PA Dem Party. v. Boockvar Pet: Boockvar

Opinion

[J-96-2020] IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

PENNSYLVANIA DEMOCRATIC PARTY, : No. 133 MM 2020 NILOFER NINA AHMAD, DANILO : BURGOS, AUSTIN DAVIS, DWIGHT : EVANS, ISABELLA FITZGERALD, : EDWARD GAINEY, MANUEL M. GUZMAN, : JR., JORDAN A. HARRIS, ARTHUR : SUBMITTED: September 8, 2020 HAYWOOD, MALCOLM KENYATTA, : PATTY H. KIM, STEPHEN KINSEY, PETER : SCHWEYER, SHARIF STREET, AND : ANTHONY H. WILLIAMS : : : v. : : : KATHY BOOCKVAR, IN HER CAPACITY : AS SECRETARY OF THE : COMMONWEALTH OF PENNSYLVANIA; : ADAMS COUNTY BOARD OF ELECTIONS; : ALLEGHENY COUNTY BOARD OF : ELECTIONS; ARMSTRONG COUNTY : BOARD OF ELECTIONS; BEAVER : COUNTY BOARD OF ELECTIONS; : BEDFORD COUNTY BOARD OF : ELECTIONS; BERKS COUNTY BOARD OF : ELECTIONS; BLAIR COUNTY BOARD OF : ELECTIONS; BRADFORD COUNTY : BOARD OF ELECTIONS; BUCKS COUNTY : BOARD OF ELECTIONS; BUTLER : COUNTY BOARD OF ELECTIONS; : CAMBRIA COUNTY BOARD OF : ELECTIONS; CAMERON COUNTY BOARD : OF ELECTIONS; CARBON COUNTY : BOARD OF ELECTIONS; CENTRE : COUNTY BOARD OF ELECTIONS; : CHESTER COUNTY BOARD OF : ELECTIONS; CLARION COUNTY BOARD : OF ELECTIONS; CLEARFIELD COUNTY : BOARD OF ELECTIONS; CLINTON : COUNTY BOARD OF ELECTIONS; : COLUMBIA COUNTY BOARD OF : ELECTIONS; CRAWFORD COUNTY : BOARD OF ELECTIONS; CUMBERLAND : COUNTY BOARD OF ELECTIONS; : DAUPHIN COUNTY BOARD OF : ELECTIONS; DELAWARE COUNTY : BOARD OF ELECTIONS; ELK COUNTY : BOARD OF ELECTIONS; ERIE COUNTY : BOARD OF ELECTIONS; FAYETTE : COUNTY BOARD OF ELECTIONS; : FOREST COUNTY BOARD OF : ELECTIONS; FRANKLIN COUNTY BOARD : OF ELECTIONS; FULTON COUNTY : BOARD OF ELECTIONS; GREENE : COUNTY BOARD OF ELECTIONS; : HUNTINGDON COUNTY BOARD OF : ELECTIONS; INDIANA COUNTY BOARD : OF ELECTIONS; JEFFERSON COUNTY : BOARD OF ELECTIONS; JUNIATA : COUNTY BOARD OF ELECTIONS; : LACKAWANNA COUNTY BOARD OF : ELECTIONS; LANCASTER COUNTY : BOARD OF ELECTIONS; LAWRENCE : COUNTY BOARD OF ELECTIONS; : LEBANON COUNTY BOARD OF : ELECTIONS; LEHIGH COUNTY BOARD : OF ELECTIONS; LUZERNE COUNTY : BOARD OF ELECTIONS; LYCOMING : COUNTY BOARD OF ELECTIONS; : MCKEAN COUNTY BOARD OF : ELECTIONS; MERCER COUNTY BOARD : OF ELECTIONS; MIFFLIN COUNTY : BOARD OF ELECTIONS; MONROE : COUNTY BOARD OF ELECTIONS; : MONTGOMERY COUNTY BOARD OF : ELECTIONS; MONTOUR COUNTY BOARD : OF ELECTIONS; NORTHAMPTON : COUNTY BOARD OF ELECTIONS; : NORTHUMBERLAND COUNTY BOARD : OF ELECTIONS; PERRY COUNTY BOARD : OF ELECTIONS; PHILADELPHIA COUNTY : BOARD OF ELECTIONS; PIKE COUNTY : BOARD OF ELECTIONS; POTTER : COUNTY BOARD OF ELECTIONS; : SCHUYLKILL COUNTY BOARD OF :

[J-96-2020] - 2 ELECTIONS; SNYDER COUNTY BOARD : OF ELECTIONS; SOMERSET COUNTY : BOARD OF ELECTIONS; SULLIVAN : COUNTY BOARD OF ELECTIONS; : SUSQUEHANNA COUNTY BOARD OF : ELECTIONS; TIOGA COUNTY BOARD OF : ELECTIONS; UNION COUNTY BOARD OF : ELECTIONS; VENANGO COUNTY BOARD : OF ELECTIONS; WARREN COUNTY : BOARD OF ELECTIONS; WASHINGTON : COUNTY BOARD OF ELECTIONS; : WAYNE COUNTY BOARD OF : ELECTIONS; WESTMORELAND COUNTY : BOARD OF ELECTIONS; WYOMING : COUNTY BOARD OF ELECTIONS; AND : YORK COUNTY BOARD OF ELECTIONS : : : PETITION OF: KATHY BOOCKVAR, IN : HER CAPACITY AS SECRETARY OF THE : COMMONWEALTH OF PENNSYLVANIA :

OPINION

JUSTICE BAER DECIDED: September 17, 2020 In October 2019, the General Assembly of the Commonwealth of Pennsylvania

enacted Act 77 of 2019, which, inter alia, created for the first time in Pennsylvania the

opportunity for all qualified electors to vote by mail, without requiring the electors to

demonstrate their absence from the voting district on Election Day, 25 P.S. §§ 3150.11-

3150.17. The Pennsylvania Democratic Party and several Democratic elected officials

and congressional candidates, some in their official capacity and/or as private citizens

(collectively, “Petitioner”), filed the instant action, initially in the Commonwealth Court, in

the form of a petition for review seeking declaratory and injunctive relief relating primarily

to five issues of statutory interpretation involving Act 77 and the Election Code, 25 P.S.

[J-96-2020] - 3 §§ 2600-3591.1 This Court exercised Extraordinary Jurisdiction to address these issues

and to clarify the law of this Commonwealth in time for the 2020 General Election. 2

I. FACTS AND PROCEDURAL HISTORY

On July 10, 2020, Petitioner filed its petition for review in the Commonwealth Court

against Secretary of the Commonwealth Kathy Boockvar (“Secretary”) and all 67 county

election boards (“Boards”).3 In its petition, Petitioner requested that the Commonwealth

Court issue declaratory and injunctive relief “so as to protect the franchise of absentee

and mail-in voters.” Petition for Review (“Petition”), 7/10/2020, at 5.4

1 The caption reflects the Secretary of the Commonwealth Kathy Boockvar as filing the petition before the Court based upon her application for extraordinary review, which this Court granted. Regardless, as noted, we now refer to the plaintiffs in the underlying lawsuit as “Petitioner” and, as noted infra, Secretary Boockvar as “Secretary.” 2 Pursuant to 42 Pa.C.S. § 726, this Court may, on its own motion or upon petition of any party, in any matter pending before any court or magisterial district judge of the Commonwealth involving an issue of immediate public importance, assume plenary jurisdiction of such matter at any stage thereof and enter a final order or otherwise cause right and justice to be done. 3 At the time Petitioner filed its petition, an action filed by Donald J. Trump for President, Inc., the Republican National Committee (“RNC”), and several Republican congressional candidates and electors (collectively, “Republican Party”) against the Secretary and the Boards was pending in the U.S. District Court for the Western District of Pennsylvania. In that case, the Republican Party alleged federal and state constitutional violations stemming from the recent implementation of no excuse mail-in voting under Act 77. The specific issues raised by the Republican Party in the federal action are, to some extent, the mirror image of the issues raised by Petitioner in the case sub judice. 4 Concurrently, Petitioner filed both an Application for Special Relief in the Nature of an Expedited Motion for Alternative Service and an Application for an Expedited Discovery Schedule and Evidentiary Hearing, to which several responses were filed. On July 15, 2020, the Commonwealth Court denied Petitioner’s request for alternative service. On July 30, 2020, the Commonwealth Court, inter alia, granted in part and denied in part Petitioner’s application for an expedited discovery schedule and evidentiary hearing. In this order, the Commonwealth Court set forth specific deadlines for responsive pleadings.

[J-96-2020] - 4 Specifically, Petitioner raised several discrete issues for the Commonwealth

Court’s consideration, which are discussed in more detail infra. Briefly, in Count 1,

Petitioner requested declaratory relief to confirm that Act 77 permits Boards “to provide

secure, easily accessible locations as the Board deems appropriate, including, where

appropriate, mobile or temporary collection sites, and/or drop-boxes for the collection of

mail-in ballots.” Id. at 47, ¶ 165. Additionally, Petitioner sought an injunction requiring

the Boards to “evaluate the particular facts and circumstances in their jurisdictions and

develop a reasonable plan … to ensure the expedient return of mail-in ballots.” Id. at

¶ 166.

In Count 2, Petitioner sought an injunction to “lift the deadline in the Election Code

across the state to allow any ballot postmarked by 8:00 p.m. on Election Night to be

counted if it is received by the Boards” by 5:00 p.m. on Tuesday, November 10, which is

the deadline for ballots to be received under the Federal Uniformed and Overseas

Citizens Absentee Voting Act (“UOCAVA”).5 Id. at 50, ¶ 178. In the alternative, Petitioner

posited that the Commonwealth Court could, with a few caveats, “enjoin the Counties to

extend a more tailored ballot extension deadline to the date that is 21 days after the

particular voter’s ballot is mailed by the county[.]” Id. at ¶ 179.

In Count 3, Petitioner highlighted that the “procedure for mail-in ballots often leads

to minor errors, which result in many ballots being rejected and disenfranchising voters

who believe they have exercised their right to vote.” Id. at 51, ¶ 186. In anticipation of

these expected errors, Petitioner again sought an injunction requiring Boards that have

knowledge of an incomplete or incorrectly filled out ballot and the elector’s contact

5The UOCAVA delineates, inter alia, the process and procedure in which overseas voters and voters in the uniformed services receive absentee ballots for federal elections. See generally 52 U.S.C. §§ 20301-20311.

[J-96-2020] - 5 information to contact the elector and provide them “the opportunity to cure the facial

defect until the UOCAVA deadline.” Id. at 52, ¶ 187.

In Count 4, Petitioner requested a declaration that there is no statutory authority to

set aside an absentee or mail-in ballot solely for failure to place it into the official election

ballot envelope (hereinafter referred to as the “secrecy envelope”), as well as an

injunction prohibiting any “naked ballots,” which are otherwise without error, from being

invalidated.6 Id. at 54, ¶ 198-199. A “naked ballot” refers to an official mail-in ballot that

is not placed in the secrecy envelope before mailing.

Finally, in Count 5, Petitioner sought a declaration that the “Election Code’s poll

watcher residency requirement does not violate the United States Constitution’s First and

Fourteenth Amendments, its Equal Protection Clause, or the Equal Protection and Free

and Equal Elections Clauses of the Pennsylvania Constitution.” Id. at 55, ¶ 207.

On August 13, 2020, the Secretary filed an Answer and New Matter to the petition.

In addition, twenty of the named Boards filed answers with new matter, fourteen of the

Boards filed answers, and nine of the Boards filed preliminary objections.7 Requests to

intervene were filed by Donald J. Trump for President, Inc., the Republican Party of

Pennsylvania, and the RNC, as well as Joseph B. Scarnati III, President Pro Tempore,

and Jake Corman, Majority Leader of the Pennsylvania Senate, in opposition to the

petition. The Common Cause Pennsylvania, The League of Women Voters of

6 As explained more fully below, upon receipt of an official mail-in ballot, the mail-in elector is to mark the ballot in secret, and then fold the ballot, enclose, and securely seal the same in the secrecy envelope provided. 25 P.S. § 3150.16(a). The secrecy envelope “shall then be placed in the second one, on which is printed the form of declaration of the elector, and the address of the elector’s county board of election and the local election district of the elector.” Id. 7 On August 27, 2020, Petitioner filed its: (1) Answer to the Secretary’s New Matter; (2) Answer to the new matter filed by various Boards; and (3) an omnibus memorandum of law opposing the preliminary objections filed by several Boards.

[J-96-2020] - 6 Pennsylvania, The Black Political Empowerment Project (“B-PEP”), Make the Road

Pennsylvania, a project of Make the Road States (“Make the Road PA”), Patricia M.

DeMarco, Danielle Graham Robinson, and Kathleen Wise filed a joint application to

intervene as co-petitioners.

On August 16, 2020, the Secretary filed an application asking this Court to exercise

extraordinary jurisdiction over Petitioner’s petition for review.8 Highlighting, inter alia, the

two major political parties’ “diametric positions” on the interpretation of several Act 77

provisions and the fast-approaching 2020 General Election, the Secretary asserted that

“[t]he exercise of extraordinary jurisdiction by this Court is the only means available to

resolve these disputes without disrupting the election.” Secretary’s Application for

Extraordinary Relief, 8/16/2020, at 14-16. On August 19, 2020, Petitioner filed an Answer

to the Secretary’s application, noting that it had no objection to this Court exercising its

extraordinary jurisdiction.9

8 In her application, the Secretary informed this Court that she had filed a motion in the aforementioned federal action urging the District Court to abstain from rendering a decision pursuant to R.R. Comm’n of Tex. v. Pullman, 312 U.S. 496 (1941) (explaining that, where appropriate, a federal court may abstain from deciding a case to permit a state court the opportunity to resolve a state law question). Secretary’s Application for Extraordinary Relief, 8/16/2020, at 17. This motion was later granted. See Trump for President, Inc., 2020 WL 4920952, at *21 (W.D. Pa. 2020). 9In addition, on August 18, 2020, Bucks, Chester, Montgomery, and Philadelphia County Boards of Election filed an Answer in Support of the Secretary’s application. Likewise, on August 19, 2020, Armstrong, Bedford, Blair, Centre, Columbia, Dauphin, Fayette, Huntingdon, Indiana, Lackawanna, Lawrence, Lebanon, Montour, Northumberland, Venango, and York County Boards of Election also filed an answer joining the Secretary’s application. Several of the remaining 67 counties filed no answer letters. On August 20, 2020, answers were filed by the Republican proposed intervenors, as well as proposed co-petitioners, The Common Cause Pennsylvania, The League of Women Voters of Pennsylvania, B-PEP, Make the Road PA, Patricia M. DeMarco, Danielle Graham Robinson, and Kathleen Wise.

[J-96-2020] - 7 Faced with a national election scheduled to occur on November 3, 2020 and

substantial legal issues that required the highest court of Pennsylvania’s analysis and

response to ensure a free and fair election, on September 1, 2020, this Court granted the

Secretary’s Application and set forth a schedule for supplemental briefing and filings. 10

Later, on September 3, 2020, this Court filed an order granting the motions to intervene

filed by the Republican Party of Pennsylvania (hereinafter, “Respondent”) and Joseph B.

Scarnati III, Pennsylvania Senate President Pro Tempore, and Jake Corman, Senate

Majority Leader, representing the Republican Senate Caucus (hereinafter, “Caucus”).

Applications to intervene filed by Donald J. Trump for President, Inc., and the RNC;

Common Cause of Pennsylvania, the League of Women Voters of Pennsylvania, B-PEP,

Make the Road PA, Patricia M. DeMarco, Danielle Graham Robinson, and Kathleen Wise

were denied without prejudice to the parties’ ability to file briefs as amicus curiae pursuant

to Pa.R.A.P. 531.11 The parties have submitted supplemental filings in support of their

10The Secretary highlighted in her application for extraordinary relief to this Court that there was insufficient time to engage in full pre-trial proceedings and discovery before applications for summary relief could be filed. See Secretary’s Application for Extraordinary Relief, 8/16/2020, at 13-14. In fact, the Secretary explained that because of all the uncertainties surrounding the case, it was unclear “whether discovery, dispositive motions, and a hearing were even necessary.” Id. at 14 n.3. She maintained that Petitioner’s application to expedite discovery and a hearing in Commonwealth Court was premature. Thus, the Secretary sought extraordinary review of the discrete legal claims alleged in the lawsuit as if at the summary relief stage of the case. Cognizant of our authority when exercising extraordinary jurisdiction, this Court granted the Secretary’s request. See Order dated 9/1/2020. Accordingly, because of the intense time pressure confronting this Court, we do not address the various procedural filings in the case and, rather, address only the five discrete legal claims before us. See 42 Pa.C.S. §726 (this Court may “assume plenary jurisdiction of [any matter pending before any court] at any stage thereof and enter a final order or otherwise cause right and justice to be done”). 11 After this Court granted the Secretary’s application and set a schedule for supplemental filings, Bryan Cutler and Kerry Bennighoff, Speaker and Majority Leader of the Pennsylvania House of Representatives, respectively, filed an Application to Intervene, while State Senator Jay Costa, on behalf of the Senate Democratic Caucus filed an

[J-96-2020] - 8 respective positions, and this matter is now ripe for disposition of the discrete five legal

issues before us.

II. RELEVANT OVERARCHING PRINCIPLES OF LAW

Generally speaking, each of the five issues presented by Petitioner presents a pure

question of law, over which our standard of review is de novo and our scope of review is

plenary. In re Vencil, 152 A.3d 235, 241 (Pa. 2017). Specifically, in large part, Petitioner

requests relief in the form of declarations of law regarding Act 77 pursuant to the

Declaratory Judgments Act, 42 Pa.C.S. §§ 7531-7541. Accordingly, we address the

issues presented mindful of the following.

The Declaratory Judgments Act, which is to be liberally construed and

administered, was promulgated to “settle and to afford relief from uncertainty and

insecurity with respect to rights, status, and other legal relations[.]” 42 Pa.C.S. § 7541(a).

Pertinent to the instant matter, this Act provides, in relevant part, that “[a]ny person . . .

whose rights, status, or other legal relations are affected by a statute . . . may have

determined any question of construction or validity arising under the . . . statute . . . and

obtain a declaration of rights, status, or other legal relations thereunder.” 42 Pa.C.S.

§ 7533.12

Application to Intervene, which was later amended to include State Representative Frank Dermody, on behalf of the House Democratic Caucus. Because of the necessary expediency of reaching a decision in this case, and given that adequate advocacy has been provided, these applications, submitted close to this Court’s deadline for supplemental filings, are denied. In any case, the requests are moot given the issuance of our decision. 12 Notably, while Petitioner has styled its requested relief as “injunctive” in reality it seeks declaratory relief. We will treat its prayers for relief accordingly. In this regard, as noted, essentially, we are treating the matter as if it is at the summary relief stage. See Hosp. & Healthsystem Ass'n of Pa. v. Com., 77 A.3d 587, 602 (Pa. 2013) (“An application for summary relief may be granted if a party’s right to judgment is clear and no material issues of fact are in dispute.”) (citation omitted). See also Pa.R.A.P. 1532(b) (providing that “[a]t

[J-96-2020] - 9 When presented with matters of statutory construction, this Court is guided by

Pennsylvania’s Statutory Construction Act, 1 Pa.C.S. § 1501-1991. Under this Act, “the

object of all statutory construction is to ascertain and effectuate the General Assembly’s

intention.” Sternlicht v. Sternlicht, 876 A.2d 904, 909 (Pa. 2005) (citing 1 Pa.C.S.

§ 1921(a) (“The object of all interpretation and construction of statutes is to ascertain and

effectuate the intention of the General Assembly”)). When the words of a statute are clear

and unambiguous, “the letter of it is not to be disregarded under the pretext of pursuing

its spirit.” 1 Pa.C.S. § 1921(b); see also Sternlicht, supra. However, when the words of

a statute are not explicit, the General Assembly’s intent is to be ascertained by consulting

a comprehensive list of specific factors set forth in 1 Pa.C.S. § 1921(c). See also

Pennsylvania Associated Builders & Contractors, Inc. v. Commonwealth Dep’t of Gen.

Servs., 932 A.2d 1271, 1278 (Pa. 2007) (recognizing that when the “words of the statute

are not explicit, the General Assembly’s intent is to be ascertained by considering matters

other than statutory language, like the occasion and necessity for the statute; the

circumstances of its enactment; the object it seeks to attain; the mischief to be remedied;

former laws; consequences of a particular interpretation; contemporaneous legislative

history; and legislative and administrative interpretations”).

Moreover, we recognize that in this Commonwealth, “[e]lections 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 (hereinafter referred to as the “Free and

Equal Elections Clause”). The broad text of this specific provision “mandates clearly and

unambiguously, and in the broadest possible terms, that all elections conducted in this

Commonwealth must be ‘free and equal.’” League of Women Voters v. Commonwealth,

178 A.3d 737, 804 (Pa. 2018) (emphasis in original). Stated another way, this clause was

any time after the filing of a petition for review in an appellate or original jurisdiction matter, the court may on application enter judgment if the right of the applicant thereto is clear.”).

[J-96-2020] - 10 “specifically intended to equalize the power of voters in our Commonwealth’s election

process[.]” Id. at 812.

Finally, this Court has previously observed that the purpose and objective of the

Election Code, which contains Act 77, is “[t]o obtain freedom of choice, a fair election and

an honest election return[.]” Perles v. Hoffman, 213 A.2d 781, 783 (Pa. 1965). To that

end, the Election Code should be liberally construed so as not to deprive, inter alia,

electors of their right to elect a candidate of their choice. Id. at 784. With these general

principles in mind, this Court will address in turn each of the five discrete issues presented

by Petitioner.

III. ISSUES

A. COUNT I OF THE PETITION FOR REVIEW

Section 3150.16(a) of the Election Code, 25 P.S. § 3150.16(a), is part of Act 77

and pertinent to several issues in this matter. That statutory provision, which is entitled

“Voting by mail-in electors,” states as follows:

(a) General rule.--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, in secret, proceed to mark the ballot only in black lead pencil, indelible pencil or blue, black or blue-black ink, in fountain pen or ball point pen, and then fold the ballot, enclose and securely seal the same in the envelope on which is printed, stamped or endorsed “Official Election Ballot.” This envelope shall then be placed in the second one, on which is printed the form of declaration of the elector, and the address of the elector’s county board of election and the local election district of the elector. The elector shall then fill out, date and sign the declaration printed on such envelope. Such envelope shall then be securely sealed and the elector shall send same by mail, postage prepaid, except where franked, or deliver it in person to said county board of election. 25 P.S. § 3150.16(a). The last sentence of this provision is the primary focus of the first

question of law that we will address. The plain language of this sentence allows an elector

to mail her securely sealed envelope containing the elector’s “Official Election Ballot” to

[J-96-2020] - 11 her “county board of election” or, more relevant to this issue, “deliver it in person to said

county board of election.” Id.

In Count I of its petition for review, Petitioner seeks a declaration that a reasonable

interpretation of Section 3150.16(a) of the Election Code permits county boards of

election to provide electors with as many secure and easily accessible locations to deliver

personally their mail-in ballots as each board deems appropriate.13 Petitioner suggests

that these locations can consist of mobile or temporary collection sites and that county

boards of election may utilize secure drop-boxes for the collection of hand-delivered mail-

in ballots.

Indeed, Petitioner contends that, by enacting Section 3150.16(a) of the Election

Code, the General Assembly clearly and unambiguously intended to provide the various

county boards of election with the option of accepting hand-delivered mail-in ballots at

any location controlled by the boards, not just at the boards’ central offices. In support of

this position, Petitioner points out, inter alia, that pursuant to Section 3151 of the Election

Code, the General Assembly empowered each county board of election to receive “ballot

13 Under Count I, Petitioner also sought relief “in the form of an affirmative injunction requiring that county Boards are required to evaluate the particular facts and circumstances in their jurisdictions and develop a reasonable plan reflecting the needs of the citizens of the county to ensure the expedient return of mail-in ballots.” Petition at 47, ¶ 166. Petitioner accurately concedes that it must establish a clear right to this relief. Id. at ¶ 167; see Roberts v. Bd. of Directors of Sch. Dist. of City of Scranton, 341 A.2d 475, 478 (Pa. 1975) (explaining that, “for a mandatory injunction to issue, it is essential that a clear right to relief in the plaintiff be established”). To the extent that Petitioner continues to seek injunctive relief in this form, we summarily decline the request, as there simply is no legal authority that would allow this Court to mandate that the county boards of election “evaluate the particular facts and circumstances in their jurisdictions and develop a reasonable plan reflecting the needs of the citizens of the county to ensure the expedient return of mail-in ballots.” In other words, Petitioner cannot establish a clear right to relief with regard to their request for a mandatory injunction.

[J-96-2020] - 12 boxes and returns” in their offices or “in any such other place as has been designated by

the board.”14 25 P.S. § 3151.

The Secretary builds on Petitioner’s argument. In so doing, the Secretary

highlights that, in construing Section 3150.16(a) of the Election Code, the Court should

consider that the General Assembly defined “county board” or “board” as meaning “the

county board of elections of any county herein provided for.” 25 P.S. § 2602. According

to the Secretary, this definition clarifies that, for purposes of Section 3150.16(a), “county

board of election” refers to a municipal body, not a physical office or address. In other

words, the Secretary believes that, when this definition is used for purposes of Section

3150.16(a), that Section unambiguously permits voters to deliver mail-in ballots in person

to places designated by county boards of election, other than their respective office

addresses.

In further support of this position, the Secretary asserts that the Election Code

contemplates that county boards of election will operate out of multiple locations. See 25

P.S. § 2645(b) (stating, inter alia, that the “county commissioners or other appropriating

authorities of the county shall provide the county board with suitable and adequate offices

at the county seat, property furnished for keeping its records, holding its public sessions

and otherwise performing its public duties, and shall also provide, such branch offices for

the board in cities other than the county seat, as may be necessary”). Echoing Petitioner’s

argument, the Secretary further suggests that the Election Code anticipates that “ballot

14 Section 3151 of the Election Code states, in full, as follows: Each county board of elections shall cause its office to remain open, in charge of one or more members of the board, during the entire duration of each primary and election, and after the close of the polls, until all the ballot boxes and returns have been received in the office of the county elections board, or received in such other place as has been designated by the board. 25 P.S. § 3151.

[J-96-2020] - 13 boxes and returns” may be received “in the office of the county elections board, or

received in such other places as has been designated by the board.” 25 P.S. § 3151.

The Secretary insists that the Election Code is devoid of any language limiting

county boards of election from accepting delivery of mail-in votes solely at their primary

office addresses. In fact, the Secretary takes the position that to hold otherwise would

contravene the plain language of the Election Code. However, assuming arguendo that

this Court deems the Election Code ambiguous on this point, the Secretary advocates

that a reasonable interpretation of the Code nonetheless authorizes county boards of

election to utilize multiple drop-off sites to accept hand-delivered mail-in ballots.

In this regard, the Secretary focuses on the statutory considerations to which this

Court may refer when construing an ambiguous statute, 1 Pa.C.S. § 1921(c), as

described supra. More specifically, the Secretary posits that the General Assembly

enacted Act 77 with the object of increasing the electorate’s participation in the electoral

process by making it easier and more convenient to vote, providing all electors with the

option to mail in their ballots. The Secretary opines that, consistent with this objective,

the General Assembly intended to allow county boards of election to accept hand-

delivered mail-in ballots at locations besides the boards’ central office addresses. The

Secretary takes the position that, if this Court deems reasonable the various parties’

competing interpretations of the Election Code, then the Court should construe the Code

in favor of the right to vote.

Contrary to the contentions of the Secretary and Petitioner, Respondent submits

that the Election Code prohibits county boards of election from designating locations other

than their established county offices for hand delivery of mail-in ballots. Rather, according

to Respondent, Section 3150.16(a) of the Election Code unambiguously mandates that

an elector must either mail her mail-in ballot to the office address of the county board of

[J-96-2020] - 14 election or deliver that ballot in person to the same office address. Stated differently,

Respondent takes the position that the Election Code requires electors either to place

their mail-in ballots, addressed to their county boards of election, into the United States

Postal Service’s [“USPS”] system or personally to deliver their mail-in ballot to that office.

In further support of this position, Respondent highlights the Election Code’s use

of the word “office” in the “deadline” provision for mail-in votes, Section 3150.16(c), which

states that “a completed mail-in ballot must be received in the office of the county board

of elections no later than eight o’clock P.M. on the day of the primary or election.” 25 P.S.

§ 3150.16(c). Respondent also points out that the Election Code requires that a secure

envelope containing a mail-in ballot have printed upon it “the address of the elector’s

county board of election,” so that “the elector shall send same by mail, postage prepaid,

except where franked, or deliver it in person to said county board of election.” 25 P.S.

§ 3150.16(a). Thus, Respondent believes that, in sum, these statutory directives clearly

indicate that the General Assembly intended that electors either mail or personally deliver

mail-in ballots to the established office addresses of the county boards of election.

Next, Respondent reminds us that the Secretary and Petitioner are asking this

Court to interpret the Election Code to allow voters to deliver their mail-in ballots to

locations that will include unmanned drop-boxes. Respondent contends that Petitioner

and the Secretary fail to articulate where the Election Code mentions “drop-boxes” or

“satellite locations.” Respondent then asserts that, if this Court were to interpret the

Election Code as Petitioner and the Secretary propose, the Court would invalidate an

alleged requirement of Act 77, i.e., the need to deliver mail-in ballots to the established

offices of county boards of election.

In addition, Respondent suggests that the preferred interpretation of the Election

Code advocated by the Secretary and Petitioner permits the individual counties to

[J-96-2020] - 15 implement differing ballot-return regimes. Respondent avers that this outcome would

violate principles of equal protection. In support, Respondent quotes Pierce v. Allegheny

County Bd. of Elections, 324 F.Supp.2d 684, 697 (W.D. Pa. 2003), for the proposition that

“[a] state must impose uniform statewide standards in each county in order to protect the

legality of a citizen’s vote. Anything less implicates constitutional problems under the

equal protection clause of the Fourteenth Amendment.” For these reasons, Respondent

contends that the interpretation of the Election Code posited by Petitioner and the

Secretary must fail.

The primary argument of the Caucus largely tracks that of Respondent, particularly

the contention that the relief proposed by Petitioner and the Secretary would create an

equal protection problem. According to the Caucus, pursuant to the solution offered by

Petitioner and the Secretary, some counties will provide more locations for voters to

deliver their mail-in ballots, while other counties will allow voters to convey their mail-in

ballots solely to the office addresses of the county boards of election. The Caucus views

this possibility as a violation of equal protection.

Notably, in an apparent break from Respondent’s position, subject to its equal

protection argument, the Caucus seems to concede that Pennsylvania law allows county

boards of election to provide for in person delivery of mail-in ballots at more than one

county election board office located within the county’s borders. However, the Caucus

insists that additional offices must comply with various requirements, including those

outlined in Section 2645(b) of the Election Code. See 25 P.S. § 2645(b) (explaining that

“[t]he county commissioners or other appropriating authorities of the county shall provide

the county board with suitable and adequate offices at the county seat, property furnished

for keeping its records, holding its public sessions and otherwise performing its public

duties, and shall also provide, such branch offices for the board in cities other than the

[J-96-2020] - 16 county seat, as may be necessary”). In closing, the Caucus submits that unstaffed drop-

boxes would not constitute a branch office of a county board of election and are otherwise

not authorized by the Election Code as a method for collecting hand-delivered mail-in

ballots.

Turning to our analysis, we observe that the question before us consists of the

following two-part query regarding the Election Code: Does the Election Code allow a

Pennsylvania voter to deliver her mail-in ballot in person to a location other than the

established office address of her county’s board of election, and if so, what means can

county boards of election utilize to accept hand-delivered mail-in ballots? For the reasons

that follow, we find that the parties’ competing interpretations of the Election Code on this

issue are reasonable, rendering the Code ambiguous as it relates to this query. See A.S.

v. Pennsylvania State Police, 143 A.3d 896, 905-06 (Pa. 2016) (explaining that a “statute

is ambiguous when there are at least two reasonable interpretations of the text”).

In reaching this conclusion, we observe that Section 3150.16(a) of the Election

Code explicitly allows an elector to deliver in person her securely sealed envelope

containing her mail-in ballot “to said county board of election.” 25 P.S. § 3150.16(a). The

Election Code simply defines “county board” or “board” to mean “the county board of

elections of any county herein provided for.” 25 P.S. § 2602(c). Thus, the language used

by the Legislature regarding where a mail-in ballot may be delivered in person is not solely

limited to the official central office of the county board of election, and other sections of

the Election Code permit a board of election to operate outside of its principal office. See,

e.g., 25 P.S. § 2645(b) (stating, inter alia, that the “county commissioners or other

appropriating authorities of the county shall provide the county board with suitable and

adequate offices at the county seat, property furnished for keeping its records, holding its

public sessions and otherwise performing its public duties, and shall also provide, such

[J-96-2020] - 17 branch offices for the board in cities other than the county seat, as may be necessary”).

Therefore, on the one hand, these provisions tend to favor the view of Petitioner and the

Secretary that the General Assembly did not intend to limit voters to delivering personally

their mail-in ballots solely to the established office addresses of their county boards of

election. Rather, as these parties rationally contend, when this definition is utilized for

purposes of construing Section 3150.16(a), that exercise suggests that a voter can hand

deliver her mail-in ballot to any location designated by the county board of election as a

place where the board will accept these ballots.

Alternatively, we recognize that Section 3150.16(a) of the Election Code directs

that an elector may deliver her mail-in ballot in person only to “the county board of

election.” 25 P.S. § 3150.16(a). As Respondent in particular understandably

emphasizes, neither this statutory language nor any other provision of the Election Code

explicitly empowers a county board of election to establish satellite mail-in ballot collection

facilities or to utilize secure drop-boxes for purposes of accepting hand-delivered mail-in

ballots. These observations, when viewed in the totality of the various arguments, lead

us to conclude that the parties’ competing interpretations are reasonable.

Accordingly, we turn to interpretive principles that govern ambiguous statutes

generally and election matters specifically. In so doing, we are mindful of the

“longstanding and overriding policy in this Commonwealth to protect the elective

franchise.” Shambach v. Bickhart, 845 A.2d 793, 798 (Pa. 2004) (citations omitted).

Moreover, it is well-settled that, “although election laws must be strictly construed to

prevent fraud, they ordinarily will be construed liberally in favor of the right to vote.” Id.

(internal quotation marks omitted). Indeed, “[o]ur goal must be to enfranchise and not to

disenfranchise [the electorate].” In re Luzerne Cty. Return Bd., 290 A.2d 108, 109 (Pa.

1972). Lastly, in resolving statutory ambiguity, we may consider, inter alia, the occasion

[J-96-2020] - 18 and necessity for, the mischief to be remedied by, and the object to be obtained by the

statute. 1 Pa.C.S. § 1921(c)(1), (3), and (4), respectively.

With all of that said, we need not belabor our ultimate conclusion that the Election

Code should be interpreted to allow county boards of election to accept hand-delivered

mail-in ballots at locations other than their office addresses including drop-boxes. This

conclusion is largely the result of the clear legislative intent underlying Act 77, which

animates much of this case, to provide electors with options to vote outside of traditional

polling places. Section 3150.16(a) of the Election Code undeniably exemplifies this intent

by granting the Pennsylvania electorate the right to vote by way of a mail-in ballot beyond

the circumstances that ordinarily allow this alternative, such as voter absenteeism.

Accordingly, although both Respondent and the Caucus offer a reasonable

interpretation of Section 3150.16(a) as it operates within the Election Code, their

interpretation restricts voters’ rights, as opposed to the reasonable interpretation tendered

by Petitioner and the Secretary. The law, therefore, militates in favor of this Court

construing the Election Code in a manner consistent with the view of Petitioner and the

Secretary, as this construction of the Code favors the fundamental right to vote and

enfranchises, rather than disenfranchises, the electorate.

In light of this conclusion, we will briefly address the equal protection argument of

Respondent and the Caucus. The premise of that argument, as detailed supra, is that, if

this Court interprets the Election Code in a manner that is consistent with the position of

Petitioner and the Secretary, which we have, then the county boards of election will

employ myriad systems to accept hand-delivered mail-in ballots, which allegedly will be

unconstitutionally disparate from one another in so much as some systems will offer more

legal protections to voters than others will provide. However, the exact manner in which

each county board of election will accept these votes is entirely unknown at this point;

[J-96-2020] - 19 thus, we have no metric by which to measure whether any one system offers more legal

protection than another, making an equal protection analysis impossible at this time.

Accordingly, the equal protection argument of Respondent and the Caucus does not alter

our conclusion in this matter.

Thus, for these reasons, this Court declares that the Election Code permits county

boards of election to accept hand-delivered mail-in ballots at locations other than their

office addresses including drop-boxes.15

B. COUNT II OF THE PETITION FOR REVIEW

In its second count, Petitioner presents this Court with an as-applied challenge to

the Election Code’s deadline for receiving ballots (“received-by deadline”), which requires

mail-in and absentee ballots to be returned to Boards no later than 8:00 p.m. on Election

Day, 25 P.S. §§ 3146.6(c), 3150.16(c). It contends that strict enforcement of this

deadline, in light of the current COVID-19 pandemic and alleged delays in mail delivery

by the USPS, will result in extensive voter disenfranchisement in violation of the

Pennsylvania Constitution’s Free and Equal Elections Clause.

As noted above, the Free and Equal Elections Clause provides that “[e]lections

shall be free and equal; and no power, civil or military, shall at any time interfere to prevent

the free exercise of the right to suffrage.” PA. CONST. art. I, § 5. Petitioner interprets this

provision as forbidding the Boards from interfering with the right to vote by failing to act in

15 We note that the Secretary has issued guidelines in this regard specifying that the Boards “may provide voters with access to a secure ballot return receptacle.” See Secretary’s Post-Submission Communication dated 8/24/2020, setting forth the Secretary’s Absentee and Mail-in Ballot Return Guidance at 1.1. Additionally, and consistent with the requirement that all votes must be cast by Election Day, these guidelines specify that: “Authorized personnel should be present at ballot return sites immediately prior to 8:00 p.m. or at the time the polls should otherwise be closed”; “At 8:00 p.m. on election night, or later if the polling place hours have been extended, all ballot sites, and drop-boxes must be closed and locked”; and “Staff must ensure that no ballots are returned to ballot return sites after the close of the polls.” Id. at 3.3.

[J-96-2020] - 20 a timely manner so as to allow electors to participate in the election through mail-in voting.

Petition at 49, ¶ 176.

In support of its as-applied challenge in regard to the upcoming General Election,

Petitioner recounts this Commonwealth’s recent experience during the June Primary. It

emphasizes that, during the Primary, the Boards were inundated with over 1.8 million

requests for mail-in ballots, rather than the expected 80,000 - 100,000, due in large part

to the COVID-19 pandemic, which caused many voters to be wary of congregating in

polling places. Petitioner’s Brief at 2, 51. Petitioner asserts that “[t]his crush of

applications created massive disparities in the distribution and return of mail-in ballots.”

Petition at 24, ¶ 70.

It explains that, while some Boards were able to process the requests within the

statutory requirements established by Act 77,16 other boards, especially those in areas

hard-hit by the pandemic, were unable to provide electors with ballots in time for the

electors to return their ballot in accord with the statutory deadline. Petition at 23, ¶ 66.

Indeed, it avers that in Delaware County, thousands of ballots were “not mailed out until

the night” of the Primary, making timely return impossible. Petition at 26, ¶ 77. Bucks

County apparently experienced similar delays.

To remedy this situation, the Election Boards of Bucks and Delaware Counties

sought relief in their county courts.17 Recognizing that the Election Code “implicitly

16 Act 77, inter alia, requires Boards to verify an applicant’s submitted information to determine whether the applicant is “qualified to receive an official mail-in ballot.” 25 P.S. § 3150.12b(a). After approving an application, the Election Code, as amended by Act 77, instructs that “the board shall deliver or mail official mail-in ballots to the additional electors within 48 hours.” 25 P.S. § 3150.15. 17The Election Code grants courts of common pleas the authority to address situations which arise on the day of a primary or general election, 25 P.S. § 3046. Section 3046 entitled “Duties of common pleas court on days of primaries and elections,” provides:

[J-96-2020] - 21 granted [the courts the] authority to provide relief when there is a natural disaster or

emergency” that threatens to deprive electors of the opportunity to participate in the

electoral process, the Courts of Common Pleas of Bucks and Delaware Counties

extended the deadline for the return of mail-in ballots for seven days, so long as the ballot

was postmarked by the date of the Primary. In re: Extension of Time for Absentee and

Mail-In Ballots to be Received By Mail and Counted in the 2020 Primary Election, No.

2020-02322-37 (C.P. Bucks) (McMaster, J.); see also In re: Extension of Time for

Absentee and Mail-In Ballots to be Received By Mail and Counted in the 2020 Primary

Election, No.-CV 2020-003416 (C.P. Delaware).

Petitioner also observes that voters in six counties received an extension to the

return deadline pursuant to an executive order issued by Governor Wolf, invoking the

Emergency Management Services Code, 35 Pa.C.S. § 7301(c).18 In Executive Order No.

2020-02, Governor Wolf addressed impediments to timely ballot return arising from the

pandemic as well as civil unrest that had arisen immediately before the Primary in the

specified counties following the killing of George Floyd by police officers. The

impediments included road closures, public transportation disruptions, and curfews. To

combat the potential disenfranchisement of voters, especially in light of the

“unprecedented number” of mail-in ballots due to the pandemic, the Governor extended

During such period said court shall act as a committing magistrate for any violation of the election laws; shall settle summarily controversies that may arise with respect to the conduct of the election; shall issue process, if necessary, to enforce and secure compliance with the election laws; and shall decide such other matters pertaining to the election as may be necessary to carry out the intent of this act.

25 P.S. § 3046. 18The affected counties were Allegheny, Dauphin, Delaware, Erie, Montgomery, and Philadelphia.

[J-96-2020] - 22 the received-by deadline for seven days, so long as the ballots were postmarked by the

date of the Primary. Governor Wolf, Executive Order No. 2020-02 (June 1, 2020).

While voters in specified counties benefitted from extensions of time to return their

ballots, Petitioner emphasizes that the Commonwealth Court rejected a request for a

statewide extension of the ballot received-by deadline in Delisle v. Boockvar, 319 M.D.

2020 (Pa. Cmwlth. June 2, 2020) (Memorandum Opinion), favoring instead a county-by-

county remedy. Indeed, while not mentioned by Petitioner, this Court additionally denied

relief to a petitioner seeking a statewide extension of the ballot received-by deadline

weeks before the June Primary, where the petitioner similarly argued for the extension

based upon the overwhelming number of mail-in ballot applications and delays in the

USPS system. Disability Rights Pa. v. Boockvar, No. 83 MM 2020, 2020 WL 2820467

(Pa. May 15, 2020).

In light of the lessons learned from the June Primary, Petitioner asserts that a

statewide remedy is now necessary for the General Election. It suggests that the lack of

a statewide remedy risks an equal protection challenge as only some voters would benefit

from the extended deadline based on their county court’s determination. Petition at 32-

33, ¶ 105. Moreover, it emphasizes that a statewide order from this Court early in the

election process would reduce voter confusion, as compared to the last-minute county-

by-county relief granted during the Primary to address emergency situations. Petitioner’s

Brief at 26-27 n.9.

Petitioner avers that the difficulties encountered by Boards processing the ballot

applications prior to the June Primary will only be exacerbated in the November General

Election. It emphasizes the continued grip of the pandemic, and a potential second wave

of infections, which will result in more electors seeking to exercise their right to vote by

mail. Petition at 49, ¶ 173-175. Additionally, it recognizes the undisputed fact that heavily

[J-96-2020] - 23 contested Presidential elections involve substantially greater voter participation than

largely uncontested primaries, further observing that “[i]t is normal in elections with

significant public attention for there to be a flood of registrations received right before

deadlines.” Petition at 26, ¶ 79. It highlights that the Secretary estimates that 3 million

electors will seek mail-in or absentee ballots for the General Election in contrast to the

1.5 million votes cast by mail at the Primary, and the pre-pandemic assumption of 80,000

- 100,000 absentee and mail-in ballots. Petitioner’s Brief at 51.

Petitioner asserts that the overwhelming demand on the Boards will be

exacerbated by delays in the USPS mail delivery system. Petitioner observes that

historically the law presumed that a document placed in a mail collection box would be

delivered within three days of placement, rather than the current two to five day delivery

expectation of the USPS. Id. at 50. Petitioner avers that substantial delivery delays have

resulted from a combination of recent operational changes at the USPS and decreased

staffing caused by the pandemic. Id. at 20-21. It emphasizes that the USPS recently

warned that there is a “significant risk” that Pennsylvania voters who submit timely ballot

requests will not have sufficient time to complete and return their ballot to meet the

Election Code’s received-by deadline. Id. at 2-3 (quoting USPS General Counsel and

Executive Vice President Thomas Marshall’s July 29, 2020 letter to the Secretary

(hereinafter “USPS General Counsel’s Letter”), discussed in detail infra).

Petitioner avers that this Court has the authority to act to protect electors’ right to

cast their ballot, as protected by Pennsylvania’s Free and Equal Elections Clause. It

emphasizes that “‘[c]ourt[s] possess broad authority to craft meaningful remedies’ when

‘regulations of law . . . impair the right of suffrage.’” Id. at 48-49 (quoting League of

Women Voters of Pa., 178 A.3d at 809, 822) (alterations in original). It observes that

courts have exercised that authority to provide equitable relief to voters faced with natural

[J-96-2020] - 24 disasters that impede their right to vote. As an example, Petitioner highlights the

Commonwealth Court’s actions in In re General Election-1985, 531 A.2d 836, 838-39 (Pa.

Cmwlth. 1987), in which the court affirmed a two-week suspension in an election where

severe flooding prevented electors from safely voting due to “circumstances beyond their

control.” Petitioner asserts that Pennsylvania electors in the November General Election

similarly face a threat to their ability to vote due to no fault of their own, but instead due

to a perfect storm combining the dramatic increase in requested ballots due to the COVID-

19 pandemic and the inability of the USPS to meet the delivery standards required by the

Election Code.

Accordingly, Petitioner asks this Court to grant an injunction ordering the

Respondent to “lift the deadline in the Election Code across the state in a uniform

standard to allow any ballot postmarked by 8 p.m. on Election Night to be counted if it is

received by the deadline for ballots to be received” under the UOCAVA, specifically by

5:00 p.m. on Tuesday, November 10.19 Petition at 50, ¶ 178. Recognizing that the

Secretary recommends a three-day extension, as detailed below, Petitioner counters that

“[a] 7-day extension to the ballot receipt deadline is consistent with the USPS’s

recommendation to the Secretary that voters should mail their ballots to Boards no later

than October 27, 2020,” which is seven days prior to Election Day. Petitioner’s Brief at

53 (referencing USPS General Counsel’s Letter at 2). While it acknowledges that a

seven-day extension could impact other post-election deadlines as discussed infra, it

19As adopted in Pennsylvania, the UOCAVA provides that military and overseas ballots will be counted if received by the county board by “5:00 p.m. on the seventh day following the election,” which this year will be November 10, 2020. 25 Pa.C.S. § 3511. As an alternative remedy, Petitioner proposes that each ballot could have an individualized deadline twenty-one days after the specific ballot is mailed by the county, so long as it is received before the UOCAVA deadline. Petition at 50, ¶ 108, 179.

[J-96-2020] - 25 asserts that this Court has the authority to alter those deadlines to be consistent with the

relief granted in this case. Id. at 55.

As noted, the Secretary sought extraordinary jurisdiction to allow this Court to

resolve the various challenges to the mail-in ballot process in an orderly and timely

fashion before the impending General Election, where she estimates more than three

million Pennsylvanians will exercise their right to vote by mail. Secretary’s Brief at 1. The

Secretary observes that she previously advocated against a similar request for an

extension of the received-by deadline for mail-in and absentee ballots in the Crossey

case. She, however, reassessed her position following receipt of the USPS General

Counsel’s Letter, which she attaches to her Application. Secretary’s Application at 10,

Exhibit A.

Significantly, the USPS General Counsel’s Letter opined that “certain deadlines for

requesting and casting mail-in ballots are incongruous with the Postal Service’s delivery

standards,” providing for 2-5 day delivery for domestic First Class Mail and 3-10 day

delivery for domestic Marketing Mail. USPS General Counsel’s Letter at 1. As the parties

recognize, the Election Code designates October 27, 2020, as the last day for electors to

request a mail-in ballot. 25 P.S. § 3150.12a(a) (“Applications for mail-in ballots shall be

processed if received not later than five o'clock P.M. of the first Tuesday prior to the day

of any primary or election.”). Even if a county board were to process and mail a ballot the

next day by First Class Mail on Wednesday, October 28th, according to the delivery

standards of the USPS, the voter might not receive the ballot until five days later on

Monday, November 2nd, resulting in the impossibility of returning the ballot by mail before

Election Day, Tuesday November 3rd. The USPS General Counsel’s Letter, instead,

advised that voters should mail their ballots no later than October 27, 2020 in order to

meet the received-by deadline. USPS General Counsel’s Letter at 2. “This mismatch

[J-96-2020] - 26 [between the USPS’s delivery standards and the Election Code deadlines] creates a risk

that ballots requested near the deadline under state law will not be returned by mail in

time to be counted under [Pennsylvania’s Election Code].” Id. at 1.

In light of the information contained in the USPS General Counsel’s Letter, the

Secretary concludes that a temporary extension of the Election Code’s received-by

deadline is necessary for the upcoming General Election to ensure a free and equal

election as protected by Article I, Section 5 of the Pennsylvania Constitution. Secretary’s

Application at 27. The Secretary specifically asks that this Court order an extension of

the deadline to allow the counting of any ballot postmarked by Election Day and received

on or before the third day after Election Day, which is November 6, 2020. 20 Id. at 27-28.

The Secretary deems a three-day extension of the deadline, rather than the seven-day

extension sought by Petitioner, to be sufficient to address the potential delay in mailing

while also not disrupting other elements of election administration. Id. at 29.

The Secretary emphasizes that the remedy sought here is not the invalidation of

the Election Code’s received-by deadline, but rather the grant of equitable relief to extend

temporarily the deadline to address “mail-delivery delays during an on-going public health

disaster.” Secretary’s Brief at 18. As no party is seeking the invalidation of the received-

by deadline, the Secretary rejects the suggestion of Respondent and the Caucus that the

remedy would trigger the nonseverability provision of Act 77, reasoning that the Court

would be granting “a temporary short extension to address the exigencies of a natural

20 She specifically recommends that the Court “order that ballots mailed by voters by 8:00 p.m. on Election Day be counted if they are otherwise valid and received by the county boards of election by November 6, 2020. Ballots received within this period that lack a postmark or other proof of mailing, or for which the postmark or other proof of mailing is illegible, should enjoy a presumption that they were mailed by Election Day.” Secretary’s Application at 29. We observe that this proposal therefore requires that all votes be cast by Election Day but does not disenfranchise a voter based upon the absence or illegibility of a USPS postmark that is beyond the control of the voter once she places her ballot in the USPS delivery system.

[J-96-2020] - 27 disaster” rather than “the invalidation of a statutory deadline.” Id. at 21 (referencing

Section 11 of Act 77 set forth infra). She emphasizes that the statutory deadline would

remain unchanged for future elections.

The Secretary observes that courts have previously granted temporary equitable

relief to address natural disasters, given that neither the Election Code nor the

Constitution “provides any procedure to follow when a natural disaster creates an

emergency situation that interferes with an election.” Id. at 19 (citing In re: General

Election-1985, 531 A.2d at 839).21 She argues that the current pandemic is equivalent to

other natural disasters and that it necessitates the requested extension of the Election

Code’s received-by deadline for mail-in ballots.

In contrast, Respondent contends that Petitioner asks this Court to rewrite the plain

language of Act 77 and to substitute its preferred ballot deadline for the statutory deadline

that resulted from the legislative compromise during the bi-partisan enactment of Act 77.

It emphasizes that this Court “recently reaffirmed [that] the judiciary ‘may not usurp the

province of the legislature by rewriting [statutes].’” Respondent’s Supplemental Brief at

16 (quoting In re Fortieth Statewide Investigating Grand Jury, 197 A.3d 712, 721 (Pa.

2018)).

Judicial restraint, according to Respondent, is especially necessary in regard to

election law, where this Court has long recognized that “[t]he power to regulate elections

is a legislative one, and has been exercised by the General Assembly since the

foundation of the government.” Id. at 17 (quoting Winston v. Moore, 91 A. 520, 522 (Pa.

1914)). Indeed, it observes that the United States Constitution dictates that “[t]he Times,

21 The Secretary observes that other jurisdictions have likewise granted temporary extensions when faced with natural disasters, such as hurricanes. Secretary’s Application at 28 (citing Fla. Democratic Party v. Scott, 215 F. Supp. 3d 1250, 1259 (N.D. Fla. 2016); Georgia Coalition for the Peoples’ Agenda, Inc. v. Deal, 214 F. Supp. 3d 1344, 1345 (S.D. Ga. 2016)).

[J-96-2020] - 28 Places, and Manner of holding Elections for Senators and Representatives, shall be

prescribed in each state by the Legislature thereof,” subject to directives of Congress,

U.S. CONST. art. I, § 4, cl. 1, and that “[e]ach State shall appoint, in such Manner as the

Legislature thereof may direct,” electors for President and Vice President. U.S. CONST.

art. II, § 1, cl. 2.22 Respondent highlights special concerns relevant to Presidential

elections, emphasizing that “‘[w]ith respect to a Presidential election,’ state courts must

‘be mindful of the legislature’s role under Article II in choosing the manner of appointing

electors.’” Respondent’s Supplemental Brief at 20 (quoting Bush v. Gore, 531 U.S. 98,

114 (2000) (Rehnquist, C.J., concurring)).

Respondent additionally warns that if this Court were to deem application of the

deadline unconstitutional and substitute a judicially-determined deadline, it would trigger

the nonseverability provision of Act 77, which would invalidate the entirety of the Act,

including all provisions creating universal mail-in voting. Specifically, Section 11 provides:

“Sections 1, 2, 3, 3.2, 4, 5, 5.1, 6, 7, 8, 9 and 12 of this act are nonseverable. If any

provision of this act or its application to any person or circumstances is held invalid, the

remaining provisions or applications of this act are void.” Act 77, § 11. It emphasizes

that this Court has previously deemed nonseverability provisions to be constitutionally

proper and additionally recognized that nonseverability provisions are crucial to the

legislative process as they “may be essential to securing the support necessary to enact

the legislation in the first place.” Respondent’s Supplemental Brief at 18 (citing Stilp v.

Commonwealth, 905 A.2d 918, 978 (Pa. 2006)). Respondent asserts that it is clear that

the severability provision in Act 77 “was intended to preserve the compromise struck” in

the bipartisan enactment. Id. at 19.

22Respondent further observes that the Pennsylvania Constitution specifically directs the Legislature to “provide a manner in which, and the time and place at which” a qualified elector can submit an absentee ballot. PA. CONST. art. VII, § 14(a).

[J-96-2020] - 29 On the merits, Respondent asserts that the plain language of the Election Code

setting the deadline for submission of ballots by 8:00 p.m. on Election Day does not violate

the Free and Equal Elections Clause but instead provides “a neutral, evenhanded rule

that applies to all Pennsylvania voters equally.” Respondent’s Answer to the Secretary’s

Application at 21. It emphasizes that numerous courts, including this Court during the

June Primary, have upheld the application of mail-in deadlines during the COVID-19

pandemic. Respondent’s Supplemental Brief at 24 (citing, inter alia, Disability Rights Pa.

v. Boockvar, No. 83 MM 2020, 2020 WL 2820467 (Pa. May 15, 2020)).

Respondent additionally rejects the Secretary’s assertion that the deadline should

be extended based upon the threat of mail delays. It avers that these concerns are

“speculative at best.” Id. at 25. Moreover, it contends that “given Pennsylvania’s

unparalleled and generous absentee and mail-in voting period, any voter’s inability to cast

a timely ballot is not caused by the Election Day received-by deadline but instead by their

own failure to take timely steps to effect completion and return of their ballot.” Id. at 26-

27 (internal citation and quotation marks omitted).

Respondent further supports its argument by attaching to its Supplemental Brief a

declaration of USPS Vice President Angela Curtis, which in turn attaches the statement

provided by Postmaster General Louis DeJoy to the Senate Committee on Homeland

Security and Governmental Affairs on August 21, 2020 and his statement of August 24,

2020, to the House Committee on Oversight and Reform. In his statement, Postmaster

General Louis DeJoy addressed public accusations that the implementation of various

cost-saving reforms had allegedly resulted in delays in mail delivery that threatened the

timely delivery of election mail.

While disputing the validity of the accusations, the Postmaster General provided

the following commitments relating to the delivery of election mail:

[J-96-2020] - 30 [R]etail hours at Post Offices won’t be changed, and mail processing equipment and blue collection boxes won’t be removed during this period. No mail processing facilities will be closed and we have terminated the pilot program that began in July that expedited carrier departures to their delivery routes, without plans to extend or expand it. To clear up any confusion, overtime has, and will continue to be, approved as needed. Finally, effective October 1, 2020, we will engage standby resources in all areas of our operations, including transportation, to satisfy any unforeseen demand for the election. Statement of Postmaster General Louis DeJoy provided to Senate Committee on

Homeland Security and Governmental Affairs Hearing of Aug. 21, 2020, at 14; Statement

of Postmaster General Louis DeJoy provided to House Committee on Oversight and

Reform of Aug. 24, 2020, at 14. Respondent emphasizes that Postmaster General DeJoy

also asserted that the “USPS has not changed [its] delivery standards, [its] processing,

[its] rules, or [its] prices for Election Mail[,]” and that it “can, and will, handle the volume

of Election Mail [it] receive[s].” Respondent’s Supplemental Brief at 10.

Finally, Respondent argues that moving the received-by deadline until after

Election Day would undermine the federal designation of a uniform Election Day, as set

forth in three federal statues, specifically 3 U.S.C. § 1 (“The electors of President and

Vice President shall be appointed, in each State, on the Tuesday next after the first

Monday in November, every fourth year succeeding every election of a President and

Vice President”); 2 U.S.C. § 7 (“The Tuesday next after the 1st Monday in November, in

every even numbered year, is established as the day for the election, in each of the States

and Territories of the United States, of Representatives and Delegates to the Congress

commencing on the 3d day of January next thereafter.”); and 2 U.S.C. § 1 (“At the regular

election held in any State next preceding the expiration of the term for which any Senator

was elected to represent such State in Congress is regularly by law to be chosen, a United

[J-96-2020] - 31 States Senator from said State shall be elected by the people thereof for a term

commencing on the 3d day of January next thereafter.”).23

The Caucus also files a brief with this Court arguing against the extension of the

deadline for mail-in votes. It asserts that “[t]here is no constitutional right to vote by mail”

and that states have broad authority to enact regulations to ensure the integrity of its

elections, including mail-in ballots, as was done in Act 77, including by setting a deadline

for the receipt of ballots. Caucus’s Brief at 19.

The Caucus warns that granting an extension of the mail-in ballot received-by

deadline in this case “would have a cascading effect on other election code deadlines,

thereby causing chaos for election officials and confusion for voters.” Id. at 26. It

observes that the Election Code requires that Boards begin canvassing absentee and

mail-in ballots within three days of Election Day and shall continue through the eighth day

following the Election. Id. at 28 (citing 25 P.S. § 3146.8(g)(2)). Additionally, the Boards

shall submit the unofficial returns to the Secretary on the Tuesday following the Election,

and the Secretary must determine whether a recount is required within nine days of

Election Day, citing 25 P.S. § 3154(f), (g)(2), and the Boards must certify the final results

to the Secretary no later than twenty days after Election Day, citing 25 P.S. § 2642(k). It

additionally asserts that federal law requires all state recounts and challenges to be

“resolved at least 6 days prior to the meeting of electors,” which it asserts this year is

December 14. Caucus’s Brief at 28 n.17 (citing 3 U.S.C. §§ 1, 5). The Caucus therefore

urges this Court to refrain from altering the received-by deadline for mail-in ballots,

asserting that the “requested injunction would override the election deadlines which were

23In so arguing, Respondent seemingly ignores the fact that allowing the tabulation of ballots received after Election Day does not undermine the existence of a federal Election Day, where the proposal requires that ballots be cast by Election Day, similar to the procedure under federal and state law allowing for the tabulation of military and overseas ballots received after Election Day.

[J-96-2020] - 32 fully debated and properly enacted by the peoples’ representatives in the Pennsylvania

General Assembly.” Id. at 29.

Unlike other provisions of Act 77 currently before this Court, we are not asked to

interpret the statutory language establishing the received-by deadline for mail-in ballots.

Indeed, there is no ambiguity regarding the deadline set by the General Assembly:

Deadline.--Except as provided under 25 Pa.C.S. § 3511[24] (relating to receipt of voted ballot), a completed mail-in ballot must be received in the office of the county board of elections no later than eight o'clock P.M. on the day of the primary or election. 25 P.S. § 3150.16(c). Moreover, we are not asked to declare the language facially

unconstitutional as there is nothing constitutionally infirm about a deadline of 8:00 p.m.

on Election Day for the receipt of ballots. The parties, instead, question whether the

24Section 3511 addresses the timeline for the return of ballots of uniform military and oversees voters and provides for the counting of such votes if delivered to the county board by 5 p.m. on the seventh day after Election Day:

§ 3511. Receipt of voted ballot

(a) Delivery governs.--A valid military-overseas ballot cast under section 3509 (relating to timely casting of ballot) shall be counted if it is delivered by 5 p.m. on the seventh day following the election to the address that the appropriate county election board has specified.

(b) Rule regarding postmarks.--If, at the time of completing a military-overseas ballot and balloting materials, the voter has declared under penalty of perjury that the ballot was timely submitted, the ballot may not be rejected on the basis that it has a late postmark, an unreadable postmark or no postmark.

25 Pa.C.S. § 3511.

[J-96-2020] - 33 application of the statutory language to the facts of the current unprecedented situation

results in an as-applied infringement of electors’ right to vote.

In considering this issue, we reiterate that the Free and Equal Elections Clause of

the Pennsylvania Constitution requires that “all aspects of the electoral process, to the

greatest degree possible, be kept open and unrestricted to the voters of our

Commonwealth, and, also, conducted in a manner which guarantees, to the greatest

degree possible, a voter’s right to equal participation in the electoral process for the

selection of his or her representatives in government.” League of Women Voters, 178

A.3d at 804. Nevertheless, we also recognize that “the state may enact substantial

regulation containing reasonable, non-discriminatory restrictions to ensure honest and

fair elections that proceed in an orderly and efficient manner.” Banfield v. Cortes, 110

A.3d 155, 176–77 (Pa. 2015) (internal citation and quotation marks omitted).

As we have recently seen, an orderly and efficient election process can be crucial

to the protection of a voter’s participation in that process. Indeed, the struggles of our

most populous counties to avoid disenfranchising voters while processing the

overwhelming number of pandemic-fueled mail-in ballot applications during the 2020

Primary demonstrates that orderly and efficient election processes are essential to

safeguarding the right to vote. An elector cannot exercise the franchise while her ballot

application is awaiting processing in a county election board nor when her ballot is sitting

in a USPS facility after the deadline for ballots to be received.

We are fully cognizant that a balance must be struck between providing voters

ample time to request mail-in ballots, while also building enough flexibility into the election

timeline to guarantee that ballot has time to travel through the USPS delivery system to

ensure that the completed ballot can be counted in the election. Moreover, we recognize

that the determination of that balance is fully enshrined within the authority granted to the

[J-96-2020] - 34 Legislature under the United States and Pennsylvania Constitutions. See U.S. CONST.

art. I, § 4, cl. 1; id. art. II, § 1, cl. 2.

Nevertheless, we find the Commonwealth Court’s rationale in In re: General

Election-1985 germane to the current challenge to the application of the ballot received-

by deadline. In that case, the court recognized that, while neither the Constitution nor the

Election Code specified “any procedure to follow when a natural disaster creates an

emergency situation that interferes with an election,” courts could look to the direction of

25 P.S. § 3046. In re General Election-1985, 531 A.2d at 839. As noted, Section 3046

provides courts of common pleas the power, on the day of an election, to decide “matters

pertaining to the election as may be necessary to carry out the intent” of the Election

Code, which the Commonwealth Court properly deemed to include providing “an equal

opportunity for all eligible electors to participate in the election process,” which in that

case necessitated delaying the election during a flood. Id.

We have no hesitation in concluding that the ongoing COVID-19 pandemic

equates to a natural disaster. See Friends of Devito v. Wolf, 227 A.3d 872, 888 (Pa.

2020) (agreeing “that the COVID-19 pandemic qualifies as a ‘natural disaster’ under the

Emergency Code”). Moreover, the effects of the pandemic threatened the

disenfranchisement of thousands of Pennsylvanians during the 2020 Primary, when

several of the Commonwealth’s county election boards struggled to process the flow of

mail-in ballot applications for voters who sought to avoid exposure to the virus. See, e.g.,

Delaware County Board of Elections’ Answer to Petition at 15, ¶ 77 (acknowledging that

it “mailed out thousands of ballots in the twenty-four hour period preceding the election”).

It is beyond cavil that the numbers of mail-in ballot requests for the Primary will be dwarfed

by those applications filed during the upcoming highly-contested Presidential Election in

the midst of the pandemic where many voters are still wary of congregating in crowded

[J-96-2020] - 35 locations such as polling places. We acknowledge that the Secretary has estimated that

nearly three million Pennsylvanians will apply for mail-in applications, in contrast to the

1.5 million cast during the Primary. Secretary’s Brief at 1.

In light of these unprecedented numbers and the near-certain delays that will occur

in Boards processing the mail-in applications, we conclude that the timeline built into the

Election Code cannot be met by the USPS’s current delivery standards, regardless of

whether those delivery standards are due to recent changes in the USPS’s logistical

procedures or whether the standards are consistent with what the General Assembly

expected when it enacted Act 77. In this regard, we place stock in the USPS’s General

Counsel’s expression that his client could be unable to meet Pennsylvania’s statutory

election calendar. General Counsel’s Letter at 2. The Legislature enacted an extremely

condensed timeline, providing only seven days between the last date to request a mail-in

ballot and the last day to return a completed ballot. While it may be feasible under normal

conditions, it will unquestionably fail under the strain of COVID-19 and the 2020

Presidential Election, resulting in the disenfranchisement of voters.

Under our Extraordinary Jurisdiction, this Court can and should act to extend the

received-by deadline for mail-in ballots to prevent the disenfranchisement of voters. We

have previously recognized that, in enforcing the Free and Equal Elections Clause, this

“Court possesses broad authority to craft meaningful remedies when required.” League

of Women Voters, 178 A.3d at 822 (citing PA. CONST., art. V, §§ 1, 2, 10; 42 Pa.C.S. § 726

(granting power to “enter a final order or otherwise cause right and justice to be done”)).

We additionally conclude that voters’ rights are better protected by addressing the

impending crisis at this point in the election cycle on a statewide basis rather than allowing

the chaos to brew, creating voter confusion regarding whether extensions will be granted,

[J-96-2020] - 36 for how long, and in what counties.25 Instead, we act now to allow the Secretary, the

county election boards, and most importantly, the voters in Pennsylvania to have clarity

as to the timeline for the 2020 General Election mail-in ballot process.

After consideration, we adopt the Secretary’s informed recommendation of a three-

day extension of the absentee and mail-in ballot received-by deadline to allow for the

tabulation of ballots mailed by voters via the USPS and postmarked by 8:00 p.m. on

Election Day to reduce voter disenfranchisement resulting from the conflict between the

Election Code and the current USPS delivery standards, given the expected number of

Pennsylvanians opting to use mail-in ballots during the pandemic.26 We observe that this

extension provides more time for the delivery of ballots while also not requiring alteration

of the subsequent canvassing and reporting dates necessary for the Secretary’s final

reporting of the election results. In so doing, we emphasize that the Pennsylvania’s

election laws currently accommodate the receipt of certain ballots after Election Day, as

25We recognize that we rejected a very similar argument presented in Disability Rights Pennsylvania on May 15, 2020, weeks prior to the Primary. Disability Rights Pa. v. Boockvar, No. 83 MM 2020, 2020 WL 2820467 (Pa. May 15, 2020). At that time, the potential of voter disenfranchisement was speculative as many unknowns existed relating to the magnitude of the pandemic, the extent to which voters would seek mail-in applications, and the ability of Boards to handle the increase. Those uncertainties no longer exist in light of our experience in the 2020 Primary where thousands of voters would have been disenfranchised but for the emergency actions of the courts of common pleas and the Governor. 26 We likewise incorporate the Secretary’s recommendation addressing ballots received within this period that lack a postmark or other proof of mailing, or for which the postmark or other proof of mailing is illegible. Accordingly, in such cases, we conclude that a ballot received on or before 5:00 p.m. on November 6, 2020, will be presumed to have been mailed by Election Day unless a preponderance of the evidence demonstrates that it was mailed after Election Day. We emphasize that voters utilizing the USPS must cast their ballots prior to 8:00 p.m. on Election Day, like all voters, including those utilizing drop boxes, as set forth supra. We refuse, however, to disenfranchise voters for the lack or illegibility of a postmark resulting from the USPS processing system, which is undeniably outside the control of the individual voter.

[J-96-2020] - 37 it allows the tabulation of military and overseas ballots received up to seven days after

Election Day. 25 Pa.C.S. § 3511. We conclude that this extension of the received-by

deadline protects voters’ rights while being least at variance with Pennsylvania’s

permanent election calendar, which we respect and do not alter lightly, even temporarily.

C. COUNT III OF THE PETITION FOR REVIEW

In Count III of its petition, Petitioner seeks to require that the Boards contact

qualified electors whose mail-in or absentee ballots contain minor facial defects resulting

from their failure to comply with the statutory requirements for voting by mail, and provide

them with an opportunity to cure those defects. More specifically, Petitioner submits that

when the Boards have knowledge of an incomplete or incorrectly completed ballot as well

as the elector’s contact information, the Boards should be required to notify the elector

using the most expeditious means possible and provide the elector a chance to cure the

facial defect up until the UOCAVA deadline of November 10, 2020, discussed supra.

Petitioner bases this claim on its assertion that the multi-stepped process for voting

by mail-in or absentee ballot inevitably leads to what it describes as minor errors, such as

not completing the voter declaration or using an incorrect ink color to complete the ballot.

See 25 P.S. § 3146.6(a) (explaining the process for voting by absentee ballot, which

requires, inter alia, an elector to mark the ballot using only certain writing implements and

ink; and to fill out, date, and sign the declaration printed on the outer envelope); id.

§ 3150.16(a) (explaining the process for voting by mail-in ballot, which imposes the same

requirements). According to Petitioner, these minor oversights result in many ballots

being rejected and disenfranchising voters who believe they have exercised their right to

vote.

Petitioner submits that voters should not be disenfranchised by technical errors or

incomplete ballots, and that the “notice and opportunity to cure” procedure ensures that

[J-96-2020] - 38 all electors who desire to cast a ballot have the opportunity to do so, and for their ballot

to be counted. Petitioner further claims there is no governmental interest in either: (1)

requiring the formalities for the completion of the outside of the mailing envelope to be

finalized prior to mailing as opposed to prior to counting, or (2) rejecting the counting of a

ballot so long as ballots continue to arrive under federal law, which is the UOCAVA

deadline of seven days after Election Day.

As legal support for its position, Petitioner relies upon the Free and Equal Elections

Clause. PA. CONST. art. I, § 5 (“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.”);

see also Winston, 91 A. at 523 (explaining that elections are “free and equal” for

constitutional purposes when, inter alia, “the regulation of the right to exercise the

franchise does not deny the franchise itself, or make it so difficult as to amount to a denial;

and when no constitutional right of the qualified elector is subverted or denied him”). It

further emphasizes that election laws should be construed liberally in favor of voters, and

that “[t]echnicalities should not be used to make the right of the voter insecure.” Appeal

of James, 105 A.2d 64, 65-66 (Pa. 1954). Petitioner also asserts that ballots with minor

irregularities should not be rejected, except for compelling reasons and in rare

circumstances. Id. at 66. Based on these legal principles, as well as this Court’s “broad

authority to craft meaningful remedies” when necessary, League of Women Voters, 178

A.3d at 822, Petitioner claims that the Pennsylvania Constitution and spirit of the Election

Code require the Boards to provide a “notice and opportunity to cure” procedure, and that

this Court has the authority to afford the relief it seeks.

Unlike the other claims asserted herein, the Secretary opposes Petitioner’s request

for relief in this regard. She counters that there is no statutory or constitutional basis for

requiring the Boards to contact voters when faced with a defective ballot and afford them

[J-96-2020] - 39 an opportunity to cure defects. The Secretary further notes that, while Petitioner relies

upon the Free and Equal Elections Clause, that Clause cannot create statutory language

that the General Assembly chose not to provide. See Winston, 91 A. at 522 (noting that

“[t]he power to regulate elections is legislative”).

The Secretary submits that so long as a voter follows the requisite voting

procedures, he or she “will have an equally effective power to select the representative

of his or her choice.” League of Women Voters, 178 A.3d at 809. Emphasizing that

Petitioner presents no explanation as to how the Boards would notify voters or how the

voters would correct the errors, the Secretary further claims that, while it may be good

policy to implement a procedure that entails notice of defective ballots and an opportunity

to cure them, logistical policy decisions like the ones implicated herein are more properly

addressed by the Legislature, not the courts.

Respondent echoes the Secretary’s opposition to Petitioner’s request for relief. 27

Specifically, it reiterates that Petitioner has failed to assert a legal basis to support

imposing a “notice and opportunity to cure” procedure, noting that the Free and Equal

Elections Clause does not enable courts to rewrite the Election Code to align with a

litigant’s notion of good election policy. Respondent emphasizes that “ballot and election

laws have always been regarded as peculiarly within the province of the legislative branch

of government,” Winston, 91 A. at 522, and that to the extent restrictions are burdensome,

relief should be sought in the Legislature. Id. at 525.

Respondent also discusses the practical implications of granting Petitioner’s

request, expressing concern that implementing a “notice and opportunity to cure”

procedure would be a monumental undertaking requiring the expenditure of significant

resources, particularly on the eve of an election. Respondent thus reiterates that the

27 The Caucus does not advance argument on the merits of this issue.

[J-96-2020] - 40 Legislature, not this Court, is the entity best suited to address the procedure proposed by

Petitioner.

Respondent adds that the tardiness of Petitioner’s request is alone a sufficient

basis to deny it and that, in any event, Petitioner cannot show a “plain, palpable and clear

abuse of the [legislative] power which actually infringes on the rights of the electors” with

respect to this claim. Patterson v. Barlow, 60 Pa. 54, 75 (1869). Respondent notes that,

to the contrary, a requirement that voters follow the appropriate procedures when filling

out their ballots easily passes constitutional muster.

Upon review, we conclude that the Boards are not required to implement a “notice

and opportunity to cure” procedure for mail-in and absentee ballots that voters have filled

out incompletely or incorrectly. Put simply, as argued by the parties in opposition to the

requested relief, Petitioner has cited no constitutional or statutory basis that would

countenance imposing the procedure Petitioner seeks to require (i.e., having the Boards

contact those individuals whose ballots the Boards have reviewed and identified as

including “minor” or “facial” defects—and for whom the Boards have contact information—

and then afford those individuals the opportunity to cure defects until the UOCAVA

deadline).

While the Pennsylvania Constitution mandates that elections be “free and equal,”

it leaves the task of effectuating that mandate to the Legislature. Winston, 91 A. at 522.

As noted herein, although the Election Code provides the procedures for casting and

counting a vote by mail, it does not provide for the “notice and opportunity to cure”

procedure sought by Petitioner. To the extent that a voter is at risk for having his or her

ballot rejected due to minor errors made in contravention of those requirements, we agree

that the decision to provide a “notice and opportunity to cure” procedure to alleviate that

risk is one best suited for the Legislature. We express this agreement particularly in light

[J-96-2020] - 41 of the open policy questions attendant to that decision, including what the precise

contours of the procedure would be, how the concomitant burdens would be addressed,

and how the procedure would impact the confidentiality and counting of ballots, all of

which are best left to the legislative branch of Pennsylvania’s government. Thus, for the

reasons stated, the Petitioner is not entitled to the relief it seeks in Count III of its petition.

D. COUNT IV OF THE PETITION FOR REVIEW

In Count IV, Petitioner seeks a declaration that under Act 77, the Boards must

“clothe and count naked ballots,” i.e., place ballots that were returned without the secrecy

envelope into a proper envelope and count them, rather than invalidate them. It further

seeks a preliminary injunction prohibiting the Boards from excluding such ballots from the

canvass.

To understand the nature of a “naked ballot,” as well as Petitioner’s claim that such

ballots are valid and should be counted, we examine the relevant provisions of Act 77.

The Act directs Boards to send to the qualified mail-in elector an official mail-in ballot, the

list of candidates when authorized, the uniform instructions as prescribed by the

Secretary, and two envelopes to be returned to the Boards, as described in detail infra.

25 P.S. § 3150.14(c).

Section 3150.14(a) (“Envelopes for official mail-in ballots”) explains the nature of

the envelopes sent to the mail-in voter. This provision directs the Boards to “provide two

additional envelopes for each official mail-in ballot of a size and shape as prescribed by

the Secretary of the Commonwealth, in order to permit the placing of one within the other

and both within the mailing envelope” addressed to the elector. Id. § 3150.14(a). On the

smaller of the two envelopes to be returned to the Boards shall be printed only the words

“Official Election Ballot.” Id. On the larger envelope shall be printed: (1) “the form of the

declaration of the elector;” (2) the “name and address of the county board of election of

[J-96-2020] - 42 the proper county;” and (3) “information indicating the local election district of the mail-in

voter.” Id.

As noted, Section 3150.16(a) directs the mail-in elector to mark the ballot in secret

with the enumerated ink or lead pencil and then fold the ballot, enclose it, and secure it in

the smaller envelope on which is printed “Official Election Ballot.” 25 P.S. § 3150.16(a).

The statute further directs the mail-in elector to place the smaller envelope into the second

envelope on which is printed the form of declaration of the elector, the elector’s local

election district, and the address of the elector’s county board of election. Id. The statute

next directs the mail-in elector to fill out, date, and sign the declaration printed on the

second envelope, and secure the ballot and send it by mail or deliver it in person to his

or her county board of election. Id. A ballot is “naked” for purposes of this action if the

mail-in elector fails to utilize the smaller envelope on which is printed “Official Election

Ballot,” and, instead, places the official election ballot directly into the second envelope,

upon which is printed the form of declaration of the elector and the address of the elector’s

county board of election.

Act 77 additionally sets forth the procedure by which mail-in ballots are canvassed.

See id. § 3146.8(a) (providing that mail-in ballots “shall be canvassed in accordance with

subsection (g)”). Relevant thereto, the Act directs that mail-in ballots cast by electors who

died prior to Election Day shall be rejected and not counted. Id. § 3146.8(d). Additionally,

the Act provides that mail-in ballots shall be counted as long as: (1) election officials verify

the ballots by comparing the voter’s declaration with the official voting list; and (2) the

ballots are not challenged on the ground that the voter is unqualified to vote. Id.

§§ 3146.8(g)(4); 3150.12b(a)(2). Notably, Section 3146.8(g)(4)(ii) provides that if any of

the envelopes on which are printed “Official Election Ballot” “contain any text, mark or

symbol which reveals the identity of the elector, the elector’s political affiliation or the

[J-96-2020] - 43 elector’s candidate preference, the envelopes and the ballots contained therein shall be

set aside and declared void.” Id. § 3146.8(g)(4)(ii).

The crux of Petitioner’s position is that although Act 77 directs a mail-in voter to

utilize the secrecy envelope in submitting the mail-in ballot, there is no provision in the

Election Code authorizing the Boards to discard a ballot on grounds that the voter failed

to insert the ballot into the secrecy envelope before returning it to the Boards. Rather,

Petitioner asserts, the statute directs the Boards to reject mail-in ballots only if the mail-

in elector died prior to Election Day, id. § 3146.8(d), the ballot is unverified or challenged

on grounds that the mail-in voter was unqualified to vote, id. § 3146.8(g)(4), or the ballot

is returned in an “Official Election Ballot” envelope that contains “any text, mark or symbol

which reveals the identity of the elector, the elector’s political affiliation or the elector’s

candidate preference.” Id. § 3146.8(g)(4)(ii). Petitioner concludes that the failure to place

the ballot in a secrecy envelope does not fall within these enumerated statutory grounds

which would result in an invalid mail-in ballot.

Moreover, Petitioner emphasizes that the General Assembly was aware of how to

invalidate ballots for lack of a secrecy envelope, as it expressly did so in another provision

of the Election Code regarding provisional ballots. See id. § 3050(a.4)(5)(ii)(C) (providing

that a “provisional ballot shall not be counted if: . . . a provisional ballot envelope does not

contain a secrecy envelope”).28 Had the General Assembly intended to invalidate mail-

in ballots on this basis, Petitioner submits, the Legislature would have included a similar

provision in Act 77, but chose not to do so.

Absent statutory authority directing the Boards to invalidate a ballot based

exclusively on the lack of a secrecy envelope, Petitioner contends that the refusal to

28A provisional ballot is a ballot cast by an individual who claims to be properly registered and eligible to vote at the election district, but whose name does not appear on the district register and whose registration cannot be determined. 25 P.S. § 3050(a.4)(1).

[J-96-2020] - 44 canvass and count ballots cast without a secrecy envelope violates the Election Code, as

well as the rights of electors to have their vote counted under the Free and Equal Elections

Clause. It posits that rather than disenfranchising the voter in contravention of these

edicts, the Boards could take corrective measures to protect privacy, such as placing the

naked ballot inside a replacement secrecy envelope before canvassing.

Accordingly, Petitioner requests a declaration that naked ballots must be counted,

as well as injunctive relief requiring Boards to undertake reasonable measures to protect

the privacy of naked ballots cast by mail-in electors.

The Secretary’s position aligns with Petitioner on this issue as she agrees that the

counting of naked ballots is permitted by the Election Code and furthers the right to vote

under the Free and Equal Elections Clause and the First and Fourteenth Amendments to

the United States Constitution.29

The Secretary contends that the secrecy envelope procedure set forth in Section

3150.16(a) is merely directory, and that this Court’s longstanding precedents establish

that ballots should not be disqualified based upon the failure to follow directory provisions.

See Bickhart, 845 A.3d at 803 (holding that although the Election Code provides that an

elector may cast a write-in vote for any person not printed on the ballot, a write-in vote for

a candidate whose name, in fact, appears on the ballot is not invalid where there is no

29 The Secretary’s position herein is consistent with the directive that the Department of State distributed to the counties on May 28, 2020, indicating that there is no statutory requirement nor any authority for setting aside an absentee or mail-in ballot exclusively because the voter forgot to insert it into the official election ballot envelope. See Exhibit B to Petition, Directive of Deputy Secretary for Elections and Commissions Jonathan M. Marks to the county election directors, May 28, 2020. The directive further indicated that “[t]o preserve the secrecy of such ballots, the board of elections in its discretion may develop a process by which the members of the pre-canvass or canvass boards insert these ballots into empty official ballot envelopes or privacy sleeves until such time as they are ready to be tabulated.” Id. See also Exhibit J to Petition, Guidance for Missing Official Election Ballot Envelopes.

[J-96-2020] - 45 evidence of fraud and the voter’s intent is clear); Wieskerger Appeal, 290 A.2d 108, 109

(Pa. 1972) (holding that the elector’s failure to mark the ballot with the statutorily

enumerated ink color does not render the ballot invalid unless there is a clear showing

that the ink was used for the purpose of making the ballot identifiable or otherwise

indicating fraud).

The Secretary further opines that no fraud arises from counting naked ballots,

considering that the naked ballot remains sealed in an envelope and the sealed ballot is

certified by the elector. Accordingly, the Secretary concludes that no voter should be

disenfranchised for failing to place his or her mail-in ballot in the secrecy envelope before

returning it to the Boards.

In response, Respondent argues that the statutory language of Section

3150.16(a), providing that the mail-in elector “shall . . . enclose and securely seal the

[ballot] in the envelope on which is printed, stamped or endorsed ‘Official Election Ballot,’”

is clear and constitutes a mandatory requisite to casting a mail-in ballot, and having that

ballot counted. It relies on In re Canvass of Absentee Ballots of Nov. 4, 2003 Gen.

Election, 843 A.2d 1223 (Pa. 2004) (“Appeal of Pierce”), where this Court held that the

use of the term “shall” in Section 3146.6(a) of the Election Code, providing that the elector

“shall” send an absentee ballot or deliver the ballot in person, carries a mandatory

meaning, thereby precluding third parties from hand-delivering absentee ballots to county

election boards, and invalidating those ballots that were hand-delivered by a third party.

Respondent submits that Section 3150.16(a) requires the same invalidation of ballots

where the mandatory statutory requisite of enclosing the ballot in a secrecy envelope is

ignored.

Respondent observes that the Election Code further directs election officials to “set

aside and declare[] void” a ballot whose secrecy envelope contains “any text, mark, or

[J-96-2020] - 46 symbol which reveals the identity of the elector, the elector’s political affiliation or the

elector’s candidate preference.” 25 P.S. § 3146.8(g)(4)(ii). Citing Appeal of Weiskerger,

supra, it argues that the purpose of this provision is to prevent the disclosure of the

elector’s identity. Respondent posits that a ballot unclothed by a secrecy envelope and

placed directly in the outer envelope also discloses the elector’s identity because the

outer envelope contains the elector’s signed declaration. Thus, it concludes, Section

3146.8(g)(4)(ii) requires invalidation of any ballot contained in an envelope that reveals

the identity of the voter, regardless of whether that envelope is a secrecy envelope or an

outer envelope. To hold to the contrary, Respondent argues, would violate Article VII,

Section 4 of the Pennsylvania Constitution, which provides, in relevant part, that “secrecy

in voting shall be preserved.” PA. CONST. art. VII, § 4.30

Respondent discounts the Secretary’s suggestion that because there is no fraud

involved in the submission of a naked ballot, the ballot should be counted. The secrecy

envelope provision of the statute, in Respondent’s view, advances the distinct

constitutional interest of protecting the sanctity of the ballot by preventing the ballot from

disclosing the elector’s identity. The significance of this interest, it submits, distinguishes

this matter from cases involving noncompliance with minor procedural demands set forth

in the Election Code, such as the color of ink used to mark a ballot or the listing of a write-

in candidate whose name already appears on the ballot. Accordingly, Respondent

requests that we deny Petitioner’s request for declaratory and injunctive relief.

The Caucus reiterates all of the arguments expressed by Respondent. It contends

that in addition to violating voter secrecy, the counting of naked ballots raises the concern

of voter fraud. It contends that when a ballot arrives at the county election board without

30Article VII, Section 4 (“Method of elections; secrecy in voting”) states, in full, that “[a]ll elections by the citizens shall be by ballot or by such other method as may be prescribed by law: Provided, That secrecy in voting be preserved.” PA CONST. art. VII, § 4.

[J-96-2020] - 47 the protective shield of a sealed privacy envelope, the election official cannot guarantee

that the ballot travelled from the voter’s hand to the county election board without

compromise. It argues that there is no way for the election official to verify that the vote

was accurately recorded, because the mere act of ascertaining the voter’s identity from

the elector’s declaration may violate the secrecy protections of Article VII, Section 4. The

Caucus concludes that the only way to be certain that no fraud has taken place is to reject

all naked ballots.

Turning now to our analysis, we observe that, in determining the propriety of naked

ballots, we must ascertain the General Assembly’s intention by examining the statutory

text of the secrecy envelope provision to determine whether it is mandatory or directory,

as that will govern the consequences for non-compliance. See JPay, Inc. v. Dep’t of Corr.

& Governor's Office of Admin., 89 A.3d 756, 763 (Pa. Cmwlth. 2014) (internal citation

omitted) (observing that “[w]hile both mandatory and directory provisions of the

Legislature are meant to be followed, the difference between a mandatory and directory

provision is the consequence for non-compliance: a failure to strictly adhere to the

requirements of a directory statute will not nullify the validity of the action involved”).

Upon careful examination of the statutory text, we conclude that the Legislature

intended for the secrecy envelope provision to be mandatory. We respectfully reject the

contentions of Petitioner and the Secretary that because the General Assembly did not

delineate a remedy narrowly linked to the mail-in elector’s failure to utilize a secrecy

envelope, the language of the Election Code is directory, and an elector’s violation of the

command inconsequential.

As noted, Section 3150.16(a) provides:

[The mail-in elector] shall, in secret, . . . enclose and securely seal the [ballot] in the envelope on which is printed, stamped or endorsed “Official Election Ballot.” This envelope shall then be placed in the second one, on which is printed the form of declaration of the elector, and the address of

[J-96-2020] - 48 the elector’s county board of election and the local election district of the elector.

Id.

This statutory text must be read in pari materia31 with Subsection 3146.8(g)(4)(ii),

which also speaks directly to secrecy envelopes, providing:

If any of the envelopes on which are printed, stamped or endorsed the words ‘Official Election Ballot’ contain any text, mark or symbol which reveals the identity of the elector, the elector’s political affiliation or the elector’s candidate preference, the envelopes and the ballots contained therein shall be set aside and declared void.

25 P.S. § 3146.8(g)(4)(ii).

These provisions make clear the General Assembly’s intention that, during the

collection and canvassing processes, when the outer envelope in which the ballot arrived

is unsealed and the sealed ballot removed, it should not be readily apparent who the

elector is, with what party he or she affiliates, or for whom the elector has voted. The

secrecy envelope properly unmarked and sealed ensures that result, unless it is marked

with identifying information, in which case that goal is compromised. Whatever the

wisdom of the requirement, the command that the mail-in elector utilize the secrecy

envelope and leave it unblemished by identifying information is neither ambiguous nor

unreasonable.

31 Section 1932 of our Statutory Construction Act, “Statutes in pari materia,” provides: (a) Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things. (b) Statutes in pari materia shall be construed together, if possible, as one statute. 1 Pa.C.S. § 1932.

[J-96-2020] - 49 As noted cogently by Respondent, this case is distinguishable from those cases

relied upon by the Secretary, which deemed mandatory language merely directory and

without consequence. For example, in Bickhart, 845 A.2d at 795, the Court declined to

invalidate a write-in vote cast for a candidate who was named on the ballot proper. In

reaching that conclusion, the Court observed that “ballots containing mere minor

irregularities should only be stricken for compelling reasons,” noting that marking a ballot

is an imprecise process, the focus of which is upon the “unmistakable registration of the

voter’s will in substantial conformity to the statutory requirements.” Bickhart, 845 A.2d at

798-99 (internal quotation marks and citations omitted).

Similarly, in Appeal of Weiskerger, supra, this Court declined to invalidate a ballot

based upon the “minor irregularity” that it was completed in the wrong color of ink. The

statute at issue provided: “Any ballot that is marked in blue, black or blue-black ink . . .

shall be valid and counted.” 290 A.2d at 109 (citing 25 P.S. § 3063). Thus, the only

mandatory direction it provided was for the canvassers who receive the ballots, not the

electors who prepared them. In providing that ballots completed in the right color must

be counted, the Legislature neither stated nor implied that ballots completed in a different

color must not be counted. Neither statutory provision at issue in Bickhart nor Weiskerger

contained anything analogous to the directive at issue in this case, which involves secrecy

in voting protected expressly by Article VII, Section 4 of this Court’s state charter.

As posited by Respondent, most analogous to the instant case is our decision in

Appeal of Pierce. There, we held that the Election Code’s “in-person” ballot delivery

requirement, see 25 P.S. § 3146.6, was mandatory, and that votes delivered by third

persons must not be counted. The provision in question unambiguously provided that

[J-96-2020] - 50 “the elector shall send [the absentee ballot] by mail, postage [prepaid], except where

franked, or deliver it in person to [said county] board of election.” Appeal of Pierce, 843

A.2d at 1231 (quoting 25 P.S. § 3146.6(a)). The parties seeking to ensure that votes

delivered by third parties would be counted cited Weiskerger and its flexibility with respect

to “minor irregularities.”

This Court, however, was unpersuaded and declined the invitation to interpret

“shall” as anything less than mandatory. Moreover, the Court rejected precisely the same

reasoning for interpreting “shall” as directory that Petitioner and the Secretary offer in this

case. As in the instant case, the provision of the Election Code at issue in Appeal of

Pierce did not expressly provide for voiding a ballot delivered by someone other than the

voter. Nevertheless, we held that to construe the in-person requirement “as merely

directory would render its limitation meaningless and, ultimately, absurd.” Id. at 1232.

The Court further distinguished Weiskerger and its safe harbor for “minor irregularities,”

noting that the in-person requirement served the salutary purpose of “limit[ing] the number

of third persons who unnecessarily come in contact with the ballot[,] . . . provid[ing] some

safeguard that the ballot was filled out by the actual voter, . . . and that once the ballot

has been marked by the actual voter in secret, no other person has the opportunity to

tamper with it.” Id. The provision thus served the spirit of the Code, “which requires that

a voter cast his ballot alone, and that it remain secret and inviolate.” Id.

Petitioner and the Secretary attempt to distinguish Appeal of Pierce by

emphasizing that there was no statutory provision in that case that was inconsistent with

the judicially inferred remedy, such as the provisional ballot secrecy envelope provision

in this case. They assert that here, by contrast, the Legislature has directed the

[J-96-2020] - 51 disqualification of provisional ballots not enclosed in the secrecy envelope, and of mail-in

ballots with certain markings on the secrecy envelope, rendering its silence with regard

to omitted secrecy envelopes for mail-in ballots all the more conspicuous.

The clear thrust of Appeal of Pierce, however, is that, even absent an express

sanction, where legislative intent is clear and supported by a weighty interest like fraud

prevention, it would be unreasonable to render such a concrete provision ineffective for

want of deterrent or enforcement mechanism. What we learn from that decision is that

violations of the mandatory statutory provisions that pertain to integral aspects of the

election process should not be invalidated sub silentio for want of a detailed enumeration

of consequences.

We must in all instances assume that the General Assembly does not intend a

statute to be interpreted in a way that leads to an absurd or unreasonable result. See 1

Pa.C.S. § 1922(1) (“In ascertaining the intention of the General Assembly in the

enactment of a statute the following presumptions . . . may be used: (1) That the General

Assembly does not intend a result that is absurd, impossible of execution or

unreasonable.”). The result proffered by Petitioner and the Secretary is no more

reasonable than that which the Court in Appeal of Pierce found untenable. The Court in

Appeal of Pierce viewed a textual mandate pertaining to fraud prevention and ballot

secrecy as signaling the Legislature’s intent that its violation would require voiding the

ballot, notwithstanding no statutory provision to that effect. To avoid an absurd result, it

inferred that intent from nothing more than the provision itself.

We reach the same result here. It is clear that the Legislature believed that an

orderly canvass of mail-in ballots required the completion of two discrete steps before

[J-96-2020] - 52 critical identifying information on the ballot could be revealed. The omission of a secrecy

envelope defeats this intention. Moreover, in providing for the disqualification of mail-in

ballots that arrive in secrecy envelopes that bear markings identifying the elector, the

elector’s party affiliation, or the elector’s vote, all categories of information that appear on

the ballot itself, the Legislature signaled beyond cavil that ballot confidentiality up to a

certain point in the process is so essential as to require disqualification. Thus, we find

that our holding in Appeal of Pierce leads to the inescapable conclusion that a mail-in

ballot that is not enclosed in the statutorily-mandated secrecy envelope must be

disqualified.

Accordingly, we hold that the secrecy provision language in Section 3150.16(a) is

mandatory and the mail-in elector’s failure to comply with such requisite by enclosing the

ballot in the secrecy envelope renders the ballot invalid.

E. COUNT V OF THE PETITION FOR REVIEW

In Count V of its petition, Petitioner seeks a declaration specifying that the poll

watcher residency requirement, found in Section 2687(b) of the Election Code, 25 P.S.

§2687(b), does not violate state or federal constitutional rights.32 Petition at 55, ¶ 207.

The Secretary concurs with Petitioner in this regard.

The Election Code permits candidates and political parties to appoint “poll

watchers” to monitor the integrity of the voting process.33 “Each watcher so appointed

32 Specifically, Petitioner maintains that the poll watcher residency requirement does not violate the United States Constitution’s First Amendment, the Fourteenth Amendment, the Equal Protection Clause, or the Equal Protection and Free and Equal Elections Clauses of the Pennsylvania Constitution. 33 Section 2687(a) provides:

[J-96-2020] - 53 must be a qualified registered elector of the county in which the election district for which

the watcher was appointed is located.” 25 P.S. § 2687(b). This provision, in full, specifies:

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 present in the polling place at any one time 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

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 had 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).

[J-96-2020] - 54 election records. The judge of elections shall supervise or delegate the inspection of any requested documents.

25 P.S. § 2687(b) (footnote omitted). Petitioner observes that the General Assembly enacted the current poll watcher

residency requirement in 2004 and that no changes were made to this requirement in Act

77. Petitioner asserts that this provision does not suffer from any constitutional infirmities

and notes that the provision has been upheld as constitutional by the federal District Court

for the Eastern District of Pennsylvania in Republican Party of Pennsylvania v. Cortés,

218 F. Supp. 3d 396 (E.D. Pa. 2016), discussed further below.

The Secretary likewise maintains that the poll watcher residency requirement is

constitutional. The Secretary notes that the United States Supreme Court in Anderson v.

Calabrezza, 460 U.S. 780 (1983), recognized the importance of States in regulating

elections. There, the Court stated,

We have recognized that, ‘as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’

Id. at 788 (citing Storer v. Brown, 415 U.S. 724, 730, (1974)). In this regard, the Secretary

observes that the Election Code provides a comprehensive scheme of regulations for

voting and elections in the Commonwealth. The Secretary maintains that these

regulatory interests are generally considered sufficient to justify reasonable,

nondiscriminatory restrictions on elections. Id.; see also Timmons v. Twin Cities Area

New Party, 520 U.S. 351, 358 (1997) (specifying that “[s]tates may, and inevitably must,

enact reasonable regulations of parties, elections, and ballots to reduce election- and

campaign-related disorder”).

Regarding the provisions in the Election Code requiring that poll watchers be

qualified registered electors from the county in which they serve, like Petitioner, the

[J-96-2020] - 55 Secretary observes that although this Court has not previously addressed the question of

whether this requirement is constitutional, the federal District Court for the Eastern District

of Pennsylvania has done so and rejected a constitutional challenge to the poll watcher

residency requirement in Cortés, supra.

Specifically, there, the District Court considered a constitutional challenge to

Section 2687(b) of the Election Code by the respondent here. Respondent claimed that

the poll watcher residency requirement found at Section 2687(b), requiring poll watchers

to reside in the county in which they serve, is violative of its Fourteenth Amendment rights

to due process and equal protection and their rights to free speech and association under

the First Amendment.

The District Court rejected these claims, noting first, that the regulation does not

violate due process or equal protection. The court observed that serving as a poll watcher

does not implicate a fundamental constitutional right, like the right to vote, but rather, is a

right conferred by statute. Id. at 408. Additionally, the court found that because the state’s

regulation of the qualifications of who may serve as a poll watcher does not burden one’s

voting rights or any other constitutional right, the state imposing the regulation need only

cite a rational basis for the regulation to be upheld. Id. (citing Donatelli v. Mitchell, 2 F.3d

508, 514 & n.10 (3d Circ. 1993) (declining to apply intermediate scrutiny standards

because the plaintiffs’ fundamental rights were not burdened by state law)); and Voting

for Am., Inc. v. Andrade, 488 Fed.Appx. 890, 899 (5th Cir. 2012) (applying rational basis

review as opposed to an intermediate balancing test because state election law did not

implicate or burden specific constitutional rights). In this regard, the court concluded as

follows: There is a rational basis for Section 2678(b)’s requirement that poll watchers be qualified electors in the county in which they work. The Secretary notes that in 1937, the General Assembly enacted a county- based scheme to manage elections within the state, and consistent with that

[J-96-2020] - 56 scheme the legislature endeavored to allow county election officials to oversee a manageable portion of the state in all aspects of the process, including in credentialing poll watchers. In short, Pennsylvania opted to design a county-by-county system of elections; in doing so it ensured as much coherency in this patchwork system as possible. To that end it ensured that participants in the election--voters and watchers alike--were qualified electors in the relevant county. The legislature’s decision to allow county election officials to credential only poll watchers from their own county is rationally related to the state’s interest in maintaining its county- run election system; each county election official is tasked with managing credentials for a discrete part of the state’s population. As the Secretary’s counsel noted at the hearing, the legislature chose to ‘draw the lines’ at the county level, something entirely rational in fashioning a scheme for a state as large as Pennsylvania.

Cortés, 218 F.Supp. 3d at 409. The District Court, likewise, rejected Respondent’s claims that Section 2687

violates the First Amendment. The court first noted that courts have found that “poll

watching is not incidental to” the right of free association and has “no distinct First

Amendment protection.” Id. at 414 (citing Cotz v. Mastroeni, 476 F.Supp.2d 332, 364

(S.D. N.Y. 2007); and Dailey v. Hands, No. 14-00423, 2015 WL 1293188, at *5 (S.D. Ala.

Mar. 23, 2015) (“[P]oll watching is not a fundamental right protected by the First

Amendment.”)). Moreover, the court found that poll watchers do not engage in core

political speech while completing their duties. Id. at 415. Rather, the court observed that

“when a poll watcher reports incidents of violations, he is performing a public function

delegated by the state.” Id. (citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978)

(stating that “[w]hile the Constitution protects private rights of association and advocacy

with regard to the election of public officials, [the Supreme Court] cases make it clear that

the conduct of the elections themselves is an [e]xclusively public function.”)). Thus, the

District Court found that the Commonwealth’s county poll watcher residency requirement

did not implicate poll watchers’ private rights of association or advocacy and, therefore,

did not violate the First Amendment.

[J-96-2020] - 57 Respondent again maintains that the poll watcher residency requirement set forth

in the Election Code is unconstitutional.34 First, Respondent maintains that Cortés is

distinguishable from this matter because of the procedural posture and the timing of that

case. Specifically, Respondent emphasizes the fact that in Cortés it sought a preliminary

injunction eighteen days before the general election and that on this basis the court found

the request for relief to be untimely. Thus, it contends that the court’s further discussion

of the constitutionality of the poll watcher residency requirement was dicta.

Additionally, Respondent argues that the court in Cortés, like the Secretary here,

gave short shrift to the Commonwealth’s obligation to safeguard the electorate from voter

fraud, noting that “every voter in a federal . . . election, whether he votes for a candidate

with little chance of winning or for one with little chance of losing, has a right under the

Constitution to have his vote fairly counted, without its being distorted by fraudulently cast

votes.” Respondent’s Brief at 45 (citing Anderson v. United States, 417 U.S. 211, 227

(1974)). Respondent maintains that due to the distribution of voters throughout the

Commonwealth, the county residency requirement makes it difficult for both political

parties to identify poll watchers in all precincts. Thus, it asserts that, in the absence of

poll watchers, “fraud can flourish.” Id. at 46. Respondent further argues that with

Pennsylvania moving to an entirely new election regime under Act 77, with alleged

increased opportunities for ballot fraud and tampering, the need for poll watchers is

heightened.

Turning to the merits, initially, regarding Respondent’s assertion that the District

Court’s discussion of the constitutionality of the poll watcher residency requirement

constitutes dicta because the court found the claims there to be untimely, we note that

34 The Caucus does not advocate in favor of finding the poll watcher residency requirement unconstitutional.

[J-96-2020] - 58 although that court pointed out that the emergent nature of Respondent’s claims

amounted to a “judicial fire drill” based on their late filing, the court opined further that the

relief sought “would be inappropriate for a number of reasons, not the least of which is

that at this late hour courts should not disrupt an impending election ‘absent a powerful

reason for doing so.’” Cortés, 218 F.Supp.3d. at 405 (citation omitted). The court then

went on to analyze the merits of the constitutional claims asserted and denied relief.

Accordingly, it appears the court made its decision on multiple bases, including the merits

as well as the timing of the claims. Moreover, regardless of the status of the District

Court’s determination of the constitutional issues presented there, we find its analysis

persuasive and agree with its reasoning in upholding the constitutionality of the poll

watcher residency requirement.

The “times, places and manner” of conducting elections generally falls to the

states. U.S. CONST. art. I, § 4 (providing that “the Times, Places and Manner of holding

Elections…shall be prescribed in each State by the Legislature thereof”). Pennsylvania

has enacted a comprehensive code of election laws pursuant to its authority to regulate

its elections. The General Assembly, in enacting its comprehensive scheme, has

required that any person serving as a poll watcher for a particular candidate or party be

a resident of the county in which she serves in her position. 25 P.S. § 2687(b).

This provision is a legislative enactment which enjoys the presumption that the

General Assembly did not intend to violate constitutional norms, “in part because there

exists a judicial presumption that our sister branches take seriously their constitutional

oaths.” Stilp v. Commonwealth, 905 A.2d 918, 938–39 (Pa. 2006); see also 1 Pa.C.S.

§1922(3). Accordingly, a statute is presumed to be valid, and will be declared

unconstitutional only if it is shown to be “clearly, palpably, and plainly [violative of] the

[J-96-2020] - 59 Constitution.” West Mifflin Area School District v. Zahorchak, 4 A.3d 1042, 1048 (Pa.

2010).

In analyzing whether a state election law violates the constitution, courts must first

examine the extent to which a challenged regulation burdens one’s constitutional rights.

Burdick v. Takushi, 504 U.S. 428, 434 (1992). Upon determining the extent to which

rights are burdened, courts can then apply the appropriate level of scrutiny needed to

examine the propriety of the regulation. See id. (indicating that “the rigorousness of our

inquiry into the propriety of a state election law depends upon the extent to which a

challenged regulation burdens First and Fourteenth Amendment rights”).

Where a state election regulation imposes a “severe” burden on a plaintiff’s right

to vote, strict scrutiny applies and requires that the regulation is “narrowly drawn to

advance a state interest of compelling importance.” Id. When a state election law

imposes only “reasonable, nondiscriminatory restrictions,” upon the constitutional rights

of voters, an intermediate level of scrutiny applies, and “the State’s important regulatory

interests are generally sufficient to justify” the restrictions. See Id. (upholding Hawaii’s

ban on write-in voting in the primary where doing so places a minimal burden on one’s

voting right and supports the state’s interest in supporting its ballot access scheme).

Where, however, the law does not regulate a suspect classification (race, alienage, or

national origin) or burden a fundamental constitutional right, such as the right to vote, the

state need only provide a rational basis for its imposition. See Donatelli, 2 F.3d at 510 &

515.

In examining the constitutionality of the poll watcher residency provision at issue

here, we conclude, as the District Court in Cortés concluded, that it imposes no burden

on one’s constitutional right to vote and, accordingly, requires only a showing that a

rational basis exists to be upheld. In this regard, as the District Court aptly noted, there

[J-96-2020] - 60 is no individual constitutional right to serve as a poll watcher; rather, the right to do so is

conferred by statute. Cortés, 218 F.Supp.3d at 408. Additionally, courts have indicated

that “poll watching is not incidental to” the right of free association and, thus, “has no

distinct First Amendment protection.” Cotz, 476 F.Supp.2d at 364. Finally, poll watching

does not implicate core political speech. Cortés, 218 F.Supp.3d at 415.

As the poll watcher county residency requirement does not burden one’s

constitutional voting rights, the regulation need only be shown to satisfy a rational basis

for its imposition. Again, as the District Court aptly recounted, from its inception,

Pennsylvania has envisioned a county-based scheme for managing elections within the

Commonwealth. Consistent therewith, the Legislature has endeavored to allow county

election officials to oversee and manage their portion of the state in all aspects of the

election process, including credentialing poll watchers. Given that Pennsylvania’s

General Assembly chose a county-based scheme for conducting elections, it is

reasonable that the Legislature would require poll watchers, who serve within the various

counties of the state, to be residents of the counties in which they serve. Thus, there is

a clear rational basis for the county poll watcher residency requirement, and we

determine, therefore, that this requirement should be upheld.

Respondent does not claim that poll watching involves a fundamental

constitutional right or that a level of scrutiny other than rational basis needs to be shown

regarding the regulation of poll watcher qualifications. Instead, Respondent claims that

poll watchers are vital to protect against voter fraud and that because of the distribution

of voters throughout Pennsylvania, the residency requirement makes it difficult to identify

poll watchers in all precincts. While Respondent asserts the greater need for poll

watchers because of heightened election fraud involving mail-in voting, these claims are

[J-96-2020] - 61 unsubstantiated and are specifically belied by the Act 35 report issued by the Secretary

on August 1, 2020, concerning mail in voting in the Primary Election, finding:

[D]ata provided by the counties reinforces numerous independent studies that conclude that mail ballot fraud is exceedingly rare, and it demonstrates that the errors that occurred [in the Primary Election] accounted for a very small fraction of the nearly 1.5 million absentee and mail-in ballots requested and cast by voters.

Pennsylvania 2020 Primary Election Act 35 of 2020 Report at 39; Appendix to Petitioner’s

Brief, Exhibit F. Moreover, Respondent’s speculative claim that it is “difficult” for both

parties to fill poll watcher positions in every precinct, even if true, is insufficient to

transform the Commonwealth’s uniform and reasonable regulation requiring that poll

watchers be residents of the counties they serve into a non-rational policy choice.

Based on the foregoing, we conclude that the poll watcher residency requirement

does not violate the state or federal constitutions.35 Accordingly, we grant the relief

sought by Petitioner in their petition for review and declare the poll watcher residency

requirement set forth in Section 2687(b) of the Election Code, 25 P.S. § 2687(b), to be

constitutional. IV. CONCLUSION Based on our disposition of all of the claims set forth above, we grant relief on the

claims set forth in Counts I, II, and V of the Democratic Party’s petition for review as

follows and hold that: (Count I) the Election Code permits county boards of election to

collect hand-delivered mail-in ballots at locations other than their office addresses

including drop-boxes as indicated herein, see supra. at 20 n. 15; (Count II) a three-day

extension of the absentee and mail-in ballot received-by deadline is adopted such that

35 Respondent has not asserted that the Pennsylvania Constitution offers greater protection under the circumstances presented. Thus, for purposes of our review, we treat them as co-extensive.

[J-96-2020] - 62 ballots mailed by voters via the United States Postal Service and postmarked by 8:00

p.m. on Election Day , November 3, 2020, shall be counted if they are otherwise valid and

received by the county boards of election on or before 5:00 p.m. on November 6, 2020;

ballots received within this period that lack a postmark or other proof of mailing, or for

which the postmark or other proof of mailing is illegible, will be presumed to have been

mailed by Election Day unless a preponderance of the evidence demonstrates that it was

mailed after Election Day; (Count V) the poll watcher residency requirement set forth in

Section 2687(b) of the Election Code, 25 P.S. § 2687(b), is constitutional. Also, for the

reasons set forth herein, we deny the relief sought in Count III and IV of the petition for

review.

Justices Todd, Dougherty, and Wecht join the opinion.

Chief Justice Saylor and Justice Mundy join Parts I, II, and III(C), (D) and (E) of

the opinion.

Justice Donohue joins Parts I, II, and III(A), III(C), III(D) and III(E) of the opinion.

Justice Wecht files a concurring opinion.

Chief Justice Saylor files a concurring and dissenting opinion in which Justice

Mundy joins. Justice Donohue files a concurring and dissenting opinion in which Chief Justice

Saylor and Justice Mundy join Part II.

[J-96-2020] - 63