Pennsylvania Act 2004-97 — PENNSYLVANIA ELECTION CODE - OMNIBUS AMENDMENTS

Act text

Session of 2004

No. 2004-97

SB 346

AN ACT

Amending the act of June 3, 1937 (P.L.1333, No.320), entitled "An act concerning elections, including general, municipal, special and primary elections, the nomination of candidates, primary and election expenses and election contests; creating and defining membership of county boards of elections; imposing duties upon the Secretary of the Commonwealth, courts, county boards of elections, county commissioners; imposing penalties for violation of the act, and codifying, revising and consolidating the laws relating thereto; and repealing certain acts and parts of acts relating to elections," further providing for functions of the Secretary of the Commonwealth, for functions of county boards, for appointment of watchers, for filing fees, for postelection procedures, for election recounts, for manner of applying to vote and related matters, for returns, registers and verification, for public inspection of returns, for computation and certification, for judicial review, for opening ballot boxes to determine fraud, for recanvassing to determine fraud and for correction of returns.

The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:

Section 1. Section 201 of the act of June 3, 1937 (P.L.1333, No.320), known as the Pennsylvania Election Code, amended December 9, 2002 (P.L.1246, No.150), is amended to read:

Section 201. Powers and Duties of the Secretary of the Commonwealth.--The Secretary of the Commonwealth shall exercise in the manner provided by this act all powers granted to him by this act, and shall perform all the duties imposed upon him by this act, which shall include the following:

(a) To determine, in accordance with the provisions of this act, the forms of nomination petitions and papers, expense accounts and all other forms and records, the form of which he is required to determine under the provisions of this act.

(b) To examine and reexamine voting machines, and to approve or disapprove them for use in this State, in accordance with the provisions of this act.

(c) To certify to county boards of elections for primaries and elections the names of the candidates for President and Vice-President of the United States, presidential electors, United States senators, representatives in Congress and all State offices, including senators, representatives, and judges of all courts of record, and delegates and alternate delegates to National Conventions, and members of State committees, and the form and wording of constitutional amendments or other questions to be submitted to the electors of the State at large.

(d) To receive and determine, as hereinafter provided, the sufficiency of nomination petitions, certificates and papers of candidates for President of the United States, presidential electors, United States senators, representatives in Congress and all State offices, including senators, representatives and judges of all courts of record, and delegates and alternate delegates to National Conventions and members of State committees.

(e) To receive such reports from county boards of elections as are required by this act, and to demand such additional reports on special matters as he may deem necessary.

(e.1) To receive from county boards of elections information on voting system errors or difficulties or other election data pursuant to regulation.

(f) To receive from county boards of elections the returns of primaries and elections, to canvass and compute the votes cast for candidates and upon questions as required by the provisions of this act; to proclaim the results of such primaries and elections, and to issue certificates of election to the successful candidates at such elections, except in cases where that duty is imposed by law on another officer or board.

(f.1) To develop a voluntary professional certification and poll worker training program for county election officials in consultation with county boards of elections.

(f.2) To order a county board to conduct a recount or recanvass of an election under section 1404 for a public office which appears on the ballot in every election district in this Commonwealth or for a ballot question which appears on the ballot in every election district in this Commonwealth.

(g) To perform such other duties as may be prescribed by law.

(h) To establish a system for the remedy of complaints regarding the administration of the provisions of Title III of the Help America Vote Act of 2002 (Public Law 107-252, 42 U.S.C. § 15481 et seq.).

Section 2. Section 302 of the act, amended December 15, 1965 (P.L.1109, No.427) and February 13, 1998 (P.L.72, No.18), is amended to read:

Section 302. Powers and Duties of County Boards.--The county boards of elections, within their respective counties, shall exercise, in the manner provided by this act, all powers granted to them by this act, and shall perform all the duties imposed upon them by this act, which shall include the following:

(a) To investigate and report to the court of quarter sessions their recommendations on all petitions presented to the court by electors for the division, redivision, alteration, change or consolidation of election districts, and to present to the court petitions for the division, redivision, alteration, change or consolidation of election districts in proper cases.

(b) To select and equip polling places.

(c) To purchase, preserve, store and maintain primary and election equipment of all kinds, including voting booths, ballot boxes and voting machines, and to procure ballots and all other supplies for elections.

(d) To appoint their own employes, voting machine custodians, and machine inspectors.

(e) To issue certificates of appointment to watchers at primaries and elections.

(f) To make and issue such rules, regulations and instructions, not inconsistent with law, as they may deem necessary for the guidance of voting machine custodians, elections officers and electors.

(g) To instruct election officers in their duties, calling them together in meeting whenever deemed advisable, and to inspect systematically and thoroughly the conduct of primaries and elections in the several election districts of the county to the end that primaries and elections may be honestly, efficiently, and uniformly conducted.

(h) To prepare and publish, in the manner provided by this act, all notices and advertisements in connection with the conduct of primaries and elections, which may be required by law.

(i) To investigate election frauds, irregularities and violations of this act, and to report all suspicious circumstances to the district attorney.

(j) To receive and determine, as hereinafter provided, the sufficiency of nomination petitions, certificates and papers of candidates for county, city, borough, township, ward, school district, poor district, election offices, and local party offices required by law or by party rules to be filed with the board.

(k) To receive from district election officers the returns of all primaries and elections, to canvass and compute the same, and to certify, no later than the third Monday following the primary or election, the results thereof to the Secretary of the Commonwealth, as may be provided by law, and to such other authorities as may be provided by law. The certification shall include the number of votes received in each election district by each candidate for the General Assembly.

(l) To publicly announce by posting at its office the results of primaries and elections for county, city, borough, township, ward, school district, poor district, election offices, and party offices, if any[,] ; to provide the results to the Secretary of the Commonwealth; and to issue certificates of election to the successful candidates for said offices.

(m) To prepare and submit, within twenty days after the last day to register to vote in each primary, municipal and general election, a report to the Secretary of the Commonwealth in the form prescribed by him, which shall contain a statement of the total number of electors registered in each election district, together with a breakdown of registration by each political party or other designation. Copies of said statement shall be furnished, upon request, to the county chairman of each political party and political body. The Secretary of the Commonwealth shall forthwith submit such information to the Legislative Data Processing Center and shall publicly report the total number of registered electors for each political party or other designation in each county not later than five days prior to the primary, municipal or general election.

(n) To annually prepare and submit to the county commissioners or other appropriating authorities of the county an estimate of the cost of primaries and elections and of the expenses of the board for the ensuing fiscal year.

(o) To perform such other duties as may be prescribed by law.

(p) A county board of elections shall not pay compensation to a judge of elections who wilfully fails to deliver by two o'clock A. M. on the day following the election envelopes; supplies, including all uncast provisional ballots; and returns, including all provisional ballots and absentee ballots cast in the election district.

Section 2.1. Section 417 of the act, amended August 1, 1963 (P.L.434, No.227), July 12, 1980 (P.L.649, No.134) and May 16, 2002 (P.L.310, No.44), is amended to read:

Section 417. Appointment of Watchers.--

(a) Each candidate for nomination or election at any election shall be entitled to appoint two watchers [in] for each election district in which such candidate is voted for. Each political party and each political body which has nominated candidates in accordance with the provisions of this act, shall be entitled to appoint three watchers at any general, municipal or special election [in] for each election district in which the candidates of such party or political body are to be voted for. Such watchers shall serve without expense to the county.

(b) [All watchers so appointed shall serve in only one district and must be qualified registered electors of the county in which the district where they are authorized to act is located. It shall not be a requirement that they be residents of the district where they are authorized to act. Only] Each watcher so appointed must be a qualified registered elector of the county in which the election district for which the watcher was appointed is located. Each watcher so appointed shall be authorized to serve in the election district for which the watcher was appointed and, when the watcher is not serving in the election district for which the watcher was appointed, in any other election district in the county in which the watcher is a qualified registered elector: Provided, That only one watcher for each candidate at primaries, or for each party or political body at general, municipal or special elections, shall be [allowed to remain] present in the polling place at any one time [prior to the close of the polls] from the time that the election officers meet prior to the opening of the polls under section 1208 until the time that the counting of votes is complete and the district register and voting check list is locked and sealed , and all watchers in the room shall remain outside the enclosed space. It shall not be a requirement that a watcher be a resident of the election district for which the watcher is appointed. After the close of the polls and while the ballots are being counted or voting machine canvassed, all the watchers shall be permitted to be in the polling place outside the enclosed space. Each watcher shall be provided with a certificate from the county board of elections, stating his name and the name of the candidate, party or political body he represents. Watchers shall be required to show their certificates when requested to do so. Watchers allowed in the polling place under the provisions of this act, shall be permitted to keep a list of voters and shall be entitled to challenge any person making application to vote and to require proof of his qualifications, as provided by this act. During those intervals when voters are not present in the polling place either voting or waiting to vote, the judge of elections shall permit watchers, upon request, to inspect the voting check list and either of the two numbered lists of voters maintained by the county board: Provided, That the watcher shall not mark upon or alter these official election records. The judge of elections shall supervise or delegate the inspection of any requested documents.

(c) No candidate or committee of a political party or of a political body, nor any other person or persons shall pay to any watcher compensation in excess of [twenty ($20.00)] one hundred twenty ($120.00) dollars per diem.

(d) A watcher whose watcher's certificate is destroyed or lost on election day may appear before the court of common pleas under section 1206 and, after swearing under oath or affirmation that the watcher's certificate was destroyed or lost, may immediately receive a replacement watcher's certificate issued by the court.

Section 3. Section 913(b.1) and (b.2) of the act, amended or added December 12, 1984 (P.L.968, No.190) and December 7, 1990 (P.L.681, No.169), are amended to read:

Section 913. Place and Time of Filing Nomination Petitions; Filing Fees.--* * *

(b.1) Each person filing any nomination petition shall pay for each petition, at the time of filing, a filing fee to be determined as follows, and no nomination petition shall be accepted or filed, unless and until such filing fee is paid by a certified check or money order or also by cash when filed with the county board. All moneys paid on account of filing fees shall be transmitted by the county board to the county treasurer and shall become part of the General Fund. Certified checks or money orders in payment of filing fees shall be made payable to the Commonwealth of Pennsylvania or to the county, as the case may be, and shall be transmitted to the State Treasurer or to the county treasurer and shall become part of the General Fund.

1. If for the office of President of the United States, or for any public office to be filled by the electors of the State at large, the sum of two hundred dollars ($200.00).

2. If for the office of Representative in Congress, the sum of one hundred fifty dollars ($150.00).

3. If for the office of judge of a court of record, excepting judges to be voted for by the electors of the State at large, the sum of one hundred dollars ($100.00).

4. If for the offices of Senator or Representative in the General Assembly, for any office to be filled by the electors of an entire county, for the office of district councilman in a city of the first class and for any office other than school district office to be filled by the electors of an entire city, the sum of one hundred dollars ($100.00), except as provided in paragraph 4.1.

4.1. If for nonschool board offices for any third class city official, the sum of twenty-five dollars ($25.00).

[5. If for any borough, town, or township of the first class, not otherwise provided for, the sum of five dollars ($5.00).]

6. If for the office of delegate or alternate delegate to National party convention, or member of National committee or member of State committee, the sum of twenty-five dollars ($25.00).

7. If for the office of constable, the sum of ten dollars ($10.00).

8. If for the office of district councilman in a city of the second class or the office of district justice, the sum of fifty dollars ($50.00).

(b.2) A filing fee shall not be paid for a nomination petition for any public office for which no compensation is provided by law, nor for any nomination petition for any public officer in any borough, town or township [of the second class] nor any party officer except as provided above nor for any nomination petition for judge of election or inspector of elections.

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Section 4. Section 1113-A of the act is amended by adding a subsection to read:

Section 1113-A. Post Election Procedures.--* * *

(j) By two o'clock A. M. on the day following the election, all of the following shall be returned to the county board:

(1) Envelopes.

(2) Supplies, including all uncast provisional ballots.

(3) Returns, including all provisional ballots and absentee ballots cast in the election district.

Section 5. Section 1118-A of the act, added July 11, 1980 (P.L.600, No.128), is amended to read:

Section 1118-A. Recounts.--[Should] In an election district using an electronic voting system, should a recount of votes be ordered as provided by law, the ballots shall be recounted in accordance with [the provisions of Article XVII. Manual mechanical or electronic methods may be used as determined by the county board.] section 1404(e). If the recount is conducted under Article XVII:

(1) If the election district uses an electronic voting system utilizing paper ballots, section 1701 shall apply.

(2) If the election district uses any other type of electronic voting system, section 1702 shall apply.

Section 5.1. Section 1210 of the act, amended December 9, 2002 (P.L.1246, No.150), is amended to read:

Section 1210. Manner of Applying to Vote; Persons Entitled to Vote; Voter's Certificates; Entries to Be Made in District Register; Numbered Lists of Voters; Challenges.--(a) At every primary and election each elector who appears to vote in that election district for the first time and who desires to vote shall first present to an election officer one of the following forms of photo identification:

(1) a valid driver's license or identification card issued by the Department of Transportation;

(2) a valid identification card issued by any other agency of the Commonwealth;

(3) a valid identification card issued by the United States Government;

(4) a valid United States passport;

(5) a valid student identification card;

(6) a valid employe identification card; or

(7) a valid armed forces of the United States identification card.

The election officer shall examine the identification presented by the elector and sign an affidavit stating that this has been done .

(a.1) Where the elector does not have a photo identification as provided for in subsection (a), the elector shall present for examination one of the following forms of identification that shows the name and address of the elector:

(1) nonphoto identification issued by the Commonwealth, or any agency thereof;

(2) nonphoto identification issued by the United States Government, or agency thereof;

(3) a firearm permit;

(4) a current utility bill;

(5) a current bank statement;

(6) a paycheck;

(7) a government check.

The election officer shall examine the identification presented by the elector and sign an affidavit stating that this has been done .

(a.2) If the elector is unable to produce identification or the elector's identification is challenged by the judge of elections, the elector shall be permitted to cast a provisional ballot in accordance with subsection (a.4).

(a.3) All electors, including any elector that shows identification pursuant to subsection (a), shall subsequently sign a voter's certificate, and, unless he is a State or Federal employe who has registered under any registration act without declaring his residence by street and number, he shall insert his address therein, and hand the same to the election officer in charge of the district register. Such election officer shall thereupon announce the elector's name so that it may be heard by all members of the election board and by all watchers present in the polling place and shall compare the elector's signature on his voter's certificate with his signature in the district register. If, upon such comparison, the signature upon the voter's certificate appears to be genuine, the elector who has signed the certificate shall, if otherwise qualified, be permitted to vote: Provided, That if the signature on the voter's certificate, as compared with the signature as recorded in the district register, shall not be deemed authentic by any of the election officers, such elector shall not be denied the right to vote for that reason, but shall be considered challenged as to identity and required to make the affidavit and produce the evidence as provided in subsection (d) of this section. When an elector has been found entitled to vote, the election officer who examined his voter's certificate and compared his signature shall sign his name or initials on the voter's certificate, shall, if the elector's signature is not readily legible, print such elector's name over his signature, and the number of the stub of the ballot issued to him or his number in the order of admission to the voting machines, and at primaries a letter or abbreviation designating the party in whose primary he votes shall also be entered by one of the election officers or clerks. As each voter is found to be qualified and votes, the election officer in charge of the district register shall write or stamp the date of the election or primary, the number of the stub of the ballot issued to him or his number in the order of admission to the voting machines, and at primaries a letter or abbreviation designating the party in whose primary he votes, and shall sign his name or initials in the proper space on the registration card of such voter contained in the district register.

As each voter votes, his name in the order of voting shall be recorded in two (2) numbered lists of voters provided for that purpose, with the addition of a note of each voter's party enrollment after his name at primaries.

(a.4) (1) At all elections an individual who claims to be properly registered and eligible to vote at the election district but whose name does not appear on the [general] district register and whose registration cannot be determined by the inspectors of election or the county election board shall be permitted to cast a provisional ballot. Individuals who are voting for the first time at the election district shall be required to produce identification pursuant to subsection (a) or (a.1) and if unable to do so shall be permitted to cast a provisional ballot. An individual presenting a judicial order to vote shall be permitted to cast a provisional ballot.

(2) Prior to voting the provisional ballot, the elector

shall be required to sign an affidavit stating the following:

I do solemnly swear or affirm that my

name is _____________, that my date of birth is ___________,

and at the time that I registered I resided at _______________in

the municipality of ______________ in _____________ County of

the Commonwealth of Pennsylvania and that this is the only

ballot that I cast in this election.

Signature of Voter/Elector

Current Address

Check the Reason for Casting the Provisional Ballot.

Signed by Judge of Elections and minority inspector

(3) After the provisional ballot has been cast, the individual shall place it in a secrecy envelope. The individual shall place the secrecy envelope in the provisional ballot envelope and shall place his signature on the front of the provisional ballot envelope. All provisional ballots shall remain sealed in their provisional ballot envelopes for return to the county board of elections.

[(4) Within three business days of the election, the county board of elections shall examine each provisional ballot envelope to determine if the individual voting that ballot was entitled to vote at the election district in the election. One authorized representative of each candidate in a primary or election, who is an elector in the county, shall be permitted to remain in the room in which the determination is being made if he does not impede the orderly conduct of the determination.]

(4) Within seven calendar days of the election, the county board of elections shall examine each provisional ballot envelope that is received to determine if the individual voting that ballot was entitled to vote at the election district in the election. One authorized representative of each candidate in an election and one representative from each political party shall be permitted to remain in the room in which the determination is being made. Representatives shall be permitted to keep a list of those persons who cast a provisional ballot and shall be entitled to challenge any determination of the county board of elections with respect to the counting or partial counting of the ballot under this section. Upon challenge of any provisional ballot under this clause, the ballot envelope shall be marked "challenged" together with the reason for the challenge, and the provisional ballot shall be set aside pending final determination of the challenge according to the following procedure:

(i) Provisional ballots marked "challenged" shall be placed unopened in a secure, safe and sealed container in the custody of the county board of elections until it shall fix a time and place for a formal hearing of all such challenges, and notice shall be given where possible to all provisional electors thus challenged and to every attorney, watcher or candidate who made the challenge.

(ii) The time for the hearing shall not be later than seven days after the date of the challenge.

(iii) On the day fixed for the hearing, the county board shall proceed without delay to hear the challenges and, in hearing the testimony, the county board shall not be bound by the Pennsylvania Rules of Evidence.

(iv) The testimony presented shall be stenographically recorded and made part of the record of the hearing.

(v) The decision of the county board in upholding or dismissing any challenge may be reviewed by the court of common pleas of the county upon a petition filed by any petitioner aggrieved by the decision of the county board. The appeal shall be taken, within two days after the decision was made, whether the decision was reduced to writing or not, to the court of common pleas setting forth the objections to the county board's decision and praying for an order reversing the decision.

(vi) Pending the final determination of all appeals, the county board shall suspend any action in canvassing and computing all challenged provisional ballots irrespective of whether or not an appeal was taken from the county board's decision.

(vii) Upon completion of the computation of the returns of the county, the votes cast upon the challenged official provisional ballots shall be added to the other votes cast within the county.

[(5) If]

(5) (i) Except as provided in subclause (ii), if it is determined that the individual was registered and entitled to vote at the election district where the ballot was cast, the county board of elections shall compare the signature on the provisional ballot envelope with the signature on the elector's registration form and, if the signatures are determined to be genuine, shall count the ballot[.] if the county board of elections confirms that the individual did not cast any other ballot, including an absentee ballot, in the election.

(ii) A provisional ballot shall not be counted if:

(A) either the provisional ballot envelope under clause (3) or the affidavit under clause (2) is not signed by the individual;

(B) the signature required under clause (3) and the signature required under clause (2) are either not genuine or are not executed by the same individual; or

(C) a provisional ballot envelope does not contain a secrecy envelope.

(iii) One authorized representative of each candidate in an election and one representative from each party shall be permitted to remain in the room in which deliberation or determination of subclause (ii) is being made.

(6) If it is determined that the individual voting the provisional ballot was not registered, the provisional ballot shall not be counted and the ballot shall remain in the provisional ballot envelope and shall be marked "Rejected as Ineligible."

[(7) If]

(7) The following shall apply:

(i) Except as provided in subclause (ii), if it is determined that the individual voting the provisional ballot was eligible to vote in the county in which the ballot was cast but not at the election district where the ballot was cast, the county board of elections shall open the envelope and only count that portion of the ballot that the individual would have been eligible to vote in his proper election district and at the election district where the vote was cast[.] if:

(A) the county board of elections confirms that the individual did not cast any other ballot, including an absentee ballot, in the election; and

(B) the individual casting the provisional ballot is a resident of the county in which the provisional ballot was cast.

(ii) In the event that the individual casting the provisional ballot is not found to be a resident of the county in which the provisional ballot was cast, the ballot shall not be counted.

(iii) In the event that the board of elections determines, based on an evidentiary record, that the individual intentionally and wilfully cast a provisional ballot in an election district in which the individual was not eligible to vote, the ballot shall not be counted.

(8) On election night, immediately upon completion of the count and tabulation of the votes cast, the judge of election shall prepare and certify under oath a tally displaying the number of provisional ballots received from the election board and the number of provisional ballots cast and transmitted to the county board of elections. The judge of election shall record on the tabulation the name of the individual into whose possession the provisional ballots were passed for transmission to the county board of elections.

(9) All provisional ballots and the tally of provisional ballots tabulated under clause (8) in the possession of an election board official shall be promptly returned by the judge of election to the custody of the proper county election board in accordance with sections 1113-A(j), 1225(b) and 1228(a).

(10) One authorized representative of each candidate in an election and one representative from each political party shall be permitted to remain in the room where provisional ballots are received by the county board of elections.

[(8)] (11) The department shall establish a World Wide Web site and a toll-free telephone number to permit an individual who cast a provisional ballot to determine whether the vote of that individual was counted and, if the vote was not counted, the reason that it was not counted.

[(9)] (12) For purposes of this subsection, "provisional ballot" means a ballot issued to an individual who claims to be a registered elector by the judge of elections on election day when the individual's name does not appear on the general register and the individual's registration cannot be verified.

(b) If any elector was unable to sign his name at the time of registration, or, if having been able to sign his name when registered, he subsequently shall have lost his sight or lost the hand with which he was accustomed to sign his name, or shall have been otherwise rendered by disease or accident unable to sign his name when he applies to vote, he shall establish his identity to the satisfaction of the election officers, and in such case he shall not be required to sign a voter's certificate, but a certificate shall be prepared for him by one of the election officers, upon which the facts as to such disability shall be noted and attested by the signature of such election officer.

(c) No person who applies to vote shall be permitted by any election officer or clerk or other person to see the signature recorded as his in the district register until after he shall have signed his name to the voter's certificate.

(d) No person, except a qualified elector who is in actual military or naval service under a requisition of the President of the United States or by the authority of this Commonwealth, and who votes under the provisions of Article XIII of this act, shall be entitled or permitted to vote at any primary or election at any polling place outside the election district in which he resides, nor shall he be permitted to vote in the election district in which he resides, unless he has been personally registered as an elector and his registration card appears in the district register of such election district, except by order of the court of common pleas as provided in this act, and any person, although personally registered as an elector, may be challenged by any qualified elector, election officer, overseer, or watcher at any primary or election as to his identity, as to his continued residence in the election district or as to any alleged violation of the provisions of section 1210 of this act, and if challenged as to identity or residence, he shall produce at least one qualified elector of the election district as a witness, who shall make affidavit of his identity or continued residence in the election district: Provided, however, That no person shall be entitled to vote as a member of a party at any primary, unless he is registered and enrolled as a member of such party upon the district register, which enrollment shall be conclusive as to his party membership and shall not be subject to challenge on the day of the primary.

(e) A person who wilfully commits fraud or who conspires to wilfully commit fraud in relation to any of the provisions of this section commits a felony of the third degree and, upon conviction, shall be sentenced to pay a fine not exceeding fifteen thousand dollars ($15,000) or to undergo a term of imprisonment of not more than seven years, or both. An individual convicted under this subsection shall be barred for life from serving as a judge, inspector or clerk of election, machine inspector translator, county election board official, poll watcher or in any other official capacity relating to the sanctity, observation or conduct of Pennsylvania elections.

Section 6. Section 1225 of the act, amended July 14, 1961 (P.L.644, No.332), is amended to read:

Section 1225. Signing and Disposition of Returns, District Register and Voting Check List; Posting; Return of Ballot Boxes.--(a) Immediately after the vote has been counted in districts in which paper ballots are used, all of the general returns shall be signed by the election officers and clerks, and certified by the overseers, if any. If any election officer, clerk or overseer shall refuse to sign or certify the general returns, he shall write his reasons therefor upon the general return sheets. One of said returns shall be immediately posted for the information of the public outside the polling place, and one shall be entrusted to the judge for delivery to the county board with the package of unused ballots, etc., in an envelope provided for that purpose. The election officers shall then replace all the ballots cast, so counted and canvassed, in the ballot boxes, including those declared void, spoiled, and cancelled, together with one set of tally papers, one numbered list of voters, sealed as aforesaid, and one oath of each election officer, and lock and seal each ballot box so that nothing can be inserted therein until it be opened again; and the judge and minority inspector shall immediately deliver the ballot boxes to the custody of the county board, and the county board shall not compute any returns from any election district until the ballot boxes therefor, as well as the package of unused ballots, etc., aforesaid therefrom, are delivered, as aforesaid. The election officers shall record the number of votes cast for each person on an official specimen ballot, shall sign the same and immediately post it outside the polling place for the information of the public.

(b) The minority inspector shall retain one complete set of tally papers, one numbered list of voters, sealed as aforesaid, and one set of oaths of election officers and carefully preserve the same for a period of at least one year. The remaining tally papers, affidavits of voters and others, including oaths of election officers, and one general return sheet shall be placed in separate envelopes, to be provided for that purpose, and sealed as soon as the count is finally completed. All of such envelopes and one numbered list of voters, previously sealed as aforesaid, shall be entrusted to the judge of election to be immediately delivered to the county board. The judge of elections shall return to the county board by two o'clock A. M. on the day following the election envelopes; supplies, including all uncast provisional ballots; and returns, including all provisional ballots and absentee ballots cast in the election district.

(c) Immediately upon completion of the count and tabulation of the votes cast, the district register and the voting check list shall be locked and sealed, and returned forthwith by the judge of election to the custody of the proper registration commission.

Section 7. Section 1228 of the act, amended February 2, 1966 (1965 P.L.1858, No.584), is amended to read:

Section 1228. Disposition of Returns; Posting; Return of District Register and Voting Check List.--(a) The general return sheet, duplicate return sheets, and statement, shall be printed to conform [with] to the type of voting machine used, and in form approved by the Secretary of the Commonwealth. The designating number and letter, if any, on the counter for each candidate, shall be printed thereon opposite the candidate's name: Provided, however, That it shall not be necessary to print the name or designating counter number or letter of any candidate for any borough, township, ward, or election district office. Immediately after the vote has been ascertained, the statement thereof shall be posted on the door of the polling place. The minority inspector shall retain one of said duplicate return sheets, one numbered list of voters, sealed as aforesaid, and one set of oaths of election officers and carefully preserve the same for a period of at least one year . The other duplicate return sheet, numbered list of voters, oaths of election officers, and affidavits of voters and others, shall be sealed up and given to the judge of election, who shall deliver them, together with the general return sheet and the package of ballots deposited, written or affixed in or upon the voting machine, to the county board. If the type of voting machine is equipped with mechanism for printing paper proof sheets, one of said proof sheets shall be posted on the door of the polling place with the statement aforesaid; one shall be retained by the minority inspector; one shall be placed in the envelope and delivered with the general return sheet; and one shall be sealed in the envelope with the duplicate return sheets and delivered by the judge of election to the county board. The printed proof sheet returned with the general return sheet, and the printed proof sheet returned with the duplicate return sheet, shall each be part of the return of the election. The judge of elections shall return to the county board by two o'clock A. M. on the day following the election envelopes; supplies, including all uncast provisional ballots; and returns, including all provisional ballots and absentee ballots cast in the election district.

(b) Immediately upon completion of the count and tabulation of the vote cast, the district register and the voting check list shall be locked and sealed, and returned forthwith by the judge of election to the custody of the proper registration commission. In cities of the first class, the registration commission shall designate police stations at which it will accept such custody.

Section 8. Section 1402 of the act is amended to read:

Section 1402. Returns to Be Open to Public Inspection; Exceptions.-- (a) The general returns from the various districts which have been returned unsealed shall be open to public inspection at the office of the county board as soon as they are received from the judges of election. None of the envelopes sealed by election officers and entrusted to the judge of election for delivery to the county board shall be opened by any person, except by the order of the return board, or of the court of common pleas.

(b) The county board shall submit returns received under subsection (a) to the Department of State for each office for which a candidate must file a nomination petition with the Secretary of the Commonwealth by three o'clock A. M. on the day following the election. The submission shall be by telephone, facsimile or the World Wide Web site or by any other manner required by the secretary.

Section 9. Section 1404(a), (e) and (f) of the act, amended October 28, 1971 (P.L.493, No.112), are amended and the section is amended by adding subsections to read:

Section 1404. Computation of Returns by County Board; Certification; Issuance of Certificates of Election.--

(a) The county board shall, at nine o'clock A. M. on the third day following the primary or election, at its office or at some other convenient public place at the county seat, of which due notice shall have been given as provided by section 1403, publicly commence the computation and canvassing of the returns, and continue the same from day to day until completed, in the manner hereinafter provided. For this purpose any county board may organize itself into sections, each of which may simultaneously proceed with the computation and canvassing of the returns from various districts of the county in the manner provided by this section. Upon the completion of such computation and canvassing, the board shall tabulate the figures for the entire county and sign, announce and attest the same, as required by this section.

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(e) Provision for Recount or Recanvass of Vote.--[(1)] Whenever it shall appear that there is a discrepancy in the returns of any election district, or, upon petition of three voters of any district, verified by affidavit, that an error, although not apparent on the face of the returns, has been committed therein, or of its own motion or under subsection (g) , the county board shall at any time prior to the completion of the computation of all of the returns for the county, summon the election officers of the district, and said officers, in the presence of said board, shall [make a record of the number of the seal upon the voting machine, and the number on the protective counter or other device; shall make visible the registering counters of such machine, and, without unlocking the machine against voting, shall] conduct a recount or recanvass [the vote] of all ballots cast [thereon]. Before making such recount or recanvass, the said board shall give notice in writing to the proper custodian of voting machines, and to each candidate, and to the county chairman of each party or political body, affected by the [canvass,] recount or recanvass; and each such candidate may be present in person, or by attorney, and each of such parties, or bodies, may send two representatives to be present at such recount or recanvass.

(1) In a county in which an election district uses voting machines, all of the following apply:

(i) The county board shall:

(A) make a record of the number of the seal upon the voting machine and the number on the protective counter or other device;

(B) make visible the registering counters of such machine; and

(C) without unlocking the machine against voting, recanvass the vote cast on the machine.

(ii) If, upon such recanvass, it shall be found that the original canvass of the returns has been correctly made from the machine, and that the discrepancy still remains unaccounted for, the said board, with the assistance of the custodian, in the presence of the election officers and the authorized candidates and representatives, shall unlock the voting and counting mechanism of the machine, and shall proceed thoroughly to examine and test the machine to determine and reveal the true cause or causes, if any, of the discrepancy in returns from such machine. Each counter shall be reset at zero (000) before it is tested, after which it shall be operated at least one hundred times. After the completion of such examination and test, the custodian shall then and there prepare a statement, in writing, giving in detail the result of the examination and test, and such statement shall be witnessed by the persons present, and shall be filed with the said board.

(iii) If, upon such recanvass, it shall appear that the original canvass of the returns by the election officers was incorrect, the said returns and all papers being prepared by the said board shall be corrected accordingly: [(2)] Provided, however, That in the case of returns from any election district wherein the election was held by the use of a voting machine equipped with mechanism for printing paper proof sheets, said proof sheets, if mutually consistent, shall be deemed to be the primary evidence of the result of the election and to be prima facie accurate, and there shall not be considered to be any discrepancy or error in the returns from any such district, such as to require a recanvass of the vote, if all available proof sheets, from the voting machine used therein, identified to the satisfaction of the return board and shown to its satisfaction to have been produced from proper custody, shall be mutually consistent, and, if the general and duplicate returns, or either of them, from said district shall not correspond with said proof sheets, they, and all other papers being prepared by said return board, shall be corrected so as to correspond with the same, in the absence of allegation of specific fraud or error, proved to the satisfaction of the return board by the weight of the evidence, and only in such case shall the vote of said election district be recanvassed under the provisions of this section.

(2) In a county in which an election district uses paper ballots other than those used in conjunction with an electronic voting system, all of the following apply:

(i) The county board shall, in the presence of the election officers and the authorized candidates and representatives, cause:

(A) the ballot box of each district to be opened and the vote in the ballot box to be recounted; and

(B) the entire vote of the election district to be counted correctly.

(ii) The county board may summon the election officers and overseers to appear with all election papers in their possession to assist in determining an accurate count or addressing errors and omissions.

(3) In a county in which an election district uses an electronic voting system utilizing paper ballots, all of the following apply:

(i) The county board shall recount all ballots using manual, mechanical or electronic devices of a different type used for the specific election.

(ii) All ballots containing overvotes shall be counted manually.

(4) In a county in which an election district uses any other type of electronic voting systems, the county board shall conduct the recanvass similar to the procedure specified in clause (1) for voting machines.

(f) As the returns from each election district are read, computed and found to be correct or corrected as aforesaid, they shall be recorded on the blanks prepared for the purpose until all the returns from the various election districts which are entitled to be counted shall have been duly recorded, when they shall be added together, announced and attested by the clerks who made and computed the entries respectively and signed by the members of the county board. Returns under this subsection shall be considered unofficial for five (5) days. The county board shall submit the unofficial returns to the Secretary of the Commonwealth by five o'clock P. M. on the Tuesday following the election. The submission shall be as directed by the secretary for public office which appears on the ballot in every election district in this Commonwealth or for a ballot question which appears on the ballot in every election district in this Commonwealth. At the expiration of five (5) days after the completion of the computation of votes, in case no petition for a recount or recanvass has been filed in accordance with the provisions of this act, or upon the completion of the recount or recanvass if a petition therefor has been filed within five (5) days after the completion of the computation of votes, the county board shall certify the returns so computed in said county in the manner required by this act, unless upon appeals taken from any decision, the court of common pleas shall have directed any returns to be revised, or unless in case of a recount, errors in the said returns shall have been found, in which case said returns shall be revised, corrected and certified accordingly. The county board shall thereupon, in the case of elections, issue certificates of election to the successful candidates for all county, city, borough, township, ward, school district, poor district and election offices, and local party offices to be filled by the votes of the electors of said county, or of any part thereof.

(g) This subsection relates to recounts and recanvasses ordered by the secretary.

(1) Except as set forth in subsection (h), the secretary shall order a recount and recanvass to all county boards if the unofficial returns prepared in accordance with subsection (f) reflect any of the following:

(i) A candidate for a public office which appears on the ballot in every election district in this Commonwealth was defeated by one-half of a percent or less of the votes cast for the office. This subclause includes a candidate for retention to a Statewide judicial office.

(ii) A ballot question appearing on the ballot in every election district in this Commonwealth was approved or rejected by one-half of a percent or less of the votes cast on the question.

(2) The secretary shall issue an order under clause (1) by five o'clock P. M. of the second Thursday following the day of the election.

(3) The secretary shall provide twenty-four (24) hours notice of an order under clause (1) to each candidate and to the county chairman of each party or political body affected by the recount and recanvass. Notice shall be by press release, the World Wide Web site or other means.

(4) A candidate affected by the recount and recanvass may be present, in person or by attorney, at the recount and recanvass. A party or body affected by the recount and recanvass may send two representatives to the recount and recanvass.

(5) The recount and recanvass shall:

(i) follow procedures specified in subsection (e);

(ii) be scheduled to be held by the third Wednesday following the day of the election; and

(iii) be completed by noon on the following Tuesday.

(6) The results of the recount and recanvass shall be submitted to the secretary by 12 o'clock noon on the day following completion of the recount and recanvass.

(7) The secretary shall issue a press release and publish on the World Wide Web site all results received from the county boards of election.

(8) Following the completion of the recount and recanvass, the Commonwealth shall pay to each county the sum specified in sections 1701 and 1702. The amounts necessary to pay the counties are hereby appropriated, upon approval of the Governor, to the Department of State.

(h) A recount and recanvass shall not be ordered under subsection (g)(1)(i) if the defeated candidate requests in writing that a recount and recanvass not be made. A request under this subsection must be made by 12 o'clock noon on the second Wednesday following the election.

Section 10. Section 1407 of the act, repealed in part April 28, 1978 (P.L.202, No.53), is amended to read:

Section 1407. Appeals to Court from Decisions of the County Board.--

(a) Any person aggrieved by any order or decision of any county board regarding the computation or canvassing of the returns of any primary or election, or regarding any recount or recanvass thereof under sections 1701, 1702 and 1703 of this act, may appeal therefrom within two days after such order or decision shall have been made, whether then reduced to writing or not, to the court [of common pleas of the proper county] specified in this subsection , setting forth why he feels that an injustice has been done, and praying for such order as will give him relief. If a recount or recanvass is made under section 1404(g), the appeal must be made to Commonwealth Court. Unless a recount or recanvass is made under section 1404(g), the appeal must be made to the court of common pleas of the proper county. Upon the payment to the prothonotary of a fee for filing such appeal, a judge of the court shall fix a time and place for hearing the matter in dispute within three days thereafter, of which due notice shall be served, with a copy of such appeal, by the appellant upon a member of the county board whose action is complained of and upon every attorney, watcher or candidate who opposed the contention of the appellant before the county board, and upon any other person that the judge shall direct, at least two days before the matter shall be reviewed by the court. Proof of such notice or the waiver thereof must be filed therein before any appeal is sustained.

(b) The court on an appeal shall have full power and authority to hear and determine all matters pertaining to any fraud or error committed in any election district to which such appeal relates, and to make such decree as right and justice may require. Pending such appeal, the county board shall suspend any official certification of the votes cast in such election district. None of the orders or decisions of either the county board or the court of common pleas on appeal shall be deemed a final adjudication regarding the results of any primary or election, so as to preclude any contest thereof. No appeal shall be allowed or granted from any order or decree of the court of common pleas made in pursuance of this section. The court of common pleas, upon any appeal under this section, may compel the appellant or any opposing party, other than the county board, to pay all the witness fees, if any, or other legal costs of the hearing, which costs may be taxed by the prothonotary in the usual manner.

Section 11. Section 1701 of the act is amended to read:

Section 1701. Opening Ballot Boxes upon Petition of Electors Alleging Fraud or Error; Deposit or Bond.--(a) [The] Except as set forth in subsection (a.1), the court of common pleas, or a judge thereof, of the county in which any election district is located in which ballots were used, shall open the ballot box of such election district used at any general, municipal, special or primary election held therein, and cause the entire vote thereof to be correctly counted by persons designated by such court or judge, if three qualified electors of the election district shall file, as hereinafter provided, a petition duly verified by them, alleging that upon information which they consider reliable they believe that fraud or error, although not manifest on the general return of votes made therefrom, was committed in the computation of the votes cast for all offices or for any particular office or offices in such election district, or in the marking of the ballots, or otherwise in connection with such ballots. It shall not be necessary for the petitioners to specify in their petition the particular act of fraud or error which they believe to have been committed, nor to offer evidence to substantiate the allegations of their petition.

(a.1) In cases resulting from a recount or recanvass order by the Secretary of the Commonwealth under section 1404(g), all of the following apply:

(1) Upon petition under clause (2), Commonwealth Court shall:

(i) open the ballot box of each election district in which ballots were used at a general, municipal, special or primary election; and

(ii) cause the entire vote of the election district to be correctly counted by persons designated by the court.

(2) To obtain relief under clause (1):

(i) Three (3) qualified electors of a county must file a verified petition alleging that, upon information which they consider reliable, they believe that fraud or error, although not manifest on the general return of votes, was committed:

(A) in the computation of votes cast;

(B) in the marking of the ballots; or

(C) otherwise in connection with the ballots.

(ii) It is not necessary for the petitioners to specify in their petition the particular act of fraud or error which they believe to have been committed nor to offer evidence to substantiate the allegations of their petition.

(b) Every petition for the opening of a ballot box under the provisions of this section shall be filed in the office of the prothonotary of the proper county, accompanied by a deposit of cash in the amount of fifty ($50.00) dollars, or by a bond signed by the petitioners as principals and by a corporate surety to be approved by the court, in the amount of one hundred ($100.00) dollars, conditioned upon the payment to the county treasurer for the use of the county of the sum of fifty ($50.00) dollars, in the event that, upon the opening of the ballot box, it shall not appear that fraud or substantial error was committed in the computation of the votes cast on the ballots contained therein, or fraud in the marking of the ballots contained therein, or otherwise in connection with such ballots.

(c) Before any ballot box is opened under the provisions of this section, the court shall direct that notice of time and place of proposed recount be given, either personally or by registered mail, to each candidate for the office or offices which are to be recounted by the order of the court, and each such candidate may be present at such recount, either in person or by his attorney or by his duly authorized representative, under such regulations as the court may prescribe.

(d) If, upon opening any such ballot box, it shall appear that fraud or substantial error was committed in the computation of the votes cast on the ballots contained therein, or fraud in the marking of the ballots contained therein, or otherwise in connection with such ballots, it shall be the duty of the court to certify such fact to the prothonotary and thereupon the prothonotary shall return to the petitioners the said sum of fifty ($50.00) dollars, or if the petitioners shall have filed a bond in lieu of cash, to mark said bond cancelled and notify the petitioners that he has done so.

(e) If, upon opening any ballot box under the provisions of this section, it shall not appear that fraud or substantial error was committed in the computation of the votes cast on the ballots contained therein, or fraud in the marking of the ballots contained therein, or otherwise in connection with such ballots, the persons upon whose petition such ballot box shall have been opened shall forfeit to the county the sum of fifty ($50.00) dollars. If said petitioners shall have deposited the said sum in cash with the prothonotary at the time of filing the petition, the prothonotary, upon certification of the court that fraud or substantial error was not discovered, shall pay said sum deposited with him to the county treasurer; and if the petitioners shall have filed with their petition a bond in the sum of one hundred ($100.00) dollars, it shall be the duty of the county treasurer forthwith to collect from the principals or surety on said bond, the sum of fifty ($50.00) dollars, and costs of suit, and for this purpose, he is hereby authorized to institute any necessary legal proceedings. When so collected, the said sum of fifty ($50.00) dollars shall be paid over to the county treasurer.

(f) Ballot boxes may be opened under the provisions of this section at any time within four months after the date of the general, municipal, special or primary election at which the ballots therein shall have been cast.

Section 12. Section 1702 of the act, amended December 17, 1959 (P.L.1891, No.692), is amended to read:

Section 1702. Recanvassing Voting Machines upon Petition of Electors Alleging Fraud or Error.--(a) [The] Judicial proceedings shall be as follows:

(1) Except as set forth in clause (2), the court of common pleas, or a judge thereof, of the county in which any election district is located, shall make visible the registering counters of the voting machine or machines used in such election district at any primary or election, and without unlocking the machine against voting, shall recanvass the vote cast therein, if three qualified electors of the election district shall file a petition, duly verified by them, alleging that, upon information which they consider reliable, they believe that fraud or error, although not manifest on the general return of votes made therefrom, was committed in the canvassing of the votes cast on such machine or machines. It shall not be necessary for the petitioners to specify in their petition the particular act of fraud or error they believe to have been committed, nor to offer evidence to substantiate the allegations of their petition.

(2) In cases resulting from a recount or recanvass ordered by the Secretary of the Commonwealth under section 1404(g), all of the following apply:

(i) Upon petition under subclause (ii), Commonwealth Court shall:

(A) make visible the registering counter of the voting machine used;

(B) without unlocking the machine against voting, recanvass the vote cast in the machine.

(ii) To obtain relief under subclause (i):

(A) Three qualified electors of the county must file a verified petition alleging that, upon information which they consider reliable, they believe that fraud or error, although not manifest on the general return of votes, was committed in the canvassing of the votes cast on the machine.

(B) It is not necessary for the petitioners to specify in their petition the particular act of fraud or error they believe to have been committed nor to offer evidence to substantiate the allegations of the petition.

(a.1) Every petition for the recanvassing of votes cast in the voting machine, or voting machines of an election district, under the provisions of this section, shall be filed in the office of the prothonotary of the proper county accompanied by a deposit of cash in the amount of fifty ($50) dollars, or by a bond signed by the petitioners as principals and by a corporate surety to be approved by the court in the amount of one hundred ($100) dollars, conditioned upon the payment to the county treasurer for the use of the county of the sum of fifty ($50) dollars, in the event that upon the recanvassing of the votes cast in a voting machine or voting machines, it does not appear that fraud or substantial error was committed in the canvassing of the votes cast on such machine or otherwise in connection with such voting machines.

(b) Before the votes cast on any voting machine are recanvassed under the provisions of this section, the court shall direct that notice of the time and place of the proposed recanvass be given, either personally or by registered mail, to each candidate whose name appears on the ballot labels, and each such candidate may be present at such recanvass, either in person or by his attorney, or by his duly authorized representative, under such regulations as the court may prescribe.

(b.1) If, upon the recanvassing of the votes in any voting machine, it shall appear that fraud or substantial error was committed in the computation of the votes cast on the voting machine or otherwise in connection with such voting machine, it shall be the duty of the court to certify such fact to the prothonotary, and thereupon the prothonotary shall return to the petitioners the said sum of fifty ($50) dollars, or if the petitioners shall have filed a bond, in lieu of cash, to mark said bond cancelled and notify the petitioners that he has done so.

(b.2) If, upon the recanvassing of the votes in any voting machine under the provisions of this section, it shall not appear that fraud or substantial error was committed in the computation of the votes cast in the voting machine or otherwise in connection with such voting machine, the persons upon whose petition such voting machine was recanvassed shall forfeit to the county the sum of fifty ($50) dollars. If said petitioners shall have deposited the said sum in cash with the prothonotary at the time of filing the petition, the prothonotary, upon certification of the court that fraud or substantial error or otherwise in connection with such machine was not discovered, shall pay said sum deposited with him to the county treasurer, and if the petitioners shall have filed with their petition a bond in the sum of one hundred ($100) dollars, it shall be the duty of the county treasurer forthwith to collect from the principals or surety on said bond the sum of fifty ($50) dollars and costs of suit, and for this purpose he is hereby authorized to institute any necessary legal proceedings. When so collected, the said sum of fifty ($50) dollars shall be paid over to the county treasurer.

(c) Voting machines may be recanvassed under the provisions of this section at any time within twenty days after the date of the primary or election at which they were used.

Section 13. Section 1703 of the act, amended May 5, 1982 (P.L.374, No.108), is amended to read:

Section 1703. Correction of Returns; Decision Not to Be Final; Evidence for Prosecution.--

(a) (1) Any petition to open a ballot box or to recanvass the votes on a voting machine or an electronic voting system pursuant to sections 1701 and 1702 shall be filed no later than five (5) days after the completion of the computational canvassing of all returns of the county by the county board. If any error or fraud is found the court shall grant the interested parties an additional five (5) days to file petitions requesting additional ballot boxes to be opened or voting machines or electronic voting systems to be recanvassed.

(i) Except as set forth in subclause (ii):

(A) a recount or recanvass shall include all election districts in which ballots were cast for the office in question; and

(B) petitions, accompanied by the appropriate money or bond, must be filed in each election district in accordance with this act.

(ii) Subclause (i) shall not apply if a petitioner under section 1701 or 1702 pleads that a particular act of fraud or error occurred and offers prima facie evidence supporting the allegation.

(2) If any petition to open a ballot box or to recanvass the votes on a voting machine or an electronic voting system shall have been presented, under the provisions of sections 1701 and 1702 of this act and the court shall discover therein any fraud or error, the court shall correct, compute and certify to the county board the votes justly, regardless of any fraudulent or erroneous entries made by the election officers thereof, and the county board shall correct accordingly any entries previously made in the returns of the county being prepared by it, or which have been prepared and not yet certified.

(b) No order or decision of the court under the provisions of sections 1701 and 1702 of this act, shall be deemed a final adjudication regarding the results of any primary or election, so as to preclude any contest thereof under the provisions of this article, and no such order or decision shall affect the official returns of any election district, unless a petition to open the ballot boxes or to recanvass the votes on a voting machine or an electronic voting system shall have been presented before the certification of the returns of the county by the county board, or unless a contest shall have been instituted in the manner provided by this article.

(c) If upon the opening of any ballot box or recanvass of any voting machine or electronic voting system under the provisions of this article, it shall be found that fraud was committed in the computation of the votes cast on the ballots or voting machine, or in the marking of the ballots contained therein or otherwise in connection with such ballots, the county board shall take such steps as shall be appropriate to enable the ballot box and contents thereof or voting machine or electronic voting system to be available as evidence in any prosecution which may be begun against any person or persons alleged to be guilty of such fraud.

Section 13.1. The amendment of section 1210 of the act shall apply to all elections occurring on or after December 31, 2004.

Section 14. This act shall take effect as follows:

(1) The amendment of section 1210(a), (a.1) and (a.4) of the act shall take effect in one year.

(2) The remainder of this act shall take effect immediately.

APPROVED--The 8th day of October, A. D. 2004.

EDWARD G. RENDELL