This story originally appeared on Spotlight PA.
When legislative Republicans urged Congress to reject Pennsylvania’s electoral votes for Joe Biden in 2020, they didn’t cite voter fraud or illegal activity. Instead, they pointed to something seemingly innocuous: guidance from the Pennsylvania Department of State.
State Republicans including then-state House Speaker Bryan Cutler accused the agency of undermining Pennsylvania’s new mail voting law. Jake Corman, then the state Senate’s majority leader, called on former Secretary Kathy Boockvar to step down, saying, “To have this sort of stuff going on at the 11th hour is unconscionable.”
Corman was referencing guidance issued by Boockvar the day before the November 2020 election that advised counties to notify voters of fatal defects with their mail ballots and have them vote provisionally at a polling place. Some counties followed the guidance, and some didn’t.
Courts did not find merit to the argument that the department had misused its authority, but the narrative that guidance and directives issued late in the election cycle tipped the scales against then-President Donald Trump has persisted on the right since. Republican legislators held a nearly two-hour hearing in 2021 questioning Boockvar about her guidance, and state Sen. Doug Mastriano (R., Franklin) penned an op-ed during his 2022 gubernatorial run claiming that by using guidance, Democrats had “hijacked” Pennsylvania’s mail voting law.
The department regularly issues guidance and directives to clarify election procedures and state law, such as when there is a new court ruling or Election Day problem the agency hopes to avoid repeating.
The two notices hold different weights. Directives carry the force of law based on the secretary of the commonwealth’s authority under the Election Code. Guidances outline the department’s view of best practices that counties should follow.
As we approach what’s expected to be another contentious presidential election, here’s what you need to know about directives and guidance:
What is a directive, and when is it issued?
According to the Pennsylvania Department of State, the secretary issues directives when the Election Code — the law that governs voting in Pennsylvania — specifically gives them authority over that area of election procedure.
This means directives have the force of law; that legal authority is always established at the outset of the directive.
An example of this is a recent directive issued on mail ballots. On July 1, Secretary of the Commonwealth Al Schmidt instructed counties to preprint the full, four-digit year on mail ballot return envelopes.
This was a directive rather than guidance, because the state’s Election Code authorizes the secretary to determine how that return envelope is configured.