PA: The Constitutionality of Poll Watching in Someone Else’s County

By: Melissa Rivera

As the November 8 presidential election is swiftly approaching, concerns by some of election fraud are rampant. Especially in Philadelphia, some are concerned that this traditionally blue city will experience voter fraud. In an effort to curb this fear, in Philadelphia alone, at least 474 Republican and over 3,700 Democrat volunteer poll watchers’ names were submitted to election officials for vetting. This vetting process ensures that each volunteer is a registered voter from the county where he or she will poll watch. This county requirement is the subject of a recent lawsuit filed by the Pennsylvania Republican Party.

Pennsylvania Election Code 25 P.S. §2687 enumerates the qualifications for poll watchers. The part at issue states, “Each watcher … must be a qualified registered elector of the county in which the election district for which the watcher was appointed is located.” (emphasis added) The Pennsylvania Republican Party claims that this part of the code is unconstitutional.

The lawsuit claims that the requirement of having to be from the county one is poll watching in violates voters’ First Amendment freedom of speech rights. This is because “some electoral districts are not restricted to a single county.” The lawsuit further claims that the Commonwealth has no compelling interest in restricting political speech this way. The Republican Party believes that this “arbitrary exclusion of voters/poll watchers from serving as such in their own legislative district has real, demonstrable impacts.”

Because, in Philadelphia the ratio of Democrats to Republicans is 7-to-1, fewer than 10 out of 66 wards have registered Republican watchers. In the midst of election integrity concerns, this is particularly troubling, because Philadelphia is an electorally significant city. If the law is deemed unconstitutional, then Republican voters from other counties can poll watch in Philadelphia, even if they are not from there. This could potentially even out the vast disparity in the number of Democrat and Republican poll watchers.

On the other side, the Philadelphia Democratic Party chairman Bob Brady believes that this lawsuit is just an attempt at voter suppression. Brady stated, “They should mind their business and stay in their own county.” He also said that there was no evidence that vote tampering is actually an issue.

The effort to allow voters to be poll watchers outside of their counties, does not stop with the lawsuit. The Republican Party is also trying to pass legislation. Under the new law, voters would be allowed to be poll watchers anywhere in Pennsylvania, as long as they are registered in the Commonwealth. This proposed bill is now in the House Appropriations Committee. However, it is unlikely to pass before the election, because there are only two scheduled voting session days before the election and the bill does not have support from Governor Tom Wolf.

Even if the legislation passes, Governor Tom Wolf would veto it. According to Wolf’s press secretary, Wolf opposes the bill because he believes it will lead to voter intimidation. Furthermore, there are already laws in place to ensure the integrity of elections.

It is unclear whether the court will hear the lawsuit before November 8. In the meantime, election officials are bracing themselves for whatever issues the election will bring. They are also encouraging the electorate to be their eyes and ears on election day. All this is being done in hopes to have a free and fair election.

Editor Note: On November 3, 2016, Eastern District of Pennsylvania Judge Gerald J. Pappert denied the “Pennsylvania Republican Party’s effort to allow poll watchers from anywhere in the state monitor precincts on Election Day.” See here.

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