not difficult to

LWVPA ELECTION LAW REVIEW AND UPDATE

9 Registration

establish a universal voter registration list. Without safeguards preventing inadvertent registration of non-citizens, however, universal registration raises the same concerns as automatic voter registration does.

References

Voter Registration as Part of Transition to Adult Life, PA Department of Education.

http://www.education.pa.gov/Documents/Codes%20and%20Regulations/Basic%20Education%20Ci

rculars/Purdons%20Statutes/Voter%20Registration%20As%20Part%20Of%20Transition%20To%20A

dult%20Life.pdf

Voting Rights of Convicted Felons, Convicted Misdemeanants and Pretrial Detainees.

http://www.cor.pa.gov/How%20Do%20I/Documents/Convicted_felon_brochure%20-

%20Voting%202016.pdf

Registration Consensus Questions

1. LWVPA supports enabling voters to provide missing registration information on Election Day and to vote on a provisional ballot.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

2. LWVPA supports youth pre-registration.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

3. LWVPA supports allowing 17-year-olds who will be 18 years old on or before a general election to register and vote for candidates in the primary election.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

4. LWVPA supports automatic voter registration and universal automatic registration as long as concerns over mistakenly registering non-citizens and others who are ineligible to vote are adequately addressed.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

5. LWVPA supports all programs, especially those run by LWVPA chapters, that offer voter registration and absentee ballot applications to eligible jail inmates and to inmates upon their release from jail.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

LWVPA ELECTION LAW REVIEW AND UPDATE

10 Election Day Issues

LWVPA ELECTION LAW REVIEW AND UPDATE

11 Election Day Issues

2. Election Day Procedures

Current League Positions: State and Local Leagues May Take Action under These Positions

Provisional voting

Provisional voting must address the inability of polling place officials in many locations to check the status of the voters on the official list. Solutions must encourage alternatives such as the low-tech use of provisional ballots or the high-tech use of laptop computers that provide access to the official list at polling places.

Absentee voting

Support no-excuse necessary absentee voting. Absentee ballots should be required to arrive at the election office by Election Day. There should be uniform standards for handling and counting absentee ballots.

Voting equipment standards

Local and county government should evaluate (and upgrade if necessary) maintenance and storage procedures for voting equipment, as well as procedures for providing technical expertise and needed repairs on Election Day.

Election funding

State and county governments should place election funding on a priority line in their budgets.

Accessibility

States should create uniform, nondiscriminatory standards for the voting process to allow citizens with disabilities to vote privately and independently at each polling place. Localities should ensure that persons with disabilities have full, nondiscriminatory access to polling places and the ballot.

Polling places and poll workers

States should set uniform, non-discriminatory standards for public and voter notification of polling place locations.

States and localities should ensure that each polling place has the capacity to serve its voters equally, with all other polling places in the state, and is open long enough to provide every eligible voter a convenient opportunity to vote.

States and localities should expand voter information activities including:

providing registered voters with sample ballots before Election Day,

giving notice to voters of their appropriate polling place locations, and

providing public and voter notification of voter’s rights at the polling place.

States should authorize adequate compensation for poll workers.

Local and county governments should upgrade training opportunities for poll workers.

Election Procedures

LWVPA supports:

LWVPA ELECTION LAW REVIEW AND UPDATE

12 Election Day Issues

state administered elections with a single appointed official having authority to define responsibilities and to direct the activities of county and district election officials,

appointment of district election officers by county boards of elections, from lists submitted by political parties on the basis of bipartisan representation, qualifying tests, and mandatory training,

use of public buildings as polling places wherever practical,

display of identification badges by election officials,

increased use of the provision that watchers may be appointed to serve in districts other than their own,

strict enforcement of present election procedures,

extension of election hours,

intensified voter education in methods of splitting a ticket, and

nonpartisan election of school directors as an interim step toward the ultimate goal of nonpartisan election of school directors, LWVPA supports cross-filing on the ballot by candidates for school director.

Voting systems

The League supports only voting systems designed so that:

They employ a voter-verifiable paper ballot or other paper record, said paper being the official record of the voter’s intent.

The voter can verify, either by eye or with the aid of suitable devices for those who have impaired vision, that the paper ballot/record accurately reflects his or her intent.

Verification takes place while the voter is still in the process of voting.

Audits and recounts use the paper ballot.

The vote totals may use an independent hand count of the paper ballot/record for verification.

The conduct of routine audits may use paper ballot/record in every election, in randomly selected precincts, with results published by the jurisdiction.

Absentee voting

The League supports:

simplified procedures for all qualified absent electors,

guarantees against fraud, and

protection of the secrecy of the ballot, including the counting of absentee ballots at the county level.

The League believes the only absentee voting provision in the Constitution should be that it is mandatory upon the legislature to provide for civilian absentee voting.

The League believes that any qualified elector should be able to choose to cast an absentee ballot without a reason.

An overview of voting in Pa appears at https://ballotpedia.org/Voting_in_Pennsylvania.

LWVPA ELECTION LAW REVIEW AND UPDATE

13 Election Day Issues

Items for Study and Consensus

Poll watchers and Election Day challenges of voters

Poll watchers are private citizens appointed by a political party, candidate, or an organization to observe the election process. The term can encompass activities before, during, and after the day of a primary or general election, but is generally applies to people authorized to be inside the area where voting is taking place.

Poll watchers are not poll workers. Poll workers are the people elected and appointed to administer the voting process at each polling place. They include the elected Judge of Elections who oversees everything, machine inspectors who operate the voting equipment, and appointed clerks who check the poll books, to assure the proper registration and signature of each voter.

Poll watchers are also different from the individuals deployed by nonpartisan organizations, such as the Philadelphia-based Committee of Seventy, to serve as polling place observers. Observers are there to answer questions and to help voters, but lack authorization to be inside the polling place.

Poll watchers generally have the charge to ensure the integrity of the election process. Nevertheless, overly aggressive poll watching can also be a source of voter intimidation and suppression. They can also be a source of embarrassment, when they challenge the right of an individual to vote.

In Pennsylvania, poll watchers may have lists of registered voters and may check off the names of people who vote. They may communicate this information to candidates or parties throughout the day so they may contact those who have not voted.

In Pennsylvania, each candidate may appoint two poll watchers for each polling place at which the candidate is on the ballot. Each political party, which has nominated candidates on the ballot at a polling place, may appoint three poll watchers. There is no provision for appointing poll watchers, to represent organizations supporting or opposing ballot issues or non-partisan organizations, with a general interest in election integrity, such as the League of Women Voters. Each poll watcher must be a qualified registered voter of the county in which the polling place is located. Each watcher has the authority to serve in his or her appointed election district and, when the watcher is not serving in the assigned election district, in any other election district in the county in which the watcher is a qualified registered voter,.

Poll watchers must have a certificate from the county Board of Elections stating name and address and the candidate or party represented and must present the certificate when asked. Poll watchers may keep a list of voters and may challenge any person seeking to vote. After the polls close, they may also be inside the polling place during the vote count.

In Pennsylvania, an election officer, overseer, or official poll watcher may challenge any voter as to his or her identity, continued residence in the election district, or about any alleged violation of legislated voting procedures. If challenged as to identity or residence the voter must have a qualified voter from the district attest to his or her identity or residence. If poll watchers identify a problem, they must speak directly to a poll worker, not the voter. If a voter’s name is not on the voter rolls, or there is no other way to establish eligibility to vote, he or she is entitled to cast a provisional ballot.

Poll watchers may also challenge an absentee ballot for any one of three bases.

1. The voter is not a qualified voter.

2. The voter was within the municipality of residence on the day of a primary or election while the polls were open.

LWVPA ELECTION LAW REVIEW AND UPDATE

14 Election Day Issues

3. The voter was physically able to appear personally to vote on Election Day while the polls were open.

All challenged voters receive a notice, as is anyone making the challenge, as to the time and place of a hearing on the challenge.

The Election Code requires a challenger to act in good faith. However, the challenge does not required completion of a form or a signature.

Some states have very liberal policies regarding who may be a poll watcher. At the other extreme, a few states do not allow anyone to be in the polling place, except poll workers and those waiting to vote or in the process of voting. Pennsylvania has seen the introduction of similar legislation. At one extreme, it would permit the appointment of any registered voter in the state, regardless of residence, to serve as a poll watcher in any election district. At the other extreme, it would restrict the appointment of poll watchers to registered voters residing in the election district.

Some states require formal training. Others require that candidates or parties certify that their watchers have received training. Other states require no training. In Pennsylvania, proposed legislation would require that poll watchers take training and obtain certification before performing duties.

The following is an excerpt from an American Bar Association document relating to poll watchers:

ABA poll watcher recommendations

Poll Watchers. Qualified political parties and candidates should be authorized to designate poll watchers at each polling place and central counting station. If poll watchers have not been designated by qualified political parties or candidates, then stakeholders of referenda or ballot initiatives should be authorized to designate poll watchers at each polling place and central counting station. The numbers of poll watchers at each location should be limited to avoid undue crowding. Parties or candidates designating poll watchers should certify in writing that each designee has been instructed as to the responsibilities of the position. Poll watchers should not be limited to those who reside in the precinct or election jurisdiction.

Observation by Poll Watchers. Poll watchers should be permitted to observe all official acts and records used at the polling places, to challenge unqualified voters, and to challenge improper voting practices. Poll watchers should present all objections and challenges directly to the Election Day officials, and should not confront or harass voters. Methods should be developed to minimize the disruption and delay of challenge procedures. Election Day officials should keep a record of all challenges by poll watchers, including the names of the challenging poll watchers. States and the federal government should ensure that voters are not challenged in contravention of the Civil Rights Act and Voting Rights Act.

All states should provide Election Day officials with formal training. Provisions also should be made to provide formal training for poll watchers as well.

No-fault absentee voting, early voting and vote by mail

Currently, Pennsylvania only permits voters to use an absentee ballot if they submit a signed application stating that they have a valid reason for absentee voting (Article VII, Section 14 of the PA Constitution). VotesPA.com lists numerous acceptable categories of citizens who may vote absentee. The primary reasons are (1) duties, occupation or business requires their absence from the municipality of residence or (2) cannot attend proper polling place because of illness or

LWVPA ELECTION LAW REVIEW AND UPDATE

15 Election Day Issues

physical disability. Litigation has made absentee voting available to citizens, who cannot vote in person because of incarceration for misdemeanors or pre-trial detention, although official lists may omit these reasons,

Pennsylvania voters may apply for and cast an absentee ballot through the mail. They may also visit the county election office, apply for an absentee ballot, and cast the ballot during the same visit. Those applying for absentee ballots must provide a driver’s license number, last four digits of their Social Security number, or a copy of an acceptable photo identification that is current, shows name, and an expiration date. Acceptable photo identification includes:

United States passport,

United States military identification,

employee identification issued by a federal, state, county or municipal government,

identification issued by an accredited Pennsylvania public or private institution of higher learning, and

identification issued by a Pennsylvania care provider, including long-term care facilities, assisted living residences, and personal care homes.

County election boards verify the information before counting the ballot.

Twenty-seven states and the District of Columbia allow no-fault absentee voting. This permits any qualified voter to obtain an absentee ballot, without giving an excuse. LWVUS and LWVPA have positions supporting no-excuse-necessary absentee voting. Changing the law in Pennsylvania to allow no-excuse absentee voting may require amending the commonwealth constitution.

Some view allowing no-excuse absentee voting to be a form of early voting. Thirty-four states and the District of Columbia allow such in-person early voting: voters may visit an election office or a satellite voting location to cast a ballot, without explaining why they cannot vote on Election Day.

Vote by mail

At least 22 states use mail voting for certain elections. Three states – Oregon, Colorado, and parts of Washington State – use all mail voting. This is another form of no-excuse, absentee voting. Oregon’s LWV supported the bill creating it. The convenience of this system increases voter participation and makes absentee ballots and early voting unnecessary. Additionally, it has saved Oregon three million dollars annually, since switching from polling locations, poll workers, and voting machines.

Every registered voter receives a ballot by mail two weeks before Election Day. Voters place their completed ballots in a secrecy envelope and either mail it back to the elections office or place it in one of special ballot return boxes. The elections office or ballot return boxes must receive all ballots by 8:00 p.m. on Election Day. The possibility of fraud is a concern. However, in the 17 years of Vote by Mail in Oregon, there have been only nine convictions of voter fraud, out of the 15 million ballots cast. Each envelope has a unique barcode, and election officials verify every signature. People can check online to make sure that theirs was a counted ballot. Voters also get a mailed Voter Pamphlet, with information about the candidates and ballot issues.

There is universal agreement that absentee voting should be available to people who cannot vote in person. Nevertheless, there is general agreement that absentee voting increases the opportunity for voter coercion and voter fraud, because the voter casts the ballot without the protections provided at polling places. This is also true of all-mail voting. So the question becomes, do the benefits of making voting more convenient outweigh the risks? Participation in

LWVPA ELECTION LAW REVIEW AND UPDATE

16 Election Day Issues

early voting has increased, but evidence that it results in a significant overall increase in voter participation is unclear.

In-person early voting does not have the same degree of risk. However, it poses the question of how to make the opportunity equally accessible to all voters. Legislatures, in some early voting states, have recently passed laws reducing early voting hours, especially on Sundays. Proponents of early voting say these actions selectively aim at reducing participation in African American communities.

Proponents of expanding opportunities for voters to cast ballots, without having to go to the polls on a specified day, say that the added convenience is popular among voters in states that have the policies and may boost participation, especially in non-presidential election years. Certainly, early voting and vote by mail fits with modern life styles that include long commutes to work, shift work, business and vacation travel, two-worker families, child care, etc. Early and mail voting helps people to avoid long waits at the polls and may even reduce long lines. In addition, unexpected, last minute problems can prevent people from going to the polls. Pennsylvania provides for casting an emergency absentee ballot when unexpected problems arise, but exercising this right is cumbersome (see below).

Some arguments for increasing alternatives to voting in person on Election Day include:

allowing voter to cast their vote when they are able to,

allowing voter to balance work, family, and other interests, including their civic duty to vote,

decreasing barriers to voting, such as time, distance, and schedules,

giving voters time to understand complicated issues and crowded candidate fields, so they can make informed choices, and

eliminating problems with ballots being cast in the wrong precinct and reducing provisional ballots (which may remain uncounted).

Some arguments against increasing alternatives to voting in person on Election Day:

possible voter coercion, absent the secrecy of a polling booth and the physical presence of election officials to enforce rules,

possible fraud, absent any way to determine if the individual filling out the ballot was truly that voter, such as comparing a signature with one on file, and

possible security issues, with the potential loss or damage of mail-in ballots that rely on unsecured methods of delivery.

Emergency absentee ballots

In Pennsylvania, registered voters who know in advance they need to vote absentee, must submit their requests at least one full week before Election Day and then return the ballot by 5:00 p.m. the Friday before Election Day. If circumstances change after the application deadline, Pennsylvania provides two ways to cast an emergency absentee ballot: one for Tuesday to Friday before Election Day, and one for after 5:00 p.m., on the Friday before Election Day through 8:00 p.m., on Election Day

The current processes are difficult, especially for those in a hospital or otherwise confined to a bed. Both processes require a notary, and if the reason is sickness or physical disability, a doctor’s signature. The second process also requires a judge’s signature. In other words, the process requires trips to notaries, the Election Division office, and possibly a trip to the court.

If voters are unable to deliver applications and ballots or appear in court in person, they must sign a form designating an agent to assist them. Designated agents must also sign a form agreeing to be the authorized representative. All these forms are downloadable from VotesPA.com.

LWVPA ELECTION LAW REVIEW AND UPDATE

17 Election Day Issues

If the voter is unable to obtain assistance, a judge will direct a deputy sheriff to deliver the absentee ballot to the voter, if the voter is located within the county. Hospitals and nursing homes usually have a notary on staff. However, this does not help someone confined at home. As with regular absentee ballot applications, a driver’s license number, last four digits of a Social Security number, or acceptable photo identification must accompany the application. Voters may submit the application by letter, but must have all the required information on the official form.

Can the process be simpler? A regular absentee ballot application does not require a notary, making unclear the reason to require a notary for an emergency application. Eliminating this step might reduce complexity.

The existence of the Emergency Absentee Ballot is not widely known or advertised. If no-excuse necessary absentee balloting were available, those who think they might not be able to vote in person, due (for example) to an anticipated operation or conflicting work schedule, could use this option.

Prison voting

The Election Code provides that the county chair of each political party and head of each political body (minor party) may designate a representative to visit every public institution within the county, on a day fixed by the county Board of Elections, to collect the names and addresses of residents who wish to vote by absentee ballot. Each requester then receives an application by mail.

On the Friday before Election Day, the county Board of Elections then sends teams of three members to the institutions (one team member appointed by each of the three members of the elections board) to collect the voted ballots and return them to the Board of Elections. The definition of public institution in this context means, “institutions primarily maintained by the federal, state, or local governments and includes, but is not limited to, veterans’ hospitals and homes, State hospitals, poor houses and county homes.” It is not clear if public institution could also apply to places such as prisons, where some residents meet the qualification to vote, because they are not convicted felons.

Straight-party voting option

According to the National Conference of State Legislatures, 14 states, including Pennsylvania, offer straight party voting options on their ballots. Selecting this option chooses all the candidates affiliated with the selected party, in all the contests, by selecting one box or pushing one button, rather than selecting candidates individually. It is also possible to split one’s vote (split a ticket) by selecting the straight party button or lever and then go down the ballot, to change one or more votes for individual races, to a candidate from another party.

The Pennsylvania Election Code requires voting systems to provide a straight-party voting option in November (and special) elections. This option is not available in primaries, as it makes no sense, under current commonwealth primary rules.

Straight party voting was the norm in the United States, before the advent of the secret ballot in the late 19th century. Voters would simply deposit a paper – identified by shape or color, containing a list of that party’s endorsed candidates – into the ballot box. They could also cast ballots for individual candidates. Now, the common practice of listing all candidates of the same party in one column on the ballot facilitates straight party voting. Voters can individually select or mark every candidate in the column, elect to cross over to another party column for some races, or simply press the straight party button or mark the straight party box.

LWVPA ELECTION LAW REVIEW AND UPDATE

18 Election Day Issues

In some states, that do not have the straight party option, the ballot lists all candidates for the same office together in a single column. This design actually discourages voting for candidates of only one party.

Straight party voting is popular with voters and speeds up voting. This is especially true in big cities, where elections involving multiple races at the state, county, and local levels lead to lengthy ballots. The Pennsylvania Election Code does prohibit a voter from spending an unreasonable amount of time in a voting booth or compartment; the limit is three minutes.

The straight party option also helps parties to educate their supporters who have limited reading or language skills. Nevertheless, selecting the straight party option places substantial faith in the political parties, to field qualified candidates for all offices, while discouraging voters from considering the merits of individual candidates. It can also contribute to the extreme polarization, which has caused partisan gridlock at the national and state levels in recent years.

Since 1994, seven states have abolished straight party voting. Indiana modified its law requiring those opting for just one party on the ballot to take the additional steps of selecting individual candidates in all at-large, multiple seat races, such as those for some county or municipal councils.

The decision to keep or eliminate straight party voting can be political, depending on whether the party in power believes the option helps or hurts candidates down the ballot. In Pennsylvania, elections for county and local offices and state and local judgeships occur in odd numbered years; whereas presidential, congressional, and statewide offices including governor, attorney general, treasurer, auditor general, and state legislative races occur in even numbered years. Gubernatorial elections do not occur in the same year as presidential elections. Elections for attorney general, treasurer, and auditor general take place in presidential election years. Under straight party voting, top of the ballot races do not significantly affect local races, but can have an effect on other down the ballot races held in the same year as a presidential or gubernatorial election.

Many voters do not really understand the straight-party option. They think that this option asks them to select their party of registration. Some people find overriding some selections confusing, after using the straight-party option. LWVPA does not have a position in support of or opposed to straight party voting, but does recommend more voter education in how to split a ticket.

Internet voting

The idea of internet voting is appealing, especially for overseas and military voters. According to Verified Voting, 31 states and the District of Columbia allow military and overseas voters to return voted ballots electronically via email or a web portal. Using postal mail can take a long time. However, experts in internet security (including the United States Department of Defense and the National Institute of Standards and Technology) warn that it is “currently not possible to ensure the security, privacy auditability and integrity of ballots sent over the internet” (https://www.verifiedvoting.org/resources/internet-voting/).

Credit card companies, stock exchanges, government agencies, and other organizations, with resources to defend themselves, still experience hacking. However, they have systems to identify and correct errors over time. Even if elections offices had the necessary budget and technical expertise to defend against internet threats, there is no way to trace and correct a cast ballot.

Most election-integrity professionals accept electronic transmission of the application for an absentee ballot and the delivery of the blank ballot to the voter, to save time. However, they recommend returning the ballot by mail.

LWVPA ELECTION LAW REVIEW AND UPDATE

19 Election Day Issues

In Pennsylvania, overseas civilian and military voters, with a residence in Pennsylvania, may apply for an absentee ballot application on-line and elect to receive a blank ballot electronically. Nevertheless, they must return the voted ballot by standard mail.

If an official printed ballot is not available in time for the on-time return of the ballot, the applicant may receive a special write-in absentee ballot. This lists all offices on the ballot, but omits the names of the candidates. The voter receives the names later.

Military voters have until a week after Election Day for their ballots to arrive at the Elections Divisions. The vote certification does not occur until 20 days after an election. A qualified overseas or military voter may have an adult member of his or her immediate family sign the absentee ballot application.

Suggested Reading

Geffin, E. (2015). Watching the watchers: An analysis of poll watcher statutes in the United States. Student Works, Paper 2. http://digitalcommons.law.uga.edu/stu_papers/2

This is a comprehensive overview of Election Day poll watching and the pros and cons of the wide range of statutes governing the process in the states. It also has a model statute governing poll watching.

The National Association of Secretaries of State has a brief state-by-state summary of laws governing who may be a poll watcher and who is authorized to challenge voter eligibility. Access to the document is at http://www.nass.org/reports/surveys-a-reports-2/.

Consensus Questions

1. LWVPA believes poll watchers who challenge a voter’s eligibility at the polls should be required to write out their challenge and sign an affidavit (with and Elections Officer as witness) that the challenge is truthful and in good faith.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

2. LWVPA believes poll watchers should: (Choose 1)

a. Be required to reside in the election district where they are serving_____

b. Be required to reside in the county where the election district they are serving is located____

c. Can be from anywhere in the state regardless of the location of the election district they are serving__

d. None of the above____

3. LWVPA believes that both Poll Workers and Poll Watchers should be required to take training authorized by the state.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

4. LWVPA believes that the election code should allow nonpartisan organizations to appoint poll watchers when those organizations actively support or oppose a ballot issue.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

5. LWVPA supports measures to make voting more accessible by providing any registered voter with alternatives to casting a ballot in person on the day of a Primary or Election.

LWVPA ELECTION LAW REVIEW AND UPDATE

20 Election Day Issues

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

6. LWVPA supports Vote by mail

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

7. LWVPA supports simplifying the processes for casting an Emergency Absentee Ballot, including eliminating the need to have the application notarized.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

2.

8. LWVPA supports utilizing the internet to transmit applications for absentee ballots and blank ballots for all voters.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

9. LWVPA believes that because of security concerns, at this time the return of voter absentee ballots should be by hand or via US mail.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

10. Regarding straight party voting, LWVPA believes that Pennsylvania should retain its current system.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

11. LWVPA believes that provisions in the Election Code that facilitate absentee ballot application and voting by residents of public institutions should be extended to residents of local, state and federal penal institutions who are qualified to vote.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

Comments:

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

21 Primaries

3. Alternative Election Systems Study Guide

The purpose of this study is to determine if LWVPA should adopt a position in support of

alternatives to the plurality or winner-take-all election systems used in most state and local

jurisdictions to elect candidates for public office. It assumes that election systems fall into two

categories, depending on whether the vote for a particular office will elect a single winner or

multiple winners.

Single-winner systems elect executive officers, such as governor, mayor, attorney-general, etc.

Elections for legislatures and councils based on single-member districts (SMDs) also use this

method. SMD elected bodies currently include the U.S. House of Representatives and both

chambers of the Pennsylvania General Assembly. Elections for the U.S. Senate are functionally

single-winner, because even though each state has two senators, they stand for election in

different years.

Multiple-winner systems elect two or more persons to the same office at the same time. In

Pennsylvania, this occurs when electing members at large (rather than from single-member

districts) for municipal and county councils or commissions and for school directors.

Some alternative methods for electing legislators retain geographic districts, but choose two or

more winners from multi-member districts (MMDs). Some Pennsylvania school districts use

MMDs. Multiple-winner methods also apply to judicial elections, when electing two or more

members of a court on the same ballot. For example, in November 2015, Pennsylvanians elected

three justices of the Pennsylvania Supreme Court, from a field of seven candidates.

Some Pennsylvania municipalities and school districts have mixed systems, electing some

members of the legislative body at-large and the rest from single or multi-member districts.

Single-winner Elections

Most single-winner elections in Pennsylvania use the single-vote plurality (SVP) method: Each

elector may vote for one and only one candidate, and the candidate with the most votes (a

plurality) wins the election. Also known as first past the post, this traditional system has the

advantage of simplicity; indeed, it is the simplest possible method.

Potential problems with single-vote plurality elections

As long as only two candidates compete for each office, SVP gives the same result as would most

alternatives. Thus, there is no reason to resort to a more complicated method. However, when

three or more significant candidates compete, single-vote plurality elections can result in the

following problems.

Winners with less legitimacy. With two candidates, a plurality is automatically a majority (more than 50 percent). If multiple candidates compete, the plurality winner can receive much less than a majority of votes. Such a result may weaken the victor's legitimacy in the eyes of the public.

Failure to represent majority preferences. Despite low vote shares, some plurality winners can be the true choice of an underlying majority, in the sense that they would beat any of

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

22 Primaries

their opponents in a one-on-one contest. Voting theorists call such a candidate the Condorcet winner, after an 18th-century French mathematician. They often use the Condorcet criterion to test for the attainment of majority rule. Unfortunately, multi-candidate SVP contests sometimes elect narrowly supported candidates, whom the majority of voters dislike and oppose. It could be a leader of the political right wing or left wing. In such cases, plurality rule is tantamount to minority rule.

Spoilers. When a plurality election fails to choose the Condorcet winner, a losing candidate has functioned as a spoiler. That is, in a two-way contest, A would defeat B, but with C on the ballot, B defeats A. Spoiler effects abound in American elections. The best-known example is Ralph Nader in the 2000 presidential election. If he had not been on the ballot in Florida, most observers agree that Al Gore would have won that state instead of George W. Bush, swinging the Electoral College from Bush to Gore.

Strategic dilemmas. Voters who genuinely prefer a potential spoiler confront a dilemma: Should they vote sincerely for their true favorite, at the risk of electing the candidate they like least, or should they vote strategically, for whichever of the two front-runners they consider the lesser evil? To the extent that voters choose the strategic option, election results will understate the true level of support for the potential spoiler and the policies he or she advocates.

Restriction of ballot access. Fear of spoilers motivates major parties and favored candidates to do all they can to keep minor parties and independents off the ballot. They do this by enacting difficult requirements for ballot access and by challenging signatures, when minor parties or candidates try to surmount those hurdles. Like strategic voting, denial of ballot access suppresses dissenting and potentially innovative political viewpoints.

Does Pennsylvania Need Alternative Methods for Single-Winner Elections?

Given that the impetus to consider alternative methods for single-winner elections comes from

problems that can occur with multi-candidate competition, how often do such contests appear

on Pennsylvania ballots?

Presidential elections. Fringe candidates are usually on the ballot in presidential elections. However, significant third-party candidacies are far from rare; they have competed in five of the last 12 elections (1968, 1980, 1992, 1996, and 2000).

State and local offices. In Pennsylvania executive and legislative elections, single-winner contests with three or more significant candidates are relatively rare, in part because the Commonwealth’s ballot access rules are strict. Minor party and independent candidates must obtain nominating paper signatures equal to at least two percent of the largest vote cast for an elected candidate in the last election within the district. Sometimes this number is many times larger than the number of nominating petition signatures needed for major party candidates to compete in the major party primary.

LWVPA supports legislation that would make the petition signature requirements for minor

party and independent candidates the same as for major party candidates. If, as LWVPA

recommends, Pennsylvania liberalizes its ballot access rules, multi-candidate contests

could become more common.

Primaries. Multi-candidate contests are frequent in primary elections, except when a party has an incumbent running for re-election. For example, in 2016, there were four

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

23 Primaries

candidates seeking the Democratic nomination for U.S. Senate. In 2014, four Democrats competed in their party's primary for Governor. The commonwealth could consider some, but not all, of the alternatives outlined below, as part of proposals for reforming (or even abolishing) primary elections.

Tested alternatives for single-winner elections

Reformers and theorists have proposed innumerable novel methods for electing single winners,

but only two alternatives have received extensive tests in government elections. These are the

runoff and the instant runoff. Both aim to have elections won by a majority of votes, rather than a

mere plurality.

Runoffs

The runoff is also known as the two-round system or the second ballot. Like the conventional

method, the runoff uses a single-vote ballot: each elector may vote for one and only one

candidate. However, to win, a candidate must receive a majority (more than 50 percent) of the

votes. Some countries require a lesser threshold, e.g., 40 percent or 45 percent. If no candidate

reaches the threshold, the top two vote-getters advance to a second round of voting (the runoff),

which occurs a short time after the first round.

Worldwide, the runoff is the most common method in use for direct election of presidents. A

number of American states, mostly in the South, use runoffs for primary or general elections, or

both. France and some other countries, including many former French colonies, also use a variant

of the runoff for legislative elections. (In French legislative elections, any candidate winning 12.5

percent of the vote in the first round may advance, though some may choose not to compete in

the runoff.)

The standard version of the runoff ensures that the victor will receive a majority of votes cast in

either the first or (if necessary) the second round of voting. This method also reduces the

likelihood of a strategic voting dilemma. In the first round, voters can support a favorite with little

hope of winning (e.g., Nader) and then switch to the lesser evil in the second round. Although the

runoff does not guarantee to elect the Condorcet winner, it is more likely to do so than SVP. The

runoff does guarantee not to elect the most unpopular candidate: someone who would lose to any

of the other candidates in a one-on-one contest is sure to lose in the final round.

The runoff has two major drawbacks. First, it is costly to the government, parties, and voters to

hold a second round of voting, if the first does not result in a majority winner. Second, turnout may

differ substantially between the two rounds. Thus, the numerical appearance of majority rule may

be misleading if a shrunken electorate, in either the first or the second round, affects who wins.

Instant Runoff Voting

Instant runoff voting (IRV) is also known internationally as the alternative vote or majority

preferential voting. Its American supporters, led by the national reform organization FairVote,

have recently taken to referring to IRV as Ranked-Choice Voting. However, that label describes

only the balloting method and obscures the distinction between IRV and a method of proportional

representation that the second section of this briefing will describe.

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

24 Primaries

In an IRV election, voters rank candidates in order of preference: 1 for first choice, 2 for second,

and so on. The first round of counting tallies only first preferences. If one candidate receives a

majority (more than 50 percent) of first preferences, that candidate wins the election. If no

candidate has a majority, the process eliminates the candidate with the fewest first preference

votes and transfers the votes of his or her supporters to their second choices. If those transfers

enable a candidate to reach a majority, that person wins. If not, the process of candidate

elimination and vote transfers repeats, until a candidate attains a majority.

As its name suggests, IRV aims at the same goal as the runoff--majority rule--without requiring voters to come to the polls a second time. Instead of multiple rounds of voting, IRV substitutes multiple rounds of vote counting. However, the two methods will not necessarily elect the same winner.

The runoff eliminates all but two candidates simultaneously, whereas IRV eliminates candidates sequentially, one at a time. In addition, campaigning and endorsements by eliminated candidates, between the first round and the runoff, may influence votes in the runoff. In addition, under IRV, all campaigning and agreements among candidates (about their recommendations for later preferences) must occur before Election Day. Also, differential turnout does not affect IRV. However, if some voters do not rank all the candidates, their ballots may become exhausted and thus not tallied in later rounds of counting.

Contrary to some claims that the instant-runoff system eliminates spoilers and strategic voting, far-sighted voters will still have an incentive to vote strategically in some situations. Consider an election with candidates L, R, and C (left, right, and center). If C is the first choice of fewer voters than either L or R, and no one votes strategically, then the first round will eliminate C. However, if supporters of L expect that their favorite will lose to R in the runoff, whereas C could defeat R one-on-one, they might want to shift their votes to C in the first round. This possibility also applies to conventional runoff voting. The proper claim is that IRV and conventional runoffs reduce the likelihood of spoilers and strategic voting compared with single-vote plurality.

Australia has more than a century's experience employing IRV for SMD legislative elections,

including the federal House of Representatives and the lower chambers of state legislatures.

Ireland uses the method to elect its president. Britain considered adopting IRV for parliamentary

elections, but voters defeated the proposed reform in a 2011 referendum. In the United States, a

number of municipalities in California and Minnesota have adopted Ranked Choice Voting,

including IRV for executive elections. The League of Women Voters of Maine supports a 2016

initiative to adopt IRV for major elections in that state. Eleven other state League chapters have

also adopted positions expressing support for IRV.

Less tested alternatives for single-winner elections

Of the many other methods for electing single winners invented by theorists and would-be

reformers, three are worth noting here. The first is well known in non-governmental uses and

might be confused with IRV. The second and third have vigorous proponents, who often oppose

IRV.

The Borda count

Named for another 18th-century French mathematician, Jean-Charles de Borda, the Borda count,

like IRV, uses a ranked-choice ballot, but its decision rule is entirely different. It awards a

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

25 Primaries

candidate one point for each first-choice vote, two for each second choice, etc. It then sums points

for each candidate, and the candidate with the lowest point score wins. Alternatively, the process

inverts the points, so that the highest score wins.

Similar methods are used for determining team scores in track meets and other athletic contests

and for deciding baseball's most valuable player. Committees and clubs often use the Borda count

in hiring or membership decisions. Nevertheless, more than two centuries after its invention, only

a few tiny places have used the Borda method for government elections. The reason is that the

method is easily and obviously manipulable by strategic voting. For example, if the two

frontrunners are candidates A and B, a voter intent on electing A has an incentive to rank B last,

even if she sincerely considers B the second-best candidate.

Because many people are familiar with the Borda count (though few know its name), they may

assume that IRV and Borda are the same thing, especially if IRV is promoted as "Ranked-Choice

Voting". That confusion could affect votes in legislatures or referendums on whether to adopt IRV.

Adopting IRV makes a public education campaign essential to inform voters that casting sincere

votes for second- and third-choice candidates, etc., will not hurt their favorites' chances. Using a

shorthand term, Borda violates the later no-harm criterion; IRV does not.

Approval voting

Approval voting (also known as approval plurality) is similar to single-vote plurality in that each

vote is binary: a candidate either receives a vote or does not, with no ranking, and the decision

rule is plurality. Its novel feature is that electors may cast votes for (or approve) as many

candidates as they wish. For example, if candidates A and A' appeal to the same group of voters,

members of that group may vote for both and thus avoid losing to the candidate of a smaller bloc.

Since it was first proposed in the 1970s, a number of academic and professional associations

have used approval voting. No governmental body has adopted it, although one early political

experiment occurred in Pennsylvania, a 1983 presidential straw vote by the state Democratic

Committee.

In some instances, approval voting has worked as intended. However, the discretion it gives

voters as to how many candidates to approve introduces a great deal of strategic uncertainty. To

use the example above, candidates A and A' are still competing with each other: only one can

win. Thus, each candidate will face the temptation to induce at least some supporters to bullet

vote for only him or herself.

Thus, approval voting, like the Borda count, violates later no-harm. This logic can lead approval

voting to degenerate to SVP, the system it intended to replace. Nevertheless, approval voting

continues to receive vigorous advocacy, notably from a group called the Center for Election

Science.

Range voting

Range voting (aka score voting) asks electors to give each candidate a numerical score, from a

specified range (e.g., 0 to 5, or 0 to 10). These scores are ratings rather than rankings, and more

than one candidate may receive the same score. Cumulative or averaged candidates’ scores

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

26 Primaries

determine the winner. This system resembles innumerable rating and feedback surveys online;

therefore, voters will be familiar with the technique. Nevertheless, its use in seriously competitive

elections is suspect.

Regardless of their true judgments, voters will be more likely to see their first choice win if they

give the highest possible score to their favorites and a zero score to the candidates whom they

like least. This strategic behavior loses the gradations of enthusiasm that proponents intend range

voting to reflect.

Some voters may even give all candidates either a maximum or a minimum score. In this case,

range voting is equivalent to approval voting. Advocates of the two systems recognize this

possibility. Consequently, they often work together, particularly in opposing instant-runoff voting,

despite the fact that they agree with proponents of IRV about deficiencies of conventional single-

vote plurality.

Legislative and Other Multiple-Winner Elections

The single-winner reforms described above are also applicable to legislative elections conducted

using single-member districts. However, in evaluating electoral systems for an assembly or

council, satisfying the will of the majority in each district is not enough. One must also consider

the composition and functioning of the legislative body as a whole. How well does it reflect and

respond to all the people of the state, county, or municipality? From this broader perspective,

SMD legislative elections in Pennsylvania suffer from severe deficiencies that no single-winner

electoral reform will solve. This is especially true for the two chambers of the General Assembly.

Problems with Legislative Elections in Pennsylvania

Many informed citizens are aware of the shortcomings listed below. Nevertheless, few recognize

how all are rooted in the system of electing legislators exclusively from single-member districts.

While these problems are most often associated with elections to the state legislature, they may

also occur in local elections.

Gerrymandering

Whenever geographic constituencies elect legislators, the location of district lines strongly influences – in many cases, predetermines – election results. SMD systems are more vulnerable to manipulation of boundaries than any other system. By devices such as packing (concentrating the supporters of a party in as few districts as possible) or cracking (dispersing the supporters of a party across two districts, so it will have a majority in neither), partisan decision-makers can shape the legislative map to their own advantage.

The temptation to gerrymander is virtually irresistible whenever politicians control the districting process. Both Democrats and Republicans indulge in the practice. However, after the 2000 and 2010 censuses, the Republicans (who controlled the Pennsylvania general assembly both times) carried it to extreme levels. In fact, the landmark United States Supreme Court case concerning gerrymandering (Vieth v. Jubilerer, 541 U.S. 267 [2004]) responded to a challenge to Pennsylvania's post-2000 congressional district map. In that case, a 5-4 Court majority declined to interfere with partisan gerrymandering. Thus, there were no legal barriers in the post-2010

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

27 Primaries

redistricting. The process created Pennsylvania's current Seventh District, often cited as one of the most grotesque congressional districts in the U.S.

Ordinary legislation determines congressional districts in Pennsylvania, but a bipartisan

legislative commission proposes districting for the state legislature. After challenges supported

by LWVPA, the Pennsylvania Supreme Court moderated somewhat the commission's post-2010

state house and senate plans. The resulting state legislative maps appear to be primarily

incumbent-protection gerrymanders, guaranteeing safe seats for most members of both parties.

Gerrymandered political maps dismay citizens and make a mockery of geographic representation.

Reforms that take control of redistricting away from elected officials and emphasize traditional

districting criteria, such as compactness and respect for county and municipal boundaries, would

lessen cynicism and make constituencies more meaningful. Nevertheless, neutral districting

processes and criteria will not fully solve all the problems inherent in SMD legislatures. Indeed,

strict adherence to purely geographic criteria might even exacerbate the next two problems

discussed below. That is because political demography, sometimes called unintentional

gerrymandering, can produce results similar to deliberate packing. This is especially true in states

such as Pennsylvania, with Democratic voters concentrated in urban centers and Republicans

benefitting from more widely dispersed support.

Lack of competition

In Pennsylvania, deliberate gerrymandering and political demography combine to prevent serious

political competition in nearly every district. In November 2014, only 4.5 percent of 246 state and

federal legislative races were truly competitive, with the winner's vote exceeding the loser's by

less than 10 percent: nine of 203 for the state house, two of 25 for the state senate, and zero of

18 for the United States House of Representatives. More than half of the winners (126 of 246)

faced no opposition from the other major party: three members of Congress, nine state senators,

and 114 state representatives.

The scarcity of competitive elections has follow-on effects that undermine the quality of

democracy and government. Voting turnout declines, as parties in most places do not gain by

campaigning vigorously, and citizens believe (correctly) that their votes will not matter. Lacking

the spur of competition, legislators are susceptible to complacency and corruption. Where the

only serious threat to re-election comes from primaries dominated by ideological voters and

special interests, Republicans pull to the right and Democrats to the left, exacerbating legislative

polarization. Furthermore, Pennsylvania's closed primaries leave unaffiliated voters virtually

disenfranchised in most legislative districts.

Partisan bias

Applied to a legislature, the democratic principle of majority rule entails that, if either party receives

the majority of votes added across all districts, that party should win a majority of seats. In

Pennsylvania, intentional gerrymandering combines with political demography to violate this basic

requirement of fair competition. Calculations indicate that in 2014 Democrats would need to have

won about 55 percent of statewide votes for each chamber to win a bare majority of

Congressional, state Senate, or state House seats, whereas Republicans could have maintained

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

28 Primaries

their control of each body with as little as 45 percent of the vote. This un-level playing field is not

a new or temporary phenomenon. Since 1992, Republicans have had a majority of the state

Senate after every election and have lost control of the state House of Representatives in only

four of 24 years (and then only by very narrow margins). In statewide contests over the same

period, Democrats have won every presidential election and three of six gubernatorial elections.

Systemic bias in legislative elections has consequences far more important than the

disappointment suffered by losing candidates of the disadvantaged party. Continuation of the un-

level playing field virtually guarantees divided control of government whenever a Democrat serves

as governor. When legislators do not need to compete for the middle ground, parties become

more polarized. The combination of divided government and polarization all too often produces

legislative paralysis, exemplified by the budget deadlock of 2015-16. When compromises occur,

they more frequently block or dilute the programs of Democratic governors, while requiring fewer

concessions from Republican governors. The result over time is substantial harm to the interests

of Democratic constituencies, as is evident in the ongoing funding crisis of urban school systems.

Those constituencies, disillusioned by the policy failures of the chief executives they help elect,

are increasingly likely to become cynical and politically disengaged.1

Under-representation of women and minorities

Around the world, single-member plurality legislatures tend to have fewer women members than

legislatures elected by some of the alternative systems discussed below. Because only one

person can win per district, winner-take-all competition tends to produce negative, harshly

adversarial campaigns. In addition, legislative service that pays a good salary puts a premium on

individual ambition and careerism. Fewer women than men are able or willing to enter such a

demanding and distasteful arena. In Pennsylvania, which pays the second-highest legislative

salaries in the U.S., the tendency to under-represent women is especially strong. After the 2014

election, just 18.0 percent of state senators and 18.5 percent of state representatives were

women. Women's overall share of seats, 18.2 percent, ranks a dismal 39th among American state

legislatures, which average 24.4 percent. Partly because service in the state legislature is a typical

stepping-stone to the U.S. Congress, Pennsylvania's record is even worse at the national level.

The state's 18-member House delegation currently includes not one woman. Pennsylvania has

never elected a woman to the U.S. Senate; that fact may or may not change in November 2016.

SMD legislatures also often under-represent minority racial or ethnic groups. In Pennsylvania, the

geographic concentration of African-Americans in urban districts results in only a slight under-

representation of members of that group. They constitute 10.0 percent of the state's population,

compared with 8.5 percent of state representatives and 8.0 percent of state senators. However,

only one of 18 members of Congress is African-American. (The serpentine lines of Pennsylvania's

First congressional District were drawn to give the district an African-American plurality. However,

Philadelphia Democratic Party Chair Bob Brady, who is white, has held the seat since 1998.)

Other minority groups, chiefly Hispanic and Asian, constitute about nine percent of the state's

1 The same problem is developing at the federal level.

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

29 Primaries

population, but have only 1.5 percent of state representatives and no state senators or Members

of Congress.

Another criticism of SMD elections is that they promote a two-party system and make it difficult if

not impossible for minor parties to win representation. Because of the two-party tradition in the

U.S., many citizens will not regard this effect as a problem. For those who wish to preserve the

dominance of two major parties, fine-tuning of the design features of the alternative systems

discussed below can either impede or facilitate minor parties.

Reform Options for Legislative Elections

As background for understanding the options that follow, it will be useful briefly to describe two

polar-opposite multi-member systems, neither of which would be a good choice for elections in

Pennsylvania.

The first is the multiple-winner extension of single-winner plurality: To fill M positions, each elector may vote for M candidates. Each vote counts equally, and the M individuals with the most votes win. If the members of the party or group with a plurality of votes agree on the same M candidates, their favorites will sweep all the seats, shutting out candidates from smaller parties or groups. Thus this system is often called the bloc vote, even if there is no legal requirement that people vote only for candidates from the same party.

For example, in New Jersey – which uses the bloc vote to elect its Assembly from two-member districts – 38 of the 40 districts currently have both members from the same party. Similarly, the at-large election of members of the five-seat Delaware County Council is by bloc voting. Even though a significant proportion of the county population is African American and/or vote for Democrats, no racial minority or Democrat has ever won a seat on the county council.

Sometimes, voting for just one party's bloc of candidates is a legal requirement. The best-known example is the Electoral College. In all states except Maine and Nebraska, citizens vote for statewide slates of electors pledged to a particular candidate, and the slate receiving a plurality of votes gets all the state's electors. For the Electoral College, and for any assembly or council elected at-large, bloc voting is the extreme version of a winner-take-all electoral system.

At the other end of the spectrum is party-list proportional representation (list PR). In the purest

form of list PR (exemplified by the Netherlands and Israel), all members of the legislature are

elected from nationwide party lists. Citizens cast votes for parties, not for individuals. However,

the system is not winner-take-all. Instead, a formula designed to achieve proportionality between

seats and votes determines the number of seats each party gets. Parties rank candidates on

their lists in order to determine the sequence in which they will fill the available seats.

PR systems of this sort eliminate the districting problem at the expense of doing away with

geographic representation. They ensure a high degree of proportionality, and thus tend to produce

intense competition and high turnout. They typically result in multi-party legislatures, requiring

cooperation among two or more parties to pass legislation. However, those legislative majorities

usually represent a majority of voters.

Most PR systems include higher percentages of women and minority members than do

legislatures based on single-member districts. Despite these advantages, pure forms of list PR

are unlikely reforms in Pennsylvania or the U.S. generally: they lack geographic representation

and give great power to political parties. Consequently, reformers in the U.S. and other countries

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

30 Primaries

with similar political traditions tend (for different contexts) to favor either or both of the next two

systems.

Mixed-member proportional (MMP)

West Germany pioneered the mixed-member proportional electoral system after World War II,

and MMP has successfully operated in Germany ever since. In 1992 and 1993 referendums, New

Zealanders chose MMP to replace Pennsylvania-style single-member plurality elections for

Parliament. That success helped inspire the adoption of MMP, also known as the additional

member system, for new assemblies in Scotland, Wales, and London. Michigan reformers have

recently proposed a version of MMP under the label Districts Plus.

MMP would be especially suitable if Pennsylvania merged the Senate and House into a new unicameral General Assembly. Such a reform could reduce the size of the legislature, a goal sought by many reformers. The method could also apply to either or both of the existing chambers. In any of these applications, election of the majority of legislators would be by plurality from single-member districts, just as they are now. In addition, a significant number of additional members would be drawn from statewide lists nominated by the parties--thus the mixed-member and additional member descriptions: the chamber mixes constituency and additional at-large representatives.2

A formula designed to establish proportionality between each party's statewide vote and its total number of legislators determines the allocation of additional members to each party. In this feature, known as compensatory allocation, the assignment of list seats compensates for departures from proportionality that would otherwise result from the distribution of votes across districts.

Because votes in every district affect the number of additional members each party wins, parties

have an incentive to compete everywhere. Republicans will seek votes in cities, and Democrats

will appeal for rural support. Similarly, voters in every district of the state will cast meaningful

votes; therefore, turnout should increase. The compensatory formula guarantees that the party

receiving the most votes statewide will win the most seats. Consequently, the system has no

partisan bias, and there will be no profit from partisan gerrymandering. Nevertheless, MMP should

represent a complement to redistricting reform, rather than a substitute or rival. MMP by itself

would still give politicians an incentive to manipulate district lines to protect incumbents, and it

does not change the desirability of ensuring sensible and meaningful constituencies.

In Germany and New Zealand, MMP has increased the representation of women and ethnic minorities. Parties appeal for their votes by including members of those groups among their list candidates, if too few are likely to win district seats. The extent to which women and minorities gain from MMP depends on the number of additional members relative to the total size of the chamber. If the share of list seats is the bare minimum needed to ensure proportionality – e.g.,

2 Philadelphia's City Council already has a two-tier mixed-member system. However, the selection of at-large members uses the limited-vote method, described later in this report, not by the proportional formula required for MMP.

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

31 Primaries

20 percent as in the proposed Michigan plan – gains will be relatively slight.3 In contrast, Germany, with 50 percent list seats, and New Zealand, with 42 percent, currently have 36 percent and 31 percent women members in their national legislatures.

Would MMP help minor parties win representation? That depends on choices made about details

of the system. In one-vote MMP, citizens cast just one vote, for a district candidate. However,

allocation of additional members depends on the parties' statewide totals. Minor parties would

have a difficult time competing under one-vote MMP, because they probably will not have the

resources to run candidates in all districts.

Internationally, most MMP systems use a two-vote method. Citizens cast one vote for a district

candidate and another vote for a political party. The second vote determines how many total seats

the parties will get. In this version of MMP, a small party can compete for party votes, even if it is

not able to run candidates in many constituencies. Another design feature affecting the prospects

for minor parties is the use of a vote threshold. In both Germany and New Zealand, a party must

receive five percent of the party vote to qualify for additional members. (Both countries make an

exception for minor parties that win constituency seats. One district victory in New Zealand and

three in Germany will qualify a small party to share in the system-wide allocation.) The process

could also set a higher threshold. Thus, Pennsylvania can tweak the details of an MMP reform,

depending on whether the goal is to give minor parties a better chance or to preserve a two-party

system.

Proponents consider MMP the best of both worlds. It maintains the Anglo-American tradition of

representation based on local geographic constituencies. At the same time, it ensures the overall

fairness and majority rule that proportional representation is intended to achieve. For these

reasons, among others, a survey of international voting system experts ranked MMP higher than

any other method for choosing legislatures.

The single transferable vote (STV)

Nevertheless, a second reform option also enjoys strong support among some experts and

reformers, including leaders of the principal U.S. election reform organization, FairVote. This is

the method of ranked choice voting (RCV) in multi-member super districts. This system would

typically include three to five times as many residents as current single-member districts. To avoid

confusion with RCV in single-winner elections (instant runoff voting), this briefing will use the more

traditional term, single-transferable vote (STV). The method is also known as quota preferential

voting.

Ireland has used STV since 1921 to elect its parliament, the Dàil. Australia uses the method to

elect members of the federal Senate and the upper chambers of most state legislatures. Various

countries have also employed STV to elect local councils and boards, including the City Council

of Cambridge, Massachusetts.

3 The Michigan plan would also assign all compensatory accountability seats to losing district

candidates who made relatively good showings. Thus, female and minority candidates would first have to win district nominations in order to share in the compensatory allocation.

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

32 Primaries

As in its single-winner counterpart, IRV, voters in an STV election rank candidates in order of

preference. Also as with IRV, the first round of counting only tallies first preferences. However,

because STV elects multiple winners in each district, candidates win the election if they exceed

a quota of votes smaller than a majority. The usual quota is the total number of votes divided by

M + 1, where M is the district magnitude: the number of representatives from the district. For

example, when electing four members, all candidates who receive more than 20 percent of first-

preference votes win election.

If fewer than M candidates win on first preferences, a second departure from the IRV formula occurs. Instead of immediately eliminating the candidate with fewest votes, STV begins by transferring surplus votes from winning candidates. That is, it reassigns ballots, beyond those a candidate needs to surpass the quota, to the voters' second choices. Various methods exist for deciding the choice of ballots for transfers. These include random selection and fractional weighting of all ballots that supported winning candidates. Computerized transfers are advantageous unless the electorate is very small. The choice of a transfer method can affect who wins after the first round of counting. It is also necessary, in both IRV and STV, to tally ballots centrally in each constituency before carrying out transfers.

If these downward transfers do not enable the full complement of M candidates to exceed the

quota, then the system resorts to upward transfers, as in IRV, by eliminating the candidate with

fewest first preferences. If necessary, downward and upward transfers repeat until the process

fills all M seats. The purpose of having two types of transfers is to minimize the number of wasted

votes: those cast for a candidate who receives more votes than necessary or for one who receives

too few. Thus, nearly all voters help elect someone: if not their first choice, then a second or third

choice.

STV appeals to reformers in Anglo-American countries, because it preserves the tradition of voting for individuals rather than parties. In contrast, other forms of proportional representation require a vote that is explicitly or implicitly for a party. In the one-vote version of MMP, electors vote for individual candidates, but those votes also count statewide for candidates' parties.

Voting for candidates rather than parties makes STV especially suited for local elections, where the ballot is non-partisan or voters do not much care about party cues. In a partisan STV election, a voter can cross party lines, perhaps ranking a Green first, a Democrat second, a Republican third, and so on. A voter who wants to support candidates based on a criterion that transcends party, such an environmentalism or gender, might follow such a strategy.

Voters under STV are capable of sensible rankings only if district magnitude remains low and not too many parties compete. Constituencies for the Irish Dàil range from three to five members each, a magnitude usually considered the best range for STV districts.

A typical Australian Senate election fills six seats from each state, and five or six parties nominate candidates. Because Australian federal elections require voters to submit a complete ranking of all candidates, voters must rank-order thirty or more candidates! However, Australia permits parties to file recommended rankings not only of their own candidates, but also of candidates from all parties. Voters may indicate on the ballot that they wish to follow a particular party's ranking, and 98 percent of voters take that option. Thus, a system designed to maximize individual discretion, if it demands too much of voters, can end up functioning like one based on party lists.

Compared with MMP, STV offers a less certain remedy for problems that afflict elections for

Pennsylvania's state legislature. It keeps geographic districts and offers no statewide corrective.

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

33 Primaries

Therefore, gerrymandering is still possible and potentially profitable, although larger, fewer

districts offer less potential for mischief.4 With multi-member districts, both major parties can win

at least one seat in most districts throughout the state, so they should compete more widely and

broaden their geographic bases. Seats won should become more nearly proportional to votes,

but small-magnitude districts and absence of statewide aggregation mean that proportionality will

be less than with MMP. For the same reasons, STV does not guarantee that a party with a majority

of votes will win a majority of seats.5 With parties making multiple nominations per district and

voters able to crisscross party lines, women and minority candidates will probably fare somewhat

better than under the present system. However, the international experience on women's

representation is not conclusive. The Dàil has only 16 percent women members, less than the

Pennsylvania General Assembly. On the other hand, 38 percent of Australian Senators are

women.

To weigh against its possible advantages, STV has at least two potential drawbacks. First, the

process of transferring votes is complicated to explain and requires esoteric decisions about

alternative methods. Second, candidates may compete as much, or more, with other candidates

from their own party, as against candidates from other parties.

Parties can reduce intra-party competition by nominating slates with fewer than M candidates.

However, if they do so in many districts, then the vigor of inter-party competition decreases.

Combining STV, in general elections, with the abolition of party primaries might also be possible.

In that case, intra-party competition in the general election might simply be a way to carry out the

competition within parties that already occurs in primaries, but with lower cost and a larger

electorate.

Regardless of how one judges its merits compared with MMP, STV offers an option for reform in settings where MMP is not feasible, either because elections are non-partisan or because the number of legislators is too small to allow for sufficient compensatory seats. Such settings include most municipal councils, school boards, and other local bodies. Elections to the U.S. House of Representative are also a better fit for STV than MMP, except in states with very large delegations. States with just one or two Members of Congress are not suited to STV, but they could use the single-winner ranked-choice voting system, IRV.

Limited voting

Limited voting is a simpler multiple-winner system designed to guarantee representation for at

least one minority party. In a constituency that will elect M winners, limited voting requires each

elector to cast fewer than M votes. Each vote is binary: a candidate either receives a vote or does

not, and all votes count equally. The decision rule is multi-member plurality – the M candidates

with the most votes win.

4 Ireland's experience shows that STV also creates incentive for so-called magnitude gerrymanders. By re-drawing district lines to change the number of members elected from different districts, and thus raising or lowering quotas, partisan manipulators can influence how many quotas each party is likely to attain. This can sometimes occur without violating the usual geographic criteria. 5 Strictly speaking, the concept of a majority is ambiguous with any system of ranked-choice voting. Should it depend only on first preferences, or should it take into account later preferences?

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

34 Primaries

The Pennsylvania Constitution (art. IX, § 4) establishes limited voting as the default option for

electing the three-member county commissions. For each election, the ballot lists all candidates

and the vote determines the election for all three positions. However, each elector may only vote

for two. This system gives the smaller party a better chance of winning one seat.

The Constitution also allows counties to adopt alternative ways of electing the county legislative

body. Eight counties have done so: Allegheny, Delaware, Erie, Lackawanna, Lehigh, Luzerne,

Northampton, and Philadelphia. Among them, Philadelphia has retained limited voting for the at-

large tier of its Council. The Council has seven at-large members, but electors may vote for no

more than five. (A plurality vote determines the election of the other ten members from single-

member districts.) To protect further the minority party, each political parties may nominate no

more than five candidates.

The limited vote is an improvement over multi-member bloc voting, because it gives a better

chance of some representation to the minority party. It is also simpler to implement than MMP or

STV. On the other hand, without restrictions on nominations, such as those that Philadelphia

uses, succeeding under limiting voting can require rather sophisticated nomination and voter-

coordination strategies. If the smaller party nominates more candidates than it can hope to elect,

its nominees will compete primarily with each other rather than with candidates of the dominant

party. Indeed, a minority-party candidate may win by making a deal for votes from the dominant

party. If elected, such a victor will probably offer rather tame opposition. If opposition parties seek

to avoid such intra-party competition by adopting more cautious nomination strategies, there will

be little or no political competition, and no meaningful challenge to the power of the dominant

party.

Cumulative voting

Another multiple-winner option is cumulative voting. In the common version of this method, to

elect M candidates, each voter gets to cast M votes. For example, if a voter has three votes to

cast, she may allocate one vote each to three candidates, but she also has the option of

cumulating votes by assigning two votes to one candidate and one to another, or all three votes

to just one candidate. The tally process adds the votes, as if they were points, and the M

candidates with the most votes win. By coordinating their vote-assignment strategies wisely,

members of a minority group or party can win one or more seats where bloc voting would have

shut them out.

Illinois used cumulative voting in three-member districts to elect members of the state House of

Representatives from 1870 to 1980. The system had the virtue of electing some Democrats from

downstate and some Republicans from Chicago. Corporate stockholder voting often uses the

cumulative method. Councils and boards in some U.S. localities also use it to help elect more

members from minority groups.

Like limited voting, cumulative voting offers an improvement over bloc voting for small council,

commission, or board elections, when candidates run at-large or from multi-member districts. As

does limited voting, it requires sophisticated nomination and vote-coordination strategies to be

effective. It also presents the same danger of intra-minority competition, because the strategic

challenges posed by limited and cumulative voting are essentially equivalent. Both require each

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

35 Primaries

party or group to find an optimal way to allocate supporters' fixed numbers of votes among M or

fewer candidates.

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

36 Primaries

Appendix I

A comparison of election results using winner-take-all systems with selected alternative elections

systems.

Results using alternative election systems are more representative of the voter make up.

Election Results Differ

Depending on the Election Method Chosen

Adapted from: An Evaluation of Major Election Methods and Selected Election Laws, Fall 2000

by the League of Women Voters of Washington State..

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

37 Primaries

Appendix II

Appendix III

Example of Single Transferable Vote

The chart below shows the results of a partisan race using single transferable vote. Six candidates are running for three seats in a hypothetical district with 1,000 voters. Candidates Perez, Chan, and Jackson are Democrats, while candidates Lorenzo, Murphy, and Smith are Republicans. The district is majority Democratic; the Democratic candidates collectively earn 60 percent of first choices. However, a substantial number of voters prefer the Republicans.

In this simulation, Jackson is the most mainstream Democratic candidate, while Perez and Chan have support among Democrats, Independents, and even some Republicans. Similarly, Murphy

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

38 Primaries

and Smith are both mainstream Republicans, while Lorenzo has support among Republicans, Independents, and some Democrats.

With 1,000 voters, the election threshold is 250 votes (25 percent of 1,000).

A count of first choices elects the most popular Democratic candidate, Perez. Perez has 20 more votes than the threshold. Therefore, every voter who ranked Perez highest will have eight percent of their vote (20 divided by 250) count for their next choice. That is, these 20 votes will add to the total of other candidates in the next round. More than half of Perez voters ranked Chan second, with a smaller number ranking Jackson or one of the Republicans next.

Rounds two through four resolve vote splitting among the three Republicans and the two remaining Democrats. Round two eliminates the weakest Republican candidate, while Round 3 eliminates the weakest Democrat. When the one remaining Democrat passes the election threshold, most of her surplus goes to Lorenzo, who comfortably wins the third seat. Note that the final round three, leaves 45 unallocated ballots, because some of Chan's voters were indifferent to the two remaining Republican candidates and did not rank either of them.

The winners are Perez (D), Chan (D), and Lorenzo (R). If this were a single winner election, the most mainstream Democrat (Perez) easily would have won, leaving all others unrepresented. Instead, coalition building among the district's remaining center-left and center-right populations results in the election of two additional candidates. In the end, 96 percent of voters can point to a candidate whom they supported and helped elect.

If the election used bloc voting to fill these three seats, each voter would cast three votes for the three candidates they support. The most likely result would be a Democrat sweep of all three seats, because each Democratic voter could vote for all three Democratic candidates. In fact, even if the election used the single vote system (a weaker form of fair representation voting) to fill the three seats, Democrats still would have swept all three seats due to the split of the Republican vote among three candidates.

If the process to fill the three seats divided the district into three single-winner districts, the outcome would depend on how the district lines were drawn: to elect two Democrats and one Republican or to over-represent either party. Regardless, the district elections would probably not be competitive, and each district's primary election would likely weed out the candidates who won by coalition building.

By using ranked choice voting to elect three candidates for the seats, the election results fairly represent the district's diversity after a competitive election, without any opportunity for partisan gerrymandering.

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

39 Primaries

Limited Voting/Single-Vote Method

The simplest fair-representation voting method is the single vote method. The single vote method is a variant of limited voting, so-called because voters have fewer votes than the number of open seats. Each voter has one potent vote, and the candidates who receive the most votes win the election.

When electing officials at-large, state law requires some Pennsylvania counties to use limited voting with limited nominations. This means that political parties must nominate fewer candidates than the number of available seats. Local jurisdictions in Alabama and North Carolina have adopted the single vote or other variants of limited voting in response to lawsuits brought under the Voting Rights Act.

*Adapted from Fair Vote which used the term Multi Winner Ranked Choice Voting

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

40 Primaries

Appendix IV

SAMPLE BALLOTS

Single or Multi-Winner Elections

Multi-Winner Elections

Adapted from: “An Evaluation of Major Election Methods and Selected Election Laws,” Fall 2000 by The

League of Women Voters of Washington Education Fund

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

41 Primaries

Appendix V

MIXED MEMBER PROPORTIONAL REPRESENTATION (MMP)

SAMPLE BALLOTS

E

BALLOTS

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

42 Primaries

APPENDIX VI

State LWV Positions on Alternative Electoral Systems

Single-winner elections

Twelve state LWV chapters have positions in favor of instant-runoff voting (IRV). o Arizona o California o Florida o Maine o Massachusetts o Minnesota (as an option, along with plurality) o Nebraska (for primary elections) o North Carolina o Oregon (starting at the local level) o South Carolina o Vermont o Washington

The Florida and Indiana Leagues oppose conventional runoffs for primary elections.

The New Mexico LWV supports conventional runoffs for non-partisan elections.

Legislative elections

Six state LWV chapters have positions in favor of proportional representation, with varying degrees of specificity.

o Arizona (ranked choice voting [single-transferable vote] o Iowa (for local government charter commissions; presumably this would mean

RCV/STV) o Oregon (as option for local jurisdictions to explore) o South Carolina o Vermont o Washington (including RCV/STV and cumulative voting)

The Massachusetts League supports single-member districts for state legislative elections.

The New Jersey League supports single-member districts for state legislative elections and has two-member districts for its lower chamber, elected by the bloc vote.

Appendix VII

Source Material for State Positions on Alternative Election Systems

The FairVote website archive provides an undated summary of state LWV positions on Instant

Runoff Voting and Ranked Choice Voting [STV}. The document includes summaries for Arizona,

California, Florida, Massachusetts, Minnesota, North Carolina, South Carolina, Vermont, and

Washington. The most recent adoptions included in this file are from 2008.

http://archive.fairvote.org/media/irv/LWVIRVpositions.pdf

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

43 Primaries

For positions not included in the FairVote summaries, please follow the following links:

Indiana: http://lwvin.org/Positions_LWVIndiana_150324.html - s04

Iowa: http://www.lwvia.org/ - !blank/c1cld

Maine: http://www.lwvme.org/positions.html

Nebraska: http://www.lwv-ne.org/

New Jersey: http://www.lwvnj.org/images/issues/2015-2017_Study&Action.pdf

New Mexico: http://www.lwvnm.org/positions.html

Oregon: http://lwvor.org/wp-content/uploads/2015/12/Issues-for-Action-2014-15.pdf

Consensus Questions for Alternative Election Systems

There are three sets of questions: General, Single-winner, and Multiple-winner Elections.

General

1. It is important to use the simplest possible method of voting.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

2. It is important that voters understand how votes are tabulated.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

3. It is important to avoid a complex tabulation process in choosing a voting system.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

4. It is important for a voting process to help preserve the predominance of two major parties.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

5. An ideal voting system would encourage civility in election campaigns.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

Single-winner Elections

6. When three or more people seek election to a single-seat office like governor, the current

system allows the election of one of them with less than 50 percent of the vote (a plurality rather

than a majority). Lack of majority support reduces the perceived legitimacy of a plurality winner.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

44 Primaries

7. In multiple-candidate races, candidates who do not themselves win can be spoilers in that votes

cast for them change who does win. An ideal electoral system would reduce the likelihood that a

candidate who does not win could change the outcome.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

8. LWVPA should support an electoral system that encourages electors to vote for their true

favorite (sincere voting) rather than for someone whom they believe has a better chance of

defeating the candidate that they like least (strategic voting)

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

9. LWVPA should support an electoral system that guarantees that the winner will receive a

majority (not just a plurality) of votes

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

10. LWVPA should support an electoral system that guarantees the choice of a winner after just

one round of voting, rather than allow the possibility of a second, runoff election on a future date.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

11. A two-round system (i.e., a runoff, on a future date) would encourage more civility in

campaigns than the present system.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

12. An Instant runoff electoral system would encourage more civility in campaigns than the

present system

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

13. LWVPA should support a two-round runoff system for elections in which three or more

candidates are seeking a single office.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

14. LWVPA should support an instant-runoff (in which voters rank their preferences) for elections

in which three or more candidates are seeking a single office.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

45 Primaries

15. LWVPA should support a Borda count as an alternative for elections in which three or more

candidates are seeking a single office.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

16. LWVPA should support approval voting as an alternative for elections in which three or more

candidates are seeking a single office.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

17. LWVPA should support range voting as an alternative for elections in which three or more

candidates are seeking a single office.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

Legislatures and Other Multiple Winner Elections

18. In a legislature or council elected on a partisan basis, a fair electoral system would allow the

party with a majority of votes across the whole system to win a majority of seats

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

19. An ideal election system would level the playing field for women or other demographic groups

that have consistently been under-represented.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

20. Minority parties that receive a significant share of votes should win a corresponding share of

seats.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

21. An electoral system should reduce the possibility of and/or payoff for deliberate

gerrymandering of district lines.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

22. It is important for an electoral system to encourage competition in all legislative districts?

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

46 Primaries

23. It is important for an electoral system to avoid making candidates from the same party

compete against each other in the general election as much as (or even more than) they compete

against candidates from other parties.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

24. Which of the following alternatives to the existing single-member district plurality system

should the League support for elections to the Pennsylvania General Assembly? You may select

more than one if you wish.

__ Limited voting

__ Cumulative Voting

__ Single Transferable Vote

__ Mixed-Member Proportional

__ No Change

25. Which of the following alternatives to current systems should the League support for elections

to local bodies, such as county commissioners or municipal councils? You may select more than

one if you wish.

__ Limited voting

__ Cumulative Voting

__ Single Transferable Vote

__ Mixed-Member Proportional

__ No Change

26. The League should support the right of local governments, including school boards, to choose

a League-supported alternative election system for their own elections.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

47 Primaries

4. Primary Elections

Why do we have primary elections? They were not always a part of American politics: Until the

early 20th century, political party power brokers – the traditional smoke-filled backroom – chose

the nominees, not the wider range of that party’s membership. Pennsylvania has a long history

of utilizing the direct primary procedure, with some counties employing this method of selection

even before the Civil War, although it was a strictly local initiative and not a statewide practice.

The greater change was part of the late 19th and early 20th Century Progressive Movement to

make the election process more democratic. Pennsylvania authorized the direct primary system

in 1912 for the presidential race and in 1914 for both federal and statewide elections.

Even after adoption of the direct primary system, primary elections were still mainly the concern

of party regulars, not of the average voter, especially in presidential races. The 1960s and

1970s saw a change in the public’s attitude regarding the role of political conventions. There

were several contentious Republican conventions during that period. The 1968 Democratic

convention in Chicago was not merely contentious, but resulted in violence, observed by

American voters through television and the press. Today, some observers feel that the system

of primary elections only serves to make politics more polarized as, at least until 2016, it was

often only a party’s more strident and extreme members who voted.

As noted by the Primer on Primaries, issued by the National Conference of State Legislatures,

determining when and how to hold primary elections often puts partisan political considerations

front and center. However, there are other considerations.

It is up to state legislatures to establish rules and procedures for selecting candidates to run in

general elections, taking federal requirements, voter needs, and costs into account. These

ground rules are always subject to change. Within the past five years, over 40 states have seen

the introduction of more than 130 bills proposing changes to primaries. Currently, primaries use

a variety of systems. Some states even employ different formats in presidential and non-

presidential years.

Primaries categories can include open, closed, or somewhere in between. In this study,

references to political parties implies one of the nation’s two major parties, Republican and

Democratic.

Closed primary

In a closed primary, only those voters registered with a political party can vote in the primary for

that party. This is the current system for primary elections in Pennsylvania. Eleven states use

this primary election system.

Open primary

An open primary permits any registered voter to vote in a primary regardless of his or her

political affiliation. However, open primaries can take several, possibly confusing forms. In one

form, voters may receive a primary ballot without ever declaring a party preference. Another

common option allows a registered voter to choose a party at the polling place on primary day.

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

48 Primaries

This second variant permits crossover voting: e.g., a Democrat can crossover and cast a vote in

a Republican primary, or vice versa. Ten states currently use this system.

Variations on the open primary

To complicate the issue, twenty-five states use either semi-open or semi-closed primary

formats. In the semi-open primary, unaffiliated voters may participate in either primary.

However, they must either publicly declare their ballot choice at the time of the primary or their

ballot selection may become a de facto form of registration with the ballot party selected. Some

states accept the request for a party’s ballot as a public declaration, while a few states actually

require voters to state their preference aloud in the presence of all in the polling location.

In a semi-closed primary, party members may only vote in the primary for their own party.

Unaffiliated voters may have access to a party’s ballot, at the discretion of the state party

organization.

Blanket primary

All candidates for each office, from all parties, appear on the ballot. Voters select their choice for

each office, with no restriction to one party or another. Thus, a voter could choose a candidate

from one party for one office and a candidate from another party for another office. The top vote

getters from each party then advance to the general election. Washington State used this

system from 1936 to 2003.

California had also adopted it. The political parties legally challenged it several times. Then, in

2000, the United States Supreme Court declared it unconstitutional, under the U.S.

Constitution’s First Amendment Freedom of Association clause, saying that parties had the right

to select their candidates.

Top two primary

Four states use some form of the top two primary system, although only for state and local

elections, not for presidential races. The ballot lists all candidates for each office from all parties.

Voters may choose any candidate from any party in any race. Based on the vote tallies, the top

two vote getters, regardless of their party affiliation, are the candidates on the slate for the

general election. These candidates may be from the same party. This is sometimes called the

modified blanket primary. The top four primary simply increases the number of candidates who

move on to the general election.

The map and tables in Appendix I summarize the type of primary that each of the 50 states and

the District of Columbia uses. Appendix II does this for the four major variations, described

above.

Pennsylvania Primaries

Pennsylvania has a closed primary system. To participate, voters must register with one of the

two major political parties (Democratic or Republican) at least 30 days before the primary. Minor

parties generally are not able to participate in the primary system. The taxpayers, regardless of

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

49 Primaries

party affiliation status, pay most of the cost of holding primaries in each of the state’s 67

counties.

Delegates to the 2013 LWVPA Convention voted to drop its position in favor of closed primaries

for the following reasons:

Fairness. Under Pennsylvania law, only the Democratic and Republican parties usually qualify to participate in the primaries. State and county tax dollars fund the primaries; therefore, it is unfair to preclude participation by voters who do not want to register with either party.

Cross filing. Any Pennsylvanian running for a commonwealth judicial office or for a position as a director on school board may file and submit petitions to appear on the primary ballot for both the Democratic and Republican parties. This is cross filling.

Cross filing is unique to Pennsylvania. LWVPA has a position supporting cross filing in

school board elections, as opposed to an alternative: making these elections

nonpartisan. With cross filing, the primary election decisions may completely determine

the election process outcome, cutting potential minor party and independent candidates

out of the decision altogether.

Independent and minor party candidates could try getting on the General Election ballot,

to include all voters in the choice. However, they would have to overcome

Pennsylvania’s restrictive ballot access rules.

Impact on candidate behavior. Conventional wisdom suggests that closed primaries lead candidates to cater to strong partisans. In turn, these voters are also most likely to vote in the primary.

Whether the move-to-the-extreme effect is real, a competitive general election should

encourage greater voter participation. This would push serious candidates to take

positions more representative of the general population.

If a district is uncompetitive, because of geography or gerrymandering, candidates have

no incentive to move toward the mainstream of registered voters in the district. The

anticipated result of closed primaries is legislative bodies composed of extreme

partisans, unwilling to compromise for fear of retribution in the next election cycle.

There are additional problems with closed primaries specific to Pennsylvania.

Ballot questions. The primary ballot may include questions and referenda. Voters, unaffiliated with either major party, may vote on the questions. However, this option is difficult to explain, and many voters do not bother to vote just for ballot questions.

Special elections. When a vacancy occurs in an office, party leaders have the option of filling the vacancy in a special election held at the same time as the primary. Again, it is difficult to explain to unaffiliated voters that they can go to the polls just to vote in the special election. The party in power sometimes strategically schedules special elections to occur separately from a regular primary, according to how well its leadership believes their favored candidate will fare. Separately scheduled special elections mean added taxpayer costs.

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

50 Primaries

The following tables summarize arguments for and against closed primaries. Within these

charts, open primaries also includes semi open and semi closed primaries as well as the top

two/top four format (see Alternative Elections/Runoffs).

Closed Primaries—Potential Advantages Open Primaries—Potential Advantages

Discourage strategic votes that set up weak candidates of another party or select candidates not representative of the party’s positions

Favor all voter wishes over registered party voters’ desires as candidates reflecting the views of a broader range of the electorate may be more successful

Encourage participation by all party activists Encourage participation by independents and third parties who do not run their own primaries

Party nominees are believed to lead to stability and representation of the wishes of party members

Guard confidentiality about party affiliation and protect voter privacy

Protect the right of free association Can spur new, moderate coalitions; can protect against rigid ideological orthodoxy

For the Commonwealth of Pennsylvania, requires no change in the election system

Preserve the right of political parties to endorse candidates

May produce competitive, substantive general elections

The major political parties will not control the primary election process

Closed Primaries—Potential Disadvantages Open Primaries—Potential Disadvantages

May discourage registered Independents and members of third parties from participating, at least in the primaries

May discourage engagement by core political party activists and people who believe in the principles espoused by a political party

Given the political makeup of some voting districts, may account for low voter turnout in general elections, as voters see the primary as the actual election

Nominees who have stated a party preference may have beliefs inconsistent with party views

May encourage extremism on both left and right May require changes in procedures, particularly if Pennsylvania were to move to a truly open primary with all candidates from all parties on one ballot

Tends to support two-party systems and discourage minority party and Independent candidates

Extreme candidates could win or crowd out moderates since a large number of candidates could split votes to the extent that top vote getters could advance with relatively few votes from partisan voters

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

51 Primaries

One potential advantage of the top two format is that voters could still have a choice between

candidates representing different parties in the general election, even in districts with a single

dominant party. However, this method does not prevent sending only candidates from one party

on to the general election.

One of the problems, often cited in favor of closed over open primaries, is strategic voting.

Adopting an alternative election system, such as instant runoff voting for single winner elections,

could mitigate this problem in Pennsylvania (see Alternative Elections/Runoffs).

An example is the 2016 Primary, when three or more candidates ran in the primary for the

Democratic Party’s nomination for Attorney General and U.S. Senate. Instant runoffs maximize

the chance that the ultimate winner has the support of more than half the voters. Some have

suggested that instant runoffs in the 2016 Republican Party primaries would have eliminated

some of the numerous candidates early on.

A second voting option can mitigate the problem with closed primaries, created by the

Pennsylvania system of allowing candidates to cross-file for certain offices. This would employ a

party-neutral ballot, one open to all those eligible to vote in each primary, as currently occurs

when the primary election includes ballot questions.

For districts that use paper ballots, create an additional ballot listing only candidates for offices that permit cross-filing and for ballot questions.

For districts that use electronic voting, modify software to create an additional ballot listing only candidates for offices that permit cross-filing and for ballot questions.

For districts that use mechanical voting machines, add a paper ballot option, listing only candidates for offices that permit cross-filing and for ballot questions.

Primaries and ballot access for minor parties and independents

In Pennsylvania, only the Democratic and Republican parties currently meet the criteria necessary

to qualify automatically for participation in primary elections. Minor party and independent

candidates can run in the general election only by collecting a sufficient number of signatures on

nomination papers.

Nominations papers must obtain signatures from electors of the district equal to at least two

percent of the largest entire vote cast for an elected candidate in the last election within the district.

Note that the signer must only be a registered elector, including registered Democrats,

Republicans, a member of a state recognized minor party, or no party.

The number of required signatures to get on the ballot for a statewide office, such as governor or

attorney general, will differ from the number required to get on the ballot for a local office, such

as mayor. In either case, the number of required signatures is often prohibitively large. LWVPA

believes that the number of signatures required should be the same for all candidates for the

same office, whether for the primary or the general election.

Reducing the barriers for a place on the primary ballot would increase the chance for minor party

and independent candidates to appear on the ballot in general elections. In turn, this should

increase voter participation in both the primary and the general elections, by eliminating the

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

52 Primaries

required affiliation with either dominant party to vote in the primary. In this case, under the LWVPA

position, the number of required signatures should be the same for all candidates.

References

ACE Electoral Knowledge Network. (2013). The ACE Encyclopaedia: Parties and

Candidates.

League of Women Voters of Arizona. (2015, April). https://lwvaz.org/election-systems-reform/.

League of Women Voters of California (2011). https://lwvc.org/position/election-systems.

League of Women Voters of the District of Columbia. (2014). http://www.lwvdc.org/election-

systems-study.

League of Women Voters of New York State. http://www.lwvny.org/programs-studies/ballot-

access.html.

League of Women Voters of Oregon. (2008). http://lwvor.org/wp-

content/uploads/2015/12/ElectionMethods2008.pdf.

League of Women Voters of Washington. (2006). Election reform in Washington State.

National Conference of State Legislatures. (2011, May). A primer on primaries. The Canvass:

States and election Reform, no. 20.

Appendix I

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

53 Primaries

Appendix II

Types of Primary by State6

(States in boldface practice partisan voter registration.)

6 Provided by the League of Women Voters Education Fund. 7 Within this chart, Open includes the top two/top four format.

Alabama Closed Primary – request ballot for the party they for which they will vote.

Alaska Closed Primary – party affiliation 30 days prior determines ballot given.

Arizona Closed – registered independents may choose one party ballot on election day.

Arkansas Open Primary7 – no party affiliation required.

California Top Two Open Primary – took effect January 2011; controversial

Colorado Closed Primary – Independents may choose 1 party; Presidential Caucus.

Connecticut Closed – Independents choose 1 party day before; change party 90 days.

Delaware Closed Primary – must vote as affiliated on registration.

DC Closed Primary – only voters registered as sanctioned party may vote.

Florida Closed Primary – only voters registered as sanctioned party may vote.

Georgia Open – must declare on election day oath of intent to affiliate with a party.

Hawaii Republican primary is open. Democratic primary is closed.

Idaho Democrats: Semi-Closed. Unaffiliated voters may vote on primary day, then are bound to the party. Republicans: Closed. Open Primaries until 2011 when Republicans obtained ruling of unconstitutional.

Illinois Semi-Closed. Voter declares party at polling place; official repeats in loud voice; if no one challenges, voter votes that party.

Indiana Closed Primary – voter requests ballot for party for which they will vote.

Iowa Closed Primary – may change parties on election day.

Kansas Semi-Closed. Republicans permit same-day registration. Democrats permit affiliated and Independents to vote.

Kentucky Closed – only those registered as Democratic or Republican may vote.

Louisiana Open Primary for state and local; closed for presidential.

Maine Closed Primary – may change parties 15 days in advance.

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

54 Primaries

Michigan Open – no need to declare party, but can vote for only one party.

Minnesota Open – but only voters affiliated with a party may vote in a primary.

Mississippi Open – but to participate, voters must support party nominees.

Missouri Open Primary.

Montana Open/Private Choice – receive all ballots & select party in private.

Nebraska Closed – voter gets only non-partisan ballots if not party-affiliated.

Nevada Closed – only those registered Democratic or Republican may vote.

New Hampshire Closed Primary – must vote Democratic or Republican; become a registered party member by voting.

New Jersey Closed – may change party 55 days in advance; independents may declare party election day.

New Mexico Closed – only Democrats or Republicans may vote partisan ballot.

New York Closed Primary – only those affiliated with a party may vote that ballot.

North Carolina Open – may choose party at polls; remain Independent on the rolls.

North Dakota Open – state abandoned voter registration in 1951. Feel small population and small precincts protect against voter fraud.

Ohio Closed Primary – right to vote subject to challenge for lack of affiliation.

Oklahoma Closed – person who does not wish to affiliate with a political party is not entitled to influence the selection of its nominees.

Oregon Closed – Republicans voted in 2012 to allow independents to vote.

Pennsylvania Closed Primary – must vote for party of affiliation.

Rhode Island Semi-Closed – Independents may vote any party; then seen as member.

South Carolina Open Primary – no party affiliation required.

South Dakota Republican: Closed. Democrats: Independents may choose to vote.

Tennessee Open Primary – no party affiliation requirement.

Texas Open – may choose party or unaffiliated; in runoff must vote same party.

Maryland Closed Primary – may change parties 21 days in advance.

Massachusetts Open – but to vote for another party, must change enrollment.

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

55 Primaries

Utah Democrats: Open Primary. Republicans: Closed Primary.

(Utah registers by party, but does not report data.)

Vermont Open Primary. For presidential primary, must declare party.

Virginia Open. Republicans require loyalty oath signed for presidential primary.

Washington Open/Private Choice. Top two primary.

West Virginia Semi-Closed – Independents may request ballot for one party.

Wisconsin Open Primary – no party affiliation requirement.

Summary of Registration and Primaries

Voter registration

Partisan 31 61%

Non-Partisan 19 37%

No Registration (North Dakota) 1 2%

Primaries (50 states and the District of Columbia)

State/Local 2012-13

Presidential

Open 17 33% 16 31%

Semi-Open 6 12% 3 6%

Semi-Closed 8 16% 5 10%

Closed 17 33% 18 35%

Closed Caucuses 0 0% 4 8%

Open Caucuses 0 0% 3 6%

Semi-Open Caucuses 0 0% 1 2%

Semi-Closed Caucuses 0 0% 1 2%

Top Two Open (CA & WA) 2 4% -- --

Non-Partisan 1 2%

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

56 Primaries

Primaries Consensus Questions

Issue review

There are six options for primaries.

i. In a closed primary (current Pennsylvania practice), voters may cast a ballot only for the political party of affiliation.

ii. In an open primary, voters may select the party ballot of their choice for voting, regardless of political party affiliation.

iii. In a semi-open primary, affiliated voters must vote in the primary of their registration. Unaffiliated voters may vote in either primary, but must publically announce their choice before voting and they may only vote in that party primary.

iv. In a semi-closed primary, the parties shall decide whether to allow unaffiliated voters to vote in their primary.

v. In a top two primary, voters receive ballots with all candidates for office, and they may vote for whomever they wish, without regard to party preference. Subsequently, the two candidates receiving the most votes appear on the ballot for the general election.

vi. In a top four primary, voters receive ballots with all candidates for office, and they may vote for whomever they wish, without regard to party preference. Subsequently, in a top four primary, the four candidates receiving the most votes are on the ballot for the general election.

----------------------------------------------------------------------------------------------------------------------

1. LWVPA believes that changing the primary structure would increase voter participation.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

2. LWVPA believes that changing the primary system could reduce political polarization.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

3. LWVPA should take a position on open or closed primaries.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

4. Please rank support for the following six primary options, with 5 indicating the strongest support and 0 indicating opposition or the least support.

a. LWVPA should support adoption of open primaries.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

b. LWVPA should support adoption of semi open primaries.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___ 2.

LWVPA ELECTION LAW REVIEW AND UPDATE STUDY

57 Primaries

c. LWVPA should support the current practice of closed primaries.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

d. LWVPA should support adoption of semi-closed primaries.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

e. LWVPA should support adoption of top two primaries.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

f. LWVPA should support adoption of top four primaries.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

5. LWVPA should adopt a different primary system for presidential vs. state/local races?

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

6. LWVPA believes that if primaries remain closed, they should not be publicly funded.

1. Strongly disagree___ 2. Disagree___ 3. Neutral/no consensus___ 4. Agree ____ 5. Strongly agree___

Comments:

LWVPA ELECTION LAW REVIEW AND UPDATE

58 Appendix - Local Government in PA

LWVPA ELECTION LAW REVIEW AND UPDATE

59 Appendix - Local Government in PA

LOCAL GOVERNMENT IN PENNSYLVANIA

A Supplement to the Election Laws Review and Update Study Guide

The primary purpose of this supplement is to assist members in making decisions about the alternative election systems section of the study. If member study and consensus results in LWVPA adopting positions in support of Instant Runoff Voting and Single Transferable Voting, the most likely level of government at which to advocate for change is the local level. This is especially true if a local government decides to consider an alternative to its existing government structure, including home rule. For example, after a two-year study, the residents of Concord Township, a second-class township in Delaware County, voted in the 2016 Primary to adopt a home rule charter. Under the new charter, a seven-member township council elected at-large for 4-year staggered terms will replace the current five-member board of supervisors, elected at large for 6-year terms.

There are six types of local governments in Pennsylvania: county, township, borough, town, city, and school district. This creates a mosaic that starts with 67 counties, subdivided into 2,561 municipalities. Overall, there are 5,089 individual governmental units.

The Pennsylvania Manual is an authoritative source of information about local government structure. It also lists the names, identified by party, of the governing bodies and other elected officials. A quick survey finds that one party dominates most of these governing bodies, with many made up exclusively of members from one party.

The Pennsylvania constitution authorizes the state to enact laws regulating local units of government. It outlines basic requirements and rights. It requires periodic legislative redistricting for those that elect part or all their legislative bodies from districts, guarantees the right to select an optional plan of government or a home rule charter, and mandates uniform legislation establishing the procedure for consolidation, merger, or change of municipal boundaries.

Municipalities

There are four types of municipalities: counties, cities, townships, and boroughs. Each class of municipality operates under its own code of laws, which sets forth the governmental structure, as well as the general and specific powers of local government.

The Home Rule Charter and Optional Plans Law grants Pennsylvania municipalities the power to determine for themselves what structure their government will take and what services it will perform. A home rule municipality no longer has its powers and organization determined by the state legislature. A home rule municipality drafts and amends its own charter and may exercise any power or perform any function not denied by the state constitution, the general assembly, or its home rule charter. As of January 2013, 77 municipalities had adopted home rule charters, including seven counties, 22 cities, 20 boroughs, and 28 townships.

Counties

Most county governments have a board of commissioners consisting of three members. In the election of these commissioners, each voter may vote for no more than two candidates, and the three candidates with the highest number of votes win the election. Under this system, no more than two commissioners may represent the same party. Usually the three commissioners represent only the Democratic and Republican parties.

Commissioners typically serve as both the legislative and executive body for a county. In addition to the commissioners, most counties elect other officials, commonly called row officers, independent of the board of commissioners. These are sheriff, district attorney, prothonotary

LWVPA ELECTION LAW REVIEW AND UPDATE

60 Appendix - Local Government in PA

(chief clerk), clerk of courts, registrar of wills, clerk of the orphans’ court, recorder of deeds, treasurer, controller, auditors, and jury commissioners.

Seven counties have home rule charters: Allegheny, Delaware, Erie, Lackawanna, Lehigh, Luzerne, and Northampton. In home rule counties, the charter determines the method, by election or appointment, for selecting these types of officials. Of these, only the Delaware County Council consists of members from only one party. The others have at least one member from a different party, although one party is usually dominant.

Philadelphia is a consolidated city and county, with the city government administering all county functions. Philadelphia City Council elections occur in part by district and at large.

Population determines the classification of a county.

Class Max. Population

Min. Population

Number Counties

First -- 1,500,000 1 Philadelphia

Second 1,499,999 800,000 1 Allegheny

Second A

799,999 500,000 3 Bucks, Delaware, Montgomery

Third 499,999 210,000* 12 Berks, Chester, Cumberland, Dauphin, Erie, Lackawanna, Lancaster*, Lehigh, Luzerne, Northampton, Westmoreland, York

Fourth 209,999 145,000 9 Beaver, Butler, Cambria, Centre, Fayette, Franklin, Monroe, Schuylkill, Washington

Fifth 144,999 90,000 7 Adams, Blair, Lawrence, Lebanon, Lycoming, Mercer, Northumberland

Sixth 89,999 45,000~ 24

Armstrong, Bedford, Bradford, Carbon, Clarion~, Clearfield, Clinton~, Columbia, Crawford, Elk~, Greene~, Huntingdon, Indiana, Jefferson, McKean, Mifflin, Perry, Pike, Somerset, Susquehanna~, Tioga~, Venango, Warren, Wayne

Seventh 44,999 20,000 4 Juniata, Snyder, Union, Wyoming

Eighth 19,999 0 6 Cameron, Forest, Fulton, Montour, Potter, Sullivan

Cities

There are 56 incorporated cities, classified according to population. Philadelphia, with more than one million residents, is the only first class city. Pittsburgh, with more than 250,000 residents, is the only 2nd class city. Any city below 250,000 people is a third class city. The exception is Scranton, which is designated a second class A city. First and second-class cities have a strong mayor and home rule charters. Most of a city’s functions are independent of state control. Except

LWVPA ELECTION LAW REVIEW AND UPDATE

61 Appendix - Local Government in PA

for Philadelphia, all city council member elections are at large and most have members of only one party.

A third class city has one of three forms of government. 1. In the commission form, the mayor and four other members constitute the commission,

which is the governing body. The mayor is one of the members of the commission and acts as president.

2. The mayor-council form has a council of five, seven, or nine members, elected at large for overlapping four-year terms. Election of the mayor, treasurer and a controller are also for a four-year term. The mayor is the chief executive, and supervises the work of all departments.

3. In the council-manager form, all authority rests with council, composed of five, seven, or nine members, elected at large for a four-year term. Selection of the city treasurer and controller is also by election. The manager, appointed by council, is the chief administrative officer.

Townships There are 1,547 townships. Townships may be either first or second-class. First-class townships have a governing board of commissioners, consisting of either five commissioners elected at large or 7-15 commissioners elected by wards, to four-year staggered terms. A second-class township usually has three supervisors elected at large for six-year terms. A referendum may allow the board of a second-class township to expand to five members. Some townships have home-rule charters, which allow for a mayor/council form of government.

Boroughs

There are 958 boroughs. Boroughs have a weak mayor and a council of three, five, seven, or nine members. The borough council may hire a manager to carry out day-to-day business. Some boroughs have home rule charters.

Town

There is also one incorporated town, Bloomsburg. School Districts

Everyone in Pennsylvania lives in one of 500 school districts. School districts may include a single municipality, such as Philadelphia, or multiple municipalities. There are five population-based classes of school districts.

Class Max. Population Min. Population [14]

First -- 1,000,000

First A 999,999 250,000

Second 249,999 30,000

Third 29,999 5,000

Fourth 4,999 --

LWVPA ELECTION LAW REVIEW AND UPDATE

62 Appendix - Local Government in PA

Elected or appointed boards of school directors administer the public school systems. The School Code of 1949 (as amended) provides that at each election of school directors, each voter may cast one vote for each school director vacancy. The code prohibits the use of any system of cumulative voting for the office of school director.

The composition of school boards varies by district. Some districts elect all directors at large,

others by single member district. Some also use multi member districts or a mixed system,

electing some members at–large and the rest from single or multi-member districts.