IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donald J. Trump for President, Inc., : Appellant : : v. : No. 983 C.D. 2020 : ARGUED: October 20, 2020 Philadelphia County Board of : Elections; Commissioner Lisa M. : Deeley in her Official Capacity; : Commissioner Al Schmidt in his : Official Capacity; Commissioner : Omar Sabir in his Official Capacity :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ELLEN CEISLER, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE CEISLER FILED: October 23, 2020
Donald J. Trump for President, Inc. (Campaign) appeals from the October 9, 2020 Order of the Court of Common Pleas of Philadelphia County (Trial Court), denying the Campaign’s Emergency Election Petition (Petition). In its Petition, the Campaign sought an order directing the Philadelphia County Board of Elections (Board) to permit representatives of the Campaign to enter and remain in the Board’s satellite election offices as poll watchers pursuant to Sections 310(a) and 417(a) of the Pennsylvania Election Code (Election Code), Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2650(a) and 2687(a).1 We affirm and adopt the Trial Court’s Opinion and Order in full.
Background On October 1, 2020, the Campaign filed a Complaint in Equity against the Board and Commissioner Lisa M. Deeley, Commissioner Al Schmidt, and Commissioner Omar Sabir (together, Commissioners). The Campaign is the principal committee for the reelection campaign of Donald J. Trump, the 45th President of the United States of America (President Trump). President Trump is the Republican candidate for the office of the President of the United States of America in the upcoming November 3, 2020 General Election. The Board is
1 Section 310(a) of the Election Code provides:
Any party or political body or body of citizens which now is, or hereafter may be, entitled to have watchers at any registration, primary or election, shall also be entitled to appoint watchers who are qualified electors of the county or attorneys to represent such party or political body or body of citizens at any public session or sessions of the county board of elections, and at any computation and canvassing of returns of any primary or election and recount of ballots or recanvass of voting machines under the provisions of this act. Such watchers or attorneys may exercise the same rights as watchers at registration and polling places, but the number who may be present at any one time may be limited by the county board to not more than three for each party, political body or body of citizens.
25 P.S. § 2650(a). Section 417(a) of the Election Code provides:
Each candidate for nomination or election at any election shall be entitled to appoint two watchers 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 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.
25 P.S. § 2687(a).
2 responsible for elections in Philadelphia County. The Commissioners were elected by the citizens of Philadelphia County to four-year terms and are responsible for voter registration and elections in Philadelphia County. On October 3, 2020, the Campaign filed its Petition in the Trial Court. On October 6, 2020, the Trial Court heard oral argument on the Petition and accepted documentary evidence into the record. On October 9, 2020, the Trial Court issued its Order denying the Campaign’s Petition. In its accompanying Opinion, the Trial Court analyzed the relevant provisions of the Election Code and concluded that the Board’s satellite election offices are neither “polling places” nor “public sessions” under the Election Code and, thus, poll watchers are not permitted at those offices. That same day, the Campaign appealed to this Court.2 Issues The Campaign presents the following issues for this Court’s review:
(1) Are the [s]atellite [e]lection [o]ffices opened and operated by the [Board] as of September 29, 2020, where voters register to vote, request a mail-in ballot in-person, receive it, and then vote by filling out their mail-in ballot and placing it in the possession of the [Board], all at the same location, “polling places” as defined by [Section 102(q) of] the Election Code[, ] 25 P.S. § 2602(q),[3] thus requiring [the Commissioners] to permit watchers to be present therein pursuant to [Section 417 of the Election Code,] 25 P.S. § 2687?
2 This appeal involves statutory interpretation of the Election Code, which is a question of law; therefore, our standard of review is de novo and our scope of review is plenary. Banfield v. Cortes, 110 A.3d 155, 166 (Pa. 2015).
3 Section 102(q) of the Election Code defines “polling place” as “the room provided in each election district for voting at a primary or election.” 25 P.S. § 2602(q).
3 (2) Are the public spaces of the [s]atellite [e]lection [o]ffices operated by the [Board] and which opened to the public as of September 29, 2020, where voters register to vote, if needed, request a mail-in ballot in-person, receive it, and vote by filling out their mail-in ballot and placing it in the possession of the [Board], all at the same location, . . . “public sessions” of the Board . . . , therefore requiring [the Commissioners] to permit watchers or attorneys to be present therein pursuant to [Section 310 of the Election Code,] 25 P.S. § 2650?
Campaign Br. at 4. Analysis On appeal, the Campaign contends that the Board’s satellite election offices constitute either “polling places” or “public sessions” under the Election Code, thereby permitting poll watchers to be present at such offices. Specifically, the Campaign requests a declaration regarding its right to have poll watchers present at the satellite election offices pursuant to the Declaratory Judgments Act, 42 Pa. C.S. §§ 7531-41. In ruling on the Campaign’s Petition, the Trial Court engaged in a detailed analysis of the provisions of the Election Code. The Trial Court began by noting that the General Assembly did not expressly grant poll watchers access to the satellite election offices, as they are indisputably a new creation.4 After discussing the statutorily enumerated rights of poll watchers under the Election Code, the Trial Court found that the “only questions that the Campaign . . . reasonably raise[d] . . . [were] whether the satellite offices qualify as ‘polling places’ . . . or as ‘sessions of the county board of elections.’” Trial Ct. Op., 10/9/20, at 6. The Trial Court first determined that satellite election offices are “not polling places . . . at which watchers have a right to be present under the Election Code.”
4 The Board opened its first satellite election offices in the City of Philadelphia on September 29, 2020.
4 Id. at 8. The Trial Court reasoned that the Election Code provides that polling places operate only on Election Day and are available only to voters residing in specific districts, whereas satellite offices are restricted by neither date nor location. Id. at 6-7. The Trial Court further explained that the Election Code specifically provides that mail-in ballots cannot be delivered to polling places, but must be sent to the Board’s offices or placed in drop boxes. Id. at 8. Next, the Trial Court determined that the Board’s functions at the satellite election offices do not constitute “public sessions” under the Election Code. The Trial Court noted that the Election Code only contemplates “very limited” public sessions of the Board at which poll watchers are permitted to appear. Id. at 9. The Trial Court reasoned that the Board’s “employees’ functions at the satellite offices are not quasi-judicial; they are ministerial only.” Id. at 10. The Trial Court explained that the Board’s employees engage in the following ministerial acts: registering voters, processing applications for mail-in ballots, providing mail-in ballots to voters to complete in private, and receiving the “completed, sealed, mail- in ballots from voters.” Id. at 10-11. Therefore, the Trial Court concluded that the General Assembly did not “cho[o]se to give watchers the right to be present in the offices of the Board . . . while the Board’s employees are performing ministerial activities with respect to mail-in ballots prior to Election Day.” Id. at 12. After conducting a de novo review of the record, the parties’ briefs and oral arguments before this Court, and the relevant law, we conclude that Judge Gary S. Glazer’s Opinion thoroughly discusses, and correctly disposes of, the legal issues before this Court. Therefore, we adopt the analysis in Judge Glazer’s Opinion in full for purposes of appellate review.
5 Conclusion Accordingly, we affirm the Trial Court’s Order on the basis of Judge Glazer’s Opinion filed on October 9, 2020, in Donald J. Trump for President, Inc. v. Philadelphia County Board of Elections (Philadelphia County, September Term 2020, No. 02035).
__________________________________ ELLEN CEISLER, Judge
6 IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donald J. Trump for President, Inc., : Appellant : : v. : No. 983 C.D. 2020 : Philadelphia County Board of : Elections; Commissioner Lisa M. : Deeley in her Official Capacity; : Commissioner Al Schmidt in his : Official Capacity; Commissioner : Omar Sabir in his Official Capacity :
ORDER
AND NOW, this 23rd day of October, 2020, the October 9, 2020 Order of the Court of Common Pleas of Philadelphia County is hereby AFFIRMED, and this Court hereby adopts the analysis in Judge Gary S. Glazer’s Opinion in Donald J. Trump for President, Inc. v. Philadelphia County Board of Elections (C.P. Phil. Sept. Term 2020, No. 02035, filed on October 9, 2020), for purposes of appellate review.
__________________________________ ELLEN CEISLER, Judge 0017_OPINION_FILED236_NOTICE_GIVEN IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Donald J. Trump for President, Inc., : Appellant : : No. 983 C.D. 2020 v. : : Argued: October 20, 2020 Philadelphia County Board of Elections; : Commissioner Lisa M. Deeley in her : Official Capacity; Commissioner Al : Schmidt in his Official Capacity; : Commissioner Omar Sabir in his : Official Capacity :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ELLEN CEISLER, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
DISSENTING OPINION BY JUDGE McCULLOUGH FILED: October 23, 2020
I respectfully, but most empathetically, dissent. In their rulings, the Court of Common Pleas of Philadelphia County (trial court) and a majority of this panel effectively deprive both presidential candidates, and by extension, every party and candidate, of their statutory right to have poll watchers present at places where electors cast and submit votes in person and in numbers unparalleled in our times. Underneath it all, there are three reoccurring themes in this matter: (1) the City of Philadelphia has received a monetary grant in excess of $10 million dollars, (Reproduced Record (R.R.) at 15a), from a private entity in Chicago to construct non-traditional, public polling places (so-called “Satellite Offices”) where electors are—and indeed have been—voting early and prior to Election Day; (2) our General Assembly included a provision in what is commonly referred to as “Act 77,” and this section authorizes an elector to retrieve and complete a “mail-in” ballot and actually cast that ballot in person;1 and (3) the issues surrounding “the ongoing COVID-19 pandemic,” which our Supreme Court has recently said “equates to a natural disaster.” Pennsylvania Democratic Party v. Boockvar, , __ A.3d __, __, 2020 Pa. LEXIS 4872, at *47, slip op. at 35, (Pa., 133 MM 2020, filed September 17, 2020). In essence, these three issues lie at the foundation of the decision of the trial court, which the majority adopts verbatim. But, if a natural disaster and the creation of new public forums in which to vote in person constitute a sufficient legal basis upon which to subvert the actual act of voting, and convert it into something that is allegedly not voting, while severely jeopardizing the integrity of our election procedures in the process, then I respectfully submit that we have gone too far. At the outset, I note that this case has nothing to do with political division, racial, ethnic, or religious division, generational division, or some other divisive factor that (sadly) seems to be apparent in our current cultural landscape. This case, instead, has everything to do with something that every American citizen wants and desires—to protect the veracity and reliability of the fundamental right to vote and to ensure a fair election where everyone follows the same rules and is granted the same rights. After all, this is the hallmark feature that has separated our great Country from the rest of the world and has bestowed upon American citizens the most prolific form of government in the history of mankind. It seems no coincidence that this case originates in Philadelphia, the heart of William Penn’s “Holy Experiment,” which has once again become the epicenter for Penn’s vision
1 Act 77, as amended by section 17 of Act of March 27, 2020, P.L. 41, 25 P.S. §3150.16. PAM – 2 for unity, wisdom, and justice. As Penn stated in the preface to his “Frame of Government of Pennsylvania” in 1682, “ . . . any government is free to the people under it . . . where the laws rule and the people are a party to those laws.”2 In this regard, I believe that the Commonwealth of Pennsylvania has a special duty and obligation: “Like the constitutions of Virginia, New Jersey, Maryland, and most of the original 13 Colonies, Pennsylvania’s Constitution was drafted in the midst of the American Revolution, as the first overt expression of independence from the British Crown.” Commonwealth v. Edmunds, 586 A.2d 887, 896 (Pa. 1991). The right to vote emanates, in part, from the threat and fear of retaliation and persecution by the King, see McIntyre v. Ohio Elections Commission, 514 U.S. 334, 342-43 (1995), and it is beyond cavil that the process and procedure for conducting a presidential election is largely left to the devices of the individual states. See Article II, section 1 of the United States Constitution, U. S. CONST. art. II, §1; McPherson v. Blacker, 146 U.S. 1, 28-35 (1892). It was here, in Pennsylvania, that the Declaration of Independence and the United States Constitution were drafted and adopted, ensuring protection of our sacred freedoms and rights and the recognition that “all men are created equal.” Notably, the Pennsylvania Constitution contains a Free and Equal Elections Clause, which provides that “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” PA. CONST. art. I, §5. In interpreting the Pennsylvania Election Code in light of this constitutional provision, the Pennsylvania Supreme Court has long held that courts should construe the election laws liberally so “[t]echnicalities
2 See https://www.legis.state.pa.us/cfdocs/legis/SpeakerBios/PAGovernment.cfm (last visited 10/22/20).
PAM – 3 should not be used to make the right of the voter insecure.” Appeal of James, 105 A.2d 64, 65-66 (Pa. 1954). Our Supreme Court has also held that, in election matters, it “possesses broad authority to craft meaningful remedies when required.” League of Women Voters v. Commonwealth, 178 A.3d 737, 822 (Pa. 2018). The circumstances surrounding this case, and the decision, will impact not only the appellant, Donald J. Trump for President, Inc. (Appellant), but every American’s right of franchise – the right to vote. To be sure, voters have a “right to cast a ballot in an election free from the taint of intimidation and fraud,” Burson v. Freeman, 504 U.S. 191, 211 (1992), and “[c]onfidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam). In Pennsylvania, poll watchers play an important role in this respect and are permitted by statute to be present during the in-person voting process. See section 417(b) of the Election Code, 25 P.S. §2687(b). Specifically, the courts of Pennsylvania have recognized that poll watchers are permitted in polling places to monitor the course of voting, protest irregularities, see Boockvar, slip op. at 53, 2020 Pa. LEXIS 4872, at *74, and safeguard “the purity of the electoral process.” Tiryak v. Jordan, 472 F. Supp. 822, 824 (E.D. Pa. 1979) (applying Pennsylvania law). As one commentator has noted, “[p]oll watchers ensure that poll workers are complying with the state election laws and that voters get to vote . . . thereby ensuring the integrity of the election process.” James J. Woodruff II, Where the Wild Things Are: The Polling Place, Voter Intimidation, and the First Amendment, 50 U. LOUISVILLE L. REV. 253, 264 (2011) (footnotes omitted). Put simply, under Pennsylvania law, poll watchers observe the electors as they vote at polling places. Section 102(q) of the Election Code defines a “polling
PAM – 4 place” as “the room provided in each election district for voting at a primary or election.” 25 P.S. §2606(q). Here, there is an astounding amount of evidence (including photographic depictions, as seen below), admissions, and concessions (even an unopposed request for judicial notice) that conclusively establish that what is going on at these Satellite Offices is the actual, physical act of “voting.”
(Appellant’s Request for Jud. Notice, Ex. 3.) That is, at the Satellite Office itself, an elector is provided with a mail-in ballot, goes to a desk/table located where the voter is provided the “secrecy” required by the Election Code for all voters when they vote at a polling place, see 25 P.S. §§3146.6(a), 3150.16(a), manually
PAM – 5 completes and hands in an official ballot at a governmental place that accepts it, without any mail carrier, for that matter, as the official vote of that elector to be counted as part of the upcoming presidential election. See, e.g., R.R. at 80a, 123a- 28a. In point of fact, the fact that “voting” occurs at the Satellite Offices is not seriously disputed and, as such, it is not even worth repeating all of that in the record which supports the proposition. Nonetheless, there is nothing inherently sinister about this; indeed, it is sanctioned as a matter of statutory law. Under the Election Code, as amended by Act 77, “a voter who presents the voter’s own application for [a] mail-in ballot within the office of the county board of elections during regular business hours may request to receive the . . . mail-in ballot while the voter is at the office . . . and upon approval . . . the county board of elections shall promptly present the voter with the voter’s . . . mail-in ballot.” Section 14 of Act 77, 25 P.S. §3146.5(b)(2). Another provision of the recently amended Election Code provides that, after the voter marks and secures the ballot in an inner secrecy envelope and a second envelope containing a declaration of the “Official Election Ballot,” the voter may “deliver it in person to said county board of election.” Section 17 of the Act of March 27, 2020, P.L. 41, No. 12, 25 P.S. §3150.16(a) (emphasis added). So, the City of Philadelphia has created Satellite Offices purportedly pursuant to provisions of the Election Code which authorize an elector to go to “the county board of elections,” obtain a mail-in ballot, complete it and place it in the proper enclosures, and cast the ballot as an official vote to the election officials—all right then and there, a “one stop shop” so to speak. Pursuant to this scheme, the elector, by any person’s measure, tenders and submits a vote “in person” at a place and under conditions and circumstances that most certainly mimic a traditional polling place. Importantly, our General Assembly has permitted an elector to
PAM – 6 receive, complete, and submit an official mail-in ballot in person long before “Election Day” as that day appears on the calendar. By the accounts of their own representatives, the Satellite Offices have been open for in-person, mail-in voting since September 29, 2020, at the earliest.3 To reiterate and reemphasize, our General Assembly has authorized poll watchers to be present at polling places where electors cast their votes in person. That said, as a matter of legal principle, it is imperative that poll watchers be allowed to observe the electors when they attend the Satellite Offices to retrieve and submit their “mail-in votes” in person. This case is not about whether poll watchers should continue to be permitted at places where voting occurs, i.e., polling places. Indeed, poll watchers have long been recognized by the General Assembly and the courts. They are statutory creatures, restricted to a limited number, and can only commence their duties after applying for and receiving certificates from the election board itself. A poll watcher, among other things, is “permitted to keep a list of voters,” is “entitled to challenge any person making application to vote,” and, in certain circumstances, can “inspect the voting check list.” 25 P.S. §2687(b). Indeed, both political parties are in agreement that the normal poll-watching functions,
include stationing individuals at polling stations to observe the voting process and report irregularities unrelated to voter fraud to duly-appointed state officials. Such observers may report any disturbance that they reasonably believe might deter eligible voters from casting their ballots, including malfunctioning voting
3 See https://myvotemyway.philadelphiavotes.com/#_ga=2.145705084.910035695.16029 91680- (last visited 10/21/20). The Philadelphia County Board of Elections (Elections Board) has also unequivocally admitted that “Philadelphians began in-person mail-in voting at the [S]atellite [O]ffices on September 29, 2020, sometime between 11:30 a.m. and 12:45 p.m.” (Response to Emergency Petition, ¶35, R.R. at 80a.) (emphasis added). PAM – 7 machines, long lines, or understaffing at polling places. Such observers may not question voters about their credentials; impede or delay voters by asking for identification, videotape, photograph, or otherwise make visual records of voters or their vehicles; or issue literature outlining the fact that voter fraud is a crime or detailing the penalties under any state or federal statute for impermissibly casting a ballot. Democratic National Committee v. Republican National Committee, 671 F. Supp. 2d 575, 622-23 (D.N.J. 2009), aff’d, 673 F.3d 192 (3d Cir. 2012). During argument, Appellant was asked what evidence its representatives had of any irregularities occurring at the Satellite Offices. The response given was as expected; since they were denied access to the Satellite Offices, they were denied the opportunity to observe what was occurring. When the Elections Board was asked why it did not want poll watchers present while these electors were voting, the response was “COVID.” While I agree, and it is undisputable that protecting the health and welfare of the American people is a paramount concern, in this instance, the Election Board’s assertion that it must therefore preclude the presence of a limited number of poll watchers who help to ensure the integrity of the election has a hollow ring. For example, the County of Philadelphia has regularly extended numerous invitations to the public encouraging electors to vote at the Satellite Offices, which has resulted in large numbers of electors visiting these sites daily. Moreover, the documents provided by Appellant show that some of these alleged “Board Offices” have been set up in large gymnasiums or rooms which provide ample opportunity for spacing and social distancing, including the wearing of masks. For reference, see the above-reproduced photograph of the President of Philadelphia’s City Council at the “special election office.” (Appellant’s Request for Jud. Notice, Ex. 3.)
PAM – 8 That voting irregularities can and do occur at voting sites during any election cannot be disputed. Hence, Appellant contends that being denied the opportunity to have poll watchers present now during the ongoing voting process prevents either party, and any candidate, from knowing whether and what irregularities are occurring, and from making a timely challenge thereto. The opportunity to observe these irregularities at the time of occurrence is essential, and can only be meaningful if it is done at the time of voting. For example, as in any election, whether intentional or inadvertent, it is very well possible that members or representatives of the Elections Board or others who have access to that office while electors are voting, could be exerting persuasive, or undue influence on the elector, implicit or explicit, for example, by informing the elector of the stance that a candidate has on a particular political issue when asked or affirmatively volunteering the candidate whom the board/staff member or other elector personally believes is the best choice. The Election Code clearly prohibits such interaction on Election Day while voting is occurring. Moreover, the distribution of all campaign material, access by candidates or their representatives, etc., are strictly regulated at polling places. The point being that campaigns cannot know that these rules are being followed unless or until there are poll watchers present to guard against such interference with the free will of an elector. As another example, in Boockvar, our Supreme Court held that “ballots that voters have filled out incompletely or incorrectly” shall be set aside and declared void, and election boards are not required to afford these voters a “notice and opportunity to cure” procedure to remedy such defects. Slip op. at 41, 2020 Pa. LEXIS 4872 *55. The Boockvar Court further concluded “that a mail-in ballot that is not enclosed in the statutorily-mandated secrecy envelope must be disqualified.”
PAM – 9 Slip op. at 53, 2020 Pa. LEXIS 4872 *73 (emphasis added). In this vein, a poll watcher is also necessary to ensure that the Boockvar mandates are carried out and not circumvented by the staff members of the Satellite Offices. In so stating, I do not suggest any impropriety on the part of the governmental officials and/or individuals connected to or working with the Elections Board at the Satellite Offices. Rather, I utilize these examples as illustrations to explain why the pinnacle of our Constitution—checks and balances against the abuse of power—is readily implicated in this case and with powerful force. Against this backdrop, the trial court held that no “votes” are occurring at the Satellite Offices. (Trial court op. at 6.) In so doing, the trial court noted that the “Election Code contains no provisions that expressly grant Appellant and its representatives a right to serve as watchers at ‘satellite offices.’” Id. at 5. From the legal issues presented, the trial court deduced that the pivotal question raised by Appellant was “whether the satellite offices qualify as ‘polling places’ . . . .” Id. at 6. In answering the question in the negative, the trial court looked to section 102(q) of the Election Code, which, as previously mentioned, defines a “polling place” as “the room provided in each election district for voting at a primary or election.” 25 P.S. §2602(q). In construing this phrase, the trial court first stated that in the City of Philadelphia, “each ward … shall constitute a separate election district, unless divided into two or more election districts or formed into one election district . . . .” (Trial court op. at 6.) Parsing the definition of a “polling place,” the trial court then concluded that, because the Satellite Offices serve the entire County of Philadelphia, and not just one election district or ward, the Satellite Offices fail to conform to the Election Code’s geographic limits for polling places. Id. In addition,
PAM – 10 the trial court concluded that the Satellite Offices fail to comply with the temporal limits for polling places. Relying on section 1205 of the Election Code, 25 P.S. §3045 (Time for Opening and Closing Polls), the trial court determined that “polling places” exist only on one day, Election Day. (Trial court op. at 7) (citing 25 P.S. §3045 (“At all primaries and elections the polls shall be opened at 7 A.M. Eastern Standard Time, and shall remain open continuously until 8 P.M. Eastern Standard Time, at which time they shall be closed.”)). Further, in the trial court’s view, certain portions of section 417 of the Election Code, 25 P.S. §2687, which recognize the rights of poll watchers to be present at polling places, also establish that polling places exist only on “one Election Day.” (Trial court op. at 7.) Ultimately, the trial court concluded that the Satellite Offices are not “polling places” based on its assessment that the Satellite Offices serve the entire County of Philadelphia, and not a single or individual election district, and because the Satellite Offices operate on days other than Election Day. For these two reasons, the trial court held that the Satellite Offices are not “polling places,” as contemplated by the Election Code and, thus, Appellant has no right to have poll watchers present therein. (Trial court op. at 7.) As a counter to the analysis proffered by the trial court, and adopted by the majority, I propose that, for the reasons stated above, the act of voting undoubtedly occurs when an elector completes and delivers a mail-in ballot in person “to said county board of election.” 25 P.S. §3146.6(a). And, while the Election Code may split the County of Philadelphia into separate wards or districts, the statute authorizes counties to “provid[e] such branch offices for the [election] board in cities other than the county seat, as may be necessary.” Section 305 of the Election Code, 25 P.S. §2645(b). Indeed, the Election Board argued that the Satellite Offices were
PAM – 11 in fact “board offices” of the City Commission as contemplated under the Election Code. However, while these commissioners “may make regulations” to, inter alia, “[g]overn the public sessions of the commission,” 25 Pa.C.S. §1203(f)(1), and create board offices to process and approve “applications from individuals who apply to be registered to vote,” 25 P.S. §3071(a)4, and “application[s] for an absentee or mail-in ballot,” 25 P.S. §3146.5(b)(2), the Election Code expressly does not include voting as part of the commissioners’ duties or activities that transpire at the board offices. Yet, the act of voting is precisely what is occurring at the Satellite Offices. The conduct of this voting activity, alone, would remove “Satellite Offices” from the ambit of “board offices” and the related duties of the commissioners with respect to “board offices.” At the very least, the fact that voting happens at a Satellite Office renders it a polling place because it is “the room provided . . . for voting at a primary or election.” 25 P.S. §2606(q). Notably, the 15 or so Satellite Offices are situated throughout the various election districts in Philadelphia, and the County of Philadelphia is comprised solely of the City of Philadelphia. More importantly, by its own conduct, the Election Board arguably created “polling places,” per the authority of section 526 of the Election Code, 25 P.S. §2726 (Polling places to be selected by county board). Without question, the COVID-19 pandemic is “an emergency or unavoidable event,” 25 P.S. §2726(a), and the Election Board “publicly announce[d] . . . a list of the places at which the election is to be held in the various election districts of the county,” 25 P.S. §2726(c) (emphasis added)—i.e., the Satellite Offices.5 Somewhat
4 Section 1231 of the Election Code, added by Act of October 31, 2019, P.L. 552.
5 For example, the Commissioners announced to the public on Twitter, “Make a plan to vote, either in person, by mail, or at a satellite election office.” (R.R. at 123a) (emphasis added). (Footnote continued on next page…) PAM – 12 relatedly, section 528 of the Election Code states that “[i]f, in any election district, no proper polling place can be obtained, the county board of elections shall cause to be constructed for such district, a temporary room of adequate size to be used as a polling place.” 25 P.S. §2728.6 Consequently, any distinction that the trial court drew based upon “election districts” and geographic limitations for polling places appears to be a superficial and meaningless legal differentiation. Moreover, with regard to considerations of temporality, I believe that a “polling place” is not denoted as such based on the date on which it is open for voting. Instead, I would follow the plain language definition of a “polling place” as being “the room . . . for voting at a primary or election.” 25 P.S. § 2602(q) (emphasis added). In short, this language strongly suggests that the paramount and dispositive trait of a “polling place” is that it is a location where an elector can go and cast his/her vote in person and in a private space, which, undisputedly, is what the Satellite Offices offer, allow, and do. See section 530 of the Election Code, 25
David Thornburgh, the President and CEO of the nonpartisan Committee of Seventy, declared on his Twitter: “One stop shop voting comes to PHL! A great option for voters.” (R.R. at 125a.) (emphasis added). City Councilperson Darrell Clarke posted a picture to social media of a voter “casting her mail ballot all in one trip to the satellite election center.” (R.R. at 126a.) For his part, Commissioner Al Schmidt informed the public that he “[a]pplied for, received, completed, and submitted my mail-in ballot at our one-stop-shop satellite election office at Roxborough High School.” (R.R. at 125a.) On the previous day, Commissioner Schmidt stated, “The City Commissioners are opening temporary in-person mail-in voting satellite offices where registered voters can . . . complete their ballot, and return it, all in one visit.” (R.R. at 128a.)
6 In reviewing the language of section 528 of the Election Code, I perceive an analogy to First Amendment jurisprudence, which holds that when the government opens a non-traditional forum to the public, the government must provide the public with the same protections and rights that it is obligated to do so with a traditional, public forum. See generally Cornelius v. NAACP Legal Defense and Education Fund, Inc., 473 U.S. 788 (1985); Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983). Imported here, this case law would suggest that “poll watchers” have an equal right to be present at traditional polling places and non- traditional ones, like the Satellite Offices. PAM – 13 P.S. §2730(a) (“The county board of elections shall cause all rooms used as polling places to be suitably provided with heat and light, and, in districts in which ballots are used, with a sufficient number of . . . booths with proper supplies, in which electors may conveniently mark their ballots, with a curtain, screen or door . . . so that in the marking thereof they may be screened from the observation of others.”). The Election Code may have contemplated in-person voting on one day, Election Day in individual districts. That is traditional in-person voting as we know it. But, here, Act 77 allows for early voting which is occurring at the Satellite Offices. Therefore, the Majority’s conclusion that polling places only exist on Election Day is contravened by Act 77 itself. Even more to the point, when considered as whole, the construct of Act 77, by altering the timeframe for voting and permitting mail-in ballots to be obtained, completed, and deposited prior to Election Day, arguably transformed or modified what a “polling place” is, irrespective of the time and date of the election. See 25 P.S. §3150.12(a) (“A qualified elector . . . may apply at any time before any primary or election for an official mail-in ballot in person or on any official county board of election form . . . .”). In fact, an elector can obtain a mail- in vote and hand deliver it at a Satellite Office on Election Day itself. See 25 P.S. §3150.16(a) (“At any time after receiving an official mail-in ballot, but on or before eight o’clock P.M. the day of the primary or election, the mail-in elector . . . shall send same by mail . . . or deliver it in person to said county board of election.”). As such, I am unable to discern how or what manner Election Day, assuming it had any legal significance for purposes of determining what a “polling place” is, could retain such import given the amendatory provisions of Act 77. For all intents and purposes, and according to all public statements and announcements made by the County of Philadelphia, and local and national media, the presidential election is and has been
PAM – 14 happening since September 29, 2020. And all across America, news reports in Philadelphia and elsewhere have clearly conveyed that multi-millions of electors have already voted. For the above-stated reasons, I would conclude that, at the very least, the Election Code, as amended by Act 77, evidences an ambiguity with respect to whether the Satellite Offices are polling places where poll watchers are authorized to oversee the electors’ in-person voting of mail-in ballots. I would further conclude that this ambiguity, in order to protect the intent and spirit of the election process, and to preserve the goal of maintaining the integrity of such process, be resolved to recognize that the voting processes occurring at the Satellite Offices necessitate their recognition as “polling places.” See Appeal of James, 105 A.2d at 65-66 (pronouncing that courts should construe election laws liberally so “[t]echnicalities should not be used to make the right of the voter insecure”). Accordingly, I would reverse the trial court’s order and remand with direction that the trial court enter an order mandating that the Election Board permit Appellant, and by virtue thereof every candidate or party, to have statutorily recognized poll watchers present at all of its Satellite Offices, during all hours of operation, and to allow the poll watchers to remain in a position where they may reasonably observe what is occurring at the Satellite Offices, limited of course, by compliance with all reasonable safeguards implemented for health reasons. With this being stated, I respectfully register my dissent.
_______________________________ PATRICIA A. McCULLOUGH, Judge
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