Pennsylvania currently has two separate audit requirements in place. This entry provides detail on both, though for the purposes of categorization in the searchable database and the map of audit laws, we have relied on the Risk Limiting Audit Directive.
Signed into law in 1980, Pennsylvania’s audit statute provides for all items on the ballot to be audited on 2% of ballots or 2,000 ballots, whichever is less, in each county. There is no statutory guidance on whether the audit results are binding on official results and no guidance on whether the audit could lead to a full recount.
Under a 2018 settlement agreement, which expired in December 2022, the secretary of the commonwealth was required to “direct each county to audit all unofficial election results using robust pre-certification audit methods,” to be fully implemented by the 2022 general election. Stein v. Cortes, No. 16-CV-6287 (E.D. Pa. Nov. 28, 2018) (SA, III.5). In 2022, the secretary of the commonwealth issued a directive that requires counties to participate in statewide risk-limiting audits (RLAs) “[a]fter each regularly scheduled primary and November election occurring after the dates of this directive.” Pennsylvania Department of State, Risk Limiting Audit Directive 1 (Sept. 30, 2022) (“RLA Directive”). RLAs—specifically batch comparison audits—are required of one or more randomly selected statewide contests prior to the certification of election returns by counties. Since the RLA Directive remains in place as of this writing, we classify Pennsylvania as a “risk-limiting audit” state. Please note that the RLA Directive could be revised at any time.
The state’s audit law, referred to as the 2% statistical recount, remains in place, as the RLA Directive acknowledges, so any RLAs are conducted in addition to the state’s statutorily required audits. Throughout this text, we refer to both 25 Pa. Stat. § 3031.17 and the RLA Directive, citing each as appropriate.
Voting Systems Used
Most counties in Pennsylvania use hand marked paper ballots and optical scanners in polling places, with ballot marking devices for accessibility. Some counties use ballot marking devices for all voters. For the most up to date information please visit Verified Voting’s Verifier.
For an explanation on the types of voting equipment used, click here.
There is no statutory guidance on which ballot types are included in the audit. The county board is to select a random sample of at least 2% of the votes cast, or 2,000 votes, whichever is less. 25 Pa. Stat. § 3031.17.
As part of ballot manifest preparation, the RLA Directive instructs counties to “ensure the total number of ballots matches your number of ballots cast.” RLA Directive, 2. As a result, we consider the risk-limiting audit to include all ballot types.
The 2% statistical recount is conducted “as part of the computation and canvass of returns.” 25 Pa. Stat. § 3031.17. The canvass of the returns is only open to those authorized to be present, which includes the candidates and their appointed watchers and attorneys. Watchers are “permitted to keep or check their own computation of the votes cast.” 25 Pa. Stat. § 3153(a); see also 25 Pa. Stat. § 2650. 25 Pa. Stat. § 3031.17 includes no specific provisions related to the publication of results. However, Act 88 (2022), which created an Election Integrity Grant Program, requires counties that accept this funding to do as follows: “The outcome of any post-election audit required under this act shall be submitted with the certification to the Secretary of the Commonwealth of the results of the primary or general election under section 302(k) and shall be posted on the Department of State’s publicly accessible Internet website.” 25 Pa. State. § 3260.2-A(j)(5). County audit reports published under Act 88 are available here.
The risk-limiting audit is part of the official canvass, so is subject to the same observation requirements as the statutory audit. The RLA directive requires counties to transmit audit results to the Department of State, but there is no requirement that the results be made public. RLA Directive, 4.
Audit Counting Method
The 2% statistical recount is to be conducted “using manual, mechanical or electronic devices of a type different than those used for the specific election.” 25 Pa. Stat. § 3031.17. Additional counting instructions are provided in a 2011 directive issued by the secretary of the commonwealth: “For those counties using optical scan electronic voting systems, the county board of elections shall conduct the statistical recount manually.” Pennsylvania Department of State, Directive Concerning the Use, Implementation and Operation of Electronic Voting Systems by the County Board 4 (June 9, 2011).
Previously, counties using direct recording electronic (DRE) voting systems were instructed to conduct the statistical recount using the ballot images contained in the system. Pennsylvania removed its DRE voting systems from use statewide prior to the 2020 election cycle. We therefore categorize audits in Pennsylvania as entirely manual.
The RLA Directive specifies that ballots are manually examined. RLA Directive, 3.
Type of Audit Units
The statute does not specify the audit units or a method for selecting the units to be audited. County practice has varied, so we consider the audit unit for the statutory audit to be a mix of types.
The RLA Directive instructs counties to audit batches of ballots. RLA Directive, 3. The directive notes that the ballot manifest is a “detailed description or accounting of how the county’s ballots are stored.” RLA Directive, 2. This grants counties flexibility in how they organize their batches; for instance, individual batches could represent all ballots from an individual precinct, a scan batch of mail ballots, or all of a county’s provisional ballots. We also consider Pennsylvania to use a mix of audit units for its RLA.
Contests and Issues Audited
Every contest and ballot issue on the ballot is audited as part of the 2% statistical recount. No specific contests or a procedure for randomly selecting contests for auditing is outlined in Pennsylvania’s statute, meaning that, presumably, the entire ballot is audited.
The RLA Directive specifies that “the county boards of elections shall participate in a statewide post-election ballot audit involving a review of a random sample of votes cast in one or more randomly selected races.” RLA Directive, 1.
Under the current audit statute, there is no statutory guidance for expanding the audit.
The RLA Directive notes that “an RLA provides a statistically sound method for confirming, with a high degree of confidence, that the outcome of the audited election(s) is correct.” RLA Directive, 1. We therefore categorize Pennsylvania as using a risk-limiting audit.
For recount laws, see Citizens for Election Integrity Minnesota website.
Binding on Official Outcomes
Pennsylvania’s audit law provides for all items on the ballot to be audited. There is no statutory guidance on whether the audit results are binding on official results and no guidance on whether the audit could lead to a full recount.
The RLA Directive does not address whether the audit is considered binding.
Oversight and Conduct
The county board of elections is responsible for oversight of the 2% statistical recount, as well as conduct of both the audit and the random selection. See 25 Pa. Stat. § 3031.17.
For the RLA, the Department of State oversees the random selection of batches to audit, while the county board of elections is responsible for designating audit boards and for the conduct of the audit. RLA Directive, 1–3.
At the close of the election and after the tabulation of all ballots, the automatic tabulating equipment or other component of the voting system which contains ballots shall be locked and sealed so that no further ballots may be deposited in or removed from any such equipment or component, and all components of the voting system, suitably packaged and secured for storage, shall be held for delivery to the county election board. Pa. Stat. § 3031.13; see also Pa. Stat. § 3061–62.
Additional Targeted Samples
Neither the statute nor the RLA Directive provides for targeted samples.
25 Pa. Stat. § 3031.17: Audit statute
Stein v. Cortes, No. 16-CV-6287 (E.D. Pa. Nov. 28, 2018): Settlement Agreement
Secretary of the Commonwealth, Directive Concerning the Use, Implementation and Operation of Electronic Voting Systems by the County Board (June 2011)
25 Pa. Stat. § 3153; 25 Pa. Stat. § 2650: Transparency
Pa. Stat. § 3031.13; Pa. Stat. § 3061–62: Ballot protection
Last updated: May 15, 2023