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Recent decisions from a Pennsylvania state court could create a new route to pierce the secrecy of some mail ballots and reveal the private choices made by thousands of voters.
While a very small percentage of cast ballots would be at risk, according to a pair of analyses, some state and county officials are concerned about the potential for any voter’s choices to be exposed.
In two cases last year, the Commonwealth Court ruled that voted mail ballots were public records under the state’s open-records laws, meaning Erie and Allegheny counties, where the records requests were filed, would have to release them.
These ballots are already separated from their envelopes, so they would not include the voters’ names or other directly identifying information.
However, both the Pennsylvania Department of State and Allegheny County argue that the ballots could be cross-referenced with other publicly available information, which in limited instances could expose voters’ choices.
Allegheny County, with the support of the state, is appealing the Commonwealth Court’s decision to the state Supreme Court, and is withholding access to the ballots until the appeal is resolved. Erie County has also separately appealed the decision in its case to the state Supreme Court and has not yet released the records.
A Department of State spokesperson told Votebeat and Spotlight PA that the agency believes access to voted ballots violates the Pennsylvania Election Code, which has language restricting the release of “contents of the ballot box.”
“Disclosure of this information, then, not only violates these voters' constitutionally guaranteed right of secrecy but also could certainly chill citizens from exercising their right to vote in this manner in the future,” the department wrote in a brief filed with the Commonwealth Court in the Allegheny County case.
How many ballots would be at risk?
In a brief submitted to the court in one of the cases, the Pennsylvania Department of State estimated that if the court required mail ballots to be released statewide, for the 2024 primary alone, mail ballots in 1,400 precincts throughout Pennsylvania would be at risk.
Votebeat and Spotlight PA reviewed tracking data on ballots that were cast across the four statewide primary and general elections since the spring of 2023. The analysis found roughly 10,000 ballots statewide in that dataset that — if voted ballots were released statewide and cross-referenced with other publicly available data — could be at risk of being linked to a specific voter.
More than 14.2 million votes were cast in total across those four elections, so by the news organizations’ calculations, the risk applied to roughly 0.07% of ballots cast.
A Department of State spokesperson declined to comment on the methodology used for its analysis or for the analysis by the news organizations.
In certain circumstances involving small precincts and elections with few mail-ballot voters, according to the brief the Department of State filed in the case, comparing voted ballots with other publicly available data could “easily be used to find out who a specific voter voted for.”
Three county election officials noted that a great deal of election data and documents were already public, and there was already some existing risk.
Still, election officials said they worry about the possibility of bad-faith actors taking advantage of the ability to see actual voted ballots.
“You could run a foolproof bribery or intimidation scheme if you know on the back end you have access to the ballots,” Lycoming County election director Forrest Lehman said.
Landlords, abusive spouses, or others would then have a way to pressure voters to cast their vote a certain way, and confirm they had done so, he said.
Cases are a test of election transparency vs. privacy
A push for transparency in elections, which some experts say helps to build trust, has fueled efforts around the country to make more election data and records publicly available. The requests in both the Allegheny and Erie cases came in 2022, a time when conservative activists raising questions about the trustworthiness of elections were pushing followers to request election records. Some nonpartisan and civil rights groups, including the ACLU of Pennsylvania, have also advocated for releasing ballots to show transparency.
“When you won’t release the information, you’re just creating more conspiracy theories because it looks like you have something to hide,” said Marian Schneider, senior voting rights policy counsel at the ACLU of Pennsylvania.
Schneider said there are ways to protect secrecy without withholding ballots, such as releasing results by municipality rather than precinct.
In other states, similar efforts to release election data and records have created worries about ballot secrecy.
After Texas passed a law in 2023 that allowed people to inspect voted ballots, ballot images, and electronic voter records, Votebeat and the Texas Tribune found that this information, in conjunction with other public records, made it possible to connect some voters with their ballots. That discovery prompted Texas election officials to issue emergency guidance to counties advising that they withhold certain information to protect ballot secrecy.
Other reviews of this kind of information have shown the risks are relatively small.
A recently released study from researchers at Yale University, the University of California, Los Angeles, and the University of Pennsylvania, analyzed cast vote records — which are essentially digital representations of voted ballots — from Arizona and found that releasing ballots does not substantially increase the number of votes at risk of being revealed.
“Vote revelation is very rare,” said Michael Morse, an assistant professor of law at Penn and one of the study’s co-authors.
Morse said there has always been some risk of votes being revealed because of how counties release election results.
How other states handle the release of records
Voting choices were not private for much of the country’s history, according to a history of secret ballots published by the Congressional Research Service. States began adopting secret ballot laws in the late 1800s to prevent vote buying, coercion, and intimidation by employers, but it wasn’t until the mid-20th century that all states implemented the practice.
Some counties in Pennsylvania already release precinct-level voting results, broken down by vote method. This means some number of ballots, just as in Arizona, were likely already at risk. Without knowing exactly how each county has released results in the past, it is impossible to determine precisely how much the Commonwealth Court decision increases the risk.
Since the risk of revealing votes isn’t necessarily tied to releasing ballots, and exists even when simple results are published, Morse said solutions that preserve secrecy don’t have to include withholding ballots.
Still, some states have recognized that releasing ballots can increase the risk, however small, of vote revelation, and taken steps to minimize it.
New Mexico, Nevada, and Florida redact or aggregate certain information from smaller precincts, for example, which Pennsylvania doesn’t currently do. Precincts could also be redrawn or combined to create larger groups of voters and make it harder to link any individual to a ballot.
Susannah Goodman, director of election security at Common Cause, a nonpartisan democracy-focused advocacy group, said steps like that balance secrecy with transparency.
“You can create a situation in which the way that the data is aggregated, you can get transparency without compromising ballot secrecy,” she said. “That is the direction we have to head.”
Thomas Wilburn, Senior Data Editor for Chalkbeat, contributed to this report.
Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.
