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HARRISBURG — When Pennsylvanians elect the next attorney general in November, they will choose a candidate who will play a decisive role in safeguarding the state’s election laws.
The state attorney general’s office has vast powers that range from investigating bad business practices to prosecuting drug, gun and political corruption crimes.
But chief among its responsibilities is defending Pennsylvania’s laws in court. That includes the state’s laws on election administration and practices — and perhaps more significantly, its election outcomes, which have become a target of unrelenting legal challenges since the 2020 presidential contest.
Voting by mail, in particular, has been singled out by Republicans who have disputed everything from its constitutionality to which mail ballots should count toward election outcomes.
Since 2020, the Office of Attorney General has provided legal guidance in 56 election-related cases in state or federal court, according to the agency. That includes one case that dealt with redistricting, the once-in-a-decade — and politically fraught — redrawing of legislative and congressional districts. The next attorney general, if elected to a second four-year term, could also be called on to handle any litigation surrounding the redrawing of maps in 2030.
In this year’s election, both major party candidates have said they would adhere to the Commonwealth Attorneys Act, which requires the agency to “uphold and defend the constitutionality of all statutes so as to prevent their suspension or abrogation in the absence of a controlling decision by a court of competent jurisdiction.”
For both Democrat Eugene DePasquale and Republican Dave Sunday, that includes defending the state against challenges to its election laws — in particular, the law that ushered in mail voting. DePasquale is a former state lawmaker and auditor general; Sunday, a career prosecutor, is currently the district attorney in York County.
>> READ MORE: A complete guide to the candidates for attorney general
Both men have also said they believe Pennsylvania’s elections are fair and secure, that President Joe Biden legitimately won the 2020 election, and that they would defend the privacy of voter information from disclosure in election-related investigations.
Still, their thinking on all those issues diverges in nuanced ways.
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Historic changes to Pa.’s election code
In 2019, Pennsylvania’s legislature in a bipartisan vote passed what became Act 77, which allows no-excuse voting by mail. At the time, it was hailed by both Democrats and Republicans as making voting accessible to more people.
The 2020 presidential election changed that narrative. Fueled by unfounded allegations by then-President Donald Trump that mail ballots contributed to widespread fraud that cost him victory, elected Republicans sued — ultimately unsuccessfully — over its constitutionality.
In interviews with Spotlight PA, both DePasquale and Sunday said they believed no-excuse voting was constitutional, with Sunday noting court decisions that have upheld its legality.
While Act 77 explicitly allowed universal mail voting, it did not anticipate some of the mistakes that voters would make, such as neglecting to sign or date the return envelope, or forgetting to include the secrecy envelope.
As a result, the law is silent on how counties should deal with those problems. That lack of specificity has been at the heart of much of the litigation surrounding mail ballots.
DePasquale told Spotlight PA that he supports laws that expand options for people to cast votes in elections, calling accessibility essential to a healthy democracy. He also said he supports efforts by multiple counties to notify voters of technical errors on their mail ballots (such as a missing signature on the return envelope) and allow those voters to fix the problem.
But he said he would prefer that every county implement ballot curing uniformly across the state.
“I am admittedly uncomfortable that some counties allow it and some don’t,” DePasquale said. “I think it’s entirely inappropriate to know how a person voted, but if the issue is that they simply wrote out a wrong date on their envelope, or forgot to put a date on it, I believe it is a good idea to let the voter know.”
While the state Supreme Court has left it up to individual counties to make curing policies, DePasquale said he would support the legislature making it a requirement. He said he is “open-minded” on whether the requirement to notify voters should fall on counties, political parties or some other entity.
Sunday stopped short of endorsing ballot curing. He called voting “a core piece of our democracy,” but said he believes it is the role of the legislature and executive branch to debate and implement the policies, procedures and laws that should apply to voting and elections. The role of an elected attorney general, he said, is to uphold and defend the law as written.
“Oftentimes I may be asked about how I feel about a certain topic,” Sunday told Spotlight PA, adding: “If your prosecutors pick and choose what they enforce based on their personal feelings … that rates as societal chaos. And that is not the type of prosecutor I am.”
The state legislature, bogged down by partisan divides, has for nearly four years been unable — or unwilling, as some good-government critics believe — to clarify the law on ballot curing and other mail voting issues for which county election officials have been clamoring.
In the absence of legislative action, litigation could continue into 2025 and beyond, and the next attorney general could be tasked with dealing with parts of it.
Both DePasquale and Sunday said they would defend the state’s laws, regardless of personal beliefs. Said DePasquale: “If I am elected attorney general, I am not elected king. Assuming the law was constitutionally passed … my job is to defend it.”
Certifying election results
In a presidential election year, certifying voting results in a timely manner will be critical. The state is up against a Dec. 11 deadline to certify the winner, a process that requires counties to first certify their local results.
There are fears among civil and voting rights groups that the certification process will be hijacked by partisan interests seeking to sow confusion and mistrust if they don’t like the results.
Pennsylvania’s courts will play an outsized role if that happens — but the attorney general will be a go-to lawyer for the state if there is a flood of certification-related litigation. And though much of that legal activity is likely to play out in November and December — before the new attorney general is sworn into office in January 2025 — the next top prosecutor may have to deal with the aftermath.
DePasquale is bracing for that scenario if elected: “Some of those cases could still be pending.”
Both he and Sunday said they would adhere to their duties under state law to ensure that Pennsylvania certifies its results in a timely manner. But they also could be dealing with an unpredictable — and unprecedented — legal landscape that could put that timeline to the test.
Sunday said in matters of elections and challenges surrounding them, he has employed the concept of “procedural justice.” In short, he said, this means taking the time to explain to people what the law requires and how law enforcement operates in that ecosystem, which in turn makes the public more likely to trust the process and accept outcomes.
He said he has applied that concept, with good results, to elections as district attorney, as his office has dealt with multiple voting problems at the local level.
For instance, he said the York County district attorney’s office received many phone calls during the last election cycle from voters who used a Sharpie pen to fill out their mail ballot and were worried it wouldn’t count because the ink bled through to the opposite side. He said his office coordinated with the county commissioners to have them reach out to voters to ease their concerns.
“We have to make sure citizens vote safely, that their votes are counted and that they believe and trust the system, because that belief is what makes government function,” he said.
When asked about election integrity during a debate earlier this year, Sunday said that when he assigned detectives in York County to investigate criminal election complaints, they found no “material fraud” — but noted he could not “speak to any other place.”
In the interview with Spotlight PA, he reiterated that his office found no evidence of fraud in the county. When asked if he believed the state’s elections are free, fair and secure, he said he believes Pennsylvania is “in a good place,” and added that Biden was fairly and legitimately elected in 2020.
Voter ID and voter privacy
In Pennsylvania, voters are required to show identification the first time they vote at a polling place.
Over the past decade, there have been efforts driven by Republicans to expand those requirements, including proposals mandating that voters show identification every time they vote. There have also been discussions about requiring ID for people who want to vote by mail.
DePasquale said he did not support expanding voter ID requirements when he was a legislator, and that his position has not changed.
“I believe it would create an unfair burden on a significant number of voters,” DePasquale said. “I have never been convinced that would improve the process.”
Sunday said the decision is again one that falls squarely to the state legislature, but added that he supports having a mechanism in place that engenders trust in the election process and outcome.
Both candidates, speaking broadly, said they would strive to protect voter privacy in the event of a post-election investigation. That issue landed at the center of a contentious lawsuit in Pennsylvania following the 2020 election, when state Senate Republicans voted to subpoena the administration of then-Gov. Tom Wolf for voter information, including partial Social Security and driver’s license numbers, as part of an “integrity” investigation.
The subpoena was later dismissed by Pennsylvania’s Supreme Court, but in doing so, the justices did not address the multiple questions surrounding ethics and privacy that had been raised.
DePasquale said he believes the legislature has the right to request information about election policies and procedures to ensure compliance with the law.
“The rest,” he said, “is beyond the pale.”
Sunday said he takes privacy rights seriously, but is also “very hesitant to prejudge something so important, because there are so many nuanced facts that I have not assessed.”
What is certain, he said, is this: “The attorney general’s office is full of very smart attorneys. So I can tell you I would sit down and we would work through it as lawyers do, and make sure we protect the privacy interests that the legislature deemed to be protected.”
