A polling judge helps guide a voter’s ballot into a voting machine during the May 2022 Pennsylvania primary election. Photo by Carolyn Kaster / AP

In a rare unanimous decision last month, the Pennsylvania Supreme Court ruled that the public should have access to super-granular election results data, making it easier for researchers to analyze electoral patterns and for those concerned about voter fraud to inspect the results.

But it’s unclear how many counties will be able to release the data due to unanswered technological questions and concern about keeping ballots secret in some jurisdictions.

The data, known as a cast vote record or CVR, is essentially a log of each ballot cast in an election and what candidates it voted for. It does not reveal the names of the voters who cast those ballots (election officials don’t even keep that data), but it does include the precinct where the vote was cast.

“Disclosure of CVRs allows the public to ‘check the math’ of [Lycoming County] Voter Services to ensure the number of reported votes match the number of recorded votes,” Justice Daniel McCaffery wrote for the majority. “Such disclosure promotes fair, honest, and transparent elections, which strikes to the heart of ‘trust but verify.'”

In October 2021, conservative activist Heather Honey, who is now the Trump administration’s deputy assistant secretary of homeland security for election integrity, requested Lycoming County’s cast vote record for the 2020 election.

The county initially denied her request — a decision upheld by the state’s Office of Open Records. But a local court overturned that ruling, only to be overturned itself by the state’s Commonwealth Court, a decision that was then overturned by the state Supreme Court in late April.

Court case hinged on tech, ballot secrecy

The disagreement in the case stemmed from whether a cast vote record counts as the “contents of ballot boxes and voting machines,” which are exempt from disclosure under state law.

While the Commonwealth Court ruled that cast vote records, and the ballot tabulation machines that create them, are the equivalent of physical ballots in ballot boxes and voting machines, the Supreme Court disagreed.

“CVRs are spreadsheets of raw data pulled from the cast ballots. They are not the physical ballots contained in the ballot box,” McCaffery wrote. “Here, Lycoming County’s scanners constitute voting devices but not voting machines. Similarly, Lycoming County’s tabulators (which no party disputes are responsible for generating the CVRs) are automatic tabulating equipment.”

The justices faulted the legislature for the confusion, noting the state’s election code was written in 1937, long before spreadsheets or electronic voting equipment were ever envisioned.

“Citizens should be entitled to expect their legislators to address and account for advances in voting technologies more frequently than on a centennial basis,” Justice David Wecht wrote in a concurring opinion.

The other issue the case dealt with is ballot secrecy.

Under Pennsylvania law, voters are entitled to have their votes kept secret. Lycoming County expressed concern that, if a cast vote record is made public, it could be analyzed in conjunction with other public documents to identify how specific people voted.

To prevent this, Lycoming County’s equipment randomizes the order of the ballot data in the cast vote record, so that the order of the ballots in the spreadsheet is not the same as the order in which they were cast.

The technique is not foolproof. Individual voters’ choices could still be divulged if, say, everyone in a precinct votes the same way in a given race. But the court pointed out that uncommon scenarios like that already jeopardize ballot secrecy even in the absence of cast vote records. The court argued that voters’ right to a secret ballot needed to be balanced with the public’s right to transparent data.

How decision will affect counties

The decision means Lycoming County will now have to release its cast vote record.

“The court has made its decision that the CVR is a public record and anyone who requests it, we will provide it,” Lycoming County Elections Director Forrest Lehman said.

It’s unclear, however, how many other counties will have to release cast vote records as a result of the ruling. That’s because the randomization process that protects secrecy in Lycoming County is specific to tabulation machines manufactured by the company Clear Ballot, which is used by only seven other counties in the state.

“We acknowledge Voter Service’s concern that not all counties may follow the same randomization procedures that are established on this record,” McCaffery wrote. “We recognize that, under certain circumstances, it is possible that a county’s method of generating CVRs may violate the secrecy mandate. But that is a question to be addressed on a case-by-case basis.”

A Votebeat and Spotlight PA review of the voting equipment used by Pennsylvania’s other 59 counties found that most are capable of randomizing the data in cast vote records, but some may not be. The most recent software certifications for the equipment used throughout the state don’t mention randomization, and the Department of State did not answer a question about whether all of the state’s vendors randomize their data.

It’s also unclear whether the specific randomization processes used by machines other than Clear Ballot’s would pass the court’s test.

“The Pennsylvania Department of State is reviewing the court’s decision and is working with our county partners to provide appropriate guidance,” a spokesperson for the department said in a statement.

Most Pennsylvania counties, including Philadelphia and Allegheny, use tabulation machines manufactured by Election Systems & Software. A spokesperson for ES&S told Votebeat and Spotlight PA that the CVR data is randomized twice, eliminating any connection to the voter.

At least two less commonly used companies are also capable of randomization. Margia Hansen, the Warren County election director, said Liberty Vote, which serves Warren and 11 other counties, told her that their equipment does randomize the data.

And Jim Allen, the Delaware County election director, said his county’s Hart equipment — which is used by three other counties — generates randomized cast vote records as well. He plans to make Delaware County’s cast vote records available once he gets official guidance from the Department of State.

Allen applauded the Supreme Court’s decision as a win for transparency.

“I think it’s an excellent ruling in terms of setting the record straight and in terms of transparency and giving voters one more way of verifying election results,” he said. “As long as we can randomize them sufficiently to make it impossible to associate a ballot with one individual, this is stuff we should get out there.”

Allen, as well as the court’s opinion, noted that some places, such as counties in Colorado and Wisconsin, have been releasing cast vote records for years.

Election officials still have concerns

However, some smaller counties might not even have cast vote records to provide. Matthew Repasky, the Columbia County elections director, said his county opted not to buy additional software that would generate cast vote records for its Unisyn equipment because they didn’t feel it was a worthwhile expense.

He also worried that there was no way to protect the secrecy of voters in especially small jurisdictions, such as Centralia, which has only four voters.

“How do you randomize that?” he asked.

Even in more populous precincts, an election with low turnout, like a primary, could make it easier to identify voters. As a result, election directors may not release the cast vote records for precincts with low turnout so as to not violate secrecy requirements.

“You’re not going to be able to give those out, and people are going to be angry,” Repasky said.

Sean Drasher, the Lebanon County elections director, also raised the possibility that a person could theoretically bribe or threaten someone else to vote a certain way, and then use the cast vote record to confirm they voted that way.

The cast vote record might also contain information other than votes, he said, such as machine-testing records that could look confusing to viewers if they’re presented without explanation — or even images of ballots, which could raise new legal questions about being “contents of ballot boxes.”

“When these decisions come down, you have to be really careful to look at every word in every paragraph to see what is the fallout,” Drasher said, adding that he will be consulting closely with the Department of State and his county attorney before releasing any cast vote records.