Legal Hotline: Election Code – Access to Candidate Information

Legal Hotline: Election Code – Access to Candidate Information

PNA Legal Hotline

Q: The county election office is removing political candidates’ addresses from election records like nominating petitions before they release them to us. We use this information for numerous purposes, including verifying residency and as part of the newsgathering process related to our election coverage. Can they remove this kind of public information from election records?

A: No, the Pennsylvania Election Code requires election officials to facilitate public access to election records and it does not permit officials to redact information that the General Assembly has deemed public in furtherance of free and fair elections.

First, it should be noted that the Pennsylvania Department of State makes the statewide voter registration database publicly available consistent with the requirements of the PA Election Code. This database includes the name, residential address, mailing address, date of birth, political party affiliation, and other voter-specific information required to be publicly available by the Pennsylvania Election Code. This database includes information for all Pennsylvania registered voters, including candidates for public office, and it is publicly accessible for a small fee and upon certification that the information will be used in accordance with the Election Code. News organizations can access the database from the Pennsylvania Department of State here.

In addition to mandating access to the voter registration database, the Pennsylvania Election Code contains several provisions that require county officials to facilitate public access to election records, including 25 P.S. § 2648 entitled “Records and documents to be open to public inspection.” This provision states:

The records of each county board of elections, general and duplicate returns, tally papers, affidavits of voters and others, nomination petitions, certificates and papers, other petitions, appeals, witness lists, accounts, contracts, reports and other documents and records in its custody, except the contents of ballot boxes and voting machines and records of assisted voters, shall be open to public inspection, except as herein provided, and may be inspected and copied by any qualified elector of the county during ordinary business hours, at any time when they are not necessarily being used by the board, or its employees having duties to perform thereto…”

Election records, which include candidates’ addresses, are expressly public and must be provided consistent with the requirements of the Election Code. The only limitations permitted by the Election Code are:

  1. public access can be limited to qualified electors,
  2. public access can be limited to ordinary business hours, and
  3. public access can be limited to times when the records are not actively being used by the elections board.

None of these conditions allow county election officials to limit access to the content of election records. The Election Code is clear that election records may not be used for commercial (resale) or improper purposes, and those seeking access are required to submit a verification affirming those conditions prior to access. Journalists routinely agree to and comply with the access conditions of the Election Code.

The Election Code contains other public access provisions that require election officials to facilitate public access to information. For example, the following documents are generally public under Pennsylvania law:

  1. Records of a registration commission and district registers.
  2. Street lists.
  3. Official voter registration applications.
  4. Petitions and appeals.
  5. Witness lists.
  6. Accounts and contracts.
  7. Reports.

See 25 Pa.C.S. §1207; 25 Pa.C.S. §1401-1406, et seq.

These documents may be inspected during ordinary business hours and the public can obtain copies of the records at cost, again, with the understanding that access is conditioned on the requester’s affirmation that the records will be used in accordance with the Election Code. Members of the media using this information as part of their election coverage have significant rights to obtain the information under state law and significant constitutional rights to use this information as guaranteed by the First Amendment.

Additionally, it is important to recognize the public interest that forms the basis for public access requirements of the law. Candidates for public office are subject to strict residency requirements that necessitate living in the community where they seek to hold public office. The public has a statutory right and a legal obligation to ensure candidates meet these residency requirements. The county’s redaction of address information makes it impossible to determine if candidates meet these residency requirements, thereby interfering with and removing the public’s right to verify and challenge a candidate’s nominating petition under the Election Code.

In addition to verifying residency, media organizations use candidate information in the public interest as part of the newsgathering process related to election coverage. The media has long used this information to contact candidates for public office to learn more about their positions on various issues and report them to the public. This is a critical and protected function of the press because journalists represent the eyes and ears of the public. The public depends on the press to gather news about and report on candidates for public office, and the First Amendment protects journalists’ right to do so. Candidates are not required to answer the press’ questions, but journalists have a constitutional right to ask them.

Moreover, the public interest in collecting and mandating public access to personal information illustrates the General Assembly’s effort to guarantee free and fair elections consistent with the Constitution, which is one of the defining public interests of our democracy.  The balancing test that applies to some types of personal information under the Pennsylvania Constitution is not necessary or appropriate where “legislative pronouncements” (statutes) have already weighed the public interest versus privacy interests. The Pennsylvania Election Code requires public access to detailed personal information and it also imposes safeguards that govern and limit its use. These statutory provisions illustrate the General Assembly’s careful balancing of the public interest in free and fair elections against individual privacy interests. It is also important to recognize that the law presumes the General Assembly did not intend to violate the Constitution of this Commonwealth when it enacted the public access requirements the Election Code, and county officials must apply the same presumption. Because the General Assembly has already conducted the appropriate balancing test required by the Pennsylvania Constitution, further balancing tests and limits on access by county officials are neither necessary nor legally appropriate.

News organizations that have been denied access to election records are encouraged to contact the PNA Legal Hotline at (717) 703-3080 or consult with private counsel. As always, this is not intended to be, nor should it be construed as, legal advice.