Trump V Boockvar Petition
Trump V Boockvar Petition
20-
In the
Supreme Court of the United States
Petitioner,
v.
Respondents.
300748
A
(800) 274-3321 • (800) 359-6859
QUESTIONS PRESENTED
Article II of the Constitution provides that “Each State shall appoint [electors
for President and Vice President] in such Manner as the Legislature thereof may
direct.” U.S. Const. art. II, § 1, cl. 2 (emphasis added). That power is “plenary,” and
changed by state courts. Bush v. Gore (“Bush II”), 531 U.S. 98, 104-05 (2000).
Yet, during the 2020 presidential election, that is what the Pennsylvania
Supreme Court did in four cases – three at issue in this Petition, and one already
verification, the right of campaigns to challenge invalid mail ballots, mandates that
mail voters fill in, date, and sign mail ballot declarations, and even the right of
ballots were illegally counted—more than enough to have affected the outcome of the
election, where the margin between the two principal candidates for President
i
election law through its three decisions before and after the November 2020
“direct [the] Manner” for appointing electors for President and Vice-President,
protections against mail ballot fraud, violated the Due Process Clause of the
by the Court during the election in only select counties where mail ballots
heavily favored one candidate over the other violated the Equal Protection
which electoral votes will be opened and counted, or before the January 20,
ii
PARTIES TO THE PROCEEDINGS
Respondents:
Elizabeth J. Elkin, Philadelphia County Board of Elections; Democratic National
Committee; Philadelphia County Board of Elections; Omar Sabir; Al Schmidt; Lisa
Deely; Bureau of Commissions, Elections and Legislation; DNC Services Corp./
Democratic National Committee; Democratic Party; and James Brewster, Appellees.
Respondents:
Philadelphia County Board of Elections, Appellant
Pennsylvania Democratic Party, Appellee
Respondents:
National Republican Congressional Committee, Appellee
Republican National Committee, Appellee
Republican Party of Pennsylvania, Appellee
iv
RULE 29.6 STATEMENT
committee for Donald J. Trump, President of the United States and candidate for re-
RELATED CASES
1. In re: 2,349 Ballots in the 2020 General Election, No. 1162 CD 2020,
Commonwealth Court of Pennsylvania. Judgment entered November
19, 2020.
v
a. In re: Canvass of Absentee and Mail-In Ballots of November 3,
2020 General Election, No. 201100877, Court of Common Pleas
of Philadelphia. Judgment entered November 13, 2020.
vi
C. In re: November 3, 2020 General Election, No. 149 MM 2020, Supreme Court
of Pennsylvania. Judgment entered October 23, 2020.
vii
TABLE OF CONTENTS
Page
viii
A. November 3, 2020 Gen. Election Ratified the Secretary
of the Commonwealth’s Dispensing with Statutory
Signature Verification Requirements for Mail Ballots,
and Sua Sponte Eliminated the Statutory Right to
Challenge Them During Canvassing on Election Day ................. 6
B. Canvassing Observation Eviscerated the Campaigns’
Statutory Right to Meaningfully Observe Canvassing of
Mail Ballots .................................................................................. 10
C. Canvass of Absentee and Mail-In Ballots Eviscerated
the Requirement that Mail Voters “Fill Out” the
Declaration, Which Has Long Included the Voter’s
Current Address and Date .......................................................... 11
D. Other Article II Violations .......................................................... 14
III. The 2020 Pennsylvania Election Results .............................................. 15
REASONS FOR GRANTING THE WRIT .................................................................. 16
I. By Eviscerating Election Law Enacted By the Pennsylvania
Legislature Pursuant to Authority Derived from Article II of
the Federal Constitution, the Pennsylvania Supreme Court
Has Decided an Important Federal Question in a Way that
Conflicts with Decisions of this Court ................................................... 16
A. The Three Decisions Violated Article II By Changing
the Law During the Election ....................................................... 17
B. This Court Should Independently Examine
Pennsylvania’s Election Laws, Which The Pennsylvania
Supreme Court Erroneously and Dramatically Changed
During the Presidential Election ................................................ 18
II. This Court Should Re-Affirm That Federal Courts Have The
Power To Remedy Violations of Article II ............................................. 22
III. The Pennsylvania Court Decisions Create a Mail Ballot
Statutory Scheme That Is So Porous That It Gave Rise To Due
Process and Equal Protection Violations That Should Be
Reviewed by this Court .......................................................................... 24
A. Due Process Was Violated By The Three Pennsylvania
Supreme Court Decisions ............................................................ 24
B. The Equal Protection Clause Was Violated By Different
Voting Standards Being Used In Different Counties................. 25
ix
IV. The Court’s Intercession Is Necessary To Uphold The Rule of
Law And To Put the Country at Ease, To The Extent Possible
in these Tumultuous Times ................................................................... 26
V. The Issues Addressed by this Petition Are Not Moot ........................... 29
CONCLUSION............................................................................................................. 32
x
TABLE OF APPENDICES
xi
APPENDIX N – MEMORANDUM AND ORDER OF THE COURT OF
COMMON PLEAS OF MONTGOMERY COUNTY,
PENNSYLVANIA, CIVIL ACTION, DATED NOVEMBER 13, 2020
xii
TABLE OF CITED AUTHORITIES
Page(s)
Cases:
Armstrong v. Manzo,
380 U.S. 545 (1965) ........................................................................................... 24
Bouie v. City of Columbia,
378 U.S. 347 (1964) ........................................................................................... 20
Bush v. Gore,
531 U.S. 98 (2000) ......................................................................................passim
Bush v. Palm Beach Cty. Canvassing Bd.,
531 U.S. 70 (2000) ................................................................................... 9, 17, 19
Case of Electoral Coll.,
8 F. Cas. 427 (C.C.D.S.C. 1876) ............................................................ 11, 14, 19
Crawford v. Marion County Election Bd.,
553 U.S. 181 (2008) ........................................................................................... 26
Donald J. Trump for President, Inc. v. Montgomery Cnty. Bd. of Elections,
No. 2020-18680 (Nov. 13, 2020) ........................................................................ 13
FEC v. Wisconsin Right to Life, Inc.,
551 U.S. 449 (2007) ........................................................................................... 31
Griffin v. Burns,
570 F.2d 1065 (1st Cir. 1978) ........................................................................... 24
Harper v. Virginia Bd. of Elections,
383 U.S. 663 (1966) ........................................................................................... 25
In re Canvass of Absentee and/or Mail-in Ballots of Nov. 3
General Election,
No. 1191 C.D. 2020 (Commw. Ct. Nov. 25, 2020) ............................................ 15
In re Canvass of Absentee and/or Mail-in Ballots of Nov. 3, 2020 Gen.
Election, Petition of Donald J. Trump for President, Inc.,
No. 2020-05786-35 (Bucks Cty. Ct. Com. Pl. Nov. 19, 2020) ........................... 13
In re Canvass of Absentee Ballots of Nov. 4, 2003 Gen. Election,
843 A.2d 1223 (Pa. 2004) .................................................................................... 5
Kelly v. Commonwealth of Penn.,
No. 20-810............................................................................................................ 6
xiii
Lachance v. Erickson,
522 U.S. 262 (1998) ........................................................................................... 24
Leser v. Garnett,
258 U.S. 130 (1922) ........................................................................................... 17
Marks v. Stinson,
1994 U.S. Dist. LEXIS 5273 (E.D. Pa. April 26, 1994) ................................ 5, 26
Matthews v. Eldridge,
424 U.S. 319 (1975) ........................................................................................... 24
McPherson v. Blacker,
146 U.S. 1 (1892) ................................................................................. 5, 9, 16, 23
Mullaney v. Wilbur,
421 U.S. 684 (1975) ........................................................................................... 20
NAACP v. Alabama ex rel. Patterson,
357 U.S. 449 (1958) ........................................................................................... 20
Norman v. Reed,
502 U.S. 279 (1992) ........................................................................................... 31
Pennsylvania Democratic Party v. Boockvar,
238 A.3d 345 (Pa. Sep. 17, 2020) ........................................................................ 4
Public Interest Legal Found. v. Boockvar,
No. 1:20-cv-1905, 2020 U.S. Dist. LEXIS 193577
(M.D. Pa. Oct. 20, 2020) .................................................................................... 12
Purcell v. Gonzalez,
549 U.S. 1 (2006) ......................................................................................... 12, 26
Republican Party v. Boockvar,
208 L. Ed. 2d 266, 2020 U.S. LEXIS 5188, 2020 WL 6304626 (2020) .............. 3
Reynolds v. Sims,
377 U.S. 533 (1964) ........................................................................................... 25
Roe v. Alabama,
43 F.3d 574 (11th Cir. 1995) ............................................................................. 24
State of Tex. v. Commonwealth of Pa., et al.,
No. 22O155 (S. Ct., filed Dec. 8, 2020) ............................................................... 3
Warf v. Bd. of Elections,
619 F.3d 553 (6th Cir. 2010) ............................................................................. 22
xiv
Wilkes-Barre Election Appeals,
1967 Pa. Dist. & Cnty. Dec. LEXIS 9
(Pa.Com.Pl. Luz. Cnty. Dec. 27, 1967) ........................................................ 22-23
xv
25 P.S. § 3146.8 ...................................................................................................... 3, 4, 5
25 P.S. § 3146.8(b) ................................................................................................. 10, 21
25 P.S. § 3146.8(f) .................................................................................................... 8, 20
25 P.S. § 3146.8(g)(1.1) .......................................................................................... 10, 21
25 P.S. § 3146.8(g)(3) ........................................................................................... 7, 8, 20
25 P.S. § 3146.8(g)(5) ..................................................................................................... 8
25 P.S. § 3150.11 ............................................................................................................ 3
25 P.S. § 3150.11(b) ....................................................................................................... 5
25 P.S. § 3150.16 ............................................................................................................ 3
25 P.S. § 3150.16(a) ................................................................................................. 4, 11
25 P.S. § 3150.16(a.1) .................................................................................................. 12
25 P.S. § 3159 ............................................................................................................... 31
25 P.S. § 3166 ............................................................................................................... 31
25 P.S. § 3456 ............................................................................................................... 31
2019 Pa. Legis. Serv. Act 2019-77 ................................................................................. 6
BUILDING CONFIDENCE IN U.S. ELECTIONS: REPORT OF THE COMMISSION ON
FEDERAL ELECTION REFORM (Sept. 2005) ..................................................... 4, 32
Caitlin Huey-Burns & Adam Brewster, “Why some mail-in ballots are
rejected and how to make sure your vote counts,” CBS News
(Aug. 4, 2020) ...................................................................................................... 6
Canvass of Absentee & Mail-In Ballots, Petitioner’s Brief of Nov. 18, 2020
(Case No. 1136 C.D. 2020) .......................................................................... 13, 14
Canvassing Observation, Brief of proposed-Intervenor Appellees Bryan
Cutler, Speaker of the Pennsylvania House of Representatives, and
House Majority Leader Kerry Benninghoff, filed Nov. 13, 2020..................... 21
Canvassing Observation, Initial Brief of Appellee Donald J. Trump for
President, Inc., filed Nov. 13, 2020 .................................................................. 11
Complaint, League of Women Voters v. Boockvar,
No. 2:20-cv-03850-PBT (E.D. Pa. Aug. 7, 2020) ............................................. 6, 7
DECLARATION OF PRINCIPLES FOR INTERNATIONAL ELECTION
OBSERVATION, Principal 14 (Oct. 27, 2005) ................................................. 28
xvi
Guidance Concerning Civilian Absentee and Mail-in Ballot Procedures,
9/28/2020 ............................................................................................................. 7
Guidance Concerning Examination of Absentee and Mail-in Ballot Return
Envelopes, 9/11/2020 ........................................................................................... 7
Ivan Pentchoukov, “Electors in 7 States Cast Dueling Votes for Trump,”
The Epoch Times (Dec. 15, 2020) ............................................................... 29, 30
Jack M. Balkin, BUSH V. GORE AND THE BOUNDARY BETWEEN LAW AND
POLITICS, 110 Yale L.J. 1407 (2001) ................................................................. 30
Michael Pompeo, “Press Statement: Presidential Elections in Belarus”
(Aug. 10, 2020) .................................................................................................. 28
November 3, 2020 Gen. Election, Brief of proposed-Intervenors, Joseph B.
Scarnati III, Pennsylvania Senate President Pro Tempore, and Jake
Corman, Senate Majority Leader, filed Oct. 7, 2020 ....................................... 21
November 3, 2020 Gen. Election, Secretary’s Application for Invocation of
King’s Bench filed Oct. 4, 2020 ......................................................................... 19
Order of December 8, 2020 (Case No. 676 MAL 2020) ............................................... 15
Order of Nov. 18, 2020 (Case No. 93 EM 2020) .......................................................... 14
Senate Rep. 1st Sess. 43d Cong. No. 395 .................................................................... 23
“The Immaculate Deception: Six Key Dimensions of Election Irregularities”
(Dec. 17, 2020) ..................................................................................................... 4
U.S. Department of Justice Press Release dated July 23, 2020, “Former
Congressman Charged with Ballot Stuffing, Bribery, and
Obstruction” ........................................................................................................ 5
William H. Rehnquist, Centennial Crisis: The Disputed Election of 1786
(Vintage 2005) ................................................................................................... 30
xvii
Petitioner Donald J. Trump for President, Inc., respectfully petitions for a writ
OPINIONS BELOW
& Mail-In Ballots of Nov. 3, 2020 Gen. Election, Nos. 31 EAP 2020, 32 EAP 2020, 33
EAP 2020, 34 EAP 2020, 35 EAP 2020, 29 WAP 2020, dated November 23, 2020, is
reported at 2020 Pa. LEXIS 5989, 2020 WL 6875017, and reprinted in Petitioner’s
Observation, No. 30 EAP 2020, dated November 17, 2020, is reported at 2020 Pa.
Gen. Election, No. 149 MM 2020, dated October 23, 2020, is reported at 240 A.3d 591,
STATEMENT OF JURISDICTION
Absentee & Mail-In Ballots of Nov. 3, 2020 Gen. Election was entered on November
This Court has jurisdiction pursuant to 28 U.S.C. § 1257(a). All three decisions
are final judgments by the highest court of the Commonwealth of Pennsylvania and,
as demonstrated infra, Petitioner raised the federal questions presented in this case
Article II, Section 1, Clause 2 of the United States Constitution provides: “Each
State shall appoint, in such Manner as the Legislature thereof may direct, a Number
of Electors, equal to the whole Number of Senators and Representatives to which the
relevant part: “nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal
The relevant provisions of the United States Code and Title 25 of the
1. 3 USC § 2
2
2. 3 USC § 5
3. 3 USC § 15
4. 28 U.S.C. § 1257(a)
6. 25 P.S. § 2650
7. 25 P.S. § 3146.1
8. 25 P.S. § 3146.2
9. 25 P.S. § 3146.6
In key jurisdictions across the country, state and local election officials and
courts altered or ignored state election laws,1 in violation of the federal Constitution’s
Article II assignment to State Legislatures of the plenary authority over the “manner”
the Court. See, e.g., Republican Party v. Boockvar, 208 L.Ed.2d 266, 267, 2020 U.S.
LEXIS 5188, 2020 WL 6304626 (2020) (Statement of Alito, J., joined by Thomas and
1 See State of Tex. v. Commonwealth of Pa., et. al, No. 22O155 (S.Ct., filed Dec. 8, 2020), in which the
State of Texas identified numerous provisions of state law that were altered or ignored in four key
states—the Commonwealth of Pennsylvania and the States of Georgia, Michigan, and Wisconsin. This
Court denied Texas’s Motion for Leave to File an Original Action for lack of standing. Id. (Dec. 11,
2020). The standing of Petitioner is not in question in this case.
3
decision [in Pennsylvania Democratic Party v. Boockvar, 238 A.3d 345 (Pa. Sep. 17,
2020)] … has national importance, and there is a strong likelihood that the State
Supreme Court decision violates the Federal Constitution.”).2 This case presents in
stark relief several of the violations that occurred in Pennsylvania. Together, those
violations alone affected more ballots than the current margin of difference between
Republican Secretary of State James Baker, found that mail ballots are “the largest
2A summary of disputes arising out of six key swing states was recently published by Peter Navarro,
Director of the Office of Trade and Manufacturing Policy, in his personal capacity. See “The
Immaculate Deception: Six Key Dimensions of Election Irregularities” (Dec. 17, 2020), available at:
https://www.scribd.com/document/488534556/The-Immaculate-Deception-12-15-20-1#from_embed.
3 In Pennsylvania, voters return mail ballots in envelopes which contain a declaration for signing,
addressing, and dating on the back. The ballot itself is contained in an inner “secrecy” envelope. If
the mail ballot is approved during canvassing beginning on Election Day, the outside envelope is
opened. If the ballot is not contained in a sealed inner envelope, i.e. a “naked” ballot, or the inner
envelope has markings indicating the identity of the voter, it is rejected. Otherwise, the inner envelope
is mixed with other inner envelopes which are then opened and counted. This procedure protects the
secrecy of the vote. See 25 P.S. §§ 3146.6(a), 3146.8, 3150.16(a). At the same time, if the mail ballots
cannot be challenged until after the outside envelope is opened, and inner envelope mixed, opened,
and counted, a post-election challenge cannot match the mail ballot with its vote.
4 At: https://www.legislationline.org/download/id/1472/file/3b50795b2d0374cbef5c29766256.pdf.
4
under Article II of the U.S. Constitution to determine the manner for choosing
Pennsylvania’s presidential electors, see Art. II, § 1, cl. 2; McPherson v. Blecker, 146
U.S. at 25; Bush II, 531 U.S. at 98, as well as the Pennsylvania Constitution itself,
has long limited mail voting. Until this year, only voters who could establish cause
were eligible to apply for mail (absentee) ballots, Pa. Const. Art. 7, § 14; 25 P.S. §
3146.1,5 and they were subject to strict signature verification and voter identification
to observe the entire process for validation and canvassing of absentee ballots and,
where necessary, challenge their validity. See, e.g., 25 P.S. §§ 3146.2 (2012), 3146.2b
(2012), 3146.8 (2012); see also In re Canvass of Absentee Ballots of Nov. 4, 2003 Gen.
Election, 843 A.2d 1223, 1234 (Pa. 2004) (“so-called technicalities of the Election Code
are necessary for the preservation of secrecy and the sanctity of the ballot and must
any eligible voter in the state,7 25 P.S. § 3150.11(b), but it retained the strict
5 Pennsylvania’s Election Code now permits voters to vote absentee as “[q]ualified absentee electors”
(25 P.S. § 3146.1), or by mail as “[q]ualified mail-in electors” (id. § 3150.11).
6The Pennsylvania Legislature’s concerns about election fraud are well founded based on a history of
misconduct in Philadelphia, both in mail voting and voting at the polls. See, e.g., Marks v. Stinson,
1994 U.S. Dist. LEXIS 5273 (E.D. Pa. April 26, 1994) (certifying state Senate candidate as the winner
and removing his opponent from office based on massive absentee ballot and other election fraud by
Democratic candidate and election officials which changed the result of the election); indictment of
Michael (Ozzie) Myers, U.S. Department of Justice Press Release dated July 23, 2020, “Former
Congressman Charged with Ballot Stuffing, Bribery, and Obstruction,” available at:
https://www.justice.gov/opa/pr/former-congressman-charged-ballot-stuffing-bribery-and-obstruction.
7 Whether the Legislature had the authority to allow no-excuse mail ballots under the State
5
signature verification, voter identification, and observation and challenge
requirements. See, e.g., Sections 1302.2, 1306, 1308, “Act 77,” 2019 Pa. Legis. Serv.
Act 2019-77 2019 Pa. ALS 77; 2019 Pa. Laws 77; 2019 Pa. SB 421 (approved Oct. 31,
2019). Those requirements were in place, and complied with, in the delayed June
2020 primary election.8 But each of them was dispensed with for the general election,
not by the Legislature (as required by Article II), but by state and local elections
officials, either unilaterally or in conjunction with the state’s elected Supreme Court.
In early August 2020, the League of Women Voters filed suit against the
signature verification requirements contained in state law, the Secretary had failed
to develop a plan for providing notice and an opportunity to cure for mail voters whose
Constitution is the subject of another case pending before this Court. See Kelly v. Commonwealth of
Penn. (No. 20-810).
8 In the June 2020 primary election, where there were no significantly contested races, and thus, no
mail ballots challenged on election day, signature defects alone resulted in “over 26,500 absentee and
mail-in ballots [being] rejected in Pennsylvania,” or “1.8% of the total absentee and mail-in ballots cast
statewide.” Complaint (Docket No. 1), ¶¶ 2, 54, League of Women Voters v. Boockvar, No. 2:20-cv-
03850-PBT (E.D. Pa. Aug. 7, 2020) (citing Caitlin Huey-Burns & Adam Brewster, “Why some mail-in
ballots are rejected and how to make sure your vote counts,” CBS News (Aug. 4, 2020),
https://www.cbsnews.com/news/why-mail-in-ballot-rejected-voting-counts/).
6
ballots were disqualified because the signature did not match the registration
guarantees of due process and equal protection. See Complaint (Docket No. 1), ¶¶ 60-
68, 78-82, League of Women Voters v. Boockvar, No. 2:20-cv-03850-PBT (E.D. Pa. Aug.
7, 2020). The League did not contend that Pennsylvania state law did not allow for
however, Secretary Boockvar took it upon herself to inform county registrars that
state law did not require, and did not even permit, mail ballots to be rejected when
the signature did not match the registration signature on file.9 The League then
recognition and practice that state law allowed signature verification of mail ballots
during canvassing beginning on Election Day, the Secretary then asked the
Pennsylvania Supreme Court to ratify her decision to dispense with the signature
verification was not permitted under 25 P.S. §3146.8(g)(3) despite its language that
9 See Guidance Concerning Examination of Absentee and Mail-in Ballot Return Envelopes, 9/11/2020
(“Boockvar 9/11/20 Guidance”), https://www.dos.pa.gov/VotingElections/OtherServicesEvents/
Documents/Examination%20of%20Absentee%20and%20MailIn%20Ballot%20Return%20Envelopes.p
df; Guidance Concerning Civilian Absentee and Mail-in Ballot Procedures, 9/28/2020 (“Boockvar
9/28/20 Guidance”), https://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/
DOS%20Guidance%20Civilian%20Absentee%20and%20Mail-In%20Ballot%20Procedures.pdf.
7
the signature on the declarations on the outside envelopes of mail ballots be
vehemently disagreed, see Legislators’ Br., fn. 16, infra. But the Court denied their
Although the Secretary had not even alleged in her petition for “King’s Bench
absentee ballots were somehow void, the Pennsylvania Supreme Court nonetheless
declared sua sponte that those provisions were also of no effect. Pet. App. C, at 29 fn.
25 (citing 25 P.S. §§ 3146.8(f), (g)(5)). This, despite the Court’s acknowledgement that
state law continued to provide for challenges to the mail ballots themselves during
canvassing by posting a $10 per ballot bond, and referenced procedures for resolving
such challenges, including mail-in ballots which had only been authorized in 2019:
now eliminated, process.” Pet. App. C, at 29 n. 24. As a result, mail ballots are
8
opened, mixed, and counted beginning on Election Day without any right to challenge
Petitioner raised these issues of federal constitutional law in the court below.
adopted by the Legislature for use in federal elections “creates a federal constitutional
question under the Elections and Electors Clauses.” Petitioner and Republican
Intervenors’ Supp. Br., p. 4 (citing Ans. at 23-24). It also argued that adopting the
Secretary’s position would “fail to consider ‘the extent to which the [Pennsylvania]
legislative power.’” Id. at 17 (quoting Bush v. Palm Beach Cty. Canvassing Bd., 531
U.S. 70, 77 (2000) (“Bush I”) (per curiam)). As it fully set out in its answer to the
Secretary’s Petition:
9
courts must be “mindful of the legislature’s role under Article II in
choosing the manner of appointing electors.” Id. at 114. For this reason
as well, the Court may not deviate from Act 77’s plain text or rewrite the
Election Code.
Ans. at 23-24.
Petitioner also argued that the Secretary’s novel construction of state election
law, which would invalidate in-person votes due to signature mismatch but not mail
votes, “would raise significant constitutional issues” under the Equal Protection and
Due Process Clauses. Id. at 13 (citing Bush II, 531 U.S. at 104-05 (per curiam); see
also Ans. at 3, 30 (elaborating on the Due Process and Equal Protection violations
Building on its holding that state law did not permit signature verification or
permit challenges of mail ballots during the canvassing process beginning on Election
Day, the Pennsylvania Supreme Court held in the second case at issue that the
be present” and “to remain in the room” during the canvassing process – 25 P.S. §§
Court, the Supreme Court held that mere presence at one end of a “room” as large as
the Philadelphia Convention Center was sufficient, even when that resulted in the
statutorily-authorized observers being as far as 100 feet away from some of the
10
provisions before the Pennsylvania Supreme Court. See Canvassing Observation,
Initial Brief of Appellee Donald J. Trump for President, Inc., filed Nov. 13, 2020, at
federal question when presidential elections are at issue. See Bush II, 531 U.S. at
113 (“A significant departure from the legislative scheme for appointing Presidential
also Case of Electoral Coll., 8 F. Cas. 427, 432–33 (C.C.D.S.C. 1876) (“When the
legislature of a state, in obedience to [Article II, § 1], has by law directed the manner
of appointment of the electors, that law has its authority solely from the Constitution
ballots, the Pennsylvania Supreme Court then determined that the statutory
requirement that mail voters “shall then fill out, date, and sign” the declaration on
the outer envelope, 25 P.S. §§ 3146.6(a), 3150.16(a) (emphasis added), was not
mandatory. Canvass of Absentee and Mail-In Ballots (Pet. App. A), at 19-20, 34.
Although the declaration had long included a place for mail voters to date, sign, and
vote—the Court held that the phrase, “fill out,” was ambiguous and therefore could
11
not apply to the address requirement.10 Id., at 14-25.11 Similarly, the Court held that
the requirement that mail voters “shall … date” the declaration was not mandatory
because, in the Court’s view, it served no purpose. The notion that absentee ballots
dated before they were even sent to the voter would provide evidence that the ballot
had been fraudulently cast apparently escaped the Court’s attention. In addition,
given the Pennsylvania Supreme Court’s decision in November 3, 2020 Gen. Election
extending the date by which mail ballots may be received to 5 p.m. on the Friday
following the election, the date requirement ensures that the ballot was not filled out
recognized and directed that “the county board of elections shall examine the Voter’s
Declaration on the outer envelope of each returned ballot and compare the
information on the outer envelope, i.e., the voter’s name and address, with information
10 Under Pennsylvania law, a voter may vote in an election after moving by completing a form. See,
e.g., 25 P.C.S. §§ 1323, 1328, 1901, 1902; see also Public Interest Legal Found. v. Boockvar, No. 1:20-
cv-1905, 2020 U.S. Dist. LEXIS 193577, at *3 n.2 (M.D. Pa. Oct. 20, 2020) (when voters fail to confirm
their continued residence and are deemed inactive, they “can still vote on Election Day, but they must
sign an affirmation that they still live at the address currently on file with the board of elections.”).
The address requirement allows election officials to determine whether the voter still resides at the
address to which the mail ballot is issued. In addition, requiring the person filling out the ballot to
hand-write the address is an impediment to fraud.
11 The Court also dispensed with the “address” requirement by noting it had been added to the
Declaration by the Secretary pursuant to authority delegated from the Legislature, not by the
Legislature itself. Canvass of Absentee & Mail-In Ballots (Pet. App. A), at 23-27 (citing In re Nov. 3,
2020 Gen. Election, (Pet. App. C), at 27; 25 P.S. §§ 3146.6(a)(3), 3150.16(a.1)). It had been a part of
the absentee ballot declaration for a very long time, however, so the post-election change to this long-
standing election requirement is itself problematic, quite apart from any Article II violation. See
Purcell v. Gonzalez, 549 U.S. 1, 5 (2006).
12
contained in” the above-referenced voter files. Boockvar 9/11/20 Guidance, at 3.
Then, a few weeks later, she issued an additional guidance, specifically directing that
“A ballot-return envelope with a declaration that is not filled out, dated, and signed
is not sufficient and must be set aside, declared void and may not be counted.”
post-election alteration of those statutory requirements, which affected two large (and
heavily Democrat) counties still canvassing their mail ballots, namely, Philadelphia
and Allegheny, was therefore not just an Article II violation, but an Equal Protection
violation as well.12
that a mail voter “fill out, date, and sign” the Declaration. See Canvass of Absentee
& Mail-In Ballots, Petitioner’s Brief of Nov. 18, 2020 (Case No. 1136 C.D. 2020), at
26-32. Petitioner also argued in that brief that the courts “cannot ignore the clear
mandates of the election code.” Id. at 32 (the Article II issue). It argued at length
12Two other Democrat-controlled counties – Bucks and Montgomery – also “did not follow” Secretary
Boockvar’s guidance and counted mail ballots that were not filled out in full. See Canvass of Absentee
& Mail-in Ballots (Pet. App. A), at 33, n.6 (citing In re Canvass of Absentee and/or Mail-in Ballots of
Nov. 3, 2020 Gen. Election, Petition of Donald J. Trump for President, Inc., No. 2020-05786-35 (Bucks
Cty. Ct. Com. Pl. Nov. 19, 2020)); Donald J. Trump for President, Inc. v. Montgomery Cnty. Bd. of
Elections, No. 2020-18680 (Nov. 13, 2020)).
13
that treating the “shall” in the statutory “fill out, date and sign” provision as directory
rather than mandatory “raises serious equal protection concerns.” Id. at 29-30. That
brief was then brought forward to the Pennsylvania Supreme Court when that Court
accepted review. See Order of Nov. 18, 2020 (Case No. 93 EM 2020). In addition to
the Equal Protection issue raised in the brief, Petitioner’s challenge to the erroneous
elections are at issue. See Bush II, 531 U.S. at 113 (“A significant departure from the
Coll., 8 F. Cas. 427, 432–33 (C.C.D.S.C. 1876) (“When the legislature of a state, in
obedience to [Article II, § 1], has by law directed the manner of appointment of the
electors, that law has its authority solely from the constitution of the United States.
Petitioners do not mean to suggest that these were the only actions taken in
Supreme Court cases at issue, as well as the Boockvar case already pending before
this Court, other Pennsylvania courts have changed the rules of the 2020
securely seal the ballot secrecy envelope] is mandatory such that an elector’s
14
language and [the Pennsylvania Supreme Court’s decision in] Boockvar,” but chose
voting” for the 2020 election. In re Canvass of Absentee and/or Mail-in Ballots of
Nov. 3 General Election, No. 1191 C.D. 2020 (Commw. Ct. Nov. 25, 2020), at 13-14.
Boockvar, the Pennsylvania Supreme Court denied Petitioner’s application for review
in this case. See Order of December 8, 2020 (Case No. 676 MAL 2020).
votes on election day, 595,538 votes by mail ballots and 50,874 votes by provisional
ballot, for a total of 3,377,642 votes. Former Vice President Biden received 1,409,341
votes on election day, 1,995,691 votes by mail ballot and 53,168 votes by provisional
In the 2018 General Election, when election officials were permitted to review,
and candidates and parties were permitted to challenge absentee ballots, an average
of 4.5% of the ballots were disallowed across Pennsylvania, with an even higher
percentage, generally between 4.3 and 8.0 percent, in larger Democrat controlled
13See https://www.electionreturns.pa.gov/#. The total votes listed on that site do not precisely match
the sum of the three vote categories.
14 See https://dig.abclocal.go.com/ccg/interactives/mail-ballots-rejected-map/index.html.
15
election with over 2.6 million persons voting by mail – almost all for the first time –
when neither election officials or candidates were permitted to review or contest the
signatures, address, and date during the canvassing of mail ballots for the first time
public sources, 1/16th the rate from the 2018 election.15 That disparity alone involves
more ballots than the current margin of votes between the two candidates.
This Court has long held that Article II of the Constitution gives to the
Legislatures of the States the exclusive power to determine the manner of choosing
“plenary.” Bush II, 531 U.S. at 104; McPherson, 146 U.S. at 25.
During the early part of our nation’s history (and, in one instance, all the way
up through the election of 1860), most state legislatures simply chose electors
themselves. See McPherson , 146 U.S. at 29-32. Florida’s Legislature assigned itself
the power of choosing electors in 1868, and Colorado’s Constitution did the same in
1876 upon that State’s admission to statehood. Id. at 33. Although all 50 state
legislatures have now chosen popular vote as the “manner” of choosing electors, see
15 See https://ballotpedia.org/Election_results,_2020:_Analysis_of_rejected_ballots.
16
Bush II, 531 U.S. at 104 (“History has now favored the voter”), that popular vote must
State legislatures do not act “solely under the authority given [them] by the
people of the State, but by virtue of a direct grant of authority made under Art. II, §
1, cl. 2, of the United States Constitution.” Bush I, 531 U.S. at 76. The function of
state legislature in carrying out a federal function derived from the U.S. Constitution
Garnett, 258 U.S. 130, 137 (1922). “The appointment of … electors is … placed
absolutely and wholly with the legislatures of the several States.” McPherson, 146
U.S. at 34-35; see also Bush II, 531 U.S. at 113 (Rehnquist, C.J., concurring).
The exercise of the fundamental right to vote for presidential electors in the
2020 general election in Pennsylvania did not occur “as the legislature ha[d]
violated state election law, including, most troublingly, laws enacted to minimize the
risk of fraud in mail voting and thereby protect the integrity of the election process.
The decisions of the Pennsylvania Supreme Court, an elected body, also raised serious
concerns whether these were partisan attempts to assist the Democratic candidate
whose campaign strategy of utilizing mail ballots was well publicized, in comparison
17
First, November 3, 2020 Gen. Election (Pet. App. C) changed the law to prohibit
for parties and campaigns to challenge mail ballots during canvassing beginning on
Election Day.
Election Day.
modified statutory requirements for signing, addressing, and dating mail ballot
declarations.
In sum, the three Pennsylvania Supreme Court decisions at issue are contrary
consequences necessitates this Court granting the petition for writ of certiorari.
Pennsylvania is apparently of the view that the manner for choosing electors
Secretary erroneously noted in her Application that “[t]he U.S. Constitution assigns
18
expositor of state law.” November 3, 2020 Gen. Election, Secretary’s Application for
Contrary to the Secretary’s claim, the Constitution does not assign the power
to “the states,” of course, but rather to the “Legislature” of the State. U.S. Const. Art.
II, § 1, cl. 2. And because an election law enacted for the choosing of presidential
electors “has its sole authority from the constitution of the United States,” Case of
Electoral Coll., 8 F. Cas. at 432, neither is it true that the state’s Supreme Court is
state law in the judgments at issue here, Pennsylvania thus advanced the position
the authority to alter the state’s election law, and conceded that they had in fact done
interpretation of a state statute.” Bush v. Palm Beach County Canvassing Bd., 531
U.S. 70, 76 (2000) (“Bush I”); see also Bush v. Gore [Bush II], 531 U.S. at 113
(Rehnquist, C.J., concurring). “In most cases, comity and respect for federalism
compel us to defer to the decisions of state courts on issues of state law.” Bush II,
supra, at 112. “But in the case of a law enacted by a state legislature applicable …
to the election of Presidential electors, the legislature is not acting solely under the
authority given it by the people of the State, but by virtue of a direct grant of authority
made under Art. II, § 1, cl. 2, of the United States Constitution.” Bush I, 531 U.S. at
76. As Chief Justice Rehnquist noted, selecting the manner of choosing presidential
19
electors is an “exceptional cas[e] in which the Constitution imposes a duty or confers
the State. Bush II, 531 U.S. at 113 (Rehnquist, C.J., concurring). In such a case, “the
text of the election law itself, and not just its interpretation by the courts of the States,
Thus, “[i[n order to determine whether a state court has infringed upon the
legislature’s authority, [this Court] necessarily must examine the law of the State as
it existed prior to the action of the court.” Id. at 114. This is therefore one of the
still deferential, analysis of state law.” Id. (citing Mullaney v. Wilbur, 421 U.S. 684
(1975), NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), and Bouie v. City
prior caselaw and the mandates of unambiguous statutes adopted by the Legislature
of the State. November 3, 2020 Gen. Election eviscerated statutory language that
county election boards “shall examine the declaration on the [outer] envelope of each
[mail] ballot … and shall compare the information thereon”—which includes the
voter’s signature—to the relevant mail voter files in order to determine whether the
the statutory right provided by 25 P.S. § 3146.8(f) for campaigns to challenge mail
20
“present” and “to remain in the room” during the canvassing process, 25 P.S. §§
3146.8(b), 3146.8(g)(1.1), in order to be able to verify that the process was being
conducted according to law did not actually require “meaningful” observation. And
Canvass of Absentee and Mail-In Ballots strangely held that “shall” means “may” and
and dates. Two of the three decisions were subject to cogent dissents. The leaders of
Because these statutes were enacted by the Legislature for use in federal
elections, review by this Court to ensure a proper interpretation of the law would “not
imply a disrespect for state courts but rather a respect for the constitutionally
prescribed role of state legislatures.” Bush II, 531 U.S. at 113 (Rehnquist, C.J.,
concurring). “To attach definitive weight to the pronouncement of a state court, when
the very question at issue is whether the court has actually departed from the
16 See, e.g., November 3, 2020 Gen. Election, Brief of proposed-Intervenors, Joseph B. Scarnati III,
Pennsylvania Senate President Pro Tempore, and Jake Corman, Senate Majority Leader, filed Oct. 7,
2020, at 3-6 (Secretary Boockvar “seeks to disrupt Pennsylvania's clear and unambiguously crafted
procedures for determining and challenging the validity of an absentee or mail-in ballot and/or
application” and “asks th[e] Court to rewrite existing law …”); Canvassing Observation, Brief of
proposed-Intervenor Appellees Bryan Cutler, Speaker of the Pennsylvania House of Representatives,
and House Majority Leader Kerry Benninghoff, filed Nov. 13, 2020, at 4, 8-10 (“The General Assembly
plainly did not craft detailed watcher and candidate access provisions only for those representatives
to be shuttled so far away from the operations of the canvassing process that they have no meaningful
opportunity to observe the process” as “[s]uch an absurd result would be in clear violation of the
Election Code and the Pennsylvania Rules of Statutory Construction.”).
21
explicit requirements of Article II.” Id. at 115. This Court should therefore grant the
II. This Court Should Re-Affirm That Federal Courts Have The Power
To Remedy Violations of Article II.
This Court adjudicates cases arising under the Constitution and laws of the
United States, of course. It does not decide elections. That is the role of voters who
cast lawful ballots. But the Constitution does contain rules that are obligatory on all
agents of government—including those who conduct elections. Under Article II, the
“manner” set out by the Legislature via the statutes it has adopted are part of those
constitutional rules.
injunctive relief that only the state legislature has the power to adopt a statutory
scheme for choosing presidential electors; that alterations to that scheme by non-
legislative officials in the state are both illegal and unconstitutional; and that election
results affected in a way greater than the margin between candidates cannot be
validly certified. At that point, a couple of avenues for resolution present themselves.
or federal district courts could recertify the existing results if, and only if, they can
establish the validity of a sufficient number of the mail ballots to sustain the existing
certification. See, e.g., Warf v. Bd. of Elections, 619 F.3d 553, 561-62 (6th Cir. 2010)
(“once the contestant has made a showing of irregularity, … contestee must then come
22
Barre Election Appeals, 1967 Pa. Dist. & Cnty. Dec. LEXIS 9, *16 (Pa.Com.Pl. Luz.
Cnty. Dec. 27, 1967) (concluding that where “challenger has presented a prima facie
case to substantiate his challenge [to absentee ballot,] … the burden of proof shifted
Legislature to consider whether the violations of its state law yielded a significant
enough number of illegally-cast votes to have altered the results of the election. If
they did, the Legislature has it within its power under Article II to certify the slate
of electors that obtained the majority of lawfully cast ballots and submit that
certification to the President of the Senate prior to January 6, 2021, the date set by
statute for the meeting of the Joint Session of Congress to count electoral votes. See
state constitution, to choose electors by the people, there is no doubt of the right of the
legislature to resume the power at any time, for it can neither be taken away nor
abdicated”) (emphasis added, quoting with approval Senate Rep. 1st Sess. 43d Cong.
No. 395). This power is also recognized by federal law, which provides that
“[w]henever any State has held an election for the purpose of choosing electors, and
has failed to make a choice on the day prescribed by law, the electors may be
appointed on a subsequent day in such a manner as the legislature of such State may
direct.” 3 U.S.C. § 2.
Only by pursing such a course will the public’s faith in the election process be
restored, and only then will voters on either side of the intensely partisan divide be
23
able to find solace in a result that was obtained after a fair electoral fight, where
every legal vote was counted but where those votes were not diluted or negated by
unfairness,” the integrity of the election itself violates substantive due process.
Griffin v. Burns, 570 F.2d 1065, 1077 (1st Cir. 1978). See also Roe v. Alabama, 43
F.3d 574, 580-81 (11th Cir. 1995) (“retroactive change in the election that [would]
meaningful time and in a meaningful manner.’” Matthews v. Eldridge, 424 U.S. 319,
333 (1975) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). See also Lachance
v. Erickson, 522 U.S. 262, 266 (1998) (“The core of due process is the right to notice
(a) prohibit signature verification by the boards of elections, (b) remove the
requirement that voters address and date mail ballots, and (c) deny candidates the
24
meaningfully observe the canvassing by which mail are processed, and enforce the
requirements that mail ballot declarations are properly signed, addressed, and dated
before they are opened, mixed, and counted. In short, the three decisions eliminated
all “meaningful safeguards” designed to protect against fraud in the mail ballot process.
Once the mail ballots are opened, mixed, and counted, no post-election challenge can
match a defective ballot to its vote. The toothpaste is forever out of the tube. Changing
longstanding rules in the middle and after a presidential election violates due process.
The Equal Protection Clause of the United States Constitution prohibits the
use of different standards in the treatment and tabulation of ballots within a state.
“Having once granted the right to vote on equal terms, the State may not, by later
arbitrary and disparate treatment, value one person’s vote over that of another.”
Bush II, 531 U.S. at 104-05 (citing Harper v. Virginia Bd. of Elections, 383 U.S. 663,
665 (1966). “It must be remembered that ‘the right of suffrage can be denied by a
prohibiting the free exercise of the franchise.’” Bush II, 531 U.S. at 105 (quoting
As set forth above, state and local officials and the judiciary applied different
25
enforced the standards promulgated by Secretary Boockvar before the election and
and Allegheny – at issue in Canvassing of Absentee and Mail-in Ballots did not. This
resulted in mail ballot voters being treated differently depending on the county in
which they resided, and mail ballots for President Trump and his opponent being
treated differently depending on the counties in which they were canvassed, violating
Equal Protection in two ways. See Marks v. Stinson, supra. (election officials favoring
functioning of our participatory democracy. Voter fraud drives honest citizens out of
the democratic process and breeds distrust of our government. Even the appearance of
fraud in a close election is poisonous to democratic principles: “Voters who fear their
Purcell v. Gonzalez, 549 U.S. 1, 4 (2006); see also Crawford v. Marion County Election
Bd., 553 U.S. 181, 189 (2008) (States have an interest in preventing voter fraud and
ensuring voter confidence). Few things contribute more to the appearance of fraud
Supreme Court may have engaged in partisan decision-making designed to favor the
26
Our country is deeply divided in ways that it arguably has not been seen since
the election of 1860. There is a high level of distrust between the opposing sides,
compounded by the fact that, in the election just held, election officials in key swing
states, for apparently partisan advantage, failed to conduct their state elections in
compliance with state election law. Indeed, a poll taken shortly after the election by
the reputable Rasmussen polling firm indicated that 47% of all Americans (including
75% of Republicans and 30% of Democrats), believed that it was “likely” or “very
likely” the election was stolen from the current incumbent President.
The fact that nearly half of the country believes the election was stolen should
of success in presidential elections. For example, he won both Florida and Ohio; only
winning both States. And he won these traditional swing states by large margins—
Ohio by 8 percentage points and 475,660 votes; Florida by 3.4 percentage points and
counties whose vote, historically, almost always goes for the candidate who wins the
election. Initial analysis indicates that he won 26 percent of non-white voters, the
highest percentage for any Republican candidate since 1960. A large percentage of
the American people know or at least strongly believe that something is deeply amiss.
election law and thereby contravenes the Constitution of the United States, grave
harm is done not just to the candidates on the ballot but to the citizenry’s faith in the
27
election process itself. Partisan judicial decisions add to this harm. Compliance with
state election law is no mere procedural requirement. For without compliance with
the rule of law, elections are subject to the very real prospect that fraud could occur
in the election. Altering or suspending state laws designed to minimize the risk of
fraud in the casting of mail ballots, as occurred in this case, only exacerbates that
concern.
access by observers is one of the factors relied on by both the United Nations17 and
our own State Department18 in determining whether foreign elections are conducted
in a free and fair manner. By failing to follow the rule of law, Pennsylvania’s election
officials and its Supreme Court put our nation’s belief in elected self-government at
17The United Nations Declaration of Principles for International Election Observation (endorsed by,
among others, the Organization of American States, of which the United States is a member)
acknowledges the importance of “political contestants” being “allowed to monitor all processes related
to elections and observe procedures, including among other things the functioning of electronic and
other electoral technologies inside polling stations, counting centers and other electoral facilities, as
well as the transport of ballots and other sensitive materials.” DECLARATION OF PRINCIPLES
FOR INTERNATIONAL ELECTION OBSERVATION, Principal 14, p. 5 (Oct. 27, 2005). Available at:
https://www.ndi.org/sites/default/files/1923_declaration_102705_0.pdf.
18The United States State Department has also found that “prohibition of local independent observers
at polling stations” is one of the factors demonstrating that elections are “not free and fair.” Michael
Pompeo, “Press Statement: Presidential Elections in Belarus” (Aug. 10, 2020). Available at:
https://www.state.gov/presidential-elections-in-belarus/.
28
Our constitutional republic has endured for nearly two and a half centuries
based on the consent of the governed. That consent is grounded in the confidence of
our people in the legitimacy of our institutions of government. But that legitimacy
can only be sustained if the elections through which the sovereign people determine
the direction of their government are free and fair. Fortunately, the Framers of our
Constitution built a remedy for such concerns into the system, namely, an
independent federal judiciary, free of the passions of politics, which can review
election. It is therefore the most solemn duty of this Court to objectively review the
facts and legal issues presented by the Petitioner in this historic case, render
restore the confidence of all Americans that the rule of law will be upheld today and
Respondents may contend that these cases are moot because Pennsylvania’s
certified electors already met on December 14, 2020, cast their votes for President,
and transmitted those votes to the President of the Senate, as specified by federal
law. See 3 U.S.C. §§ 7, 11. But in Pennsylvania (as well as in six other states), two
different slates of electors met, cast votes, and transmitted those votes to the
President of the Senate. See Ivan Pentchoukov, “Electors in 7 States Cast Dueling
29
Votes for Trump,” The Epoch Times (Dec. 15, 2020).19
Though rare, such a thing has happened twice before in our nation’s history
when election challenges such as this were still underway on the date Congress had
designated for electors to meet and vote. In 1960, Hawaii’s Governor had certified
Vice President Richard Nixon as the winner of that state’s electors. Those electors
met on the designated day and cast their votes. But because challenges to the results
of the election were still pending, the electors pledged to Senator John Kennedy also
met and cast their votes. When it was subsequently determined that Senator
Kennedy had won the election, those electoral votes were the ones counted during the
The election of 1876 likewise yielded multiple slates of electors from several
states, namely, Florida, Louisiana, Oregon, and South Carolina. The legal challenges
that swirled around that election dispute were only deemed moot once a commission
then only after he was inaugurated on March 4, 1877.21 This case will therefore not
be moot at least until January 20, 2021—the day the Constitution now sets as
inauguration day.
30
None of the other election dates, such as the so-called December 8, 2020 “safe
harbor” date established by 3 U.S.C. § 5 or even the January 6, 2021 date for the joint
Indeed, if this Court vacated a State’s appointment of presidential electors has having
officials, those electoral votes would not be counted in the joint session of Congress
on January 6, 2021.
Even the swearing in of the next President on January 20, 2021, will not moot
this case because review could outlast the selection of the next President under “the
‘capable of repetition, yet evading review’ doctrine,” which applies “in the context of
election cases … when there are ‘as applied’ challenges as well as in the more typical
case involving only facial attacks.” FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449,
463 (2007) (internal quotations omitted); accord Norman v. Reed, 502 U.S. 279, 287-
88 (1992). The legal issues presented by this petition, namely, whether the alteration
22Specifically, nothing in Pennsylvania law suggests that the Legislature had adopted a scheme
designed to comport with 3 U.S.C. § 5 “safe harbor” provision. Section 3456 provides no deadline for
concluding an election contest challenging a presidential election. 25 P.S. § 3456. Section 3159
provides no deadline for the Secretary of the Commonwealth to “certify and file” election returns. 25
P.S. § 3159. Further, Section 3166, which governs “Presidential electors,” provides no deadline for the
Secretary to “receiv[e] and comput[e] the returns of the election of presidential electors,” and “lay them
before the Governor.” 25 P.S. § 3166.
31
will not become, an issue.
CONCLUSION
allowed for no-excuse mail voting for every eligible voter in the state, but it kept in
the casting and canvassing of mail ballots, which are “the largest source of potential
conjunction with the Pennsylvania Supreme Court, altered or dispensed with those
The effect of these illegal and unconstitutional changes to state election law
affected enough ballots to alter the results of the election. Certiorari is warranted so
that this Court can reaffirm its prior Article II holdings that only the Legislature of a
state can alter election laws utilized in the choice of presidential electors, and to
provide redress for the breaches of that constitutional requirement that occurred in
these cases.
32
Respectfully submitted,
Bruce S. Marks John C. Eastman
Marks & Sokolov, LLC Counsel of Record
1835 Market St., #1717 174 W. Lincoln Ave, #620
Philadelphia, PA 19103 Anaheim, CA 92805
(215) 569-8901 (909) 257-3869
[email protected] [email protected]
33
APPENDIX A
[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-
2020]
IN THE SUPREME COURT OF PENNSYLVANIA
These appeals present the question of whether the Election Code requires a
electors who signed the declaration on their ballot’s outer envelope but did not handwrite
their name, their address, and/or a date, where no fraud or irregularity has been alleged.
whether the information is made mandatory by the Election Code or whether the inclusion
of the information is directory, i.e., a directive from the Legislature that should be followed
but the failure to provide the information does not result in invalidation of the ballot.
election cases, we adhere to the overarching principle that the Election Code should be
liberally construed so as to not deprive, inter alia, electors of their right to elect a candidate
of their choice. Pa. Democratic Party v. Boockvar, 238 A.3d 345, 356 (Pa. 2020). Stated
more fully:
Election laws will be strictly enforced to prevent fraud, but ordinarily will be
construed liberally in favor of the right to vote. All statutes tending to limit
the citizen in his exercise of the right of suffrage should be liberally
construed in his favor. Where the elective franchise is regulated by statute,
the regulation should, when and where possible, be so construed as to
insure rather than defeat the exercise of the right of suffrage. Technicalities
should not be used to make the right of the voter insecure. No construction
of a statute should be indulged that would disfranchise any voter if the law
is reasonably susceptible of any other meaning.
Guided by these principles and for the reasons discussed at length in this opinion,
we conclude that the Election Code does not require boards of elections to disqualify
mail-in or absentee ballots submitted by qualified electors who signed the declaration on
their ballot’s outer envelope but did not handwrite their name, their address, and/or date,
***
for President, Inc. (the “Campaign”) challenges the decision of the Philadelphia County
Board of Elections (the “Philadelphia Board”) to count 8,329 absentee and mail-in ballots.
The Campaign does not contest that these ballots were all timely received by the
Philadelphia Board prior to 8:00 p.m. on November 3, 2020 (election day); that they were
cast and signed by qualified electors; and that there is no evidence of fraud associated
counted because the voters who submitted them failed to handwrite their name, street
address or the date (or some combination of the three) on the ballot-return outer
envelope. The Philadelphia County Court of Common Pleas, per the Honorable James
Crumlish, upheld the Philadelphia Board’s decision to count the ballots, ruling that the
Election Code does not mandate the disqualification of ballots for a failure to include the
challenged information, stressing that the inclusion or exclusion of this information does
not prevent or promote fraud. The Campaign pursued an appeal to the Commonwealth
Court. This Court granted the Philadelphia Board’s application to exercise our
extraordinary jurisdiction, 42 Pa. C.S. § 726, over these cases then pending in the
Commonwealth Court.
At or around the same time that the matters were being litigated in Philadelphia,
across the state in Allegheny County, Nicole Ziccarelli, a candidate for the Pennsylvania
November 10, 2020 decision of the Allegheny County Board of Elections (the “Allegheny
County Board”) to canvass 2,349 mail-in ballots that contained a signed – but undated –
declaration. Again, all of the outer envelopes were signed, they are conceded to be timely
and there are no allegations of fraud or illegality. On November 18, 2020, the Court of
Common Pleas of Allegheny County, per the Honorable Joseph James, upheld the
decision of the Allegheny County Board to count the ballots. Ziccarelli v. Allegheny
County Board of Elections, No. GD-20-011654 (Allegheny Cty. Ct. Com. Pl.). Ziccarelli
filed an appeal to the Commonwealth Court and an application in this Court requesting
that we exercise extraordinary jurisdiction over her appeal. During the pendency of the
Court, with one judge dissenting, reversed the common pleas court decision.
On November 20, 2020, the Allegheny County Board filed an emergency petition
for allowance of appeal, which we granted, limited to whether the ballots contained in
Commonwealth Court pending the outcome of this appeal and consolidated it with the
In these appeals, we are called upon to interpret several provisions of the Election
Code. We set them forth at the outset since they guide the resolution of these appeals.
the responsibility to prescribe the form of the elector’s declaration on the outer envelope
* * *
Commonwealth developed the following declaration used in connection with the 2020
General Election:
[BAR CODE]
X___________________________________
____________________________________
Date of signing (MM/DD/YYYY)/Fechade firme (MM/DD/YYYY)
_____________________________________
Voter, print name/Votante, nombre en letra de impreta
______________________________________
Voter, address (street)/Votante, dirreccion (calle)
In addition, the Secretary issued guidance to the county boards of elections with
respect to the examination of ballot return envelopes. First, on September 11, 2020, she
***
Pennsylvania may cast their ballots in elections by absentee or no-excuse mail-in ballots.
To do so, they must submit applications to county boards of elections, and in connection
therewith must provide the address at which they are registered to vote. They must also
sign a declaration affirming, among other things, that they are “eligible to vote by mail-in
[or absentee] ballot at the forthcoming primary or election,” and that “all of the information”
supplied in the mail-in or absentee ballot application is “true and correct.” 25 P.S. §§
3150.12, 3146.2. Upon receipt of the application, the county board of elections must
confirm the elector’s qualifications and verify that the elector’s address on the application
matches the elector’s registration. Upon the county board of elections’ approval of the
application, the elector is provided with a ballot, an inner “secrecy envelope” into which
the ballot is to be placed, and an outer envelope into which the secrecy envelope is to be
placed and returned to the board. The outer envelope has pre-printed on it (1) a voter’s
declaration, (2) a label containing the voter’s name and address, and (3) a unique nine-
digit bar code that links the outer envelope to the voter’s registration file contained in the
Statewide Uniform Registry of Electors (“SURE”) system. After receiving the outer
envelope, the board of elections stamps the date of receipt on it and then scans the
unique nine-digit bar code, which links the voter’s ballot to his or her registration file.
25 P.S. § 3146.8(g)(3).
determine whether ballots separated into nine categories were “sufficient” to be pre-
canvassed or canvassed. It concluded that four categories were not sufficient to be pre-
canvassed or canvassed: (1) 472 ballots where the outer envelope lacked a signature
and any other handwritten information; (2) 225 ballots where the outer envelope was not
signed by the voter; (3) 112 ballots where the individual who completed the declaration
appeared to be different from the individual who had been assigned the ballot; and (4)
canvassed the ballots in five categories: (1) 1,211 ballots that lacked a handwritten date,
address, and printed name on the back of the outer envelope (but were signed); (2) 1,259
ballots that lacked only a handwritten date on the back of the outer envelope (but were
signed and contained a handwritten name and address); (3) 533 ballots that lack only a
contained a handwritten address); (4) 860 ballots that lack only a handwritten address on
the back of the outer envelope (but were signed and dated and contained a handwritten
name); (5) 4,466 ballots that lack only a handwritten name and address on the back of
On November 10, 2020, the Campaign filed five pleadings entitled “Notice of
Appeal via Petition for Review of Decision by the Philadelphia County Board of Elections,”
one for each of the five categories referenced above that the Philadelphia Board approved
alleged that this Court, in Pa. Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020),
declared that absentee and mail-in ballots cast in violation of the Election Code’s
mandatory requirements are void and cannot be counted. Petition for Review,
11/10/2020, ¶ 14. The Campaign further alleged that failures to include hand-written
Sections 3146.6(a) and/or 3150.16(a) of the Election Code. Id. at 15-16. Accordingly,
the Campaign alleged that the Board’s decisions with respect to the absentee and mail-
in ballots in the above-referenced five categories were based on a clear error of law and
On November 13, 2020, Judge Crumlish held oral argument on the issues raised
in the Petition for Review. In response to questions from Judge Crumlish, counsel for the
Campaign agreed that the Petition for Review was “not proceeding based on allegations
of fraud or misconduct.” Transcript, 11/13/2020, at 13-14. She further agreed that the
Campaign was not challenging the eligibility of the 8,329 voters in question and did not
been timely received by the Board. Id. at 30-31, 37. Instead, she indicated that the
Campaign was “alleging that the ballots were not filled out correctly.” Id. at 14. Counsel
for the DNC1 argued that the failures to handwrite names, addresses and dates “are, at
most, minor technical irregularities that the Supreme Court of Pennsylvania has
repeatedly said do not warrant disenfranchisement.” Id. at 14. Counsel for the
Philadelphia Board added that the Election Code includes no provision requiring “absolute
technical perfection” when filling out the declaration on the outer envelope containing an
Later that same day, Judge Crumlish entered five orders affirming the Philadelphia
Board’s decision to count the contested ballots. In his orders, Judge Crumlish noted that
while the declaration contained a specific directive to the voter to sign the declaration, it
made no mention of filling out the date or other information. Trial Court Orders,
11/13/2020, ¶ 2. He further found that while the Election Code provides that while the
voter shall “fill out” and date the declaration, the term “‘fill out’ is not a defined term and is
ambiguous.” Id. at ¶ 4. He indicated that the outer envelope already contains a pre-
printed statement of the voter’s name and address, and that “[n]either a date nor the
elector’s filling out of the printed name or of the address are requirements necessary to
prevent fraud.” Id. at ¶ 5-6. Concluding that “[t]he Election Code directs the Court of
Common Pleas in considering appeals from the County Board of Elections to make such
The Campaign filed appeals from Judge Crumlish’s orders in the Commonwealth
Court on November 14, 2020, and the next day the Commonwealth Court issued an order
consolidating the five appeals and setting an expedited briefing schedule. On November
17, 2020, the Philadelphia Board filed an application with this Court to exercise its
In our order granting the Philadelphia Board’s application for the exercise of
On November 10, 2020, the Allegheny County Board decided to canvass 2,349
mail-in ballots that contained a signed but undated declaration. Ziccarelli challenged the
decision in an appeal to the court of common pleas ultimately heard and decided by the
Honorable Joseph James. It was not disputed that all 2,349 voters signed and printed
their name and address on the outer envelopes and returned the ballots to the Allegheny
County Board on time. Each of the ballots was processed in the Statewide Uniform
Registry of Electors (“SURE”) system and was time-stamped when it was delivered to the
Teams, on November 17, 2020, the Democratic Party and James Brewster (Ziccarelli’s
opponent in the 45th Senatorial District race) moved to intervene, which motion was
In an opinion and order dated November 18, 2020, Judge James affirmed the
Allegheny County Board’s decision to count the ballots. He concluded that the date
provision in Section 3150.16(a) is directory, not mandatory, and that “ballots containing
mere minor irregularities should only be stricken for compelling reasons,” citing
Shambach v. Shambach, 845 A.2d 793, 798 (Pa. 2004). Noting that the ballots were
processed in the SURE system and time-stamped when delivered to the Allegheny
County Board, he found that the technical omission of the handwritten date on a ballot
was a minor technical defect and did not render the ballot deficient.
Court and contemporaneously filed an application to this Court requesting our exercise
of extraordinary jurisdiction, noting that the issue presented was accepted by this Court
as part of the Philadelphia Board appeals. While the application was pending, the
Commonwealth Court ordered expedited briefing and on November 19, 2020, issued an
opinion and order reversing the Court of Common Pleas of Allegheny County and
remanded. In Re: 2,349 Ballots in the 2020 General Election; Appeal of: Nicole Ziccarelli,
__ A.3d __, 1162 C.D. 2020 (Commw. Ct. 2020). Ziccarelli then withdrew her application
On November 20, 2020, this Court granted the Allegheny County Board’s Petition
for Allowance of Appeal limited to the question of whether the ballots contained in undated
but signed outer envelopes should be invalidated. The opinion of the Commonwealth
The pertinent scope and standard of review follow: the Court of Common Pleas’
decision is reviewed on appeal “to determine whether the findings are supported by
Reading Sch. Bd. of Election, 634 A.2d 170, 171–72 (Pa. 1993). The Court of Common
Pleas, in turn, could reverse the Philadelphia Board’s decision only for an abuse of
discretion or error of law. See Appeal of McCracken, 88 A.2d 787, 788 (Pa. 1952). As
the issue involves the proper interpretation of the Election Code, it presents a question of
law and our standard of review is de novo and our scope of review is plenary. See, e.g.,
Although more fully developed in our analysis set forth later in this opinion, we here
The Campaign argues that the General Assembly set forth in the Election Code
the requirements for how a qualified elector can cast a valid absentee or mail-in ballot.
Campaign’s Brief at 22. One of those requirements is for each elector to “fill out, date,
and sign” the declaration on the Outside Envelope. Id. (citing 25 P.S. §§ 3146.6(a) and
3150.16(a)). According to the Campaign, this Court has repeatedly ruled that the
obligations, and that ballots cast in contravention of the these requirements are void and
cannot be counted. Id. at 23. As a result, the Campaign insists that the trial court erred
ballots. Id.
The Philadelphia Board, conversely, contends that the Election Code does not
require the Philadelphia Board to set aside timely-filed ballots by qualified electors that
are merely missing handwritten names, street addresses, and/or dates on the signed
contention that the provisions of the Election Code at issue here impose exclusively
mandatory requirements, the Philadelphia Board argues that Pennsylvania courts have
long held that minor errors or omissions should not result in disenfranchisement,
particularly in cases where the errors or omissions do not implicate the board’s ability to
ascertain the voter’s right to vote or the secrecy or sanctity of the ballot. Id. Here, the
Philadelphia Board notes that the Campaign does not allege that the voters at issue here
were not qualified to vote and have not asserted that any fraud or other impropriety has
occurred. Id. As such, it concludes that it acted properly and within its discretion in
determining that these omissions were not a basis for setting aside those ballots. Id.
The DNC largely concurs with the Philadelphia Board’s arguments, indicating that
there is no statutory requirement that voters print their full name or address on the outer
envelopes and that adding a date to the envelope serves no compelling purpose. DNC’s
Brief at 9-10.
Ziccarelli argues further that, in regard to outer envelopes not containing a voter-
supplied date, this Court’s opinion in In Re: Nov. 3, 2020 General Election, No. 149 MM
2020, 2020 WL 6252803 (Pa. Oct. 23, 2020) definitively speaks to the mandatory nature
of the date requirement and, without much extrapolation, requires that such ballots not be
Ziccarelli’s challenge to the ballots for lack of a date is based on the premise that the date
is essential to the validity of the signature. Allegheny County Board points out this is the
precise type of challenge that was disavowed in the case upon which Ziccarelli relies.
III. ANALYSIS
We begin by recognizing from the outset that it is the “longstanding and overriding
845 A.2d 793, 798 (Pa. 2004). “The Election Code must be liberally construed so as not
to deprive ... the voters of their right to elect a candidate of their choice.” Ross Nomination
Petition, 190 A.2d 719, 719 (Pa. 1963). It is therefore a well-settled principle of
Pennsylvania election law that “[e]very rationalization within the realm of common sense
should aim at saving the ballot rather than voiding it.” Appeal of Norwood, 116 A.2d 552,
554–55 (Pa. 1955). It is likewise settled that imbedded in the Election Code is the General
Assembly’s intent to protect voter privacy in her candidate choice based on Article VII,
Section 4 of the Pennsylvania Constitution and to prevent fraud and to otherwise ensure
3150.16(a), the General Assembly set forth the requirements for how a qualified elector
may cast a valid absentee or mail-in ballot. Campaign’s Brief at 22. We further agree
that these sections of the Election Code specifically provide that each voter “shall fill out,
date, and sign” the declaration on the outside envelope. Id. We do not agree with the
Campaign’s contention, however, that because the General Assembly used the word
failure to comply with any part of it requires a board of elections to declare the ballot void
and that it cannot be counted. It has long been part of the jurisprudence of this
Commonwealth that the use of “shall” in a statute is not always indicative of a mandatory
Commonwealth v. Baker, 690 A.2d 164, 167 (Pa. 1997) (citing Fishkin v. Hi–Acres, Inc.,
341 A.2d 95 (Pa. 1975)); see also Commonwealth ex rel. Bell v. Powell, 94 A. 746, 748
(Pa. 1915) (quoting Bladen v. Philadelphia, 60 Pa. 464, 466 (1869) (“It would not perhaps
be easy to lay down any general rule as to when the provisions of a statute are merely
directory, and when mandatory and imperative.”)). The Campaign’s reliance on this
Court’s recent decision in Pa. Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020) for
In Pa. Democratic Party, we held that the requirement in Section 3150.16(a) that
a mail-in voter place his or her ballot in the inner secrecy envelope was a mandatory
requirement and thus a voter’s failure to comply rendered the ballot void. Pa. Democratic
Party, 238 A.3d at 380. In concluding that the use of the secrecy envelope was a
mandatory, rather than a discretionary directive, we reviewed our prior decisions on the
including Shambach v. Bickhart, 845 A.2d 793 (Pa. 2004), In re Luzerne County Return
Board, Appeal of Elmer B. Weiskerger, 290 A.2d 108 (Pa. 1972), and In re Canvass of
Absentee Ballots of Nov. 4, 2003 Gen. Election, Appeal of John Pierce, 843 A.2d 1223
(Pa. 2004).
who was named on the ballot, in direct violation of the Election Code’s instruction that a
voter could only write in a person’s name if the name of said individual was “not already
printed on the ballot for that office.” Shambach, 845 A.2d at 795. In reaching that
conclusion, the Court observed that “[m]arking 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.” Id. at 799 (quoting Appeal of Gallagher, 41 A.2d 630, 632
(Pa 1945)).
In Weiskerger, this Court refused to invalidate a ballot based upon the “minor
irregularity” that it was completed in the wrong color of ink. The provision of the Election
Code in question provided that “‘[a]ny ballot that is marked in blue, black or blue-black ink
... shall be valid and counted.” Weiskerger, 290 A.2d at 109 (citing 25 P.S. § 3063). In
providing that ballots completed in the right color must be counted, we noted that the
General Assembly “neither stated nor implied that ballots completed in a different color
must not be counted.” Id. We thus treated the instruction to use blue, black or blue-black
Canvass of Absentee Ballots of Nov. 4, 2003 Gen. Election, Appeal of John Pierce, 843
A.2d 1223 (Pa. 2004), where 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. Appeal of Pierce, 843 A.2d at 1231. There, we recognized
that the in-person requirement served important purposes in the Election Code, including
“limit[ing] the number of third persons who unnecessarily come in contact with the ballot[,]
once the ballot has been marked by the actual voter in secret, no other person has the
opportunity to tamper with it.” Id. at 1232. We thus explained in Pa. Democratic Party
that “the clear thrust of Appeal of Pierce, … is that, even absent an express sanction,
where legislative intent is clear and supported by a weighty interest like fraud prevention,
deterrent or enforcement mechanism.” Pa. Democratic Party, 238 A.3d at 380 (citing
Pierce, in Pa. Democratic Party we determined that the decision in Appeal of Pierce
provided the appropriate guidance for the analysis of the secrecy envelope requirement.
We held that “[i]t is clear that the Legislature believed that an orderly canvass of mail-in
ballots required the completion of two discrete steps before critical identifying information
on the ballot could be revealed. The omission of a secrecy envelope defeats this
intention.” Pa. Democratic Party, 238 A.3d at 380. Unlike in Shambach and Weiskerger
which involved “minor irregularities,” the use of a secrecy envelope implicated a “weighty
interest,” namely secrecy in voting protected expressly by Article VII, Section 4 of our
state charter. Id. As such, we recognized the use of a secrecy envelope as a mandatory
requirement and that failures to comply with the requirement required that the ballot must
be disqualified.” Id.; see also id. at 378 (quoting JPay, Inc. v. Dep’t of Corr. & Governor’s
Office of Admin., 89 A.3d 756, 763 (Pa. Commw. 2014) (“While both mandatory and
directory provisions of the Legislature are meant to be followed, the difference between
action involved.”)).
To determine whether the Election Code’s directive that the voter handwrite their
names, address and the date of signing the voter declaration on the back of the outer
intent of the General Assembly was clear and whether the failure to handwrite the
fraud prevention or ballot secrecy that the General Assembly considered to be critical to
Beginning with the Campaign’s contention that ballots may not be counted if a
voter fails to handwrite their name and/or address under the full paragraph of the
declaration on the back of the outer envelope, we conclude that given the factual record
in this case and the mechanics of the pre-canvassing and canvassing procedures
including the incorporation of reliance on the SURE system, this “requirement” is, at best,
a “minor irregularity” and, at worst, entirely immaterial. More to the point, the direction to
the voter to provide a handwritten name and/or address is not only not mandatory, it is
not a directive expressed in the Election Code. Thus, these directions do not meet the
first prong of the test used in Pa. Democratic Party: the clear intent of the General
Assembly.
The Election Code does not require that the outer envelope declaration include a
handwritten name or address at all. Instead, Sections 3146.4 (absentee) and 3150.14(b)
(mail-in) provide only that the declaration must include “a statement of the elector's
primary or election.” 25 P.S. §§ 3146.4, 3150.14(b). Aside from this information (none
of which is relevant to the present issue), the General Assembly delegated to the
Secretary of the Commonwealth the obligation to prescribe the form of declaration and
envelope for absentee and mail-in ballots, presumably to allow the inclusion of information
that would be helpful for administrative or processing purposes. Id.2 As such, the
decision to include spaces in the declaration for handwritten names and addresses was
made solely by the Secretary of the Commonwealth, not the General Assembly. It would
be a stretch to divine that the General Assembly was advancing any weighty interest for
the inclusion of handwritten names and addresses in the declaration such that a voter’s
failure to include them should result in the ballot not being counted. Moreover, the
Campaign does not argue that the Secretary’s request for handwritten names and
addresses implicated any “weighty interests” that would compel a finding that the request
2 None of the parties have challenged whether these provisions constituted improper
delegations of legislative authority. Protz v. Workers’ Compensation Appeal Board (Derry
Area School District), 161 A.3d 827 (Pa. 2017).
3 Conversely, the Philadelphia Board and the DNC have both selectively relied upon
guidance provided by the Secretary to the county boards of election that indicated that a
voter’s failure to handwrite his/her name and address was not a ground to set the ballot
aside. Philadelphia Board’s Brief at 19; DNC’s Brief at 15. They have directed the Court
to the Guidance published on September 11, 2020, in which the Secretary advised that
“[i]f the Voter’s Declaration on the return envelope is signed and the county board is
satisfied that the declaration is sufficient, the mail-in or absentee ballot should be
approved for canvassing.” Guidance, 9/11/2020, at 3. As discussed infra at n.6, however,
on September 28, 2020 the Secretary issued arguably contrary guidance stating that “[a]
ballot‐return envelope with a declaration that is not filled out, dated, and signed is not
sufficient and must be set aside, declared void and may not be counted.” Guidance,
requirement into the directives in Section 3146.6(a) and 3150.16(a) that the voter “fill out”
the declaration. Campaign’s Brief at 30. Citing to dictionary definitions, the Campaign
contends that “fill out” means “to write or type information in spaces that are provided for
it.” Id. at 32. Because 8,349 voters did not “fill out” one or more spaces provided on the
outer envelope provided in the declaration (including the voter’s name and/or address),
the Campaign argues that those ballots were non-conforming and could not be counted.
Id. at 29. The directive to “fill out” does not give any legislative definition to the specific
information to be placed in the blank spaces. It is the weight of the information that must
be tested in the analysis. As stated, since the General Assembly did not choose the
information to be provided, its omission is merely a technical defect and does not
Further, as Judge Crumlish observed, the term “fill out” is ambiguous.4 Trial Court
Opinion, 11/13/2020, ¶ 4. As Judge Crumlish recognized, the term “fill out” is not a
defined term under the Election Code. Id. Moreover, and contrary to the Campaign’s
contention that no alternative understanding of the term “fill out” has been proffered, the
Campaign has failed to recognize, the voter’s name and address are already on the
back of the outer envelope on a pre-printed label affixed no more than one inch
9/28/20, at 9. Confusingly, she also incorporated by reference the September 11, 2020
Guidance. Both sets of Guidance are set forth on pages 8-10 supra.
4 Where an election statute is ambiguous, courts apply the interpretative principle that
that “election laws ... ordinarily will be construed liberally in favor of the right to vote.” Pa.
Democratic Party, 238 A.3d at 360–61.
requesting his or her name and address needed to be “filled out” only if the name and/or
information that was already on the back of the outer envelope.5 To add further confusion,
the declaration itself can be read to refer to the label: “I hereby declare that I am qualified
to vote from the below stated address” can be read to mean the address as already stated
on the label.
The text of the Election Code provides additional evidence of the directory nature
of the provisions at issue. With regard to individuals who are not able to sign their name
due to illness or physical disability, the General Assembly imposed a requirement that the
5 The DNC argues, with some persuasive force, that the Campaign’s requested
interpretation of Pennsylvania’s Election Code could lead to a violation of federal law by
asking the state to deny the right to vote for immaterial reasons. Nobody acting under
color of state law may deny anyone the right to vote “in any election because of an error
or omission on any record or paper relating to any application, registration, or other act
requisite to voting, if such error or omission is not material in determining whether such
individual is qualified under State law to vote in such election.” 52 U.S.C. §
10101(a)(2)(B).
Under this section, the so-called “materiality provision” of the Voting Rights Act, federal
courts have barred the enforcement of similar administrative requirements to disqualify
electors. See, e.g., Schwier v. Cox, 340 F.3d 1284 (11th Cir. 2003) (disclosure of voter’s
social security number is not “material” in determining whether a person is qualified to
vote under Georgia law for purposes of the Voting Rights Act); Washington Ass'n of
Churches v. Reed, 492 F.Supp.2d 1264 (W.D. Wash. 2006) (enjoining enforcement of
“matching” statute, requiring state to match potential voter's name to Social Security
Administration or Department of Licensing database, because failure to match applicant's
information was not material to determining qualification to vote); Martin v. Crittenden,
347 F.Supp.3d 1302 (N.D. Ga. 2018), reconsideration denied, 1:18-CV-4776-LMM, 2018
WL 9943564 (N.D. Ga. Nov. 15, 2018) (voter’s ability to correctly recite his or her year of
birth on absentee ballot envelope was not material to determining said voter's
qualifications).
how to impose such a requirement when it wishes to do so. In re Nov. 3, 2020 Gen.
Election, __ A.3d __, 2020 WL 6252803, at *14 (Pa. 2020) (stating that the General
precise form of declaration, crafted by the General Assembly, pertaining to voters with
Secretary.
Finally, the text of the Election Code further demonstrates the lack of any need for
handwritten names and addresses. Section 3146.8(g)(3), which relates to the canvassing
25 P.S. § 3146.8(g)(3). The county board of elections’ duty to keep a “Military Veterans
and Emergency Civilians Absentee Voters File," which is not relevant to the current
board’s duty to keep a "Registered Absentee and Mail-in Voters File." However, the
General Assembly recently eliminated this directive. See 2020, March 27, P.L. 41, No.
to maintain at its office “a file containing the duplicate absentee voter's temporary
registration cards of every registered elector to whom an absentee ballot has been sent”).
By virtue of this amendment, the General Assembly eliminated one of the reference points
that still appear in Section 3146.8(g)(3). The current Section 3146.2c(c) directs the
county board to maintain the “the absentee voters' list” referenced in Section 3146.8(g)(3).
The General Assembly also amended Section 3146.2c(c), which previously only directed
the chief clerk to “prepare a list for each election district showing the names and post
office addresses of all voting residents thereof to whom official absentee ballots shall have
been issued,” to include such voting residents who were issued mail-in ballots. See 2019,
Oct. 31, P.L. 552, No. 77, § 5.1, imd. effective (inserting “or mail-in” twice in subsection
(c)).
As such, as relevant for our purposes, Section 3146.8(g)(3) directs that “the board
shall examine the declaration on the envelope of each ballot not set aside under
subsection (d) [a voter who dies before the election] and shall compare the information
thereon with that contained in the … the absentee voters’ list,” which, pursuant to Section
3146.2c(c), now also contains voters who received mail-in ballots. A close reading of the
language chosen by the General Assembly here is telling. Section 3146.8(g)(3) directs
the board to “examine the declaration on the envelope” and “compare the information
thereon” to the absentee (and mail-in) voters’ list. 25 P.S. § 3146.8(g)(3) (emphasis
added). Reading these phrases together, it is clear that the General Assembly intended
that the information to be compared to the absentee (and mail-in) voters’ list is the
information on the outer envelope which includes the pre-printed name and address. If
the absentee voters’ list, it would have used the term “therein,” thus directing the board
to compare the information contained “within” the declaration (the handwritten name and
address).
The following sentence in this section further suggests that the General Assembly
25 P.S. § 3146.8(g)(3). Here, the board is directed to consider whether the declaration
is sufficient (i.e., the examination contained in the previous sentence) and also ensure
that the absentee voters' list confirms the voter’s right to vote (i.e., the comparison of the
Both the Campaign and Ziccarelli argue that the requirement to state the date on
directory, rather than a mandatory, instruction, and thus the inadvertent failure to comply
does not require that ballots lacking a date be excluded from counting. As reviewed
hereinabove, in our recent decision in Pa. Democratic Party, we reiterated that the
distinction between directory and mandatory instructions applies with respect to a voter’s
obligations under the Election Code, and that only failures to comply with mandatory
process, like ballot confidentiality or fraud prevention, will require disqualification. Pa.
The Commonwealth Court and Ziccarelli relied upon the Election Code’s use of
the of “shall … date” language in construing the date obligation as mandatory. In Re:
2,349 Ballots in the 2020 General Election, Appeal of: Nicole Ziccarelli, __ A.3d __, 1162
C.D. 2020, 10 (Pa. Comm. 2020). Although unlike the handwritten name and address,
which are not mentioned in the statute, the inclusion of the word “date” in the statute does
not change the analysis because the word “shall” is not determinative as to whether the
obligation carries “weighty interests.” The date that the declaration is signed is irrelevant
to a board of elections’ comparison of the voter declaration to the applicable voter list,
and a board can reasonably determine that a voter’s declaration is sufficient even without
the date of signature. Every one of the 8,329 ballots challenged in Philadelphia County,
as well as all of the 2,349 ballots at issue in Allegheny County, were received by the
boards of elections by 8:00 p.m. on Election Day, so there is no danger that any of these
ballots was untimely or fraudulently back-dated. Moreover, in all cases, the receipt date
of the ballots is verifiable, as upon receipt of the ballot, the county board stamps the date
of receipt on the ballot-return and records the date the ballot is received in the SURE
system. The date stamp and the SURE system provide a clear and objective indicator of
Ziccarelli offers two alternative “weighty interests” for our consideration. She first
contends that the date on which the declaration was signed may reflect whether the
3150.12b (entitled “Approval of application for mail-in ballot”), a board of elections may
have determined that the person was a qualified elector and thus entitled to receive a
mail-in ballot. Pursuant to Section 2811, however, to be a qualified elector, “[h]e or she
shall have resided in the election district where he or she shall offer to vote at least thirty
days immediately preceding the election, except that if qualified to vote in an election
the election district from which he or she removed his or her residence within thirty days
preceding the election.” 25 P.S. § 2811. As a result, Ziccarelli contends that the person
may have been qualified to vote in a particular voting district at the time of applying for a
mail-in ballot, but no longer a qualified elector in that voting district on Election Day.
date on the document for assuring the integrity of Pennsylvania’s system for administering
mail-in voting. Among other things, the canvassing statute, 25 P.S. § 3146.8(g)(3), directs
the board to examine the declaration on the envelope of each ballot and compare the
information thereon with that contained in the now defunct "Registered Absentee and
Mail-in Voters File." See discussion supra pp. 27-29. The date of signing the declaration
will not be of any benefit in performing this task, as the name of the voter at issue will be
on this list (as a result of his or her approval to receive a mail-in ballot), and the date of
signing will provide no information with respect to whether or not he or she has left the
voting district in the interim. Most critically, our current statutory framework includes no
requirement that a county board of elections investigate whether an individual who had
remains as a qualified elector on Election Day. If the General Assembly had so intended,
it would certainly have expressly stated it, as opposed to nebulously tucking such an
unprecedented requirement into the instructions to the Secretary for designing the
declaration.
Second, Ziccarelli argues that the date of signature of the declaration will serve to
prevent double voting, as “whether an elector has already voted in the election for which
the ballot is issued, by its very nature, depends on the date on which the declaration was
signed.” Ziccarelli’s Brief at 16. Boards of elections do not use signatures or any
handwritten information to prevent double voting. Duplicate voting is detected by the use
of bar codes through the SURE system, and the board identifies the earlier cast vote by
referencing the date it received the ballot, not the date on which the declaration was
signed.
Ziccarelli and the Commonwealth Court insist that this Court “has already held that
mail-in ballots with undated declarations are not ‘sufficient’ and, thus, must be set aside.”
Ziccarelli’s Brief at 9; In Re: 2,349 Ballots in the 2020 General Election, 1162 C.D. 2020,
at 10. In support of this contention, they reference an observation in our recent decision
in In re November 3, 2020 General Election, __ A.3d __, 2020 WL 6252803 (Pa. 2020),
that when assessing the sufficiency of a voter’s declaration, “the county board is required
to ascertain whether the return envelope has been filled out, dated, and signed – and if it
fails to do so then the ballot cannot be designated as “sufficient” and must be set aside.6
6 In her brief, Ziccarelli cites to the Guidance distributed by the Secretary of the
Commonwealth on September 28, 2020 to the county boards of elections, advising that
Election was in reference to the limitations on what an election board is directed by the
statute to do when assessing the sufficiency of a voter’s declaration for the express
purpose of indicating what they were not to do, i.e., signature comparisons. The question
in In Re: Nov. 3, 2020 General Election was a narrow one. We did not address (as it was
not at issue) whether a county board of elections could find a declaration as sufficient
even though it was undated. That question requires an entirely different analysis that
“[a] ballot‐return envelope with a declaration that is not filled out, dated, and signed is not
sufficient and must be set aside, declared void and may not be counted.” As noted in
footnote 3 supra, however, the Secretary also issued Guidance on September 11, 2020,
which was cited with approval by the Philadelphia Board and the DNC. No party
referenced both sets of Guidance, however, even though the September 28 Guidance
incorporated the September 11 Guidance. See Guidance, 9/28/2020, at 9 (“For more
information about the examination of return envelopes, please refer to the Department’s
September 11, 2020 Guidance Concerning Examination of Absentee and Mail‐in Ballot
Return Envelopes.”).
In any event, we will not consider this Guidance in making our decision. Neither of the
parties explain how the potentially contradictory directives are to be understood. More
importantly, the Secretary has no authority to definitively interpret the provisions of the
Election Code, as that is the function, ultimately, of this Court. The Secretary also clearly
has no authority to declare ballots null and void. “[I]t is the Election Code's express terms
that control, not the written guidance provided by the Department and as this Court
repeatedly has cautioned, even erroneous guidance from the Department or county
boards of elections cannot nullify the express provisions of the Election Code.” In re
Scroggin, 237 A.3d 1006, 1021 (Pa. 2020). Moreover, the Secretary has no authority to
order the sixty-seven county boards of election to take any particular actions with respect
to the receipt of ballots. 25 P.S. § 2621(f.2).
Finally, with respect to the September 28 Guidance indicating that undated ballots must
be set aside, we note that in addition to the Philadelphia and Allegheny County Boards,
at least two other boards of elections also did not follow it. Donald J. Trump for President
Inc. v. Bucks Cnty. Bd. of Elections, No. 2020-05786 (Bucks Cty. Ct. Com. Pl.); Donald
J. Trump for President, Inc., et al. v. Montgomery Cnty. Bd. of Elections, No. 2020-18680
(Nov. 13, 2020). Both the Bucks County and Montgomery County Courts of Common
Pleas affirmed the counting of the ballots even though the declarations had not been filled
out in full. Each of the courts of common pleas appropriately applied this Court’s
precedent in doing so.
requirement. We have conducted that analysis here and we hold that a signed but
undated declaration is sufficient and does not implicate any weighty interest. Hence, the
IV. CONCLUSION
strictly adhere to the requirements of a directory statute will not nullify the validity of the
action involved.” Pa. Democratic Party, 238 A.3d at 378. Here we conclude that while
failures to include a handwritten name, address or date in the voter declaration on the
back of the outer envelope, while constituting technical violations of the Election Code,
only be stricken for compelling reasons.” Shambach, 845 A.2d at 799; see also Appeal
of Gallagher, 41 A.2d 630, 632 (Pa. 1945) (“[T]he power to throw out a ballot for minor
irregularities ... must be exercised very sparingly and with the idea in mind that either an
individual voter or a group of voters are not to be disfranchised at an election except for
The decision of the Philadelphia Court of Common Pleas is hereby affirmed. The
decision of the Commonwealth Court is hereby reversed and the decision of the
Justice Wecht concurs in the result and files a concurring and dissenting opinion.
Justice Dougherty files a concurring and dissenting opinion in which Chief Justice
OPINION
Specifically, Appellee Donald J. Trump, Inc. (the “Campaign”) orally moved for the
Philadelphia County Court of Common Pleas to give its representative more proximate
access to the canvassing activities being carried out by Appellant, the Philadelphia
County Board of Elections (the “Board”). The trial court denied relief, the Commonwealth
Court reversed, and the Board now appeals that order. For the following reasons, we
vacate the order of the Commonwealth Court, and reinstate the trial court’s order denying
I. Background
This dispute concerns the Board’s pre-canvassing and canvassing of mail-in and
advance of the election, it arranged the workspace of its employees at this facility in a
manner that it considered best suitable for the processing and maintenance of the security
of the estimated 350,000 absentee and mail-in ballots it anticipated receiving, while
ensuring that the social distancing protocols for COVID-19 promulgated by the federal
Centers for Disease Control were maintained and the voter’s privacy in his or her ballot
was protected, and providing a candidate or campaign representative with the ability to
observe the entirety of the pre-canvassing and canvassing process. N.T. Hearing,
11/3/20, at 10-11.1
Under the Board’s authority, a designated area of the Convention Center was
divided into discrete sections, each devoted to various aspects of the pre-canvassing and
canvassing process. Id. at 22. Each section contained three rows of fifteen folding tables
with each table separated by 5-6 feet. Id. at 24. In the first section, workers examined
the back of the ballot return envelopes and then, based on that examination, sorted the
envelopes into different trays. Id. at 27. In the next section, ballots in their secrecy
envelopes were first extracted from the ballot return envelope by machine, and then, while
encased in their secrecy envelopes, were sent on to another machine which sliced open
the secrecy envelope and removed the ballot from within. Id. at 28. During this phase,
ballots without secrecy envelopes – so-called “naked” ballots – were segregated and
1Except as otherwise noted, such citations are to the notes of testimony of the hearing
before the trial court.
2Ballots not placed into the provided secrecy envelopes are invalid. Pennsylvania
Democratic Party v. Boockvar, 238 A.3d 345, 380 (Pa. 2020).
[J-116-2020] - 2
Pursuant to the Election Code, designated observers for campaigns or candidates
were permitted to physically enter the Convention Center hall and observe the entirety of
this process; however, the Board erected a waist-high security fence to separate the
observers from the above-described workspace of Board employees. The fence, behind
which observers could freely move, was separated from the first row of employees’ desks
in each section by a distance of approximately 15-18 feet. Id. at 23. Board employees
used this “buffer” area between the security fence and their workspace to enter or leave
their work areas for their shifts, or to take scheduled breaks. Id. at 30-31.
canvassing process. Attorney Mercer entered the Convention Center at 7:00 a.m. and
remained there throughout the entire day. He testified that he was able to move freely
along the length of the security fence and observe the employees engaged in their pre-
canvassing and canvassing activities from various vantage points. Id. at 21. He related
that, while he could see the Board employees in the first section of the workspace
examining the back of the ballot return envelopes, from his position, he could not read the
actual declarations on the ballot envelopes. Id. at 27. Regarding the ballot extraction
activities in the next section, Attorney Mercer testified that he could see employees
removing the ballots contained in secrecy envelopes from the return envelopes, and that,
when “watching closely,” he could discern if any return envelopes contained naked
ballots. Id. at 30. However, he stated that he could not see whether there were any
3 The Election Code prohibits the security envelope from containing any “text, mark or
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).
[J-116-2020] - 3
At 7:45 a.m. on Election Day, the Campaign filed a suit in the Philadelphia Court
of Common Pleas challenging the location where observers such as Attorney Mercer
could watch the process. The Campaign subsequently withdrew that action, without
prejudice, but then refiled it at 9:45 p.m. that night. The trial court subsequently conducted
an evidentiary hearing that same night utilizing the “Zoom” videoconference tool, which
After hearing Attorney Mercer’s testimony and argument from the Campaign and
the Board, the trial court rejected the Campaign’s primary argument, raised orally during
the hearing, that Section 3146.8(b) of the Election Code – which allows designated
official absentee ballots and mail-in ballots are opened and when such ballots are counted
and recorded,” 25 P.S. § 3146.8(b) – requires that the observers have the opportunity to
“meaningfully . . . see the process.” N.T. Hearing, 11/3/20, at 49. In rejecting the
argument, the trial court noted that Section 3146.8 contained no language mandating
“meaningful observation”; rather, the court interpreted the section as requiring only that
the observer be allowed to be “present” at the opening, counting, and recording of the
The court observed that Attorney Mercer’s testimony that he could not see
individual markings on the secrecy envelopes, or determine whether the signature on all
the ballot envelopes was properly completed, did not establish a violation of Section
3416.8, inasmuch as that statute “provides for no further specific activities for the
watchers to observe, and no activities for the watchers to do other than simply ‘be
present’.” Id. at 4. The court opined that, under this section, “[w]atchers are not directed
that would require a watcher to see the writing or markings on the outside of either
[J-116-2020] - 4
envelope, including challenging the ballots or ballot signatures.” Id. Consequently, that
same day, the trial court denied the Campaign’s request that the Board modify the work
area to allow for closer observation of the ongoing ballot canvassing. The court indicated,
however, that it was not discouraging the Board from providing an additional corridor for
observers along the side of the tables to watch the proceedings, provided COVID-19
protocols and voter information secrecy protections were maintained.4 Trial Court Order,
11/3/20.
The Campaign immediately appealed to the Commonwealth Court, and the matter
was assigned to the Honorable Christine Fizzano Cannon.5 Judge Fizzano Cannon held
a status conference on the night of November 4, 2020, and issued an order on the
morning of November 5, 2020, which reversed the trial court. She directed the trial court
P.S. § 2650 and/or 25 P.S. § 3146.8 and to be permitted to observe all aspects of the
In her opinion, filed later that day, Judge Fizzano Cannon focused her analysis on
what she considered to be the relevant governing provisions of the Election Code, Section
4 It should be noted that the pre-canvassing and canvassing activities were also broadcast
live on YouTube.
5 The Pennsylvania Democratic Party (“Intervenor”) was granted leave to intervene in
these proceedings by the Commonwealth Court.
[J-116-2020] - 5
25 P.S. § 3146.8(b) (emphasis added). Section 3146.8(g)(1.1) states, in relevant part:
the phrases “present,” and “to remain in the room,” with the Board arguing that these
terms require only that the observer be physically present in the room where the ballot
counting occurs; whereas the Campaign contended that these phrases required the
Because these provisions of the Election Code had as their purpose “maintaining
the integrity of the elective process in the Commonwealth,” the judge determined that the
of observational leeway to ascertain sufficient details of the canvassing process for the
view, in order for representatives to fulfill their reporting duty to their candidate, they are
required to “have the opportunity to observe the processes upon which they are to report,”
id., and so mere physical presence of the observers was insufficient to guarantee this
Judge Fizzano Cannon then found that, based on Attorney Mercer’s testimony
that, while he was physically present in the room where the pre-canvassing and
[J-116-2020] - 6
canvassing processes were occurring, the distance from which he was observing those
processes, as well as the physical barriers in the room, prevented him from observing the
ballots being processed, the ballot envelopes, the secrecy envelopes, and any markings
on the secrecy envelopes, depriving him of the ability to actually observe those processes
“in any meaningful way.” Id. at 8. Consequently, the judge concluded that the trial court
erred as a matter of law in determining that the Board had complied with the Election
Code. The Board filed an emergency petition for allowance of appeal with our Court on
While this petition was pending, that same day, the Campaign filed a one-page
“Complaint and Motion for Emergency Injunction” in the United States District Court for
the Eastern District of Pennsylvania alleging, inter alia, that, in the aftermath of the
Commonwealth Court’s order in the instant case, the Board was violating the Election
Code by “refusing to allow any representatives and poll watchers for President Trump
and the Republican Party” to observe the counting of the ballots, and that the “counting
continues with no Republicans present.” See Complaint and Motion for Emergency
Elections, No. 20-5533 (E.D. Pa. filed Nov. 5 2020) (hereinafter “Trump”) (attached as
That case was assigned to District Court Judge Paul S. Diamond, who held a
hearing on the request for an emergency injunction at 5:30 p.m. on November 5, 2020.
During the hearing, counsel for the Campaign stated that the Campaign had “a nonzero
number of people in the room.” N.T. Hearing in Trump, 11/5/20 at 10. Judge Diamond,
seeking clarification of the meaning of the term “nonzero”, asked counsel for the
Campaign directly: “as a member of the bar of this Court, are people representing the
[J-116-2020] - 7
Donald J. Trump for President [campaign], representing the plaintiff in that room?” Id. at
Because the District Court recognized that the petition for allowance of appeal filed
by the Board was pending before our Court, and that a decision from our Court on the
proper interpretation of the governing provisions of the Election Code would obviate the
need for it to rule on a question of state law, the District Court encouraged the parties to
reach an interim accommodation. Thus, the Board and the Campaign reached an
agreement, which was entered on the record in open court before Judge Diamond, under
which the crowd control barrier, which the Board had moved to within six feet of the first
row of tables in its employees’ work area as the result of the Commonwealth Court
decision, would remain in that position, and that all campaign observers would have equal
access to positions behind that barrier to watch the canvassing process. Id. at 38-40.
Judge Diamond deferred action on the merits of the underlying claims in the lawsuit, which
remains pending.
lawsuit, in the United States District Court of the Middle District of Pennsylvania, seeking
to enjoin Pennsylvania from certifying the results of the November 3, 2020 General
Election or, alternatively, to exclude from the certified results “the tabulation of absentee
and mail-in and ballots for which [its] watchers were prevented from observing during the
pre-canvass and canvass in the County Election Boards.” Complaint for Declaratory and
Injunctive Relief in Donald J. Trump, Inc., et.al. v. Boockvar, No. 20-CV-02078 (M.D. Pa.
filed Nov. 9, 2020) (Exhibit 1 to Board’s Brief), at 84. This matter was assigned to District
Court Judge Matthew Brann who promptly issued an order setting an expedited schedule
for the Campaign to file motions for injunctive relief, and for the Board to file a responsive
motion thereto as well as a motion to dismiss. Notably, however, on November 15, 2020,
[J-116-2020] - 8
the Campaign filed an amended complaint, removing all counts which were based on
canvassing access. See First Amended Complaint Verified Complaint for Declaratory
and Injunctive Relief in Donald J. Trump, Inc., et.al. v. Boockvar, No. 20-CV-02078 (M.D.
During the interim, on November 9, 2020, our Court granted the Board’s
also indicated that our grant order was not a stay of the Board’s canvassing process, which
II. Mootness
[J-116-2020] - 9
We begin by addressing whether the central legal issue in this matter – involving
Board of Newtown Township, 79 A.3d 510, 516 (Pa. 2013) (we will generally not address
matters where there is no actual case or controversy between the parties). Both parties
and Intervenor argue that this case is not moot because the Board continues to count
ballots, and the Campaign continues to want its representatives to have maximal access
We conclude that, because ballots are still being canvassed by the Board at the
time of this writing, the legal question before us is not moot.7 In this regard, we note that
the interim agreement between the parties entered in the federal litigation being overseen
by Judge Diamond did not purport to resolve this question, and, indeed, Judge Diamond
Pennsylvania law which could be definitively resolved only by our Court. We will,
The Board argues that the Election Code granted to it the express statutory
authority “[t]o make and issue such rules, regulations and instructions, not inconsistent
7 Even were the ballot counting process to conclude prior to our final disposition of this
matter, we regard this issue before us as one which is capable of repetition but likely to
evade review, and therefore subject to our review under this exception to the mootness
doctrine. See Reuther v. Delaware County Bureau of Elections, 205 A.3d 302, 306 n.6
(Pa. 2019) (“Given the abbreviated time frame applicable to elections and the amount of
time that it takes for litigation to reach this Court, this exception is particularly applicable
when the question presented relates to an election dispute.”).
[J-116-2020] - 10
with law, as they may deem necessary for the guidance of . . . elections officers and
electors.” Board Brief at 32 (quoting 25 P.S. § 2642(f)). Thus, it reasons that the access
rules it established for ballot processing in Philadelphia County – which were based on
its perceived need for protecting its workers’ safety from COVID-19 and physical assault
from those individuals who have contact with its workers; ensuring security of the ballots;
efficiently processing large numbers of ballots; protecting the privacy of voters; and
ensuring campaign access to the canvassing proceedings – are a valid exercise of its
authority. The Board maintains that these rules can be invalidated by a court only if they
In determining whether its access rules are consistent with the Election Code, the
Board contends that only two provisions of the Code are relevant: 25 P.S. §
election and one representative from each political party shall be permitted to remain in
the room in which the absentee ballots and mail-in ballots are pre-canvassed”), and
an election and one representative from each political party shall be permitted to remain
in the room in which the absentee ballots and mail-in ballots are canvassed.”).
The Board rejects the relevance of Section 3146.8(b), given that it sets forth the
access requirements for “watchers”.8 The Board characterizes this provision as vestigial
[J-116-2020] - 11
in nature, reflecting the manner in which absentee ballots were handled prior to the 2006
and 2019 amendments to the Election Code which, respectively, added Section
received by a board of elections were taken to the electors’ local polling places to be
canvassed, and, thus, candidates’ designated poll watchers were permitted by Section
3146.8(b) to remain in the room at the polling place while the absentee ballots were
canvassed. According to the Board, Sections 3146.8(g)(1.1) and (2) established that all
mail-in and absentee ballots would be pre-canvassed and canvassed at a central location
designated by the board of elections; hence, poll watchers are not granted access to
these proceedings. Consequently, in the Board’s view, the rights of the Campaign’s
accordance with the plain meaning of their terms, i.e., requiring only that a candidate’s
authorized representative be permitted to remain in the room while the ballots are pre-
canvassed or canvassed. The Board notes that the Campaign’s representative was, in
fact, permitted to be in the room at the Convention Center where the ballots were being
pre-canvassed and canvassed at all times during this process, just as these provisions
require. Relatedly, the Board contends that, even if Section 3146.8(b) of the Election
Code were deemed to be applicable herein, its requirements were met as well, given that
the Campaign’s representative was present at all times when absentee and mail-in ballots
[J-116-2020] - 12
Moreover, the Board emphasizes that, contrary to the Commonwealth Court’s
conclusion, the evidence of record indicated that Attorney Mercer could see every portion
of the pre-canvassing and canvassing process and, as a result, could confirm that the
only ballots which were scanned and tabulated were those which had been removed from
secrecy envelopes, and that the outer ballot envelope had been inspected for sufficiency
The Board points out that Attorney Mercer’s complaints about being unable to read
the actual declarations on the ballot envelopes, or his inability to see whether the secrecy
envelopes contained improper markings, were relevant only to his desire to determine if
the ballots met the requirements of the Election Code. However, the Board stresses that
our Court very recently, in In re: November 3, 2020 General Election, ___ A.3d.____,
2020 WL 6252803 (Pa. Oct. 23, 2020), interpreted the Election Code as precluding time-
a candidate’s representative has no need for the information about which Attorney Mercer
complains, as the representative cannot lodge a challenge based on it. Most importantly,
however, from the Board’s perspective, there is nothing in the statutory language of
right of access to that kind of information during the pre-canvassing and canvassing
process.9
The Campaign responds that “the plain meaning and purpose of the statutes at
issue is to provide the public the opportunity to observe and vet the canvassing and
9 Intervenor’s brief endorses the Board’s contention that the Commonwealth Court erred
in its interpretation of the relevant provisions of the Election Code, but it does not develop
a separate argument to support this claim.
[J-116-2020] - 13
tabulation of the vote.” Campaign Brief at 17. The Campaign reasons that, as the
Election Code gives a candidate’s representative the right to be “present” and to “remain
in the room” during the canvassing of absentee and mail-in ballots, citing 25 P.S. § 2650
authorized, and to participate in any proceeding before any county board whenever any
matters which may affect his candidacy are being heard, including any computation and
voting machines affecting his candidacy.” (emphasis added)); id. § 3146.8(b) (allowing
watchers to “be present when the envelopes containing official absentee ballots and mail-
in ballots are opened and when such ballots are counted and recorded” (emphasis
in an election and one representative from each political party shall be permitted to remain
in the room in which the absentee ballots and mail-in ballots are canvassed” (emphasis
added)), these terms should be broadly interpreted consistent with their overall purpose
of allowing public observation of the vote and the counting thereof. The Campaign rejects
The Campaign argues that, under the Board’s interpretation, merely being in the
far end of a room like the Convention Center, which is as large as a football field, would
be sufficient to comport with these requirements. This, in the Campaign’s view, “defies
logic and reasonableness.” Id. at 20. The Campaign contends that the Board’s setup –
imposing a barrier and having some tables in the area over a hundred feet away from the
edge of the security fence – effectively deprived its representative of the ability to be truly
[J-116-2020] - 14
present, and effectively eliminates the representative’s ability to perform his or her role of
The Campaign denies that it was seeking the right to challenge mail-in or absentee
ballots at the time of canvassing; rather, it claims that it was merely seeking the right to
observe “in a meaningful way” the Board’s conduct of the electoral process so that it could
omitted). The Campaign asserts its ability to do so is vital given that these canvassing
B. Analysis
law, our standard of review is de novo, and our scope of review is plenary. Danganan v.
Guardian Protection Services, 645 Pa. 181, 179 A.3d 9, 15 (2018). Our objective is,
therefore, to ascertain and effectuate the intent of the General Assembly. Id.; see also
1 Pa.C.S. § 1921(a). It is well established that “[t]he best indication of legislative intent is
the plain language of the statute.” Crown Castle NG East v. Pennsylvania Public Utility
Commission, 234 A.3d 665, 674 (Pa. 2020). In ascertaining the plain meaning of statutory
language, we consider it in context and give words and phrases their “common and
approved usage.” Commonwealth by Shapiro v. Golden Gate National Senior Care, 194
A.3d 1010, 1027-28 (Pa. 2017). When the words of a statute are free and clear of all
ambiguity, they are the best indicator of legislative intent; hence, in such circumstances,
“we cannot disregard the letter of the statute under the pretext of pursuing its spirit.”
Fletcher v. Pennsylvania Property & Casualty Insurance Guarantee Association, 603 Pa.
452, 985 A.2d 678, 684 (2009) (citing 1 Pa.C.S. § 1921(b)). Consistent with these
[J-116-2020] - 15
principles, when interpreting a statute “we must listen attentively to what the statute says,
but also to what it does not say.” Discovery Charter School v. School District of
Philadelphia, 166 A.3d 304, 321 (Pa. 2017). Moreover, regarding the factual findings of
the trial court, we must defer to those findings if they are supported by the evidence.
Gentex Corp. v. WCAB (Morack), 23 A.3d 528, 534 (Pa. 2011); Generette v. Donegal
As a threshold matter, given the specific issue in this case — the degree of access
required by the Election Code for an “authorized representative” of a candidate to the pre-
3146.8(g)(1.1) and (2) of the Code to be the governing statutory provisions, as they
directly set forth the rights of such individuals. Section 2650, offered by the Campaign,
by its plain terms is inapplicable, as we are addressing the right of access of a campaign’s
Section 3146.8(b) is likewise not controlling, given that it applies only to the right of
“watchers” to be present while ballots are canvassed. The Election Code contains
that Attorney Mercer met these requirements, and, critically, he did not identify himself as
a watcher, but rather as “one of the representatives designated by the Trump campaign .
representative “be permitted to remain in the room in which the absentee ballots and mail-
[J-116-2020] - 16
3146.8(g)(2) likewise mandates merely that an authorized representative “be permitted
to remain in the room in which the absentee ballots and mail-in ballots are canvassed.”
opportunity to broadly observe the mechanics of the canvassing process, we note that
these provisions do not set a minimum distance between authorized representatives and
canvassing activities occurring while they “remain in the room.” The General Assembly,
had it so desired, could have easily established such parameters; however, it did not. It
would be improper for this Court to judicially rewrite the statute by imposing distance
requirements where the legislature has, in the exercise of its policy judgment, seen fit not
to do so. See Sivick v. State Ethics Commission, ___ A.3d ___. 2020 WL 5823822, at
*10 (Pa. filed Oct. 1, 2020) (“It is axiomatic that we may not add statutory language where
deliberate choice to leave such matters to the informed discretion of county boards of
elections, who are empowered by Section 2642(f) of the Election Code “[t]o make and
issue such rules, regulations and instructions, not inconsistent with law, as they may
In the case at bar, the Board promulgated regulations governing the locations in
which authorized representatives were permitted to stand and move about while
observing the pre-canvassing and canvassing process. The Board’s averments that it
fashioned these rules based on its careful consideration of how it could best protect the
security and privacy of voters’ ballots, as well as safeguard its employees and others who
would be present during a pandemic for the pre-canvassing and canvassing process,
[J-116-2020] - 17
while, at the same time, ensuring that the ballots would be counted in the most expeditious
manner possible, were undisputed by the Campaign. We discern no basis for the
Commonwealth Court to have invalidated these rules and impose arbitrary distance
requirements.
process, the evidence of record, provided through the Campaign’s own witness, Attorney
Mercer, whom the trial court deemed to be credible, indicates that the Board’s rules
regarding where campaign representatives could remain in the room to view the pre-
canvassing and canvassing process did not deprive Attorney Mercer of the ability “to
actually observe the . . . process in any meaningful way,” as the Commonwealth Court
argues. According to Attorney Mercer’s candid testimony, which the trial court accepted
as credible, from his vantage point, he could view the entirety of the pre-canvassing and
canvassing process. Clearly, then, Attorney Mercer had the opportunity to observe the
employees inspecting the back of ballot envelopes containing the voter’s declaration,
before sending them on for processing; witnessed ballots being removed from their
secrecy envelopes, and naked ballots which had been delivered to the Board without a
secrecy envelope being segregated from ballots which arrived within such envelopes;
saw that the ballot processing methods utilized by the Board were not destroying the
ballot envelopes containing the voter’s declaration; and perceived that the ballot secrecy
envelopes were being preserved during their processing. See N.T. Hearing, 11/3/20, at
20-21, 27, 30, 38; Trial Court Order, 11/3/20 (“The [Campaign’s] witness provided copious
[J-116-2020] - 18
testimony as to his ability to observe the opening and sorting of ballots.”). Although
Attorney Mercer related that he could not view the actual declarations on the ballot
envelopes, nor examine individual secrecy envelopes for improper markings, as the trial
court properly determined, this information would only be necessary if he were making
challenges to individual ballots during the pre-canvassing and canvassing process, which
appeared to be his primary motivation in seeking such information. See id. at 37-38; Trial
Court Order, 11/3/20 (“His concerns pertained to his inability to observe the writing on the
outside of the ballots. Given that observers are directed only to observe and not to audit
ballots, we conclude, based on the witness’s testimony, that the Board of Elections has
complied with the observation requirements under 25 P.S. [§] 3146.8.”). As discussed
above, such challenges are not permissible under the Election Code. Thus, as found by
the trial court, Attorney Mercer was able to appropriately observe that the Board’s
In sum, we conclude the Board did not act contrary to law in fashioning its
canvassing and canvassing process, as the Election Code does not specify minimum
distance parameters for the location of such representatives. Critically, we find the
Board’s regulations as applied herein were reasonable in that they allowed candidate
representatives to observe the Board conducting its activities as prescribed under the
erroneous. Thus, we vacate that order, and reinstate the trial court’s order.
Jurisdiction relinquished.
[J-116-2020] - 19
Chief Justice Saylor files a dissenting opinion in which Justice Mundy joins.
[J-116-2020] - 20
APPENDIX C
[J-113-2020]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
OPINION
On October 14, 2020, our Court granted the application of the Secretary of the
consider her request for declaratory relief, limited to answering the following question:
“Whether the Election Code[2] authorizes or requires county election boards to reject voted
1 As we have recently explained, our Court’s King’s Bench jurisdiction is derived from
Article V, § 2 of the Pennsylvania Constitution and 42 Pa.C.S. § 502, and “is generally
invoked to review an issue of public importance that requires timely intervention by the
court of last resort to avoid the deleterious effects arising from delays incident to the
ordinary process of law.” Friends of Danny DeVito v. Wolf, 227 A.3d 872, 884 (Pa. 2020).
We may exercise this power of review even where, as here, no dispute is pending in a
lower court of this Commonwealth. Id.
2 The Pennsylvania Election Code, 25 P.S. §§ 2600-3591 (“Election Code” or “Code”).
3 As defined by the Election Code, the process of “pre-canvassing” is “the inspection and
opening of all envelopes containing official absentee ballots or mail-in ballots, the removal
of such ballots from the envelopes and the counting, computing and tallying of the votes
reflected on the ballots. The term does not include the recording or publishing of the votes
reflected on the ballots.” 25 P.S. § 2602. The process of “canvassing” is “the gathering
analysis where there are alleged or perceived signature variances?” In Re: November 3,
Pennsylvania, 149 MM 2020, 2020 WL 6110774 (Pa. filed Oct. 14, 2020) (order). For the
reasons that follow, we conclude that the Election Code does not authorize or require
county election boards to reject absentee or mail-in ballots during the canvassing process
ballot return envelope for the absentee or mail-in ballot. We, therefore, grant the
Secretary’s petition for declarative relief, and direct the county boards of elections not to
reject absentee or mail-in ballots for counting, computing, and tallying based on signature
As our Court has recently observed, “[i]n October 2019, the General Assembly of
the Commonwealth of Pennsylvania enacted Act 77 of 2019,[5] 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
of ballots after the final pre-canvass meeting and the counting, computing and tallying of
the votes reflected on the ballots.” Id. § 2602. At times herein, we refer to these two
stages broadly as “canvassing.”
4 The voter’s declaration is a pre-printed statement required to appear on the ballot return
envelope containing a voter’s absentee or mail-in ballot declaring: that the voter is
qualified to vote the ballot enclosed in the envelope, and that the voter did not already
vote in the election for which the ballot was issued. 25 P.S. § 3146.2. The declaration
also contains lines for the voter to print his or her name and address, a space for the voter
to sign his or her name or make a mark if unable to sign, and a space for the voter to
enter the date on which he or she executed the declaration. Id. § 3146.6.
5 Act of October 31, 2019, P.L. 552, No. 77 (hereinafter, “Act 77”).
[J-113-2020] - 2
Election Day.” Pennsylvania Democratic Party v. Boockvar, 2020 WL 5554644, at *1 (Pa.
Sept. 17, 2020). Subsequently, in March 2020, the legislature made further revisions to
the Election Code via the passage of Act 12 of 2020,6 which, among other things,
authorized for the June 2, 2020 primary election,7 and for all subsequent elections, the
Because of the substantial nature of the recent Code amendments, as well as the
anticipated massive increase in the number of mail-in and absentee ballots which county
boards of elections would be confronted with due to the COVID-19 pandemic, in order to
ensure that the procedures set forth in the Election Code regarding pre-canvassing and
canvassing of absentee and mail-in ballots would be uniformly applied and implemented
In the first guidance document issued on September 11, 2020 to all county boards,
Secretary Boockvar set forth the procedure the boards were to follow upon receipt of an
absentee or mail-in ballot. This guidance directed the county boards to examine the
declaration contained on the ballot return envelope containing the absentee or mail-in
ballot. It further directed the county board to “compare the information on the outer
envelope, i.e., the voter’s name and address, with the information contained in the
‘Registered Absentee and Mail-In Voters File, the absentee voter’s list and/or the Military
6 Act of March 27, 2020, P.L. 41, No. 12 (hereinafter, “Act 12”).
7 This election was rescheduled from May 17, 2020 due to the COVID-19 pandemic.
8 We collectively refer to Act 77 and Act 12 as the “recent Code amendments.”
[J-113-2020] - 3
Envelopes, 9/11/20, at 3, available at
https://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/Examination
%20of%20Absentee%20and%20Mail-In%20Ballot%20Return%20Envelopes.pdf. The
Secretary advised that, if the declaration is signed and the county board is satisfied that
the declaration is sufficient, then the absentee or mail-in ballot should be approved for
canvassing unless it is challenged in accordance with the Election Code. The Secretary
specifically cautioned the county boards of elections in this regard that “[t]he Pennsylvania
Election Code does not authorize the county board of elections to set aside returned
absentee or mail-in ballots based solely on signature analysis by the county board of
elections.” Id.
supplemental guidance to all county boards concerning, inter alia, matters addressed by
our decision – i.e., the establishment by county boards of satellite offices, provision of
drop boxes for voters to return absentee and mail-in ballots, and the mandatory
requirements that such ballots be returned only by the voter and be enclosed in a secrecy
envelope. In this supplemental guidance, the Secretary also directed the county boards
to set aside ballots which were returned to them without the declaration envelope having
been “filled out, dated and signed.” Pennsylvania Department of State, Guidance
https://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/DOS%20Gui
dance%20Civilian%20Absentee%20and%20Mail-In%20Ballot%20Procedures.pdf. This
guidance buttressed her earlier instruction, reiterating that “[t]he Election Code does not
permit county election officials to reject applications or voted ballots based solely on
[J-113-2020] - 4
signature analysis. . . . No challenges may be made to mail‐in and absentee ballots at
Meanwhile, Intervenors in the instant matter, Donald J. Trump for President, Inc.,
and the Republican National Committee, filed suit in the United States District Court for
the Western District against the Secretary over several election issues.9 See Donald J.
Trump for President, Inc. v. Boockvar, No. 2:20-cv-966 (W.D. Pa.). In response to the
Secretary’s guidance to the county boards, on September 23, 2020, Intervenors filed an
Election Code as precluding county boards from rejecting absentee and mail-in ballots
On October 1, 2020, Intervenors filed a motion for summary judgment in the federal
action alleging, inter alia, that the Secretary’s guidance was contrary to the Election Code
and, thus, constituted an infringement on the “fundamental right to vote and to a free and
fair election.” Plaintiff’s Memorandum of Law in Support of Motion for Summary Judgment
filed in Donald J. Trump for President, Inc. v. Boockvar, No. 2:20-cv-966 (W.D. Pa.)
Intervenors sought, as relief, the entry of an injunction directing the Secretary to withdraw
her guidance, and, also, to require county boards of elections to compare signatures on
9This lawsuit challenged, as an alleged violation of the due process and equal protection
guarantees of the 14th Amendment to the United States Constitution, inter alia, the
Secretary’s allowance in the upcoming election of the use of drop boxes, satellite election
offices for the collection of absentee and mail-in ballots, and the counting of ballots which
were returned without a secrecy envelope, and the requirement in the Election Code that
poll watchers reside in the county in which they sought to serve in this capacity.
[J-113-2020] - 5
applications for absentee and mail-in ballots, and the ballots themselves, with the voter’s
judgment, and granted judgment in favor of the Secretary. Donald J. Trump for President,
Inc. v. Boockvar, 2020 WL 5997680 (W.D. Pa. filed Oct. 10, 2020) (hereinafter “Trump”).
Relevant to the present dispute, in his scholarly and comprehensive supporting opinion,
Judge Ranjan concluded that “the plain language of the Election Code imposes no
requirement for signature comparison for mail-in and absentee ballots and applications.”
Trump at *53. In reaching this conclusion, Judge Ranjan analyzed the provisions of the
Election Code governing pre-canvassing and canvassing of absentee and mail-in votes
* * *
(g)(1)(i) An absentee ballot cast by any absentee elector as
defined in section 1301(a), (b), (c), (d), (e), (f), (g) and (h) shall
be canvassed in accordance with this subsection if the ballot
is cast, submitted and received in accordance with the
provisions of 25 Pa.C.S. Ch. 35 (relating to uniform military
and overseas voters).
[J-113-2020] - 6
shall provide at least forty-eight hours' notice of a pre-canvass
meeting by publicly posting a notice of a pre-canvass meeting
on its publicly accessible Internet website. One authorized
representative of each candidate in an election and one
representative from each political party shall be permitted to
remain in the room in which the absentee ballots and mail-in
ballots are pre-canvassed. No person observing, attending or
participating in a pre-canvass meeting may disclose the
results of any portion of any pre-canvass meeting prior to the
close of the polls.
[J-113-2020] - 7
the declaration is sufficient and the information contained in
the “Registered Absentee and Mail-in Voters File,” the
absentee voters' list and/or the “Military Veterans and
Emergency Civilians Absentee Voters File” verifies his right to
vote, the county board shall provide a list of the names of
electors whose absentee ballots or mail-in ballots are to be
pre-canvassed or canvassed.
(4) All absentee ballots which have not been challenged under
section 1302.2(c) and all mail-in ballots which have not been
challenged under section 1302.2-D(a)(2) and that have been
verified under paragraph (3) shall be counted and included
with the returns of the applicable election district as follows:
(iii) The county board shall then break the seals of such
envelopes, remove the ballots and count, compute and
tally the votes.
(iv) Following the close of the polls, the county board shall
record and publish the votes reflected on the ballots.
[J-113-2020] - 8
proceed without delay to hear said challenges, and, in hearing
the testimony, the county board shall not be bound by the
Pennsylvania Rules of Evidence. The testimony presented
shall be stenographically recorded and made part of the
record of the hearing.
Judge Ranjan discerned nothing in the text of these provisions which requires
county boards of elections to “verify” the signatures on mail-in and absentee ballots – that
is, to examine the signatures to determine whether or not they were authentic, Trump at
*53, and thus rejected Intervenors’ argument that Section 3146.8(g)(3) requires county
view, the county board of elections is required under this statutory provision to verify only
the proof of the voter’s identification by examining the voter’s driver’s license number, the
last four digits of his or her social security number, or other specifically approved form of
[J-113-2020] - 9
identification which is required by Section 2602(z.5) of the Election Code.10 Indeed,
Judge Ranjan noted that nowhere in Section 3146.8(g)(3) does the term “signature”
[J-113-2020] - 10
Judge Ranjan found that, while 25 P.S. §§ 3146.6(a) and 3150.16(a) require a
voter submitting an absentee or mail-in ballot to “fill out and sign the declaration” printed
on the ballot return envelope, the county board’s duty under these sections is merely to
examine the declaration and determine if these requirements have been comported with.
Critically, in his view, this language did not require that a county board inquire into the
authenticity of the signature; rather, the county boards were required to determine only
Judge Ranjan observed that, by contrast, other provisions of the Election Code
such as those governing in-person voting, see 25 P.S. § 3050(a.3)(2), allow a vote to be
challenged where a voter’s signature on the voting certificate executed at the polls is
deemed not to be authentic when compared to the signature recorded in the district
register of voters. Likewise, other sections of the Election Code allow boards of elections
to reject provisional ballots based on an election official’s conclusion that the voter’s
signature on the ballot envelope is not authentic, see 25 P.S. § 3050(a.4)(5)(i)-(ii), and
allow election officials to reject nominating petitions based on the official’s conclusion that
[J-113-2020] - 11
the signatures contained therein are not authentic, see 25 P.S. § 2936. From Judge
Ranjan’s perspective, these provisions of the Code demonstrated that the Pennsylvania
General Assembly knew how to require signature verification when they so desired, and
the fact they did not do so in Section 3146.8(g)(3) indicated that signature verification was
require signature comparison. In his view, doing so would create a risk that voters would
be disenfranchised, given that mail-in and absentee ballots are kept securely stored until
election day when the pre-canvassing process begins, and the Election Code contains
no requirement that voters whose ballots are deemed inadequately verified be apprised
of this fact. Thus, unlike in-person voters, mail-in or absentee voters are not provided
In the instant matter, on October 4, 2020, just before Judge Ranjan issued his
decision, Secretary Boockvar filed with this Court an application seeking invocation of our
King’s Bench authority, and seeking, inter alia, a declaration that, under the Election
Code, county boards of elections are precluded from rejecting absentee or mail-in ballots
the county boards. Thereafter, the Secretary submitted a letter to our Court pursuant to
Pa.R.A.P. 2501 apprising us of Judge Ranjan’s decision. In this letter, the Secretary
[J-113-2020] - 12
noted that Judge Ranjan’s opinion concluded that her guidance to the county boards of
elections was “uniform and non-discriminatory” and “informs the counties of the current
that our Court is the final word on the interpretation of Pennsylvania law, the Secretary
maintained her request for our Court to grant King’s Bench review. Id. (“[T]he district
court’s opinion, while timely and persuasive, is not authoritative. Only this Court can
As indicated above, our Court granted the Secretary’s application for invocation of
our King’s Bench authority because we determined the Secretary presented an issue of
public importance that required our immediate intervention. See supra note 1. In our
order granting review, we also granted the petitions to intervene of Donald J. Trump for
denied the petitions for intervention of Elizabeth Radcliffe, a qualified elector, Bryan
Pennsylvania Senate President Pro Tempore, and Jake Corman, Senate Majority Leader.
However, these parties were granted leave to file amicus briefs.12 We additionally granted
leave for the Brennan Center for Justice, the Urban League of Pittsburgh, the Bucks,
12 After the filing deadline set in our order, Senate President Pro Tempore Scarnati and
Senate Majority Leader Corman filed an application for leave to file an amicus brief nunc
pro tunc, alleging that technical difficulties with our electronic filing system prevented
timely filing their amicus brief. We grant the application.
[J-113-2020] - 13
Chester, Montgomery and Philadelphia County Boards of Elections, and the
The Secretary first highlights the fact that, when a voter applies for a mail-in ballot,
Sections 3150.12(a) and (b)(1)-(2) of the Election Code require the voter to fill out an
application form listing his name, address, date of birth, voting district, and the length of
time he has resided in the voting district.13 According to the Secretary, the paper version
of that form also requires a voter to sign a declaration that he or she is eligible to vote in
the election for which he is requesting a ballot.14 Upon receipt of this application, a county
board of elections confirms whether the applicant is qualified to receive a mail-in ballot
under Section 3250.12b by verifying the proof of identification supplied with the
application, such as the voter’s drivers’ license number or the last four digits of the voter’s
social security number, and the county board compares that information with the voter’s
permanent registration card. The Secretary contends that this comparison process is all
that is required by the Election Code, and that there is no provision therein which requires
why, the Secretary points out, the application can be completed and submitted
Once this verification is completed, the Secretary proffers that the Code requires
the application be marked approved and a ballot issued. See 25 P.S. § 3150.12b(a)(1).
13 The Secretary argues that absentee ballot application and approval procedures set
forth in 25 P.S. §§ 3146.2 and 3146.2b are similar and, hence, for the sake of
convenience, discusses only the mail-in balloting provisions.
14 This form is available on the Secretary’s website at https://www.votespa.com/Register-
to-Vote/Documents/PADOS_MailInApplication.pdf.
[J-113-2020] - 14
The Secretary emphasizes that the only permissible challenge to the ballot application
under Section 3150.12b(a)(2) is that the applicant was not a qualified elector.
With regard to the pre-canvassing and canvassing procedures for absentee and
mail-in ballots set forth in Section 3146.8 of the Election Code,15 the Secretary notes that
the pre-canvassing process, which entails opening the ballot return envelopes, removing
the ballots, and counting, computing and tallying them, can begin no earlier than 7:00
a.m. on election day. When the return envelope is opened during that process, according
to the Secretary, the only examination which the county board may conduct under Section
15 Section 3146.8, by its title, “Canvassing of official absentee ballots and mail-in ballots,”
and its plain terms, governs both the pre-canvassing and canvassing of absentee and
mail-in ballots.
16 Section 3146.2c(c) provides:
Not less than five days preceding the election, the chief clerk
shall prepare a list for each election district showing the
names and post office addresses of all voting residents
thereof to whom official absentee or mail-in ballots shall have
been issued. Each such list shall be prepared in duplicate,
shall be headed “Persons in (give identity of election district)
to whom absentee or mail-in ballots have been issued for the
election of (date of election),” and shall be signed by him not
less than four days preceding the election. He shall post the
original of each such list in a conspicuous place in the office
of the county election board and see that it is kept so posted
until the close of the polls on election day. He shall cause the
duplicate of each such list to be delivered to the judge of
election in the election district in the same manner and at the
same time as are provided in this act for the delivery of other
election supplies, and it shall be the duty of such judge of
election to post such duplicate list in a conspicuous place
within the polling place of his district and see that it is kept so
posted throughout the time that the polls are open. Upon
written request, he shall furnish a copy of such list to any
candidate or party county chairman.
25 P.S. § 3146.2c(c).
[J-113-2020] - 15
voter’s name and address—with the names and addresses on the lists of approved
absentee and mail-in voters.” Secretary’s Application for Extraordinary Relief, 10/04/20,
at 19. The Secretary stresses that no other examination is permitted under the plain
If the county board’s examination determines that the declaration is sufficient, and
the voter’s name and address appears in the lists of approved absentee and mail-in
voters, then, according to the Secretary, the Code requires the ballots to be counted. 25
P.S. § 3146.8(g)(3) and (4). The Secretary asserts that the only exception involves
challenges to a voter’s eligibility raised at the ballot application stage under Section
3150.12b(a)(2).17 The Secretary contends that such challenges must be made by 5:00
p.m. on the Friday before election day and, thus, cannot be made during the pre-
The Secretary argues that there is no provision of the Election Code which allows
notes that the General Assembly knows how to draft provisions requiring signature
comparison, as it did for the in-person voting process governed by Section 3050(a.3)(2),
which directs election officials to compare the signature of the voter signing the voter
certificate at the polls with the district register, and then to make the determination of
whether the signature on the voter certificate is genuine. Moreover, unlike for in-person
17See also 25 P.S. § 3146.2b(b) and (c) (limiting challenges to approval of application for
absentee ballots to the ground that the applicant was not a “qualified absentee elector”
or a “qualified elector”).
[J-113-2020] - 16
voting, there is no provision in the Code which requires a voter to be notified that his
signature has been challenged during the canvassing process; hence, a voter whose
opportunity to respond to the challenge and have his ballot counted. In sum, the
improperly add a requirement to the Election Code which the legislature did not see fit to
include.
Although the Secretary views the Election Code in this regard to be clear and
unambiguous, she notes that, even if we were to find it to be ambiguous, we must still
guidelines contained within the Code governing how an election official should perform
such a comparison. In this vacuum, the Secretary asserts individual county boards will
improvise “ad hoc” procedures, which would vary from county to county, creating a
significant risk of error and uncertainty in the review of ballots. Secretary’s Application
for Extraordinary Relief, 10/04/20, at 24. In the Secretary’s view, this would constitute a
denial of equal protection to voters whose ballots were challenged and rejected under
such varying and imprecise standards. This process would also present an “unjustified
risk of disenfranchisement,” id. at 25, given that a voter’s ballot could be rejected without
Intervenors respond that the Election Code’s use of the term “shall” in Sections
3146.6(a) and 3150.16(a) with respect to the requirement that electors sign the
declaration on the outside of the ballot return envelope, together with the Code’s
companion requirement that county boards examine the declaration and determine if it is
[J-113-2020] - 17
“sufficient,” mandates that county boards conduct signature verification. Intervenors
with the signature mandate ‘renders the ballot invalid,’ that mandate necessarily
voter’s signature.” Id. Intervenors maintain that the “mandate” established by these
ballots based upon signature mismatch.” Id. Additionally, Intervenors maintain that,
“sufficient,” and establishes that a declaration will only be sufficient when signed by the
verification during the pre-canvass and canvass.” Id. Further, Intervenors insist that
Although contending that these provisions of the Election Code are clear,
Intervenors assert that principles of statutory construction also support their suggested
to prevent fraud, and that prior decisions from lower courts of the Commonwealth have
endorsed this practice to effectuate this purpose. See id. at 7-8 (citing Appeal of Orsatti,
598 A.2d 1341 (Pa. Cmwlth. 1991); In re Canvass of Absentee Ballots of Nov. 2, 1965,
Gen. Election, 39 Pa. D. & C.2d 429 (Montg. Cty. Common Pleas 1965); Fogleman
Appeal, 36 Pa. D. & C.2d 426 (Juniata Cty. Common Pleas 1964); In re City of Wilkes-
Barre Election Appeals, 44 Pa. D. & C.2d 535 (Luzerne Cty. Common Pleas 1967)).
Intervenors also suggest the fact that, when a ballot return envelope is scanned upon
[J-113-2020] - 18
receipt by a county board of elections, the voter’s registration card, which includes his or
of Electors”) system appears on the election official’s computer screen. Intervenors view
this fact as indicating that even the Secretary believes signature verification is required.
suggest that the Secretary’s interpretation implicates due process and equal protection
concerns, given that voters who vote in person are subject to signature verification,
whereas those who vote by mail-in or absentee ballots would not be. Intervenors contend
we should avoid an interpretation of the Code that results in such potential constitutional
violations.
verification raised by the Secretary, asserting that Chester County has already
promulgated and produced such a system.18 Intervenors further dispute that voters could
comparison requirement. They point to the notice, hearing, and judicial review provisions
in Section 3146.8(g)(5)-(7) for adjudicating ballot challenges, which they contend would
allow a voter whose signature has been challenged during canvassing to have the
III. Analysis
As the issue on which we accepted King’s Bench review is purely one of statutory
18 Notably, Chester County filed an amicus brief supporting the Secretary’s position.
[J-113-2020] - 19
matters of statutory interpretation, our objective is to ascertain and effectuate the intent
of the General Assembly. Id.; see also 1 Pa.C.S. § 1921(a). As we have so oft observed,
“[t]he best indication of legislative intent is the plain language of the statute.” Crown
Castle NG East v. Pennsylvania Public Utility Commission, 234 A.3d 665, 674 (Pa. 2020).
In ascertaining the plain meaning of statutory language, we consider it in context and give
words and phrases their “common and approved usage.” Commonwealth by Shapiro v.
Golden Gate National Senior Care, 194 A.3d 1010, 1027-28 (Pa. 2017). When the words
of a statute are free and clear of all ambiguity, they are the best indicator of legislative
intent; hence, in such circumstances, “we cannot disregard the letter of the statute under
the pretext of pursuing its spirit.” Fletcher v. Pennsylvania Property & Casualty Insurance
Guarantee Association, 985 A.2d 678, 684 (Pa. 2009) (citing 1 Pa.C.S. § 1921(b)).
the Election Code enumerates only three duties of the county boards of elections during
(1) to “examine the declaration on the envelope of each ballot not set
aside under subsection (d) [requiring rejection of ballots for
deceased voters] and shall compare the information thereon with
that contained in the ‘Registered Absentee and Mail-in Voters File,’
the absentee voters' list and/or the ‘Military Veterans and Emergency
Civilians Absentee Voters File,’ whichever is applicable”;
(2) to verify “the proof of identification as required under this act,” and
(3) to be “satisfied that the declaration is sufficient and the information
contained in the ‘Registered Absentee and Mail-in Voters File,’ the
absentee voters' list and/or the ‘Military Veterans and Emergency
Civilians Absentee Voters File’ verifies his right to vote.”
25 P.S. § 3146.8(g)(3).
has not been challenged under Section 3146.2b (providing for challenges to approval of
absentee ballot application on the ground that the applicant was not a “qualified absentee
[J-113-2020] - 20
elector,” or a “qualified elector”), or Section 3150.12b (providing that the exclusive means
for challenging a mail-in ballot application is “on the grounds that the applicant was not a
“verified” and directs that it “shall be counted and included with the returns of the
applicable election district.” 25 P.S. § 3146.8(g)(4)(a). The only exception is set forth in
Section 3146.8(g)(4)(ii), which requires that, “[i]f 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
To assess the signature analysis question before us, we review in turn each of the
three canvassing duties set forth above from Section 3146.8(g)(3). First, as noted, the
county boards must examine the declaration on the ballot return envelope and then
“compare the information thereon with that contained in the ‘Registered Absentee and
Mail-in Voters File,’ the absentee voters’ list and/or the ‘Military Veterans and Emergency
Initially, we note that, with respect to the “Registered Absentee and Mail-in Voters
File,” it seems this file, previously utilized, is now a virtually empty relic. Prior to the recent
Code amendments, subsection (a) of Section 3146.2c specified that this file was to
19 As the Secretary has argued, the plain text of these provisions requires challenges to
applications for mail-in ballot applications to be brought no later than 5:00 p.m. on the
Friday before the election. 25 P.S. § 3150.12b(a)(2). Likewise, challenges to absentee
ballot applications of registered voters, except for those permanently registered, must be
brought by that same deadline. Id. § 3146.2b(c). Finally, challenges which are brought
to a registered voter who is on the permanent registration list must be brought by the
deadline for receipt of absentee ballots. Id. § 3146.2b(b). Hence, none of these
challenges may be brought during the canvassing process.
[J-113-2020] - 21
contain duplicate “voter's temporary registration cards.”20 See id. § 3146.2c(a) (effective
to Oct. 30, 2019). Indeed, the provision provided that these registration cards “shall
constitute” the file, indicating the file had no other content. Id. Critically, however, with
the passage of Act 12, the legislature deleted subsection (a). Act 12, § 8 (deleting 25
P.S. § 3146.2c(a)). Thus, while the canvassing provisions of 25 P.S. § 3146.8(g)(3) still
require a voter’s declaration to be compared against the file, that comparison would
still being maintained, is that set forth in Sections 3146.2(h) and 3150.12(e), requiring a
voter’s absentee and mail-in ballot application number to be entered in the file. Manifestly,
there is no present requirement that the file contain the type of signature information
With respect to a comparison of the declaration against the absentee voters’ list
and the “Military Veterans and Emergency Civilians Absentee Voters File,” as highlighted
n.14, the only lists against which such a comparison may be conducted are those which
[J-113-2020] - 22
the county boards are required to keep under subsections (b) and (c) of Section 3146.2c.
(c) Not less than five days preceding the election, the chief
clerk shall prepare a list for each election district showing the
names and post office addresses of all voting residents
thereof to whom official absentee or mail-in ballots shall have
been issued. Each such list shall be prepared in duplicate,
shall be headed “Persons in (give identity of election district)
to whom absentee or mail-in ballots have been issued for the
election of (date of election),” and shall be signed by him not
less than four days preceding the election. He shall post the
original of each such list in a conspicuous place in the office
of the county election board and see that it is kept so posted
[J-113-2020] - 23
until the close of the polls on election day. He shall cause the
duplicate of each such list to be delivered to the judge of
election in the election district in the same manner and at the
same time as are provided in this act for the delivery of other
election supplies, and it shall be the duty of such judge of
election to post such duplicate list in a conspicuous place
within the polling place of his district and see that it is kept so
posted throughout the time that the polls are open. Upon
written request, he shall furnish a copy of such list to any
candidate or party county chairman.
25 P.S. § 3146.2c(b) and (c).
Notably, the only information required to be kept in these lists is, as the Secretary
highlights, the names and addresses of registered voters, and, in the case of voters
serving in the military, even their addresses need not be disclosed. Consequently, in
comparing a declaration against these lists, a county board may determine only whether
the name and address information the voter has listed on the ballot envelope matches.21
There is no signature information in these lists for county election officials to compare
against a voter’s signature on his declaration; therefore, pursuant to the plain language
of the Election Code, these lists cannot facilitate the signature comparison Intervenors
maintain is required.
Next, in canvassing the ballots under Section 3146.8(g)(3), the county boards must
verify “the proof of identification as required under this act.” As indicated above, see
supra note 9, Section 2602(z.5)(3)(i)-(iv) of the Election Code enumerates the various
Consequently, we conclude the county board’s duty in this regard is to check the
identification listed on the voter’s mail-in or absentee ballot to see if it is of the type
permitted by the Election Code, and to verify that it is valid. This duty does not, however,
require or authorize county boards to go further and compare the signature on the voter’s
21 This comparison process operates to eliminate ballots of voters who have provided a
different name entirely than that which appears on these lists.
[J-113-2020] - 24
mail-in or absentee ballot to ensure that it is the same as that which appears on the form
of identification the voter has listed on the application. Hence, this unambiguous provision
“sufficient.” 25 P.S. § 3146.8(g)(3). The requirements for a ballot declaration are set forth
in Section 3146.6(a) (absentee ballots) and Section 3150.16(a) (mail-in ballots). Both
sections require that the elector “fill out, date and sign the declaration.” Id. §§ 3146.6(a),
absentee ballot at canvassing, the county board is required to ascertain whether the
declaration on the return envelope has been filled out, dated, and signed. This is the
there is nothing in this language which allows or compels a county board to compare
plain and unambiguous language of the Election Code, as Intervenors urge us to do,
inasmuch as the General Assembly has chosen not to include such a requirement at
canvassing.
Even if there were any ambiguity with respect to these provisions, we observe that
the General Assembly has been explicit whenever it has desired to require election
officials to undertake an inquiry into the authenticity of a voter’s signature. See, e.g., 25
P.S. § 3050(a.3)(2) (governing procedures for in-person voting at polling places and
requiring an “election officer” to “compare the elector's signature on his voter's certificate
with his signature in the district register,” and based “upon such comparison . . . if the
signature on the voter's certificate, as compared with the signature as recorded in the
district register, shall not be deemed authentic by any of the election officers, such elector
shall not be denied the right to vote for that reason, but shall be considered challenged
[J-113-2020] - 25
as to identity,” and requiring the voter to execute an affidavit and provide proof of his
subclause (ii), if it is determined that [an individual who attempts to cast an in-person
ballot at a polling place, but whose name did not appear on the district register of eligible
voters] was registered and entitled to vote at the election district where the ballot was
cast, the county board of elections shall compare the signature on the provisional ballot
envelope with the signature on the elector’s registration form and, if the signatures are
determined to be genuine, shall count the ballot if the county board of elections confirms
that the individual did not cast any other ballot, including an absentee ballot, in the
In this regard, we note that, when the Election Code was first promulgated by the
canvassing certain absentee ballots. See Act of June 3, 1937, P.L. 1333, No. 320. Article
XIII of that law, a precursor of the current mail-in ballot procedures, provided certain
military service members the right to use mail-in ballots, referred to as “Detached Soldier’s
Ballots.” Similar to today’s mail-in ballots, the service member was required to complete
an affidavit on an outer envelope, along with the jurat of his witnessing officer, and then
place his completed ballot inside that outer envelope. Id. § 1329. In canvassing such
ballots, the county boards were instructed to “open such registered letter and after
examining the affidavit and jurat, [to] compare the signature of such absent voter with his
signature upon any register or other record in their possession. If the county board is
satisfied that the signatures correspond and that the affidavit and jurat are sufficient, they
shall announce the name of the elector and shall give any person present an opportunity
to challenge the same . . . .” Id. § 1330 (emphasis added). Absent any challenge, such
[J-113-2020] - 26
ballots were counted. Notably, in 1945, this signature comparison language was removed
We draw two inferences from this early history. First, the legislature understands
do so, as it did in 1937. Second, in the 1937 Code, the legislature drew a clear distinction
between assessing the sufficiency of the ballot affidavit (and jurat) and a comparison of
the ballot signature. The legislature having subsequently stripped out the signature
comparison language from the Code, we ought not to construe, as Intervenors suggest,
Our conclusion that Section 3146.8(g)(3) of the Election Code does not impose a
duty on county boards to compare signatures is also consistent with the recent evolution
of the Election Code, wherein the legislature expanded the allowances for voting by mail.
Notably, at the same time it liberalized voting by mail, the legislature first restricted, and
Prior to the recent Code amendments, absentee ballots were the only permissible
form of voting by mail. At that time, at canvassing, after a county board was satisfied that
the declaration on an absentee ballot was sufficient, the Code provided that the board
“shall announce the name of the elector and shall give any candidate representative or
22 Act of March 9, 1945, P.L. 29, No. 17, §§ 9-10. Thereafter, as set forth in the 1945
amendment, the county board was required to maintain a “Military File” containing the
names and addresses of service members sent absentee ballots, id. § 10 (reenacting
Section 1305 of Act of 1937), something akin to the “Military Veterans and Emergency
Civilians Absentee Voters File” in the present Election Code. Also, like the current Code,
at canvassing, the board was required to review only the ballot affidavit (and jurat) to
determine “[i]f the board is satisfied that the affidavit and jurat are sufficient and that the
elector has qualified.” Id. § 10 (reenacting Section 1307 of Act of 1937). Thus, signature
comparison was no longer part of the county board’s canvassing obligations.
[J-113-2020] - 27
specified grounds. See 25 P.S. § 3146.8(g)(3) (effective Nov. 9, 2006 to Mar. 13, 2012).23
There were three permissible grounds for challenge: that the absentee elector was not a
qualified elector; that the absentee elector, despite alleging otherwise, was present in his
municipality of residence on election day; or that the absentee elector, despite alleging
otherwise, was in fact able to appear at the polling place on election day. Id.
However, when the legislature first allowed for no-excuse mail-in voting in 2019,
the legislature simultaneously reduced the bases on which canvassing challenges could
remaining challenges to be asserted against mail-in ballots). See Act 77, § 7 (amending
challenges entirely from Section 3146.8(g)(3). See Act 12, § 11 (amending 25 P.S. §
3146.8(g)(3) to eliminate the challenging grounds and procedures, and amending Section
any absentee elector or mail-in elector in accordance with the provisions of paragraph
(3)”). Accordingly, the Election Code presently provides no mechanism for time-of-
(“All absentee ballots which have not been challenged under section 1302.2(c) [pertaining
to absentee ballot applications] and all mail-in ballots which have not been challenged
under section 1302.2-D(a)(2) [pertaining to mail-in ballot applications] and that have been
verified under paragraph (3) shall be counted and included with the returns of the
23A similar procedure was provided to allow poll watchers to challenge ballots. 25 P.S.
§ 3146.8(e) (effective Nov. 9, 2006 to Mar. 13, 2012). However, this procedure was
deleted in its entirety in 2019. See Act 77, § 7 (deleting 25 P.S. § 3146.8(e)).
[J-113-2020] - 28
applicable election district . . . .”). 24 Moreover, as is plain from the above account, at no
process for canvassing such ballots, perhaps to avoid undermining the expansion effort
by eliminating the prospect that voters – including a potentially large number of new mail-
in voters – would be brought before the board or the courts to answer third-party
challenges. Regardless, Intervenors would have us interpret the Election Code, which
now does not provide for time-of-canvassing ballot challenges, and which never allowed
supply omissions in the statute when it appears that the matter may have been
intentionally omitted.” Sivick v. State Ethics Commission, 2020 WL 5823822, at *10 (Pa.
Oct. 1, 2020). It is not our role under our tripartite system of governance to engage in
judicial legislation and to rewrite a statute in order to supply terms which are not present
IV. Conclusion
24 Admittedly, there are some vestiges remaining in the Election Code of the prior, now
eliminated, system for time-of-canvassing ballot challenges. See, e.g., 25 P.S. §
3146.8(f) (requiring a $10 deposit for each challenge to an absentee or mail-in ballot
application or ballot); id. § 1308(g)(5) (discussing procedures for handling “[b]allots
received whose applications have been challenged and ballots which have been
challenged” (emphasis added)). Now untethered to a procedure for asserting time-of-
canvassing challenges in Section 3146.8(g)(3), however, we view the references to
ballots in these provisions to be the overlooked remnants of a prior, now eliminated,
process.
25 For this reason, we reject Intervenors’ contention that the notice, hearing, and judicial
[J-113-2020] - 29
For all of the aforementioned reasons, we grant the Secretary’s petition for
declarative relief, and hold that county boards of elections are prohibited from rejecting
Chief Justice Saylor and Justices Baer, Donohue, Dougherty and Wecht join the
opinion.
[J-113-2020] - 30
APPENDIX D
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
MEMORANDUM OPINION BY
JUDGE COHN JUBELIRER FILED: November 25, 2020
Donald J. Trump for President, Inc. (Appellant) appeals from the Order of the
Court of Common Pleas of Bucks County (common pleas) that overruled the
Appellant’s objections to certain absentee and/or mail-in ballots, denied Appellant’s
requested relief, and dismissed Appellant’s appeal from the Bucks County Board of
Elections’ (Board) determination that the challenged ballots were valid and could be
counted in the General Election of November 3, 2020 (Election).1 Appellant argues
the Board violated the Election Code2 (Code) when it did not reject and, over
objection, accepted 2,177 ballots on the basis that they did not comply, in some way,
with Sections 3146.6 or 3150.16 of the Code, 25 P.S. §§ 3146.6 (absentee electors),
1
Others challenged the Board’s decision to common pleas, but only Appellant has filed a
notice of appeal from the common pleas’ Order.
2
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2601-3591.
3150.16 (mail-in electors). Appellant has since withdrawn some of the challenges,
and of the remaining challenges, all but 69 ballots are resolved by a recent decision
of the Supreme Court; common pleas’ Order with regard to those ballots is,
therefore, affirmed for that reason. The remaining 69 ballots were received with
secrecy envelopes that were “unsealed.” The statute unambiguously requires that
secrecy envelopes shall be “securely seal[ed],” 25 P.S. §§ 3146.6(a), 3150.16(a), and
that the board of elections shall “break the seals” on these envelopes before counting
the ballots. Section 3146.8(g)(4)(iii) of the Code, 25 P.S. § 3146.8(g)(iii).3
Therefore, in future elections, the sealing requirement should be treated as
mandatory and if unsealed secrecy envelopes are received, this will invalidate the
ballots contained therein. However, because of the facts and circumstances in this
case, this interpretation will be applied prospectively. Common pleas’ Order is,
therefore, affirmed with regard to those 69 ballots.
The parties filed a joint stipulation of facts with common pleas setting forth
the following facts relevant to the Court’s resolution of this appeal. On November
3, 2020, the Board met to pre-canvass absentee and mail-in ballots as set forth in
Section 3146.8(g) of the Code. (Stip. ¶ 17.) During the course of the Board’s
canvass meeting on November 7, 2020, and with Authorized Representatives present
and given an opportunity to provide argument, the Board considered whether certain
voter declarations on the outer envelope were “sufficient” to meet the requirements
of Section 3146.8(g). (Id. ¶ 18.) The Board separated the ballots into 10 different
categories, and accepted some of the categories for canvassing and rejected others.
(Id. ¶ 19.) Of the categories accepted for canvassing, Appellant challenged six to
common pleas. Those six categories were:
3
This section was added by Section 11 of the Act of March 6, 1951, P.L. 3.
2
- Category 1: 1,196 ballots whose outer envelopes did not contain a
handwritten date or contained only a partial handwritten date.
- Category 6: 7 ballots whose secrecy envelopes had markings that did not
identify the elector’s identity, political affiliation, or candidate preference.
(Id. ¶ 24.) During the hearing before common pleas, Appellant withdrew its
challenges to Categories 4 and 6, (Hr’g Tr. at 114-15; common pleas’ op. at 6;
common pleas’ November 23, 2020 Order Clarifying the Record.) Therefore, these
challenges will not be discussed further.
The parties stipulated that “[w]hen received by [the Board,] each of the
challenged ballots was inside a [secrecy] envelope, and the [secrecy] envelope was
inside a sealed outer envelope with a voter’s declaration that had been signed by the
elector.” (Stip. ¶ 45.) On the outer envelope “is a checklist for the voter, asking:
“Did you . . . [p]ut your ballot inside the secrecy envelope and place it in here?” (Id.
¶ 10). With regard to Category 5 ballots, the parties stipulated that the Board “could
not determine whether the [secrecy] envelopes were initially sealed by the elector
but later became unsealed.” (Id. ¶ 46.) The electors whose ballots are being
challenged have not been notified. (Id. ¶ 47.) The stipulation clearly establishes that
Appellant does not allege, and there is no evidence of, fraud, misconduct,
impropriety, or undue influence. (Id. ¶¶ 27-30.) Further, Appellant does not allege,
3
and there is no evidence, that the Board counted ballots that did not contain
signatures on the outer envelope or “‘naked ballots,’ (ballots that did not arrive in a
secrecy envelope).” (Id. ¶¶ 31-32.) Last, Appellant does not allege, and there is no
evidence, that the electors who cast these votes were ineligible to vote, that votes
were cast by or on the behalf of a deceased elector, or that votes were cast by
someone other than the elector. (Id. ¶¶ 33-35.)
In addition to these stipulated facts, common pleas held a hearing, at which
Thomas Freitag, the Board’s Director (Director), testified. (Hr’g Tr. at 63-64.)
Director testified about the Board’s process in reviewing the ballots in general, the
challenged ballots, and the Board’s determinations to accept or reject challenged
ballots that were missing information on the outer envelopes. (Id. at 68-96.)
Relevant specifically to Category 5 challenges, Director indicated that “the privacy
of the ballots [were not] jeopardized in any manner[,]” there was no “view of the
ballots” “to his knowledge,” and that there was no “way to determine by the Board
whether or not [the secrecy envelope] had been sealed at one point and became
unsealed.” (Id. at 97-98.) He testified that the Board provided the envelopes,
including the secrecy envelopes, which were the type that had “to be either
moistened by licking or water or glue,” and agreed that people would have to rely
on the type of envelopes provided by the Board as to the quality of the seal. (Id. at
98-99.) Director agreed that the Board discussed the possibility that voters may have
concerns about licking the envelopes, given the pandemic, which appeared to be a
factor in its decisions. (Id. at 99.) He further agreed that the “ballots that were
enclosed within unsealed [secrecy] envelopes” were “enclosed within [the] outer
envelope.” (Id.) Director was subjected to limited cross-examination., but not on
this issue. The parties then provided argument on the various challenges. Following
4
the hearing, common pleas issued an opinion and order rejecting the challenges and
dismissing the appeal of the Board’s decision. Appellant now appeals to this Court.4
As to Categories 1 through 3, which challenged the ballots on the basis of a
deficiency on the outer envelopes, common pleas held that the information missing
was not mandatory under the Election Code, but directory and, therefore, its absence
would not invalidate those ballots. (Common pleas’ op. at 14-19.) Appellant
challenges these determinations before this Court. However, after the filing of the
appeal, the Supreme Court of Pennsylvania rejected these same legal challenges in
In re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 General
Election (Pa., Nos. 31-35 EAP 2020 and 29 WAP 2020, filed November 23, 2020)
(Philadelphia/Allegheny), slip op. 19-32.5 In doing so, the Supreme Court
“conclude[d] that the . . . Code does not require boards of elections to disqualify
mail-in or absentee ballots submitted by qualified electors who signed the
declaration on their ballot’s outer envelope but did not handwrite their name, their
address, and/or date, where no fraud or irregularity has been alleged.” Id., slip op.
at 3. Appellant acknowledges this holding in its brief, but points out that, per a
majority of the Supreme Court, dating the outer envelope is a mandatory
requirement, but would be applied prospectively. (Appellant’s Brief (Br.) at 27.)
4
Common pleas’ decision is reviewed on appeal “to determine whether the findings are
supported by competent evidence and to correct any conclusions of law erroneously made.” In re
Reading Sch. Bd. Election, 634 A.2d 170, 171-72 (Pa. 1993). Issues involving the proper
interpretation of the Code is a question of law, and the Court’s standard of review is de novo and
scope of review is plenary. Banfield v. Cortes, 110 A.3d 155, 166 (Pa. 2015.)
5
DNC Services Corporation/Democratic National Committee, an appellee here, filed an
application for extraordinary relief with the Supreme Court requesting the Supreme Court exercise
its extraordinary jurisdiction powers over this appeal, but this application was denied by the
Supreme Court by order dated November 24, 2020.
5
This Court is bound by the Supreme Court’s decision,6 and, applying that decision,
there was no error in common pleas rejecting Appellant’s challenges to Categories
1 through 3.7
The sole remaining issue before this Court is whether the ballots identified in
Category 5, which are those ballots that were enclosed, but did not appear to be
“sealed,” in the secrecy envelope, must be invalidated under the Code. In rejecting
Appellant’s challenge to this category, common pleas explained that the ballots at
issue were not “naked ballots,” which would have been invalid pursuant to the
Supreme Court’s decision in Pennsylvania Democratic Party v. Boockvar, 238 A.3d
345, 378-80 (Pa. 2020). Common pleas held that “[t]here is no factual evidence that
supports a conclusion that the envelopes had not been sealed by the elector prior to”
the time of canvassing. (Common pleas op. at 20.) Instead, common pleas pointed
to the parties’ stipulation that “[w]ith respect to Category 5 . . . [the Board] could
not determine whether the [secrecy] envelopes were initially sealed by the elector
but later became unsealed.” (Id. (quoting Stip. ¶ 46).) Accordingly, common pleas
found “there [was] no evidence that the electors failed to ‘securely seal [the ballot]
in the [secrecy] envelope,’ as required by the . . . Code.” (Id. (first and third
alteration added).) It explained that “[t]he elector was provided the envelope by the
government” and “[i]f the glue on the envelope failed[,] that would be the
responsibility of the government.” (Id.) Therefore, common pleas held “[t]here
6
Notably, the Supreme Court referenced common pleas’ decision in this matter and held
that common pleas “appropriately applied th[e Supreme] Court’s precedent” in affirming the
counting of these ballots. Philadelphia/Allegheny, slip op. at 32-33 n.6.
7
To the extent Appellant seeks to “incorporate” Equal Protection arguments into this case
that were raised in other cases, Appellant did not raise such claims before common pleas and,
therefore, the Court will not consider them. Pennsylvania Rule of Appellate Procedure 302(a),
Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot be raised for the first
time on appeal.”).
6
[was] insufficient evidence to determine whether the specific language of the
mandated law was violated” and “it would be an injustice to disenfranchise these
voters when it cannot be shown that the ballots in question were not ‘securely sealed’
in the [secrecy] envelope prior to the canvassing of those ballots,” particularly where
“there ha[d] been no suggestion or evidence that the absence of a sealed inner
envelope in anyway jeopardized the privacy of the ballot.” (Id.)
Appellant, citing Boockvar, argues that the requirements of Sections
3146.6(a) and 3150.16(a) are mandatory, not directory. According to Appellant, the
Supreme Court has recognized that these requirements of the Code “are necessary
for the preservation of secrecy and the sanctity of the ballot and must therefore be
observed -- particularly where . . . they are designed to reduce fraud.” In re Canvass
of Absentee Ballots of Nov. 4, 2003 Gen. Election, 843 A.2d 1223, 1234 (Pa. 2004)
(Appeal of Pierce). Therefore, Appellant argues, “absentee or mail-in ballots cast in
contravention of the requirements of [Section 3146.6(a) and 3150.16(a) of the Code]
are ‘void’ and cannot be counted.” (Appellant’s Br. at 23 (quoting Appeal of Pierce,
843 A.2d at 1234).)
The Board, as an appellee, argues that the deficiencies set forth in Category 5
are minor technical deficiencies related to the sealing of the secrecy envelopes and
should be treated like other minor mistakes that do not require that the ballots be
stricken. The Board maintains that there is no evidence that these 69 electors did
not comply with the statutory language or that the secrecy of the ballots was in any
way compromised. Boockvar, the Board asserts, requires that the ballots must be
enclosed in the secrecy envelopes or the ballots should be disqualified. 238 A.3d at
380. Here, there is no dispute that the ballots were fully enclosed in the secrecy
envelopes, consistent with the holding in Boockvar, and, as a factual matter, there
7
could be no determination as to whether the secrecy envelopes were sealed by the
electors and later became unsealed. Given that the Court cannot tell whether the
electors made errors in casting their ballots, and the lack of any allegation of fraud,
the Board argues there is no compelling reason to disenfranchise these electors.
Appeal of James, 105 A.2d 64, 66 (Pa. 1954).
Appellee DNC Services Corporation/Democratic National Committee (DNC)
asserts there is no statutory requirement that the voter must seal the secrecy envelope
in order for the ballot to be counted. Further, it asserts that the word “seal” is not a
term of art and is not defined by the Code, is ambiguous and, per a dictionary
definition, commonly means “to close” or “to make secure,” and there is no
allegation that the secrecy envelopes were not closed or the ballots were not secure
in the envelopes. (DNC’s Br. at 16-17.) DNC argues that noncompliance with this
requirement does not justify disenfranchisement because, unlike with “naked
ballots,” the identity of the electors was protected, which is consistent with the
statutory purpose.8
Relevant here are Sections 3146.6(a), 3150.16(a), and 3146.8(g)(4)(ii) and
(iii) of the Code. Section 3146.6(a) states, in pertinent part:
8
DNC argues this Court does not have jurisdiction to consider this matter; however, our
Supreme Court’s order denying DNC’s request for that Court to exercise its powers of
extraordinary jurisdiction confirms this Court’s jurisdiction.
8
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.
(4) All absentee ballots which have not been challenged under section
1302.2(c) and all mail-in ballots which have not been challenged under
section 1302.2-D(a)(2) and that have been verified under paragraph (3) shall
be counted and included with the returns of the applicable election district as
follows:
....
(ii) 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.
(iii) The county board shall then break the seals of such envelopes,
remove the ballots and count, compute and tally the votes.
9
The parties present three legal interpretive approaches to whether these 69
ballots were properly accepted by the Board when they were enclosed, but not
sealed, in the secrecy envelope at the time of canvassing. Appellant argues this
requirement is mandatory and allows for no exception. The Board and DNC argue
that this requirement is directory and noncompliance with that requirement is a
minor defect that should be excused. The Board alternatively argues, in accordance
with common pleas’ reasoning, that as a factual matter, a violation of this
requirement by the electors has not been established, and, in the absence of
compelling reasons, such as allegations of fraud or infringement on the electors’
secrecy, the electors should not be disenfranchised.
“[T]he polestar of statutory construction is to determine the intent of the
General Assembly.” Appeal of Pierce, 843 A.2d at 1230. Generally, “the best
indication of the legislative intent is the plain language of a statute.” Id. (citation
omitted). In construing that language, “[w]ords and phrases shall be construed
according to the rules of grammar and according to their common and approved
usage . . . .” Id. (citation omitted). The Court is mindful that, “[w]hen the words of
a statute are clear and free from all ambiguity, the letter of it is not to be disregarded
under the pretext of pursuing its spirit.” Id. (citation omitted). It is only when the
words of the statute “are not explicit” that the Court may then “resort to other
considerations, such as the statute’s perceived ‘purpose,’ in order to ascertain
legislative intent.” Id. (citation omitted). The Court is likewise mindful that, as our
Supreme Court has explained, “all things being equal, the [Code] will be construed
liberally in favor of the right to vote but, at the same time, we cannot ignore the clear
mandates of the . . . Code.” Id. at 1231.
10
The operative provisions at issue here involve the statutory direction that “the
elector shall . . . fold the ballot, enclose and securely seal the same in the envelope
on which is printed, stamped or endorsed ‘Official Election Ballot.’” 25 P.S.
§§ 3146.6(a), 3150.16(a) (emphasis added). At canvassing, “[t]he county board
shall then break the seals of such envelopes, remove the ballots and count . . . .” 25
P.S. § 3146.8(g)(4)(iii) (emphasis added).
The provisions that are at issue here are contained within sections that our
Supreme Court has found to contain both mandatory and directory provisions.
However, particularly applicable here, the Supreme Court in Boockvar held 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.” Boockvar, 238 A.3d at 380 (emphasis added).
In Boockvar, our Supreme Court considered whether county boards of election
should be required to “clothe and count naked ballots,” that is, place ballots that were
returned to the county board without the secrecy envelopes into an envelope and
count them. 238 A.3d at 374. As here, the Supreme Court was presented with
conflicting assertions that this requirement was directory or mandatory. After
examining the statutory text, the Court concluded that the legislative intent was for
the “secrecy envelope provision” to be mandatory, citing article VII, section 4 of
the Pennsylvania Constitution, providing that “secrecy in voting shall be preserved,”
PA. CONST. art. VII, § 4, and Section 3146.8(g)(4)(ii). The Supreme Court explained
that the two statutory provisions, dealing with the same subject, “must be read in
pari materia.” Boockvar, 238 A.3d at 378. Based on that statutory language, the
Supreme Court held that it was clear that the legislature intended “that, during the
collection and canvassing processes, when the outer envelope in which the ballot
11
arrived is unsealed and the sealed ballot removed, it should not be readily apparent
who the elector is, with what party [the elector] affiliates, or for whom the elector
has voted.” Id. (emphasis added). Per the Court, “[t]he secrecy envelope properly
unmarked and sealed ensures that result, unless it is marked with identifying
information, in which case that goal is compromised” and that “[t]he omission of a
secrecy envelope defeats this intention.” Id. at 378, 380 (emphasis added). The
Supreme Court in Boockvar found the matter analogous to the issue in Appeal of
Pierce, where there was a challenge to absentee ballots that were delivered to the
county board of election by third persons in violation of the Code’s “in-person”
delivery requirement. Id. at 379. In Appeal of Pierce, the Supreme Court held that
the “so-called technicalities of the . . . Code,” such as the requirement that an elector
personally deliver the elector’s absentee ballot, “are necessary for the preservation
of secrecy and the sanctity of the ballot and must therefore be observed – particularly
where, as here, they are designed to reduce fraud.” 843 A.2d at 1234. Therefore,
the Court in that case, found that the in-person delivery requirement was mandatory
and the absentee ballots delivered in contravention of this mandatory provision were
void. Id.
The Court recognizes that the unsealed envelopes here could be viewed as a
less substantial noncompliance than an elector’s failure to use the secrecy envelope,
as the ballots here were actually enclosed in the secrecy envelope and then in the
sealed outer envelope. However, the language relating to securely sealing the
secrecy envelope is encompassed within the provision directing the use of the
secrecy envelope, which the Supreme Court found mandatory in Boockvar. That the
legislature intended the secrecy envelopes to remain sealed until the ballots are
counted is further evidenced by the directive in Section 3146.8(g)(4)(iii) that “[t]he
12
county board shall then break the seals of such envelopes, remove the ballots and
count . . . .” 25 P.S. § 3146.8(g)(4)(iii) (emphasis added). Such language, when
read in pari materia with Sections 3146.6(a) and 3150.16(a), reflects that the
legislature intended the secure sealing of the secrecy envelope to be mandatory.
Boockvar, 238 A.3d at 378. Accordingly, Appellant’s argument that this directive
is mandatory such that an elector’s noncompliance results in a ballot that is not valid
is supported by the statutory language and Boockvar.
The parties stipulated that these challenged ballots were “unsealed” in the
secrecy envelopes when canvassing of the ballots was to begin. The text of the Code
unambiguously states that the elector “shall . . . enclose and securely seal the [ballot]
in the envelope . . . ,” 25 P.S. §§ 3146.6(a), 3150.16(a), and that, at canvassing, “[t]he
county board shall then break the seals of such envelopes, remove the ballots and
count,” 25 P.S. § 3146.8(g)(4)(iii). The legislature did not merely require the
envelope to be sealed, but specified that it be “securely” sealed. 25 P.S.
§§ 3146.6(a), 3150.16(a) (emphasis added). The Code unambiguously requires the
envelopes remain sealed until the county board of elections can “break the seals” of
the secrecy envelopes. 25 P.S. § 3146.8(g)(4)(iii). When the text of the statute is
clear and unambiguous, those words best reflect the legislative intent, and “the letter
of [the unambiguous language] is not to be disregarded under the pretext of pursuing
its spirit.” Appeal of Pierce, 843 A.2d at 1230 (citation omitted).
Justice Wecht recently in Philadelphia/Allegheny highlighted that there are
times a Court should give prospective application to a ruling under the Code. Slip
op. at 17-18 (Wecht, J., concurring). Citing In Appeal of Zentner, 626 A.2d 146
(Pa.1993), as precedent, Justice Wecht concurred in the decision of the Court to
count the ballots that were undated, and would prospectively apply a more strict
13
interpretation of the statute favored by three other justices. As did Justice Wecht,
this Court recognizes the tremendous challenges presented by the massive expansion
of mail-in voting, and the lack of precedential rulings on the requirement of a
“securely sealed” secrecy envelope. Moreover, the parties stipulated in this case
reveals that the instructions on the outer envelope for the elector stated only that the
ballot should be placed in the secrecy envelope and did not specify that the envelope
needed to be securely sealed or the consequences of failing to strictly adhere to that
requirement. See Philadelphia/Allegheny, slip op. at 20 (Wecht, J., concurring).
Moreover, in this case, it cannot be established that the electors did not seal the
secrecy envelope. Importantly, the Court must point out that there are absolutely no
allegations of any fraud, impropriety, misconduct, or undue influence, that anyone
voted who was not eligible to vote, or that the secrecy of the ballots cast was
jeopardized. For these reasons, the decision of the Court will be applied
prospectively, and the 69 ballots will not be invalidated.
Accordingly, common pleas’ Order is affirmed.
_____________________________________
RENÉE COHN JUBELIRER, Judge
14
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
ORDER
NOW, November 25, 2020, the Order of the Court of Common Pleas of Bucks
County, entered in the above-captioned matter, is AFFIRMED in accordance with
the foregoing opinion.
_____________________________________
RENÉE COHN JUBELIRER, Judge
APPENDIX E
No. 1162 C.D. 2020
COMMONWEALTH COURT OF PENNSYLVANIA
11-19-2020
In Re: 2,349 Ballots in the 2020 General Election Appeal of: Nicole Ziccarelli
Submitted: November 19, 2020 BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE
PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge
Nicole Ziccarelli, a Republican candidate for State Senator from the 45th Senatorial District in the General
Election (Candidate), initiated a statutory appeal under the Pennsylvania Election Code1 (Election Code) in the
Court of Common Pleas of Allegheny County (Common Pleas Court) from a decision by the Allegheny County
Board of Elections (Elections Board) to canvass and count 2,349 absentee or mail-in ballots for the November
3, 2020 General Election (General Election) notwithstanding the lack of a date of signature by the elector on
the statutorily required elector declaration on the outside envelope of the ballots. On appeal, the Common Pleas
Court rejected the Campaign Committee's arguments and affirmed the Elections Board's decision in a
2 November 18, 2020 Order.2 *2
1 Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
2 On application by Candidate, this Court issued an Order late on November 18, 2020, enjoining the Elections Board
from canvassing and counting the disputed ballots and directed that the Elections Board segregate those ballots pending
further order of the Court.
The Committee filed a timely appeal from the Common Pleas Court's order with this Court, contending that the
disputed ballots are invalid and cannot be counted. The parties have submitted briefs in support of their
respective arguments on the merits.
Given the exigency,3 we dispense with an extensive summary of the parties' respective positions on appeal.
Generally, the Candidate alleges that the absentee and mail-in ballots that are the subject of this appeal are
defective and, therefore, cannot be counted under the Election Code. The Elections Board and DNC Services
Corp./Democratic National Committee (DNC)4 generally contend that we must interpret and apply the Election
Code to enfranchise, rather than disenfranchise voters. This means, according to the Elections Board and the
DNC, that what they term "minor irregularities" in elector declarations can, and in this case should, be
overlooked in the absence of any evidence of fraud.
1
In re 2,349 Ballots in 2020 General Election No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)
3 "The integrity of the election process requires immediate resolution of disputes that prevent certification." In re 2003
Election for Jackson Twp. Supervisor, 840 A.2d 1044, 1046 (Pa. Cmwlth. 2003) (Kelly, S.J.).
4 Though not a named party originally, the Common Pleas Court granted the DNC intervenor status as a respondent.
Each county board of election is required to provide the mail-in ballot elector with the following: (1) two
envelopes—an inner secrecy envelope in which the executed ballot is placed and an outer mailing envelope in
which the secrecy envelope (containing the executed ballot) is placed for mailing (or drop off); (2) a list of
candidates, if authorized; and (3) "the uniform instructions in form and substance as prescribed by the Secretary
of the Commonwealth and nothing else." Sections 1304 and 1304-D(c) of the Election Code, 25 P.S. §§ 3146.4,
3 3150.14(c). The outer mailing envelope must include an elector declaration and the name and *3 address of the
proper county board of election. Sections 1304 and 1304-D(a) of the Election Code. The form of the
declaration is left up to the Secretary of the Commonwealth (Secretary). It must, however, include "a statement
of the elector's qualifications, together with a statement that the elector has not already voted in the primary or
election." Sections 1304 and 1304-D(b) of the Election Code. The Secretary adopted a form declaration that
includes the required statutory language and space for the elector to sign, date, and fill out the elector's name
and address.
In its recent decision in In re November 3, 2020 General Election, ___ A.3d ___ (Pa., No. 149 MM 2020, filed
Oct. 23, 2020), the Pennsylvania Supreme Court reviewed the requirements in the Election Code with respect
to the elector declaration on mail-in and absentee ballots. To execute a mail-in or absentee ballot, the Election
Code requires the elector to "fill out, date and sign the declaration printed on [the outside] envelope." Sections
1306(a) and 1306-D(a), 25 P.S. §§ 3146.6(a), 3150.16(a). During the pre-canvass or canvass of mail-in and
absentee ballots, the board of election "is required to determine if the ballot declaration is 'sufficient.'" In re:
November 3, 2020 Gen. Election, ___ A.3d at ___, slip op. at 25 (quoting Section 1308(g)(3) of the Election
Code,5 25 P.S. § 3146.8(g)(3)). With respect to determining the sufficiency of the declaration, the Pennsylvania
Supreme Court explained the boards of election's obligation: "[I]n determining whether the declaration is
'sufficient' for a mail-in or absentee ballot at canvassing, the county board is required to ascertain whether the
declaration on the return envelope has been filled out, dated, and signed. This is the extent of the board's
4 obligation in this regard." Id. (emphasis added). *4
5 Added by the Act of March 6, 1951, P.L. 3.
The concern that an elector might fail to "fill out" the declaration in full, let alone date and sign the declaration,
in part prompted the Pennsylvania Democratic Party and Democratic elected official and candidates
(Democratic Party) to initiate a suit in this Court's original jurisdiction against the Secretary and every
Pennsylvania county board of election earlier this year, seeking declaratory and injunctive relief. The
Pennsylvania Supreme Court, pursuant to Section 726 of the Judicial Code, 42 Pa. C.S. § 726, assumed
jurisdiction over the case to address issues relating to the interpretation and implementation of Act 77 of 20196
—the statute that amended the Election Code to authorize mail-in voting (a/k/a no-excuse absentee voting).
6 Act of October 31, 2019, P.L. 552, No. 77 (Act 77).
Among the issues/concerns raised by the Democratic Party was that electors may submit their mail-in or
absentee ballots with "minor facial defects resulting from their failure to comply with the statutory
requirements for voting by mail." Pa. Democratic Party v. Boockvar, 238 A.3d 345, 372 (Pa. 2020). The
Democratic Party asked the Pennsylvania Supreme Court to require county boards of election to give those
electors notice and an opportunity to cure the defective ballots. In advancing that argument, the Democratic
2
In re 2,349 Ballots in 2020 General Election No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)
Party relied on the same principles the Board relies on in this case—i.e., liberal construction of the Election
Code requirements and the favoring of enfranchising voters, not disenfranchising them. Id. at 372-73. The
Secretary opposed the relief requested:
Unlike the other claims asserted herein, the Secretary opposes [p]etitioner's request for relief in this
regard. She counters that there is no statutory or constitutional basis for requiring the [b]oards [of
election] to contact voters when faced with a defective ballot and afford them an opportunity to cure
defects. The Secretary further notes that, while [p]etitioner relies on the Free and Equal Elections
Clause [of the
5 *5
Pennsylvania Constitution], that Clause cannot create statutory language that the General Assembly
chose not to provide.
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." Emphasizing that
[p]etitioner presents no explanation as to how the [b]oards [of election] 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.
Pa. Democratic Party v. Boockvar, 238 A.3d at 373 (emphasis added) (citations omitted) (quoting League of
Women Voters v. Cmwlth., 178 A.3d 737, 809 (Pa. 2018)). Apparently persuaded by the Secretary's arguments,
the Pennsylvania Supreme Court rejected the request for a judicially mandated notice and opportunity to cure:
Upon review, we conclude that the [b]oards [of election] 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, [p]etitioner has
cited no constitutional or statutory basis that would countenance imposing the procedure [p]etitioner
seeks to require (i.e., having the [b]oards [of election] contact those individuals whose ballots the
[b]oards [of election] have reviewed and identified as including "minor" or "facial" defects—and for
whom the [b]oards [of election] have contact information—and then afford those individuals the
opportunity to cure defects until the [federal Uniformed and Overseas Citizens Absentee Voting Act7]
deadline).
While the Pennsylvania Constitution mandates that elections be "free and equal," it leaves the task of
effectuating that mandate to the Legislature. 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 [p]etitioner. 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
6 *6
opportunity to cure" procedure to alleviate that risk is one best suited for the Legislature. We express
this agreement particularly in light 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 [p]etitioner
is not entitled to the relief it seeks in Count III of its petition.
3
In re 2,349 Ballots in 2020 General Election No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)
We must presume that the Elections Board was aware of the Pennsylvania Supreme Court's decision in In re:
November 3, 2020 General Election and its earlier decision in Pennsylvania Democratic Party when the
Elections Board began the canvass and pre-canvass process for mail-in and absentee ballots. The Elections
Board chose, nonetheless, to ignore its obligations under the Election Code to determine the sufficiency of the
mail-in and absentee ballots at issue, as recapitulated by the Supreme Court in In re: November 3, 2020
General Election, and apparently took the Pennsylvania Supreme Court's decision in Pennsylvania Democratic
Party as both a ruling against a notice and opportunity to cure remedy for defective ballots and an invitation to,
instead, simply ignore defects when canvassing and pre-canvassing. In so doing, the Elections Board even
acted in conflict with September 28, 2020 guidance from the Secretary: "At the pre-canvass or canvass, as the
case may be, the county board of election[] should . . . [s]et aside any ballots without a filled out, dated and
signed declaration envelope." Pennsylvania Dep't of State, Guidance Concerning Civilian Absentee and Mail-
In Ballot Procedures, 9/28/2020, at 8, available at
https://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/DOS%2
7 0Guidance%20Civilian%20Absentee%20and%20Mail-In%20Ballot%20Procedure *7 s.pdf (last visited Nov.
20, 2020).8 Where the Elections Board tacitly derived its authority to ignore its statutory obligation to
determine the sufficiency of ballots and to violate the will of the General Assembly reflected in Act 77,
approved by the Governor, and the guidance of the Secretary is a mystery.
8 We note that the Pennsylvania Supreme Court cited to this supplemental guidance from the Secretary in its opinion in
In re: November 3, 2020 Gen. Election, ___ A.3d at ___, slip op. at 4.
The General Assembly's authority in this regard, however, is certain. Under the United States Constitution, the
General Assembly determines the "Times, Places and Manner of holding Elections for . . . Representatives,"
subject to any rules that Congress may establish.9 The General Election, during which the voters of
Pennsylvania select their representatives to the United States House of Representatives, falls within the
provision. Even in cases involving the right to vote, the rules of statutory construction apply. See In re:
November 3, 2020 Gen. Election, ___ A.3d at ___, slip op. at 19-20; Pa. Democratic Party, 238 A.3d at 355-
56. The Pennsylvania Supreme Court has already determined that the above statutory language regarding the
casting and pre-canvassing and canvassing of mail-in and absentee ballots is "plain," In re: November 3, 2020
Gen. Election, ___ A.3d at ___, slip op. at 24, and "unambiguous," id., slip op. at 25, with respect to an
elector's obligation to "fill out, date and sign" the declaration and the county board of election's obligation to
determine the sufficiency of that declaration. The constitutionality of these provisions is not in question here. It
8 is not the judiciary's role, let alone the role of the Elections Board, to relax or ignore *8 requirements that the
General Assembly, with the Governor's approval, chose to include in the Election Code.
9 U.S. Const. art. I, § 4, cl. 1 ("Elections Clause"). The full text of the Elections Clause provides: "The Times, Places and
Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing
Senators."
In this regard, while we recognize the well-settled principle of statutory construction that the Election Code
should be liberally construed in favor of voter enfranchisement, not disenfranchisement, like all principles of
statutory construction this rule is only implicated where there is ambiguity in the Election Code. See In re:
Canvassing Observation, ___ A.3d ___, (Pa., No. 30 EAP 2020, filed Nov. 13, 2020), slip op. at 15-16; Pa.
4
In re 2,349 Ballots in 2020 General Election No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)
Democratic Party, 238 A.3d at 356. In In re Canvass of Absentee Ballots of Nov. 4, 2003 General Election, 843
A.2d 1223 (Pa. 2004), the Pennsylvania Supreme Court reversed a decision by this Court that would have
allowed the Elections Board to count absentee ballots that were hand-delivered by a third person on behalf of
electors who were not disabled. Then, and now, the Election Code expressly prohibits this practice. This Court's
reason for disregarding the mandatory language of the Election Code that authorized only "in person" delivery
as an alternative to mail was our view "that it was more important to protect the interest of the voters by not
disenfranchising them than to adhere to the strict language of the statute under these circumstances." In re
Canvass of Absentee Ballots of Nov. 4, 2003 General Election, 839 A.2d 451, 460 (Pa. Cmwlth.) (en banc),
rev'd, 843 A.2d 1223 (Pa. 2004).
In reversing this Court, the Pennsylvania Supreme Court looked to the rules of statutory construction. In re
Canvass of Absentee Ballots of Nov. 4, 2003 General Election, 843 A.2d at 1230. Critically for purposes of this
matter, in terms of the Election Code, the Supreme Court held: "[A]ll things being equal, the law will be
construed liberally in favor of the right to vote but at the same time, we cannot ignore the clear mandates of the
9 Election Code." Id. at 1231 (emphasis added). *9 The relevant language in Section 1306(a) of the Election
Code provided at the time what it provides today: "[T]he elector shall send [the absentee ballot] by mail,
postage prepaid, except where franked, or deliver it in person to said county board of election." (Emphasis
added.) The Supreme Court held that the General Assembly's use of the word "shall" had a clear "imperative or
mandatory meaning." In re Canvass of Absentee Ballots of Nov. 4, 2003 General Election, 843 A.2d at 1231.
While the appellees argued that the word should be construed liberally (as directory and not mandatory) in
favor of the right to vote, the Supreme Court disagreed:
In Section [1306(a)], there is nothing to suggest that an absentee voter has a choice between whether he
mails in his ballot or delivers his ballot in person, or has a third-party deliver it for him. To construe
Section [1306(a)] as merely directory would render its limitation meaningless and, ultimately, absurd.
Id. at 1232.10 Alternatively, even if the statutory language were ambiguous, the Court held that "there is an
obvious and salutary purpose—grounded in hard experience—behind the limitation upon the delivery of
absentee ballots." Id. The court explained:
The provision at issue limits the number of third persons who unnecessarily come in contact with the
ballot and thus provides some safeguard that the ballot was filled out by the actual voter, and not by a
perpetrator of fraud, and that once the ballot has been marked by the actual voter in secret, no other
person has the opportunity to tamper
10 *10
with it, or even to destroy it. The provision, thus, is consistent with the spirit and intent of our election
law, which requires that a voter cast his ballot alone, and that it remain secret and inviolate.
Id. at 1234.
5
In re 2,349 Ballots in 2020 General Election No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)
10 The dissent chooses to rely on Appeal of James, 105 A.2d 64 (Pa. 1954), a case that did not involve mail-in or absentee
ballots, but whether actual votes cast for one candidate in particular on election day should count where the intent of
the electors to vote for that particular candidate was clearly manifested, albeit imperfectly, on the actual ballot. Appeal
of James does not stand for the proposition that courts can and should disregard the clear and unambiguous terms of the
Election Code, as the Pennsylvania Supreme Court's more recent pronouncements cited above establish. This case is
about whether electors followed the law in submitting their ballots. Accordingly, In re Canvass of Absentee Ballots of
Nov. 4, 2003 General Election is much more on point than Appeal of James.
Here, we agree with, and are bound by, the Pennsylvania Supreme Court's ruling in In re: November 3, 2020
General Election that Sections 1306(a) (absentee ballots), 1306-D(a) (mail-in ballots), and 1308(g)(3) (pre-
canvass and canvass) of the Election Code, are plain and unambiguous. The General Assembly's use of the
word "shall" in these provisions has a clear imperative and mandatory meaning. In re Canvass of Absentee
Ballots of Nov. 4, 2003 General Election, 843 A.2d at 1231. The elector "shall . . . fill out, date and sign the
declaration." The board of election "shall examine the declaration on the envelope of each ballot" and be
"satisfied that the declaration is sufficient." A sufficient declaration is one where the elector filled out, dated,
and signed the declaration. In re: November 3, 2020 Gen. Election, ___ A.3d at ___, slip op. at 25. To remove
the date requirement would constitute a judicial rewrite of the statute, which, as the Pennsylvania Supreme
11 Court recently held, "would be improper." In re: Canvassing Observation, ___ A.3d at ___, slip. op. at 17.11 *11
11 See also In re Silcox, 674 A.2d 224, 225 (Pa. 1996) (holding that signatures on nomination petition without date must
be stricken under clear and unambiguous language of statute, reasoning that "until the legislature chooses to amend [the
statutory requirement for a date], we are constrained to find that the elector shall sign the petition as well as add . . .
date of signing").
As noted above, the Election Code requires the county boards of election to determine whether absentee and
mail-in ballots are satisfactory. Under the law, a satisfactory ballot is one where the elector has filled out,
signed, and dated the statutorily-required declaration. This was the policy choice of the General Assembly and
the Governor in approving Act 77, and it is not the role of this Court or the Elections Board to second guess
those policy choices. It is a myth that all ballots must be counted in the absence of proof of fraud. Ballots,
under the law, may be set aside for "fraud or error." See Section 1407(b) of the Election Code, 25 P.S. § 3157
(emphasis added). While there may not be an allegation of fraud in this matter, there was clear error at two
levels. First, the electors erred in failing to date their declarations, as required by the Election Code.12 Second,
the Elections Board erred when it failed to execute its duty during the canvass and pre-canvass process to
determine the sufficiency of the declarations and set deficient ballots aside. Accordingly, the Common Pleas
Court erred as a matter of law by failing to reverse the Elections Board's determinations with respect to
counting these defective mail-in and absentee ballots.
12 This is not a situation involving an ambiguity or question as to what an elector must do to cast a ballot and, seeking
assistance, a confused elector relies on advice of a local election official. As noted above, the Pennsylvania Supreme
Court has already held that there is no ambiguity in this scheme as far as what the Election Code requires of the elector
and the boards of election in determining whether a mail-in or absentee ballot is satisfactory. Moreover, there is simply
no evidence that the electors who signed their declarations in this case failed to date the declaration in reliance on
advice from a public official. See In re Canvass of Absentee Ballots of Nov. 4, 2003 Gen. Election, 843 A.2d at 1234
n.14 (rejecting reliance argument where no evidence of reliance and where alleged advice is in clear contravention of
law).
6
In re 2,349 Ballots in 2020 General Election No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)
Even if we were to conclude that one of the relevant provisions of the Election Code suffered from some
ambiguity that required us to resort to statutory construction to discern the General Assembly's intent, our result
12 would be the same. *12 As was the case in In re Canvass of Absentee Ballots of Nov. 4, 2003 General Election,
there is an obvious and salutary purpose behind the requirement that a voter date the declaration. The date
provides a measure of security, establishing the date on which the elector actually executed the ballot in full,
ensuring their desire to cast it in lieu of appearing in person at a polling place. The presence of the date also
establishes a point in time against which to measure the elector's eligibility to cast the ballot, as reflected in the
body of the declaration itself.13
13 In this regard, it does not matter whether the ballots at issue in this case were, setting aside these defects, otherwise
valid. Our Election Code does not contemplate a process that bogs down county boards of election or the many election
day volunteers to track down voters who committed errors of law in casting their ballots in order to verify the
information that the elector, through his or her own negligence, failed to provide on the elector's mail-in or absentee
ballot. See Pa. Democratic Party, 238 A.3d at 373-34. Decisions as to whether these defective ballots must be set aside
are to be made at the canvass or pre-canvass based on objective criteria established by the General Assembly and what
is before the elections board—that being the ballot itself. See id. at 388-89 (Wecht, J., concurring).
While we realize that our decision in this case means that some votes will not be counted, the decision is
grounded in law. It ensures that the votes will not be counted because the votes are invalid as a matter of law.
Such adherence to the law ensures equal elections throughout the Commonwealth, on terms set by the General
Assembly. The danger to our democracy is not that electors who failed to follow the law in casting their ballots
will have their ballots set aside due to their own error; rather, the real danger is leaving it to each county board
of election to decide what laws must be followed (mandatory) and what laws are optional (directory), providing
a patchwork of unwritten and arbitrary rules that will have some defective ballots counted and others discarded,
depending on the county in which a voter resides. Such a patchwork system does not guarantee voters an
13 "equal" election,14 *13 particularly where the election involves inter-county and statewide offices. We do not
enfranchise voters by absolving them of their responsibility to execute their ballots in accordance with law.
14 "Elections shall be free and equal." Pa. Const. art. I, § 5.
Accordingly, the Common Pleas Court's order is reversed. This matter is remanded to the Common Pleas Court
to issue an order sustaining the Campaign Committee's challenge to the Elections Board's determination and
directing the Elections Board to exclude the challenged 2,349 ballots from the certified returns of election for
the County of Allegheny under Section 1404 of the Election Code, 25 P.S. § 3154.
/s/_________
AND NOW, this 19th day of November, 2020, the November 18, 2020 Order of the Court of Common Pleas of
Allegheny is REVERSED, and this matter is REMANDED to the court of common pleas for further
proceedings in accordance with the accompanying opinion.
/s/_________
15 P. KEVIN BROBSON, Judge *15 BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE
PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge DISSENTING
OPINION BY JUDGE WOJCIK
7
In re 2,349 Ballots in 2020 General Election No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)
I respectfully dissent from the majority's decision to reverse the order of the Court of Common Pleas of
Allegheny County (trial court) in this matter.
'The power to throw out a ballot for minor irregularities, like the power to throw out the entire poll of an
election district for irregularities, must be exercised very sparingly and with the idea in mind that either
an individual voter or a group of voters are not to be disfranchised at an election except for compelling
reasons. * * * 'The purpose in holding elections is to register the actual expression of the electorate's
will' and that 'computing judges' should endeavor 'to see what was the true result.' There should be the
same reluctance to throw out a single ballot as there is to throw out an entire district poll, for sometimes
an election hinges on one vote.'
In resolving election controversies it would not be amiss to consider the following criteria:
16 *16
2. Was any fraud involved?
Appeal of James, 105 A.2d 64, 67 (Pa. 1954) (citation omitted). It is undisputed that only the first of the
foregoing six criteria is at issue with respect to the contested ballots herein.
Regarding the submission of a vote by absentee ballot, Section 1306(a) of the Pennsylvania Election Code15
provides, in relevant part:
15 Act of June 3, 1937, P.L. 1333, added by the Act of March 6, 1951, P.L. 3, as amended, 25 P.S. §3146.6(a).
[A]t any time after receiving an official absentee ballot, but on or before eight o'clock P.M. the day of
the primary or election, the 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.
Likewise, with respect to voting by mail-in ballot, Section 1306-D(a) of the Pennsylvania Election Code16
17 states: *17
8
In re 2,349 Ballots in 2020 General Election No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)
16 Added by the Act of October 31, 2019, P.L. 552, 25 P.S. §3150.16a.
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.
In light of the foregoing statutory requirements, the majority seeks to disenfranchise 2,349 registered voters
who timely returned their absentee or mail-in ballots to the Allegheny County Board of Elections (Board),
which ballots were sealed in secrecy envelopes and inserted in sealed outer envelopes containing a declaration
that the voters signed, but did not date, and which ballots the Board received by 8:00 p.m. on the date of the
General Election, November 3, 2020. Unlike the majority, I do not believe that Pennsylvania Democratic Party
v. Boockvar, 238 A.3d 345 (Pa. 2020), compels such a massive disenfranchisement as that case addressed a
voter's ability to cure a "minor" defect on a mail-in or absentee ballot declaration page that consisted of a voter
failing to "fill out, date and sign the declaration." In contrast, this case involves neither a voter's ability to cure a
18 defective declaration page nor an unsigned declaration page. Moreover, as *18 noted above, this case does not
involve any claim that any of the ballots in question were in any way fraudulent.
There is no dispute that the voters who cast the questioned 2,349 ballots were qualified, registered electors.
Moreover, there is no allegation that any of the 2,349 voters in question had voted more than once. Importantly,
there is no allegation that the subject 2,349 ballots were not received by the Board prior to the deadline for
receipt on General Election Day. The only sin that would lead these votes to be discarded is that the qualified,
registered voters failed to enter a date on the declaration portion of the ballot's outer envelope. I would agree
that an entirely blank declaration properly would be discarded, as this is the situation contemplated by
Boockvar. I would suppose that a declaration that the voter did not sign likewise would be discarded, as there
would be no confirmation that the ballot is genuinely that of the registered elector. Both of these results would
ameliorate purported voter fraud, which is not at issue here.
What then is the protection afforded by the insertion of a date in the declaration? I would posit that it is to
ensure that the ballot was timely cast, that is, before the 8:00 p.m. deadline on General Election Day. This
interest is protected in this case by the Board's procedures, i.e., the ballots were processed in the Statewide
Uniform Registry of Electors and time stamped when received by the Board. Thus, I would hold that this
process ensures that the ballots were timely cast.
The majority posits that the voter's entry of the date onto the declaration is material in that it measures a point
in time to establish a voter's eligibility to cast a vote. This is simply incorrect, as the date on which a voter fills
19 in a mail-in or absentee ballot is not the critical date, it is receipt on or before *19 General Election Day that is
determinative. If a voter fills in a mail-in or absentee ballot, including the complete declaration, and dies prior
to General Election Day, the vote is not valid regardless of when it was executed.17
17 In this regard, I strongly disagree with the majority's reliance on case law interpreting the inapposite provisions of the
Pennsylvania Election Code requiring the inclusion of the date of signature on nomination petitions as that requirement
implicates a distinct consideration relating to the timeliness of the circulation of the petitions. As indicated, the
9
In re 2,349 Ballots in 2020 General Election No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)
I view the requirement of a voter-inserted date on the declaration as similar to the issue of the color of ink that
is used to fill in the ballot. As outlined above, Sections 1306(a) and 1306-D(a) of the Pennsylvania Election
Code plainly state the voter " 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." 25 P.S. §§3146.6(a), 3150.16(a)
(emphasis added). Our Supreme Court approved the marking of absentee ballots with green or red pen to be
appropriate despite the General Assembly's use of the word "shall" when describing the method of marking the
ballots. See In re Luzerne County Return Board, 290 A.2d 108, 109 (Pa. 1972). There, our Supreme Court
construed the Election Code liberally so as to not disenfranchise Pennsylvania voters over a technicality.18 In
20 light of the foregoing criteria, I would do so here as well, and I *20 would not blithely disenfranchise those
2,349 voters who merely neglected to enter a date on the declaration of an otherwise properly executed and
timely-submitted ballot.
18 Similarly, I would revisit the so-called "naked ballot" issue where counties have been instructed to disqualify mail-in
and absentee ballots that were returned without first being sealed in the "secrecy envelope." I believe that the "secrecy
envelope" is an anachronism that should have been abandoned when the Pennsylvania Election Code was recently
amended. Under the prior version, absentee ballots were delivered to the corresponding polling places and opened there
after the polls closed on General Election Day. Typically, there were a mere handful of absentee ballots at each poll.
Without the "secrecy envelope," there was a high probability that the poll worker would know the voters whose
absentee ballots were opened there, which would impair those voters' right to cast a secret ballot. As a result of the
recent amendments to the Pennsylvania Election Code, mail-in and absentee ballots are retained at a centralized
location and opened en masse beginning on General Election Day. Under the current regime, in cases of "naked
ballots," I would favor a voter's right to cast a vote over the right to cast a secret ballot, because I believe that it is
extremely unlikely that the election official who opens the envelope would know the voter whose ballot is being
processed. --------
Accordingly, unlike the majority, I would affirm the trial court's order in this case.
/s/_________
10
APPENDIX F
I N T HE C OURT OF C OMMON P LEAS OF A LLEGHENY C OUNTY , P ENNSYLVANIA
CIVIL DIVISION
Petitioner,
v.
Respondent,
Honorable Joseph M. James
and
Petitioner,
v.
Respondent
and
PENNSYLVANIA DEMOCRATIC
PARTY AND JAMES BREWSTER,
Intervenors.
Petitioner Nicole Ziccarelli, candidate for the Senate of Pennsylvania from the 45 th
Senatorial District, filed a Petition for Review of Decision by the Respondent Allegheny
County Board of Elections (“the Board”) on November 16, 2020, seeking to set aside
approximately 300 provisional ballots cast by voters in the November 3, 2020 General
Election. Voters were required to sign on two lines and on these ballots they only signed
one. Petitioner seeks review of the Board’s decision to overrule Petitioner’s objection to
count these ballots. The Court conducted a hearing on November 17, 2020 via Microsoft
Teams. The Pennsylvania Democratic Party and James Brewster moved to intervene in
the action. Petitioner and the Board did not object and the motion was granted by the
Court. Petitioner stated that she was not claiming any voter fraud regarding the
challenged ballots. The Board argues that if an error or defect is caused by the
penalized. Here, voters presented at their polling location and voted with a provisional
ballot. Poll workers handed them all of the materials and gave them instructions how to
fill out the outer envelope. Many people are unfamiliar with this process and rely on the
information given to them at the polling location. Pennsylvania law holds that there is a
breakdown in the administrative process when the facts demonstrate that “an
party.” Union Electric Corp. v. Board of Property Assessment, 746 A.2d 581, 584 (Pa.
2000). In construing election laws, while we must strictly enforce all provisions to prevent
fraud, the overriding concern at all times must be to be flexible in order to favor the right
to vote. Our goal must be to enfranchise and not to disenfranchise. See, James Appeal,
105 A.2d 64 (Pa. 1954), In re Luzerne Cty. Return Bd., 290 A.2d 108, 109 (Pa. 1972).
Similarly, in the In re Nomination Petitions of Howells case, 20 A.3d 617, (Pa. Cmwlth.
2011), an incumbent candidate running for magisterial district judge was given erroneous
instructions by the Lehigh County Board of Elections about filing his statement of financial
interest. The Commonwealth Court held that given his reliance upon erroneous
information provided by the county elections department that fatal error was curable.
Finally, in In re Hall Nomination Petition, 362 A.2d 475, 477 (Pa. 1976), a candidate’s
petition was presented for filing within the deadline established by the Election Code but
was not properly filed due to an error by the Election Bureau and not by the candidate
himself. Keeping in mind that the Election Code must be liberally construed so as not to
deprive an individual of his right to run for office or the voters their right to elect a candidate
of their choice, the Court permitted the candidate to file nunc pro tunc.
In light of the fact that there is no fraud alleged in this case, these provisional ballots
submitted by registered and eligible voters must be counted. They should not be
penalized because they were given and relied on incorrect information by the election
administration. The Petition for Review is denied and the Board’s decision is affirmed.
I N T HE C OURT OF C OMMON P LEAS OF A LLEGHENY C OUNTY , P ENNSYLVANIA
CIVIL DIVISION
Petitioner,
v.
Respondent,
and
PENNSYLVANIA DEMOCRATIC
PARTY AND JAMES BREWSTER,
Intervenors.
ORDER OF COURT
And NOW, this 18th day of November 2020, upon consideration of the Petition For
Review In the Nature Of A Statutory Appeal filed by Nicole Ziccarelli, and any responses
thereto, it is hereby ORDERED that the Petitioner’s appeal is dismissed and the decision
BY THE COURT:
APPENDIX G
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
ORDER
Order Exit
11/05/2020
APPENDIX H
IN THE COUR T OF COMMON PLEAS OF PHILA DELPH IA COUNTY
FIRST JUDICIAL DISTRICT
TRIAL DIVIS ION- CIVIL SECTI ON
OPINI ON
Tsai, J.
I. Introd uction
Donald J. Trump for President, Inc. ("Appellant") has taken an appeal from our
November 3, 2020 Order denying his oral petition to conduct closer inspection of the
ballot canvassing process at the Philadelphia Convention Center. In his oral petition,
Appellant argued that the Commissioners did not provide his designated observers
meaningful access to observe the Election Board employees who are canvassing the
absentee and mail-in ballots under 25 P.S. § 3146.8(b) so they could report back to the
Candidate as to the integrity of the canvassing process. Appellant had filed two similar
motions earlier in the day, but withdrew them both without prejudice and present ed the
instant petition to the Election Court about 15 minutes before Election Court was
scheduled to close at 10 p.m. EST. Based on the testimony of the witness presented by
campaign representatives to observe the Election Board employees complied with the
For the reasons that follow, we respectfully ask this Court to affirm our decision.
1
II. Factual Finding s
starting at 7 a.m. through out the entire day. Mr. Mercer testified via Zoom technology.
The observer described how the canvassing room is set up. There are 3 rows of 15
tables spaced apart and observers are asked to stand behind a metal barrier facing the
first table, which is about 15-18 feet away. Nov. 3, 2020 Tr. at 21:20-24 :23. From that
vantage point, Mr. Mercer can see the workers prepare the forms for evaluation,
examine them, and sort the ballot into separate bins. He also described in detail the
various stages of the process that he could observe, including "extraction" from about 20
feet away, "where the ballot envelopes are being fed through machines to slice them
open so that what's inside the outer envelope can be removed, and then another set of
what appear to be the same or very similar machines so that the inner secrecy envelopes
then can be sliced open so that what's inside those can be removed." Nov. 3, 2020 Tr. At
28:14-30 .
When asked about impedim ents to his line of sight, he identified the easels that
identify each section of the canvassing process around which he can move. Nov. 3, 2020
Tr. 23:2-11. The observer was free to walk around the premises as he wished except
beyond the metal safety or "crowd control" barrier. He recounted the specific steps
followed by the staff to canvass a ballot. He cited concerns about the long distance
between him and the employees, not because he could not see what they were doing, but
because he could not see individual markings on the ballot or whether the signature
page was completed properly and assess whether the Election Board employee was
2
handling the ballot properly under the Election Code. He was able to use binoculars, but
he did not find them to be useful because the process is fast. Nov. 3, 2020 Tr. 36:2-14.
The Board designed the layout of the Philadelphia Convention Center for the
individuals and safety protocols.' In creating this physical layout, the Board struck the
proper balance between the observer's ability to observe the canvassing process and the
paramou nt interest of voter privacy, as there are declaration envelopes that are being
opened, secrecy envelopes that are being opened, and ballots that are being extracted. 2
This Court ordered as it did based on our analysis of the statutory provision
invoked by the Appellant, 25 P.S. § 3146.8(b), which states: "Watchers [also referred to
official absentee ballots and mail-in ballots are opened and when such ballots are
counted and recorded." Despite Appellant's argumen t that the Board of Elections was
not providing observers the opportun ity to "meaningfully observe" the canvassing of
ballots, Appellant was unable to point to any statutory language or case law using the
1The Election Board allows the public to observe the canvassing process on You Tube
on their website at https:jj youtu.b ej-Zzb- 7EH-M Q
2 The observer, who has worn a mask while observing the canvassing, testified that he
saw Election Board workers who occasionally stood shoulde r to shoulder, contrary to
the CDC social distancing guidelines. The Appellant appears to contend that these
incidents undercu t the legitimacy of the social distancing guidelines which have
influenced the design ofthe layout for observers. We do not believe these occasional,
likely necessary, instance s of shoulder-to-shoulder interacti ons between fellow workers
to carry out their canvassing duties, is a legitimate reason to direct the Board to relax its
current distancing requirem ents on observers.
3
Furthermore, § 3146.8(b), explicitly allows only for the watchers to "be present" for
three activities: (1) the opening of the envelopes containing the ballots, (2) the counting
testimony as to his ability to observe the opening and sorting of ballots. He testified as
to his ability to observe the ballots being opened, placed in trays, and sorted - including
the separation of so-called "naked ballots," which do not have inner secrecy envelopes.
This satisfies the three explicit objects of the statute. The witness's concerns, however,
pertained to his inability to observe the writing on the outside of the ballots. But
observing the writing on the outside of the ballots is not necessary in order to simply be
able to "be present" to watch the openin g of the ballots or to watch the countin g and
recordi ng of the ballots. The statute provides no further specific activities for the
watchers to observe, and no activities for the watchers to do other than simply "be
present." Watchers are not directed to audit ballots or to verify signatures, to verify
voter address, or to do anything else that would require a watcher to see the writing or
markings on the outside of either envelope, including challenging the ballots or ballot
signatures.3
4
Moreover, the Pennsylvania courts have clearly delineated the purpose of having
watchers observe canvassing by making "a distinction between votes which are
improperly cast and the subsequ ent mismanagement of votes by the election board,
when those votes were completed correctly by the absentee voter." In re Canvas s of
Absent ee Ballots of Gen. Electio n, 39 Pa. D. & C.2d 429, 433 (Pa. Com. Pl. 1965).
Id. at433-34 .
That line of reasoning ultimately led the court to hold that even when it does not
condone a short-cu tting of canvassing procedures under the act, such short-cutting does
not by itself seriously breach the legislative intent. See id. at 434.4 The court thus
now does not provide for time-of-canvassing ballot challenges, and which never allowed
for signature challenges, as both requiring signature comparisons at canvassing, and
allowing for challenges on that basis. We reject this invitation." In re Novem ber 3,
2020 Gen. Electio n, 149 MM 2020, 2020 WL 6252803 , at *14 (Pa. Oct. 23, 2020)
(footnotes, citations and quotations omitted).
5
denied a "general 'blanket' challenge presented by petitioner to all the absentee ballots
on the basis of the election board's departure from the statutory directions." I d.
Likewise, we also recognized that canvassing arrangem ents may arguably be less than
what the observer may deem as optimal without rising to the level of violating the
statute, especially when the procedures need to be modified to promote safety during
the COVID-19 pandemic. We therefore noted in our order that we "would not discourage
the Board from considering the implementation of arrangem ents to allow for an
additional corridor for observation along the side of the canvassing tables if feasible -
subject to spatial distancing under COVID-19 and voting privacy requirements." In re:
Jefferso n Twp., 12 Pa. D. & C-4th 536 (Pa. Com. Pl. 1991), the court reasoned that "the
Election Code speaks only of canvassing absentee ballots, not single ones," and that the
"intent of the statute [is] to preserve and insure the secrecy and anonymity of the voter."
I d. at 538. Indeed, if watchers like the witness were permitte d to observe the canvassing
of ballots closely enough to view the names and addresses on single ballots, they would
be going beyond the purpose of the statute, which is only to provide for the canvassing
of the ballots writ large. The watchers would also threaten the secrecy and anonymity
of the voter in direct frustrati on of the statute's purpose. If the watcher intends to
observe the canvassing with the intent of voiding ballots, we must emphasize that we
"will not disenfranchise a voter for an act that may be contrary to procedure for
6
canvassing the vote," as ballots are not to be voided "because of some minor
Overall, the watchers' purpose is not to audit the individual ballots, and
watcher getting close enough do so. Indeed, the term "meaningful" is not even used in
the statute. We note that a similar conclusion has been reached in a similar case in
Nevada. In that case, the court explained that the statue provides that "[t]he
county... shall allow members of the general public to observe the counting of the
ballots ... ," but does not "use the modifier 'meaningful."' Kraus v. Cegavs ke, First
Judicial Dist. Of Nevada, Case No. 20 OC 00142 1B, Dept. 2, October 29, 2020, at p. 10.
That court also specifically noted that "Petitioners seem to request ... observation of all
information involved in the ballot counting process so they can verify the validity of the
ballot, creating in effect a second tier of ballot counters and/or concurre nt auditors of
the ballot counting election workers," adding that the "statutes created observers not
7
IV. Conclu sion
his ability to observe the opening and sorting of ballots. Given that observers are
directed only to observe and not to audit ballots, we conclude, based on the witness's
testimony, that the Board of Elections has complied with the observation requirements
under 25 P.S. § 3146.8 and that Appellant is not entitled to the relieftha t he seeks.
BY THE COURT:
8
APPENDIX I
~.:._.,
~0. i 003
OIWER
AND NOW, this 3rd d~t} orNovcmbcr, 2020. in cnnnc.:tton \\ith the tnaucrof': petition b) Donald J_ Trump
for President Inc. 10 allow closer observation of canva-;~ing of' ballots. upon con~Jdcration of the:
• oral Petition und Argument und any responses thcrelO D wrillcn Pctiti\HI and 1\rgulllcnt and any response~
then:to
• tc~timony and evidence presented by the" it11es$e!' aud Arg111nl!nt; or
D
n IS IIEIO :BY OIWEIU J) and DECRU ~O thilt:
1 he oral mot inn to aliO\\ closer obscn-ation of the canvass111g of ballots is OLNihO fot the lollo'' ing n.:asons:
'I he Pctitiom:t's \\ 11nc~s provided copious tc:.timon) a~ to In!' abilit) to obscn e the opening and -;orting of ballots lib
concern~ flCI1amcd to his inabiltt) to obser\'c the wrtt111g on the ,,m.;idc of the ballots. Ul\'l!n that obscn·o:rs arc
directed only to ohscn·e and not 10 ;111dit ballob. we conclude. based on the'' ilncs~· s teslimon), that the Board of
Election~ has complied "ith the observation requirements under :!5 P.S. 3146.S. We. h(II\C\ cr. \\Ould not discourage
the Board from considcrmg the implementation of .trrangcment~ to allow lor an adJittonal corridor for obscn at ion
along the ,jde or thc CUll\ aS!>IIlg tables if feasible - subject to ~pntial distancill!; under COVID-19 and \'oting pri,•ac~
rcq111 rem ems
UY T il E COU IH:
P:tj.!C I of_l_
'/'hi,· Order is ;,,,,·uctl by th e JiuiJ:t.! assigned by flw Pre.1itlcnl lutl;:c of the Court of Com111t111 Jllcus tu decide /egul
i.HIIC.I' IIJhich IIIli)' uri.\ I! i11 Ctiii iii!C:tirm with tltl! uh111'e 1:"/cc·titm. Failure to C:(IIIIJI~I' with the term:• rif tlli.1· order muy
re.wlt i11 C:llllfempt flrtl<'t:c•din~s tmtl the impositillllcifc:rimillal or ti1•i/ pe11altie:.. Any illtcrc•.11t'd par~r xlwuld CtJII\11/t
rm u/lllrtlt!J', or rulex of court. for mltlitionul information n•;:artli11;: !he imp11ct tif tlli~ order and 110111 to reqllt:\1
uppropriltft! relief
Certified copies of thh order may he obtained thmu~h the Ol'licc or Judic•al Rc..:oid .... OJB_Ci\ ilctcourts.phila.g_l"
upon the pay111cnt of the required fcc. Xotes of tc•aimony <ll the hcanng lila) be n.:quc~tcd thtt111gh the Court Rcportl'P•
Orrice.l.and I itlc Building. 100 S.l3road Street. Second rll10r.l'hil:tddphin. Pi\ b) 1:0111plcting.a Rc<1ucst fbr Transcript
f!1r111. Sec ~'S£O_t!!h phi In_. go' /dcnartmcnt:4<;rulf!reportcr:;.
Reporter
2020 Pa. LEXIS 5327 *; 2020 WL 6110774
variances?
IN RE: NOVEMBER 3, 2020 GENERAL ELECTION. The Court will decide this issue based on the current filings;
PETITION OF: KATHY BOOCKVAR, SECRETARY OF however, supplemental filings are permitted to be submitted
THE COMMONWEALTH OF PENNSYLVANIA by Friday, October 16, 2020, at 5 p.m. No other filings will be
permitted thereafter.
AND NOW, this 14th day of October, 2020, the Application Concur by: DOUGHERTY
for King's Bench relief is GRANTED, limited to the following
issue:
Whether the Election Code authorizes or requires county
election boards to reject voted absentee or mail-in ballots Concur
during pre-canvassing and canvassing based on signature
analysis where there are alleged or perceived signature
Page 2 of 3
In re November 3, 2020 Gen. Election
I reluctantly agree that our exercise of King's Bench I dissent from the Court's order granting the Secretary of the
jurisdiction is warranted in this unique and time-sensitive case Commonwealth, Kathy Boockvar's ("Secretary") application
of substantial importance. See, e.g., Friends of Danny DeVito for King's Bench review to resolve the issue of whether,
v Wolf, 227 A.3d 872, 884 (Pa. 2020) (granting review of pursuant to the Election Code of Pennsylvania (Code), 25 P.S.
matter of "public importance that requires timely intervention §§ 2600-3591, signature comparison is warranted by county
by the court of last resort to avoid the deleterious effects arising boards of elections in relation to absentee and mail-in ballots.
from delays incident to the ordinary process of law"). My In my view, there is no case or controversy for this Court to
hesitation largely tracks Justice Baer's concern over the address and the legal question presented has been resolved in a
arguable lack of a clear case or controversy before us. See federal lawsuit, see infra, thus, our exercise of jurisdiction
Dissenting Statement at 1 (Baer, J.). However, I respectfully would provide nothing more than an advisory opinion.
believe the proper course [*3] is not to elevate form over
substance, and I ultimately depart from Justice Baer's As indicated, no action has ever been filed in a lower court and
assessment that the present legal question was resolved in the Secretary's application names no respondents. In substance,
the Secretary's request to this Court is essentially a
Donald J. Trump for President, Inc. v. Boockvar, No. 2:20-cv-
letter [*5] asking us to interpret a provision of the Code. While
966, 2020 U.S. Dist. LEXIS 188390 (W.D. Pa. filed October
10, 2020). I recognize that in theory this Court may accept a King's Bench
petition with no pending action and no opposing parties, the
Although Judge Ranjan opined our Election Code does not operative question is whether it should. In my respectful view,
impose a signature-comparison requirement for absentee and under the circumstances of this matter, the answer is a
mail-in ballots and applications, and Secretary Boockvar's resounding no.
directive to all Pennsylvania county boards of elections on this
precise issue is consistent with that holding, see id., slip op. at The Secretary's primary concern in seeking this Court's review
emanated from a federal lawsuit, Donald J. Trump for
95-106, Secretary Boockvar observes "the district court's
President, Inc. v. Boockvar, No. 2:20-cv-00966-NR, 2020 U.S.
decision, while timely and persuasive, is not authoritative." See
Petitioner's Post-Submission Communication, dated October Dist. LEXIS 188390 (W.D. Pa. 2020). The Secretary explained
that the plaintiffs to the lawsuit argued that the Code authorizes
11, 2020, at 2. In any event, the district court decision is surely
and requires county boards of elections to set aside and
subject to appeal. Secretary Boockvar thus continues to seek
from this Court "an authoritative ruling of state law binding on challenge returned absentee and mail-in ballots that contain
signatures that do not match a voter's signature in their
all state election officials and courts." Id. Accordingly,
permanent voter registration records. Because the Secretary
although I note my disapproval of the precise manner in which
the case was presented for our review, I am persuaded by the took the contrary view of the Code, she had promulgated
guidance indicating that "[t]he Pennsylvania Election Code
Secretary's assertion that "[o]nly this Court can render the
does not authorize the county board of elections to set aside
ultimate determination concerning Pennsylvania [*4] law." Id.
I reiterate that parties pursuing an exercise of this Court's returned absentee or mail-in ballots based solely on signature
analysis by the county board of elections." Department of
jurisdiction under our extraordinary King's Bench powers
State's September 11, 2020 Guidance Concerning Examination
should present a clear case or controversy and seek more than
a purely advisory opinion. As I believe these conditions are met of Absentee and Mail-in Ballot Return Envelopes at 3. In
seeking our King's Bench review, [*6] the Secretary indicates
here, I join the Court's decision to grant the application to
that she fears that without a resolution of this issue, certain
consider the merits of the important and unresolved legal
question presented. county boards of elections might not follower her guidance and
large numbers of ballots could be rejected on Election Day
Dissent by: BAER based on signature comparison, which could lead to
disenfranchisement on an arbitrary and wholly subjective basis
without advance warning to a voter or notice and an
opportunity to be heard.
Dissent After the Secretary filed her application, the federal court
resolved the pending lawsuit in the Secretary's favor and
conclusively determined that the Code does not allow for
Page 3 of 3
In re November 3, 2020 Gen. Election
In my view, given that the Secretary did not provide the Court
initially with a case regarding the question she asks us to
address and that the federal court has resolved the controversy
over interpretation of the Code in her favor, I see no basis for
this Court to entertain further the Secretary's request for review.
Accordingly, I would deny the application for King's Bench
review.
End of Document
APPENDIX K
3 USCS § 2
Whenever any State has held an election for the purpose of choosing electors, and has
failed to make a choice on the day prescribed by law, the electors may be appointed on a
subsequent day in such a manner as the legislature of such State may direct.
3 USCS § 5
If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors,
for its final determination of any controversy or contest concerning the appointment of all or any of the
electors of such State, by judicial or other methods or procedures, and such determination shall have been
made at least six days before the time fixed for the meeting of the electors, such determination made
pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the
electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the
Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such
State is concerned.
3 USCS § 15
Congress shall be in session on the sixth day of January succeeding every meeting of the
electors. The Senate and House of Representatives shall meet in the Hall of the House of
Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the
Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of
the Senate and two on the part of the House of Representatives, to whom shall be handed, as
they are opened by the President of the Senate, all the certificates and papers purporting to be
certificates of the electoral votes, which certificates and papers shall be opened, presented,
and acted upon in the alphabetical order of the States, beginning with the letter A; and said
tellers, having then read the same in the presence and hearing of the two Houses, shall make a
list of the votes as they shall appear from the said certificates; and the votes having been
ascertained and counted according to the rules in this subchapter provided, the result of the
same shall be delivered to the President of the Senate, who shall thereupon announce the state
of the vote, which announcement shall be deemed a sufficient declaration of the persons, if
any, elected President and Vice President of the United States, and, together with a list of the
votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate
or paper, the President of the Senate shall call for objections, if any. Every objection shall be
made in writing, and shall state clearly and concisely, and without argument, the ground
thereof, and shall be signed by at least one Senator and one Member of the House of
Representatives before the same shall be received. When all objections so made to any vote or
paper from a State shall have been received and read, the Senate shall thereupon withdraw,
and such objections shall be submitted to the Senate for its decision; and the Speaker of the
House of Representatives shall, in like manner, submit such objections to the House of
Representatives for its decision; and no electoral vote or votes from any State which shall
have been regularly given by electors whose appointment has been lawfully certified to
according to section 6 of this title [3 USCS § 6] from which but one return has been received
shall be rejected, but the two Houses concurrently may reject the vote or votes when they
agree that such vote or votes have not been so regularly given by electors whose appointment
has been so certified. If more than one return or paper purporting to be a return from a State
shall have been received by the President of the Senate, those votes, and those only, shall be
counted which shall have been regularly given by the electors who are shown by the
determination mentioned in section 5 [3 USCS § 5] of this title to have been appointed, if the
determination in said section provided for shall have been made, or by such successors or
substitutes, in case of a vacancy in the board of electors so ascertained, as have been
appointed to fill such vacancy in the mode provided by the laws of the State; but in case there
shall arise the question which of two or more of such State authorities determining what
Page 2 of 2
3 USCS § 15
electors have been appointed, as mentioned in section 5 of this title [3 USCS § 5], is the
lawful tribunal of such State, the votes regularly given of those electors, and those only, of
such State shall be counted whose title as electors the two Houses, acting separately, shall
concurrently decide is supported by the decision of such State so authorized by its law; and in
such case of more than one return or paper purporting to be a return from a State, if there shall
have been no such determination of the question in the State aforesaid, then those votes, and
those only, shall be counted which the two Houses shall concurrently decide were cast by
lawful electors appointed in accordance with the laws of the State, unless the two Houses,
acting separately, shall concurrently decide such votes not to be the lawful votes of the legally
appointed electors of such State. But if the two Houses shall disagree in respect of the
counting of such votes, then, and in that case, the votes of the electors whose appointment
shall have been certified by the executive of the State, under the seal thereof, shall be counted.
When the two Houses have voted, they shall immediately again meet, and the presiding
officer shall then announce the decision of the questions submitted. No votes or papers from
any other State shall be acted upon until the objections previously made to the votes or papers
from any State shall have been finally disposed of.
28 USCS § 1257
(a) Final judgments or decrees rendered by the highest court of a State in which a
decision could be had, may be reviewed by the Supreme Court by writ of certiorari where
the validity of a treaty or statute of the United States is drawn in question or where the
validity of a statute of any State is drawn in question on the ground of its being repugnant
to the Constitution, treaties, or laws of the United States, or where any title, right,
privilege, or immunity is specially set up or claimed under the Constitution or the treaties
or statutes of, or any commission held or authority exercised under, the United States.
(b) For the purposes of this section, the term “highest court of a State” includes the
District of Columbia Court of Appeals.
Pa. Const. Art. VII, § 14
(a) The Legislature shall, by general law, provide a manner in which, and the time
and place at which, qualified electors who may, on the occurrence of any election, be
absent from the municipality of their residence, because their duties, occupation or
business require them to be elsewhere or who, on the occurrence of any election, are
unable to attend at their proper polling places because of illness or physical disability
or who will not attend a polling place because of the observance of a religious holiday
or who cannot vote because of election day duties, in the case of a county employee,
may vote, and for the return and canvass of their votes in the election district in which
they respectively reside.
(b) For purposes of this section, “municipality” means a city, borough, incorporated
town, township or any similar general purpose unit of government which may be
created by the General Assembly.
25 P.S. § 2650
§ 2650. Watchers or attorneys at sessions of county board; candidates may be
present
(a) Any party or political body or body of citizens which now is, or hereafter may be,
entitled to have watchers at any registration, primary or election, shall also be entitled to
appoint watchers who are qualified electors of the county or attorneys to represent such
party or political body or body of citizens at any public session or sessions of the county
board of elections, and at any computation and canvassing of returns of any primary or
election and recount of ballots or recanvass of voting machines under the provisions of
this act. Such watchers or attorneys may exercise the same rights as watchers at
registration and polling places, but the number who may be present at any one time may
be limited by the county board to not more than three for each party, political body or
body of citizens.
(b) Every candidate shall be entitled to be present in person or by attorney in fact duly
authorized, and to participate in any proceeding before any county board whenever any
matters which may affect his candidacy are being heard, including any computation and
canvassing of returns of any primary or election or recount of ballots or recanvass of
voting machines affecting his candidacy.
(c) Any candidate, attorney or watcher present at any recount of ballots or recanvass of
voting machines shall be entitled to examine the ballots, or the voting machine and to
raise any objections regarding the same, which shall be decided by the county board,
subject to appeal, in the manner provided by this act.
25 P.S. § 3146.1
§ 3146.1. Qualified absentee electors
The following persons shall be entitled to vote by an official absentee ballot in any
primary or election held in this Commonwealth in the manner hereinafter provided:
(a) Any qualified elector who is or who may be in the military service of the United
States regardless of whether at the time of voting he is present in the election district
of his residence or is within or without this Commonwealth and regardless of whether
he is registered or enrolled; or
(b) Any qualified elector who is a spouse or dependent residing with or
accompanying a person in the military service of the United States if at the time of
voting such spouse or dependent is absent from the municipality of his residence:
Provided, however, That the said elector has been registered or enrolled according to
law or is entitled, under provisions of the Permanent Registration Law as now or
hereinafter enacted by the General Assembly, to absentee registration prior to or
concurrently with the time of voting; or
(c) Any qualified elector who is or who may be in the service of the Merchant
Marine of the United States if at the time of voting he is absent from the municipality
of his residence: Provided, however, That the said elector has been registered or
enrolled according to law or is entitled, under provisions of the Permanent
Registration Law as now or hereinafter enacted by the General Assembly, to absentee
registration prior to or concurrently with the time of voting; or
(d) Any qualified elector who is a spouse or dependent residing with or
accompanying a person who is in the service of the Merchant Marine of the United
States if at the time of voting such spouse or dependent is absent from the
municipality of his residence: Provided, however, That the said elector has been
registered or enrolled according to law or is entitled, under provisions of the
Permanent Registration Law as now or hereinafter enacted by the General Assembly,
to absentee registration prior to or concurrently with the time of voting; or
(e) Any qualified elector who is or who may be in a religious or welfare group
officially attached to and serving with the armed forces if at the time of voting he is
absent from the municipality of his residence: Provided, however, That the said
elector has been registered or enrolled according to law or is entitled, under
provisions of the Permanent Registration Law as now or hereinafter enacted by the
General Assembly, to absentee registration prior to or concurrently with the time of
voting; or
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25 P.S. § 3146.1
him to be elsewhere during the entire period the polls are open for voting on the day
of any primary or election; or
(k) Any qualified registered and enrolled elector who because of illness or physical
disability is unable to attend his polling place or operate a voting machine and secure
assistance by distinct and audible statement as required in section 1218 of this act;
(l) Any qualified registered and enrolled elector who is a spouse or dependent
accompanying a person employed in the service of this Commonwealth or in the
service of the Federal Government within the territorial limits of the several States of
the United States and the District of Columbia in the event the duties, profession or
occupation of such person require him to be absent from the municipality of his
residence; or
(m) Any qualified elector who is a county employe who cannot vote due to duties on
election day relating to the conduct of the election; or
(n) Any qualified elector who will not attend a polling place because of the
observance of a religious holiday:
Provided, however, That the words “qualified absentee elector” shall in nowise be
construed to include persons confined in a penal institution or a mental institution
nor shall it in anywise be construed to include a person not otherwise qualified as
a qualified elector in accordance with the definition set forth in section 102(t) of
this act.
25 P.S. § 3146.2
§ 3146.2. Applications for official absentee ballots
(a) Any qualified elector defined in preceding section 1301, subsections (a) to (h), inclusive, may apply at any time
before any primary or election for any official absentee ballot in person, on any form supplied by the Federal
Government, or on any official county board of election form addressed to the Secretary of the Commonwealth of
Pennsylvania or the county board of election of the county in which his voting residence is located.
(b) An application for a qualified elector under subsection (a) shall contain the following information: Home
residence at the time of entrance into actual military service or Federal employment, length of time a citizen, length of
residence in Pennsylvania, date of birth, length of time a resident of voting district, voting district if known, party
choice in case of primary, name and, for a military elector, his stateside military address, FPO or APO number and
serial number. Any elector other than a military elector shall in addition specify the nature of his employment, the
address to which ballot is to be sent, relationship where necessary, and such other information as may be determined
and prescribed by the Secretary of the Commonwealth. When such application is received by the Secretary of the
Commonwealth it shall be forwarded to the proper county board of election.
(b.1)An application for a qualified elector other than under subsection (a) shall contain the following information:
Date of birth, length of time a resident of voting district, voting district if known, party choice in case of primary and
name. The elector shall in addition specify the nature of his or her employment, the address to which ballot is to be
sent, relationship where necessary, and other information as may be determined and prescribed by the Secretary of the
Commonwealth. When the application is received by the Secretary of the Commonwealth it shall be forwarded to the
proper county board of election.
(c) A qualified absentee military or overseas elector, as defined by the Uniformed and Overseas Citizens Absentee
Voting Act (Public Law 99-410, 100 Stat. 924), may submit his application for an official absentee ballot by electronic
transmission method. The electronic transmission method shall not be acceptable for the official absentee ballot. As
used in this subsection, “electronic transmission method” means any technology that can transmit a document or an
image of a document via electronic or electromechanical means, including, but not limited to, facsimile method. An
elector entitled to submit an application for an official absentee ballot under a method authorized under 25 Pa.C.S. Ch.
35 (relating to uniform military and overseas voters) may submit an application using a method authorized under 25
Pa.C.S. Ch. 35, in addition to the methods authorized in this article.
(d) The application of any qualified elector, as defined in preceding section 1301, subsections (a) to (h), inclusive, for
an official absentee ballot in any primary or election shall be signed by the applicant, except that for electors under
section 1301(a), an adult member of the applicant’s immediate family may sign the application on the elector’s behalf.
(e) Any qualified bedridden or hospitalized veteran absent from the municipality of his residence and unable to attend
his polling place because of such illness or physical disability, regardless of whether he is registered or enrolled, may
apply at any time before any primary or election for an official absentee ballot on any official county board of election
form addressed to the Secretary of the Commonwealth of Pennsylvania or the county board of elections of the county
in which his voting residence is located.
The application shall contain the following information: Residence at the time of becoming bedridden or hospitalized,
length of time a citizen, length of residence in Pennsylvania, date of birth, length of time a resident in voting district,
voting district if known, party choice in case of primary, name and address of present residence or hospital at which
hospitalized. When such application is received by the Secretary of the Commonwealth, it shall be forwarded to the
proper county board of elections.
The application for an official absentee ballot for any primary or election shall be made on information supplied over
the signature of the bedridden or hospitalized veteran as required in the preceding subsection. Any qualified registered
elector, including a spouse or dependent referred to in subsection (l) of section 1301, who expects to be or is absent
from the municipality of his residence because his duties, occupation or business require him to be elsewhere on the
Page 2 of 4
25 P.S. § 3146.2
day of any primary or election and any qualified registered elector who is unable to attend his polling place on the day
of any primary or election because of illness or physical disability and any qualified registered bedridden or
hospitalized veteran in the county of residence, or in the case of a county employe who cannot vote due to duties on
election day relating to the conduct of the election, or in the case of a person who will not attend a polling place
because of the observance of a religious holiday, may apply to the county board of elections of the county in which his
voting residence is located for an Official Absentee Ballot. Such application shall be made upon an official application
form supplied by the county board of elections. Such official application form shall be determined and prescribed by
the Secretary of the Commonwealth of Pennsylvania.
(1) The application of any qualified registered elector, including spouse or dependent referred to in subsection (l)
of section 1301, who expects to be or is absent from the municipality of his residence because his duties,
occupation or business require him to be elsewhere on the day of any primary or election, or in the case of a
county employe who cannot vote due to duties on election day relating to the conduct of the election, or in the
case of a person who will not attend a polling place because of the observance of a religious holiday, shall be
signed by the applicant and shall include the surname and given name or names of the applicant, proof of
identification, his occupation, date of birth, length of time a resident in voting district, voting district if known,
place of residence, post office address to which ballot is to be mailed, the reason for his absence, and such other
information as shall make clear to the county board of elections the applicant’s right to an official absentee ballot.
(2) The application of any qualified registered elector who is unable to attend his polling place on the day of any
primary or election because of illness or physical disability and the application of any qualified registered
bedridden or hospitalized veteran in the county of residence shall be signed by the applicant and shall include
surname and given name or names of the applicant, proof of identification, his occupation, date of birth, residence
at the time of becoming bedridden or hospitalized, length of time a resident in voting district, voting district if
known, place of residence, post office address to which ballot is to be mailed, and such other information as shall
make clear to the county board of elections the applicant’s right to an official ballot. In addition, the application of
such electors shall include a declaration stating the nature of their disability or illness, and the name, office
address and office telephone number of their attending physician: Provided, however, That in the event any
elector entitled to an absentee ballot under this subsection be unable to sign his application because of illness or
physical disability, he shall be excused from signing upon making a statement which shall be witnessed by one
adult person in substantially the following form: I hereby state that I am unable to sign my application for an
absentee ballot without assistance because I am unable to write by reason of my illness or physical disability. I
have made or have received assistance in making my mark in lieu of my signature.
.............................................................. ...............................(Mark)
(Date)
.............................................................. ..............................................................
(Complete Address of Witness) (Signature of Witness)
(e.1)Any qualified registered elector who is unable because of illness or physical disability to attend his polling place
on the day of any primary or election or operate a voting machine and state distinctly and audibly that he is unable to
do so as required by section 1218 of this act may at any time request, with the certification by his attending physician
that he is permanently disabled and physically unable to attend the polls or operate a voting machine and make the
distinct and audible statement required by section 1218 appended to the application hereinbefore required, to be placed
on a permanently disabled absentee ballot list file. An absentee ballot application shall be mailed to every such person
otherwise eligible to receive one, by the first Monday in February each year, or within forty-eight hours of receipt of
the request, whichever is later, so long as he does not lose his voting rights by failure to vote as otherwise required by
this act. Such person shall not be required to file a physician’s certificate of disability with each application as required
in subsection (e) of this section. Should any such person lose his disability he shall inform the county board of
elections of the county of his residence. An absentee ballot application mailed to an elector under this section, which is
completed and timely returned by the elector, shall serve as an application for any and all primary, general or special
elections to be held in the remainder of that calendar year and for all special elections to be held before the third
Monday in February of the succeeding year. The transfer of a qualified registered elector on a permanently disabled
absentee ballot list from one county to another county shall only be permitted upon the request of the qualified
registered elector.
Page 3 of 4
25 P.S. § 3146.2
(e.2)Notwithstanding the other provisions of this act any qualified elector who expects to be or is absent from the
municipality of his residence because his duties, occupation or business require him to be elsewhere on the day of any
election or a county employe who cannot vote due to duties on election day relating to the conduct of the election or a
person who will not attend a polling place because of the observance of a religious holiday may make an application
for an absentee ballot by mail by sending a letter to the county board of elections in the county in which his voting
residence is located. The letter shall be signed by the applicant and contain his name, place of residence and proof of
identification.
(f) The county chairman of each political party or the head of each political body shall designate one representative
from his respective political party or body for each public institution. The representatives so appointed shall, at the
same time on a date fixed by the county board of election visit every public institution situate in the county for the
purpose of obtaining the names and addresses of public institution residents who desire to receive applications for
absentee ballots and to act as an election board as provided in subsection (g) of this section. The list of names and
addresses thus obtained shall then be submitted by said representatives to the board which shall furnish applications
individually to those appearing in the written request. If the chairman or head of a political party or body fails to
appoint a representative within fifteen days from written notice from the county board of election, the county board of
election shall appoint a representative from the political party or body.
(g) The county board of election shall appoint teams of three members for each public institution that shall go to the
public institutions and hold the election on the first Friday prior to election day. Each member of the board shall
appoint one member on every team. After the votes are cast, the teams shall collect the ballots and return them to the
county board of election where they shall be placed unopened in a secure, safe and sealed container in the custody of
the board until they shall be distributed to the respective absentee voters’ election district as provided in section 1308
of this act where they shall be counted with the other absentee ballots, if any.
(h) The county board of election shall number, in chronological order, the applications for an official absentee ballot,
which number shall likewise appear on the official absentee ballot for the qualified elector. The numbers shall appear
legibly and in a conspicuous place but before the ballots are distributed the number on the ballot shall be torn off by
the county board of election. This number information shall be appropriately inserted and become a part of the
Registered Absentee Voters File and the Military, Veterans and Emergency Civilian Absentee Voters File provided in
section 1302.3 of this act.
(i)
(1) Application for official absentee ballots shall be on physical and electronic forms prescribed by the Secretary
of the Commonwealth. The application shall state that an elector who applies for an absentee ballot pursuant to
section 1301 shall not be eligible to vote at a polling place on election day unless the elector brings the elector’s
absentee ballot to the elector’s polling place, remits the ballot and the envelope containing the declaration of the
elector to the judge of elections to be spoiled and signs a statement subject to the penalties of 18 Pa.C.S. § 4904
(relating to unsworn falsification to authorities) to the same effect. Such physical application forms shall be made
freely available to the public at county board of elections, municipal buildings and at such other locations
designated by the secretary. Such electronic application forms shall be made freely available to the public through
publicly accessible means. No written application or personal request shall be necessary to receive or access the
application forms. Copies and records of all completed physical and electronic applications for official absentee
ballots shall be retained by the county board of elections.
(2) Nothing in this act shall prohibit a private organization or individual from printing blank voter applications
for absentee ballots or shall prohibit the use of such applications by another individual, provided the form, content
and paper quality have been approved by the Secretary of the Commonwealth.
(j) Notwithstanding the provisions of this section requiring proof of identification, a qualified absentee elector shall
not be required to provide proof of identification if the elector is entitled to vote by absentee ballot under the
Uniformed and Overseas Citizens Absentee Voting Act (Public Law 99-410, 100 Stat. 924) or by an alternative ballot
under the Voting Accessibility for the Elderly and Handicapped Act (Public Law 98-435, 98 Stat. 1678).
(k) The Secretary of the Commonwealth may develop an electronic system through which all qualified electors may
apply for an absentee ballot and request permanent absentee voter status under subsection (e.1), provided the system is
Page 4 of 4
25 P.S. § 3146.2
able to capture a digitized or electronic signature of the applicant. A county board of elections shall treat any
application or request received through the electronic system as if the application or request had been submitted on a
paper form or any other format used by the county.
25 P.S. § 3146.6
(a) Except as provided in paragraphs (2) and (3), at any time after receiving an official
absentee ballot, but on or before eight o’clock P.M. the day of the primary or election, the
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.
(1) (Deleted by amendment).
(2) Any elector, spouse of the elector or dependent of the elector, qualified in
accordance with the provisions of section 1301, subsections (e), (f), (g) and (h) to
vote by absentee ballot as herein provided, shall be required to include on the form of
declaration a supporting declaration in form prescribed by the Secretary of the
Commonwealth, to be signed by the head of the department or chief of division or
bureau in which the elector is employed, setting forth the identity of the elector,
spouse of the elector or dependent of the elector.
(3) Any elector who has filed his application in accordance with section 1302
subsection (e) (2), and is unable to sign his declaration because of illness or physical
disability, shall be excused from signing upon making a declaration which shall be
witnessed by one adult person in substantially the following form: I hereby declare
that I am unable to sign my declaration for voting my absentee ballot without
assistance because I am unable to write by reason of my illness or physical disability.
I have made or received assistance in making my mark in lieu of my signature.
(Date) (Mark)
(b)
(1) Any elector who receives and votes an absentee ballot pursuant to section 1301
shall not be eligible to vote at a polling place on election day. The district register at
Page 2 of 2
25 P.S. § 3146.6
each polling place shall clearly identify electors who have received and voted
absentee ballots as ineligible to vote at the polling place, and district election officers
shall not permit electors who voted an absentee ballot to vote at the polling place.
(2) An elector who requests an absentee ballot and who is not shown on the district
register as having voted the ballot may vote by provisional ballot under section
1210(a.4)(1).
(3) Notwithstanding paragraph (2), an elector who requests an absentee ballot and
who is not shown on the district register as having voted the ballot may vote at the
polling place if the elector remits the ballot and the envelope containing the
declaration of the elector to the judge of elections to be spoiled and the elector signs a
statement subject to the penalties under 18 Pa.C.S. § 4904 (relating to unsworn
falsification to authorities) in substantially the following form:
I hereby declare that I am a qualified registered elector who has obtained an
absentee ballot or mail-in ballot. I further declare that I have not cast my absentee
ballot or mail-in ballot, and that instead I remitted my absentee ballot or mail-in
ballot and the envelope containing the declaration of the elector to the judge of
elections at my polling place to be spoiled and therefore request that my absentee
ballot or mail-in ballot be voided.
(Date)
(Signature of Elector)...................... (Address of Elector)
(Local Judge of Elections)
(c) Except as provided under 25 Pa.C.S. § 3511 (relating to receipt of voted ballot), a
completed absentee 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. § 3146.8
(a) The county boards of election, upon receipt of official absentee ballots in sealed
official absentee ballot envelopes as provided under this article and mail-in ballots as in
sealed official mail-in ballot envelopes as provided under Article XIII-D, shall safely
keep the ballots in sealed or locked containers until theyare to be canvassed by the county
board of elections. An absentee ballot, whether issued to a civilian, military or other voter
during the regular or emergency application period, shall be canvassed in accordance
with subsection (g). A mail-in ballot shall be canvassed in accordance with subsection
(g).
(b) Watchers shall be permitted to be present when the envelopes containing official
absentee ballots and mail-in ballots are opened and when such ballots are counted and
recorded.
(b.1)(Deleted by amendment).
(c) Deleted by 1968, Dec. 11, P.L. 1183, No. 375, § 8.
(d) Whenever it shall appear by due proof that any absentee elector or mail-in elector
who has returned his ballot in accordance with the provisions of this act has died prior to
the opening of the polls on the day of the primary or election, the ballot of such deceased
elector shall be rejected by the canvassers but the counting of the ballot of an absentee
elector or a mail-in elector thus deceased shall not of itself invalidate any nomination or
election.
(e) (Deleted by amendment).
(f) Any person challenging an application for an absentee ballot, an absentee ballot, an
application for a mail-in ballot or a mail-in ballot for any of the reasons provided in this
act shall deposit the sum of ten dollars ($10.00) in cash with the county board, which sum
shall only be refunded if the challenge is sustained or if the challenge is withdrawn within
five (5) days after the primary or election. If the challenge is dismissed by any lawful
order then the deposit shall be forfeited. The county board shall deposit all deposit money
in the general fund of the county.
Notice of the requirements of subsection (b) of section 1306 shall be printed on the
envelope for the absentee ballot or mail-in ballot.
(g)
(1)
Page 2 of 4
25 P.S. § 3146.8
(i) An absentee ballot cast by any absentee elector as defined in section 1301(a),
(b), (c), (d), (e), (f), (g) and (h) shall be canvassed in accordance with this
subsection if the ballot is cast, submitted and received in accordance with the
provisions of 25 Pa.C.S. Ch. 35 (relating to uniform military and overseas voters).
(ii) An absentee ballot cast by any absentee elector as defined in section 1301(i),
(j), (k), (l), (m) and (n), an absentee ballot under section 1302(a.3) or a mail-in
ballot cast by a mail-in elector shall be canvassed in accordance with this
subsection if the absentee ballot or mail-in ballot is 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.
(1.1)The county board of elections shall meet no earlier than seven o’clock A.M. on
election day to pre-canvass all ballots received prior to the meeting. A county board
of elections shall provide at least forty-eight hours’ notice of a pre-canvass meeting
by publicly posting a notice of a pre-canvass meeting on its publicly accessible
Internet website. One authorized representative of each candidate in an election and
one representative from each political party shall be permitted to remain in the room
in which the absentee ballots and mail-in ballots are pre-canvassed. No person
observing, attending or participating in a pre-canvass meeting may disclose the results
of any portion of any pre-canvass meeting prior to the close of the polls.
(2) The county board of elections shall meet no earlier than the close of polls on the
day of the election and no later than the third day following the election to begin
canvassing absentee ballots and mail-in ballots not included in the pre-canvass
meeting. The meeting under this paragraph shall continue until all absentee ballots
and mail-in ballots received prior to the close of the polls have been canvassed. The
county board of elections shall not record or publish any votes reflected on the ballots
prior to the close of the polls. The canvass process shall continue through the eighth
day following the election for valid military-overseas ballots timely received under 25
Pa.C.S. § 3511 (relating to receipt of voted ballot). A county board of elections shall
provide at least forty-eight hours’ notice of a canvass meeting by publicly posting a
notice on its publicly accessible Internet website. One authorized representative of
each candidate in an election and one representative from each political party shall be
permitted to remain in the room in which the absentee ballots and mail-in ballots are
canvassed.
(3) When the county board meets to pre-canvass or canvass absentee ballots and
mail-in ballots under paragraphs (1), (1.1) and (2), the board shall examine the
declaration on the envelope of each ballot not set aside under subsection (d) and shall
compare the information thereon with that contained in the “Registered Absentee and
Mail-in Voters File,” the absentee voters’ list and/or the “Military Veterans and
Emergency Civilians Absentee Voters File,” whichever is applicable. If the county
board has verified the proof of identification as required under this act and is satisfied
that the declaration is sufficient and the information contained in the “Registered
Page 3 of 4
25 P.S. § 3146.8
Absentee and Mail-in Voters File,” the absentee voters’ list and/or the “Military
Veterans and Emergency Civilians Absentee Voters File” verifies his right to vote,
the county board shall provide a list of the names of electors whose absentee ballots
or mail-in ballots are to be pre-canvassed or canvassed.
(4) All absentee ballots which have not been challenged under section 1302.2(c) and
all mail-in ballots which have not been challenged under section 1302.2-D(a)(2) and
that have been verified under paragraph (3) shall be counted and included with the
returns of the applicable election district as follows:
(i) The county board shall open the envelope of every unchallenged absentee
elector and mail-in elector in such manner as not to destroy the declaration
executed thereon.
(ii) 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.
(iii) The county board shall then break the seals of such envelopes, remove the
ballots and count, compute and tally the votes.
(iv) Following the close of the polls, the county board shall record and publish
the votes reflected on the ballots.
(5) Ballots received whose applications have been challenged and ballots which have
been challenged shall be placed unopened in a secure, safe and sealed container in the
custody of the county board until it shall fix a time and place for a formal hearing of
all such challenges, and notice shall be given where possible to all absentee electors
and mail-in electors thus challenged and to every individual who made a challenge.
The time for the hearing shall not be later than seven (7) days after the deadline for all
challenges to be filed. On the day fixed for said hearing, the county board shall
proceed without delay to hear said challenges, and, in hearing the testimony, the
county board shall not be bound by the Pennsylvania Rules of Evidence. The
testimony presented shall be stenographically recorded and made part of the record of
the hearing.
(6) The decision of the county board in upholding or dismissing any challenge may
be reviewed by the court of common pleas of the county upon a petition filed by any
person aggrieved by the decision of the county board. The appeal shall be taken,
within two (2) days after the decision was made, whether the decision was reduced to
writing or not, to the court of common pleas setting forth the objections to the county
board’s decision and praying for an order reversing the decision.
(7) Pending the final determination of all appeals, the county board shall suspend any
action in canvassing and computing all challenged ballots received under this
subsection irrespective of whether or not appeal was taken from the county board’s
Page 4 of 4
25 P.S. § 3146.8
decision. Upon completion of the computation of the returns of the county, the votes
cast upon the challenged official absentee ballots that have been finally determined to
be valid shall be added to the other votes cast within the county.
(h) For those absentee ballots or mail-in ballots for which proof of identification has not
been received or could not be verified:
(1) (Deleted by amendment).
(2) If the proof of identification is received and verified prior to the sixth calendar
day following the election, then the county board of elections shall canvass the
absentee ballots and mail-in ballots under this subsection in accordance with
subsection (g)(2).
(3) If an elector fails to provide proof of identification that can be verified by the
county board of elections by the sixth calendar day following the election, then the
absentee ballot or mail-in ballot shall not be counted.
(i) Notwithstanding the provisions of this section, a qualified absentee elector shall not
be required to provide proof of identification if the elector is entitled to vote by absentee
ballot under the Uniformed and Overseas Citizens Absentee Voting Act (Public Law 99-
410, 100 Stat. 924) or by an alternative ballot under the Voting Accessibility for the
Elderly and Handicapped Act (Public Law 98-435, 98 Stat. 1678).
25 P.S. § 3150.11
(a) General rule. A qualified mail-in elector shall be entitled to vote by an official mail-
in ballot in any primary or election held in this Commonwealth in the manner provided
under this article.
(1) [Repealed by amendment]
(2) [Repealed by amendment]
(b) Construction. The term “qualified mail-in elector” shall not be construed to include
a person not otherwise qualified as a qualified elector in accordance with the definition in
section 102(t).
25 P.S. § 3150.16
§ 3150.16. Voting by mail-in electors
(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.
(a.1) Signature. Any elector who is unable to sign the declaration because of illness or
physical disability, shall be excused from signing upon making a declaration which shall
be witnessed by one adult person in substantially the following form:
I hereby declare that I am unable to sign my declaration for voting my mail-in ballot
without assistance because I am unable to write by reason of my illness or physical
disability. I have made or received assistance in making my mark in lieu of my
signature.
(Mark)
(Date)
(Complete Address of Witness)
(Signature of Witness)
(b) Eligibility.
(1) Any elector who receives and votes a mail-in ballot under section 1301-D shall
not be eligible to vote at a polling place on election day. The district register at each
polling place shall clearly identify electors who have received and voted mail-in
ballots as ineligible to vote at the polling place, and district election officers shall not
permit electors who voted a mail-in ballot to vote at the polling place.
(2) An elector who requests a mail-in ballot and who is not shown on the district
register as having voted may vote by provisional ballot under section 1210(a.4)(1).
(3) Notwithstanding paragraph (2), an elector who requests a mail-in ballot and who
is not shown on the district register as having voted the ballot may vote at the polling
place if the elector remits the ballot and the envelope containing the declaration of the
Page 2 of 2
25 P.S. § 3150.16
elector to the judge of elections to be spoiled and the elector signs a statement subject
to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities)
which shall be in substantially the following form:
I hereby declare that I am a qualified registered elector who has obtained an
absentee ballot or mail-in ballot. I further declare that I have not cast my absentee
ballot or mail-in ballot, and that instead I remitted my absentee ballot or mail-in
ballot to the judge of elections at my polling place to be spoiled and therefore
request that my absentee ballot or mail-in ballot be voided.
(Date)
(Signature of Elector)...................... (Address of Elector)
(Local Judge of Elections)
(c) Deadline. Except as provided under 25 Pa.C.S. § 3511 (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.
APPENDIX L
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
ORDER
PER CURIAM
AND NOW, this 8th day of December, 2020 the Emergency Petition for Allowance
of Appeal is DENIED.
APPENDIX M
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CIVIL DIVISION
I. Introduction
The above captioned matter is before the Bucks County Court of Common
Pleas pursuant to§§ 3146.8 and 3157(a) of the Pennsylvania Election Code. 25
P.S. §§ 3146.8, 3157(a). Petitioners are asking the Court to reverse the Decision of
the Bucks County Board of Elections relevant to certain ballots which were
received by the Board of Election as part of the General Election which took
place November 3, 2020. The Petitioners are Petitioner Donald J. Trump for
1
Petitioner Donald J. Trump for President, Inc. is the principle committee for the reelection campaign of Donald J.
Trump, the forty-fifth President of the United States of America. Petitioner Donald J. Trump for President, Inc. is
bringing this action for itself and on behalf of its candidate President Trump.
2
Petitioner Republican National Committee is the national political committee that leads the Republican Party of
the United States. It works to elect Republican candidates to State and Federal Offices throughout the United States,
including the Commonwealth of Pennsylvania . Petitioner Republican National Committee is bringing this action for
itself and on behalf of the Republican Party, all of its members, all registered Republican voters, and all nominated
Republican candidates in the November 3, 2020 General Election in Pennsylvania.
has also been improperly captioned as "Donald J. Trump for President, Inc., et al.
vs. Bucks County Board of Elections". The Respondent is the Bucks County Board
3
Petitioner Heidelbaugh for Attorney General, Inc. is the principal committee for the election campaign of Heather
Heidelbaugh for the office of Attorney General of Pennsylvania. Heidelbaugh is the Republican candidate for the
office of Attorney General of Pennsylvania in the November 3, 2020 General Election. Petitioner Heidelbaugh for
Attorney General, Inc. is bringing this action for itself and on behalf of its candidate.
4
Petitioner Garrity for PA is the principle committee for the election campaign of Stacy L. Garrity for the Office of
Treasurer of Pennsylvania. Stacy l. Garrity is the Republican candidate for the office of the Treasurer of Pennsylvania
in the Election of November 3, 2020. Petitioner Garrity for PAis bringing this action for itself and on behalf of its
candidate.
5
Respondent Bucks County Board of Elections is responsible for overseeing the conduct of elections in Bucks County,
including the administration of the pre-canvass and canvass sessions of the Board during which absentee and mail-
in ballots were opened, reviewed, and counted, as required by the Election Code.
6
The Democratic National Committee is a national committee dedicated to electing local, state, and national
candidates of the Democratic Party to public office throughout the United States, including Pennsylvania . The
Democratic National Committee has members who submitted absentee and mail-in ballots in the November 3, 2020
General Election.
7
The Bucks County Democratic Committee is a local committee with a mission of electing qualified members of the
Democratic Party to local office at all levels of government. The Bucks County Democratic Committee has members
and constituents across Bucks County who submitted absentee and mail-in ballots in Bucks County in the November
3, 2020 General Election.
8
The Pennsylvania House Democratic Campaign Committee is a state committee dedicated to electing local
members of the Democratic Party to the Pennsylvania House of Representatives. The Pennsylvania House
Democratic Campaign Committee has members and constituents who submitted absentee and mail-in ballots in
Bucks County in the November 3, 2020 General Election.
2
In this appeal, Petitioners argue9 that the Board violated State Law when it
failed to reject certain specific ballots, and over objection, accepted the ballots
as valid votes of Bucks County citizens. The Respondent, as part of its statutory
duties, sorted through and reviewed approximately 165,000 total absentee and
mail-in ballots. In this process, the Respondent Board deemed a total of 918 ballots
to be legally insufficient, and therefore, those specific ballots were not canvassed;
in other words, the ballots were rejected. These ballots were not rejected because
there was a finding that the person submitting the ballot was not authorized to
vote, but rather because of some deficiency required by the Election Code, such
The actual vote offered on any of those rejected ballots is unknown. Whether
or not a specific vote on any of those ballots would be for or against any of the
Petitioner candidates, or their opponents is unknown. There are 2,177 ballots are
need for a prompt resolution of the issues presented to allow for certification of
votes. Should an appeal be filed the Court reserves the right to supplement this
9
On the day of the hearing, Petitioners were solely represented by Britain R. Henry, Esquire. Other attorneys had
entered their appearance and represent all the Petitioners for purposes of the record. Attorney Henry confirmed
that he had the authority to speak for all Petitioners, but that he was proceeding primarily on behalf of Petitioner
Donald J. Trump for President, Inc.
10
While drafting this Memorandum and Order, the Court has learned that the Supreme Court of Pennsylvania has
Exercised Extraordinary Jurisdiction over the some of the Commonwealth Courts cases with respect to Election Code
issues similar to the ones at issue herein. In Order to expedite the completion of this Memorandum and Order, this
3
After careful deliberation and study of the relevant statutory and appellate
case law, the undersigned is confident that the final decision is correct. However,
the electorate and the various county boards of elections would benefit from
clear precise legislation on the subjects presented in this appeal. It must be noted
that there exists no evidence of any fraud, misconduct, or any impropriety with
respect to the challenged ballots. There is nothing in the record and nothing
alleged that would lead to the conclusion that any of the challenged ballots were
did Petitioners present evidence or argument to the contrary. The challenges are
all to form rather than substance but premised on specific statutory language
which Petitioners argue supported the issues presented. There is insufficient time_
for this Court to construct a comprehensive response to all issues raised but
hopefully this decision will provide an explanation for the Court's reasoning.
including an order that the parties meet prior to the date of the hearing on this
matter to craft a stipulation of undisputed facts. Counsel for the parties did an
Decision will not cite all of the legal authority reviewed and considered and which supports each and every
conclusion. The Intervenors in this case, and the Respondent, submitted ample legal authority for their positions,
and this Court will presume that all Appellate Judges reviewing this Decision will be familiar with the body of Election
Law which defines and establishes broad principles of law, which for purposes of Petitioners' Appeal have not been
challenged by any party, but which would normally be cited for completeness as a matter of course.
4
presented to the court during the on the record conference held the morning of
the hearing. Stipulated Facts, Ct. Ex. 1. The hearing was held in the afternoon of
November 17th, 2020. The stipulation of facts also included exhibits. During both
the conference and the hearing, counsel were frequently questioned whether
has not been transcribed and is not available to the Court at this time, and for
confident that the facts stated herein were agreed to by all parties on the record.
On November 7th, 2020 during the course of the canvass meeting of mail-in
deficiency of the ballot. The physical ballots were separated from the other
ballots and secured along with all ballots of the same category. The Board made
the Board's written decision made part of the record. The meeting and vote were
segregation of ballots into the designated categories. No one has appealed the
5
Board's decision to exclude 918 ballots for various reasons set forth in its written
Decision. The only appeal has been from the Board's decision to not exclude
certain ballots.
The parties' stipulation of facts identified the six categories which were
challenged by Petitioners. During the hearing, counsel for Petitioner withdrew the
outer envelope;
envelope;
envelope; and
Board, and as a result they were canvassed. During oral argument the Court
two separate groups, one being ballots with no date and the other being ballots
with a partial date. The Respondent Board has explained that the ballots were
canvassed and cannot be retrieved as two separate groups. This Court believes
6
that the category as identified should have been segregated into two separate
groups, however that was not done. All the ballots in this category are mingled
together and a decision on those ballots must now accept this fact. Should this
Court or an appellate court conclude that the absence of any date would
invalidate a ballot but that a partial date would preserve the ballot the Court
would be faced with the fact that invalidating the entire c a tegory would
disenfranchise voters that had properly submitted their ballot. No record has been
created to determine the exact number of ballots with no date versus ballots with
a partial date. This Court concluded that to order a further review would be a
futile exercise under the circumstances and now accepts the factual situation for
what it is.
Ill. Discussion
Petitioners' Appeal as pled is limited to the argument that the Board's Decision
to validate (and not reject) each of the ballots which have been categorized into
five separate distinct groups was an "error of law." Petitioners have pled, in their
Although all provisions of the Election Code should be strictly enforced, the
disenfranchise them. In re Wieskerqer, 290 A .2d 108, 109 (Pa. 1972). The Court
Absentee Ballots of Nov. 4. 2003 Gen . Election, 843 A.2d 1223, 1231 (Pa. 2004)
7
[hereinafter "Appeal of Pierce"]. But, the Court must be flexible in favor of the
right to vote. Wieskerqer, 290 A.2d at 109; Appeal of Pierce, 843 A.2d at 1231.
Supreme Court has ruled that certain provisions of the Election Code are
Court has identified and explained principles of law which control the argument
set forth by the litigants herein, which provides guidance and clear direction to
this Court. Ballots should not be disqualified based upon failure to follow directory
provisions of the law. Shambach v. Bickhart, 845 A.2d 793, 803 (Pa. 2004) (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 evidence of
fraud and the voter's intent is clear); Wieskerqer, 290 A.2d at 109 (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).
law: failure to strictly adhere to the requirements of a directory statute will not
nullify the validity of the action involved, whereas mandatory provisions must be
followed.
Applying the law to the facts of this case, this Court is mindful of the following
facts which are set forth in the parties' stipulation of facts. Petitioners do not
8
allege that there is any evidence of fraud, misconduct, impropriety, or any
suggestion, evidence, or allegation that the electors who cast the ballots at
allegation that the challenged ballots were cast by someone other than the
ballots were mailed out to electors before October 7th, 2020. The ballots which
are the subject of this challenge were timely received by the Respondent Board
Petitioners raise challenges under Section 3146.6 and 3150.16 of the Election
Code. These provisions are nearly identical, but one is applicable to absentee
ballots while the other is applicable to mail-in ballots. Section 3146.6(a) provides
25 P.S. § 3150.16(a).
that were set aside for specific review in the following categories 11:
3. Partial address,
11
There has been no challenge to the Board's Decision to set aside and not count ballots in the following categories:
a. 110 ballots that failed to include a signature, which the Board ruled rendered the ballot "insufficient" and
therefore it was not canvassed;
b. 12 ballots where the elector's printed name did not match the name on the label located on the envelope;
c. 2 ballots which came from the same household where the voters appeared to have inadvertently signed
one another's declarations;
d. 708 ballots which were not placed in a secrecy envelope thereby rendering them to be "naked"; and
e. 21 ballots which contained secrecy envelopes with writing that revealed the elector's identity.
10
4. Mismatched address, and
The relevant portion of the Election Code set forth above uses mandatory
language which provides that electors "shall" take certain steps when submitting
an absentee or mail-in ballot. Importantly, "the elector shall ... fold the ballot,
enclose and securely seal the same in the envelope on which is printed, stamped
added). And, "[t]he elector shall then fill out, date and sign the declaration
printed on such envelope." J..Q.. (emphasis added). Although not relevant to this
Code: "[t]his 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"; "[s]uch
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
Election Code, no less than any other, is steeped with requirements phrased in the
imperative, not only in terms of the technical requirements for ballot completion,
but also in terms of the overall conduct of elections." Bickhart, 845 A.2d at 806
the Election Code, the Supreme Court has distinguished between provisions that
11
are directory and those that are mandatory. "It would be unreasonable to
assume that the General Assembly thus intended that, unless each and every
conducting the elections, election results must be deemed void." lQ,_ If the
provisions are read as directory, although "they are intended to be obeyed, and
determined whether the provision was mandatory or directory; the inquiry did not
determine whether the Election Code allowed a board to void ballots that were
not within a secrecy envelope. Pa. Democratic Party v. Boockvar, No. 133 MM
2020, 2020 Pa. LEXIS 4872, at *57 (Pa. 2020 Sept. 17, 2020). "In determining the
whether it is mandatory or directory, as that will govern the consequences for non-
12
compliance." 2020 Po. LEXIS 4872, at *66. The Court ruled that "the difference
will not nullify the validity of the action involved." ld. {quoting JPay, Inc. v. Dep't
of Corrs. & Governor's Off. of Admin., 89 A.3d 756, 763 {Po. Cmwlth. 2014)). The
Court distinguished the statutory provision at issue from those involved in cases
distinguished Bickhart and Wieskerqer. lQ_,_ at *68-69. In both of those cases, the
Court found that ballots with "minor irregularities" should only be stricken when
where a candidate who was already named on the ballot was written in by the
elector. Bickhart, 845 A.2d at 803. In Wieskerqer, the Court counted a ballot that
was completed in the wrong color ink. Wieskerqer, 290 A.2d at 109. "Marking a
kL {quoting Reading Election Recount Case, 188 A.2d 254, 256 {Po. 1963)).
In contrast, in Appeal of Pierce, where the provision at issue was the "in-
provision "unambiguously provided that 'the elector shall send [the absentee
to [said county] board of election." Boockvar, 2020 Po. LEXIS 4872, at *70. The
Court "was unpersuaded by the argument that the language was directory and
13
declined the invitation to interpret 'shall' as anything less than mandatory." &
843 A.2d at 1231. In Appeal of Pierce, the Supreme Court distinguished Wieskerqer
based on the fact that it was "decided before the enactment of the Statutory
when a statute is ambiguous." 1£;h The Pennsylvania Supreme Court stated that to
construe the provision at issue, which utilized the word "shall," as "merely directory
would render its limitation meaningless and. ultimately, absurd." ld. at 1232. The
Election Code are necessary for the preservation of secrecy and the sanctity of
the current Election Code, this Court finds the following with respect to each
category:
cor:npletion of the declaration, the Board combined those ballots which had a
partial date with those that had no date into one category. This category co-
mingles what this Court considers two separate categories: ballots with no dates
and ballots with partial dates. There are an undefined number of ballots with
14
absolutely no date whatsoever and an undefined number of ballots that were
dated in some fashion, but where the date was considered to be partial. This
Court would, with little hesitation, accept the argument that a deficiency (i.e., a
partial date) on an envelope would not invalidate that ballot. The totality of the
circumstances confirms that the ballot was signed on a date that qualified the
"challenged ballots were completed and received between October 71h and
November 3rd, 2020." Therefore, these ballots would meet the requirement that
the elector "shall fill out, date and sign the declaration" as stated in Sections
3146.6 and 3150.16 of the Election Code. See 25 P.S. §§ 3146.6(a), 3150.16(a).
Within this subcategory, the elector would have complied with the law's mandate
that "[t] he elector shall then fill out, date and sign the declaration printed on such
Court finds that the question before the Court is much more complicated.
directory only and the totality of the evidence proves that the ballots were signed
on a date consistent with the law. This Court agrees with the conclusion that the
totality of the evidence, stipulated to by the parties, proves that the ballots were
signed on some date appropriate to the Election Law; however, the only specific
guidance available to this Court, on this subject, is found in In re Nov. 3. 2020.. Gen.
Election, No. 149 MM 2020, 2020 Po. LEXIS 5560, at *36 (Po. Oct. 23, 2020), where
15
the Pennsylvania Supreme Court specifically ruled on the Board's duty to
Supreme Court has provided this Court, and all Board of Elections, with this
mandate:
Intervenors and Respondent argued to this Court that the language of the
Pennsylvania Supreme Court was dicta as it relates to the words "dated and
signed". Ultimately, an Appellate Court may rule that the language was merely
dicta; however, the undersigned feels constrained to follow the clear language
of the Pennsylvania Supreme Court's Decision with respect to this issue. A studied
review of election law has demonstrated to the undersigned that many sections
of the Election Law which were ultimately concluded to be directory rather than
mandatory despite the use of the word "shall", went through a gauntlet of judicial
opinions with varying views up until the question was resolved by the Pennsylvania
16
Supreme Court. See Appeal of Pierce, 843 A.2d 1223 (Pa. 2003); Bickhart, 845 A.2d
In reflecting on this issue, the undersigned cannot help but see the irony in the
fact that the absence of a signature invalidates the ballot. Respondent refused
to Canvass ballots that had not been signed. However, if someone put an
obviously false signature on the ballot, the ballot would have been most probably
counted because the Court has also ruled that nothing in the language of the
someone put a date on the envelope which demonstrated that the vote was
made at an improper time, that fact would be readily apparent to the Board
when Canvassing and it would result in a ballot being set aside. During oral
argument, the Court pointed out ihat virtually all-important documents are dated
when signed. If these two subcategories of ballots had not been co-mingled, and
if it were possible to segregate those ballots which had no date at all, this Court
would have reflected on the issue further, searched for additional legal authority,
but most probably would have ruled that an undated ballot is not sufficient based
on the existing law set by the Pennsylvania Supreme Court's ruling in In re Nov. 3,
2020 Gen. Election. However, the ballots were co-mingled and therefore there is
electors whose ballots (partially dated) this Court would conclude are valid.
The act of co-mingling ·those ballots was done in the presence of both
17
have a representative present when the Board issued its ruling. The
of Petitioners' Petition and notice of the hearing. Only one of the named
record, that he was personally familiar with the lawyers who were acting as
reluctant to speak out. Those lawyer/representatives all knew how to contact the
Bucks County Court of Common Pleas, and therefore, any or all of them could
have insisted on subcategorizing this category of ballots before they were co-
mingled.
This issue identified by the undersigned has effectively created a waiver issue
for these ballots. This Court specifically finds with respect to these specific ballots
electors who issued a proper ballot, simply because their ballot was co-mingled
with what the undersigned would have felt compelled under current law to deem
"insufficient".
Upon review of this issue by an Appellate Court, this Court urges consideration
to the issue of co-mingling and this Court's ruling that the issue has been waived.
The issue of co-mingling was before the Pennsylvania Supreme Court in Appeal
of Pierce, and is noted at footnote 16. See Appeal of Pierce, 843 A.2d at 250, n.l6
18
There, the Court declined to rule on the validity of a co-mingled ballot because
Envelope
The 644 ballots with no handwritten name or address on the outer envelope,
the 86 ballots with a partial written address on the outer envelope, and the 182
these errors are ministerial, technical errors. Failure of the elector to complete this
elector to "fill out" the declaration, there is no requirement that filling out the
declaration needs to. include handwriting the elector's name and address. Even
outer envelope) are not mandated by the statute. Rather, these errors are "minor
irregularities," which should not invalidate ballots. As with the Supreme Court's
handwritten name or address is not necessary to prevent fraud, and there would
counted.
19
The ballots at issue in this category are not "naked ballots," which would be
invalid pursuant to the Supreme Court's decision in Boockvar. 2020 Po. LEXIS 4872,
at *73. Rather, these ballots were enclosed within their respective privacy
envelopes; however, those envelopes were not sealed at the time of canvassing.
There is no factual evidence that supports a conclusion that the envelopes had
not been sealed by the elector prior to that time. In the stipulation of facts at~ 46,
envelopes were initially sealed by the elector but later became unsealed."
Therefore, this Court finds there is no evidence that the electors failed to "securely
seal [the ballot] in the [privacy] envelope," as required by the Election Code. The
elector was provided the envelope by the government. If the glue on the
disenfranchise these voters when it cannot be shown that the ballots in question
were not "securely sealed" in the privacy envelope prior to the canvassing of
those ballots, and for all of the reasons stated previously, there has been no
20
IV. Conclusion
For the reasons set forth herein above, the objections to the ballots of
Petitioner Donald J. Trump for President, Inc., et al. are all OVERRULED, the
requests for relief made therein are DENIED and the Appeal is DISMISSED.
BY THE COURT:
21
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANJA
CIVIL DIVISION
ORDER
AND NOW, this 191h day ofNovember, 2020, upon consideration of(l) the Petition for
Review of Decision by the Bucks County Board of Elections filed on behalf of Petitioners
Donald J. Trump for President, Inc., Republican National Committee, Heidelbaugh for Attorney
General, Inc., and Garrity for PA; (2) the responses in opposition thereto filed by Respondent
Bucks County Board of Elections, Intervenor Democratic National Committee, and Intervenors
Committee; and (3) the evidence presented including all stipulations and admissions by counsel
as well as the arguments of counsel during the on the record prehearing conference and the
hearing on November 171\ 2020, for the reasons set forth in the accompanying Memorandum, it
is hereby ORDERED and DECREED that said Petition for Review is DENIED. The Bucks
County Board of Elections is ORDERED consistent with the Memorandum to count the ballots
1. 1,196 ballots with no date or a partial date handwritten on the outer envelope;
v.
I. INTRODUCTION
Petitioners, Donald J. Trump for President, Inc., et al., filed a Petition for Review of Decision
by the Montgomery County Board of Elections (the "Board") on November 5, 2020 seeking to
invalidate about six hundred (600) absentee and mail-in ballots cast by voters in the November 3,
2020 General Election. Petitioners seek review of the Board's decision to overrule Petitioners'
objections to count these ballots. Petitioners allege these challenged ballots were cast in violation
of 25 P.S. §§ 3146.6(a) and 3150.16(a) because the electors failed to fill out their address
immediately below their signed declaration on the outer envelope of the absentee and mail-in
ballots. A telephone conference was held on November 6, 2020 where the parties agreed to submit
stipulated facts. The Democratic National Convention ("DNC") and the Montgomery County
Democratic Committee moved to intervene in the action. Petitioners and Respondent did not object
1
RULE 236 NOTICE PROVIDED ON 11/13/2020
II. STIPULATED FACTS
2. In both instances, the elector who desires to cast a vote either by absentee ballot
or mail-in ballot must request such a ballot from the county board of elections,
in this case, Respondent.
3. Upon application to, and approval of that application by Respondent, the elector
is provided balloting materials that include: 1) instructions as to how the elector
is to complete and return the ballot; 2) the ballot; 3) an inner secrecy envelope
into which the ballot is to be placed; and 4) an outer envelope into which the
secrecy envelope containing the ballot is to be placed and returned to
Respondent.
4. When the balloting materials are sent to the elector by Respondent, pre-printed
on the reverse side of the outer envelope is a voter's declaration.
5. Underneath the voter's declaration is a place for the voter to sign, date, and print
their name and address.
6. Also pre-printed on the same side of the outer envelope as the voter's
declaration is a unique nine-digit bar code that links the outer envelope to the
voter's registration file contained in the Statewide Uniform Registry of Electors
("SURE") system. Also, in most cases, the elector's name and address is pre-
printed on that side of the envelope. 1
7. On the front side of the outer envelope is preprinted the Respondent's address
where the ballot is to be sent as well as a place in the upper left-hand comer
where the elector may indicate his or her return address by writing it thereon or
affixing a label.
1
Footnote 1 of the parties' stipulation states as follows:
Of the 592 ballots at issue, 509 of those ballots have the voter's address pre-
printed on the outer envelope to the right of the voter's declaration. This was done
by the Board when it sent the ballot materials to the elector who had requested
them. Of these 509 "pre-printed address" ballots, 266 voters also affixed their
address in the space provided for return addresses on the front of the envelope.
So, for 266 of these ballots, the voter's address actually appears twice. For the
remaining 83 ballots, the pre-printed address was blacked-out in order to facilitate
the delivery of the ballot materials by the USPS. In 47 of these "blacked-out
ballots," the voter wrote their address on the space provided for a return address
on the front of the outer envelope. 36 out of 592 ballots have an outer envelope
with no easily discernable voter address. However, all 592 ballots contain the bar
code that links each one to the SURE system and the specific voter's information
- including address - is visible when scanned.
2
8. The Board has received 592 absentee and mail-in ballots where electors have
signed the voter's declaration and provided a date, but have not printed their
complete address in the space provided below the Declaration on the outer
envelope.
9. Respondent has segregated and not opened nor counted these 592 ballots.
10. When Respondent brought the existence of this group of unopened ballots to
the attention of Petitioners' counsel, an objection was verbally lodged.
11. Respondent has verbally overruled that objection and intends to open and count
these ballots subject to a ruling of this honorable Court.
12. A true and correct copy of the instructions to absentee and mail-in electors
contained in the ballot packages is attached hereto as Exhibit "A."
13. True and correct copies of examples of unopened absentee and mail-in ballots
(front and back) that are part of, and indicative of, the 592 ballots at issue before
this Court are attached as Exhibits "B" through "E" respectively. 2
2020. The court heard oral argument on November 10, 2020. Petitioners stated they were not
claiming any voter fraud, undue or improper influence regarding the challenged ballots at issue.
The parties stipulated that all of the 592 ballots at issue are signed and dated. All of the
outer declaration envelopes contain the electors' signatures directly below the Voter's Declaration
2
Exhibits A through E are appended hereto.
3
balloting materials, to be voided, to the judge of elections at my
polling place.
Exhibits B-E, Stipulated Facts, filed 1119/20. Beneath the elector's declaration and signature are
areas for the elector to indicate the date they voted, their printed name and address.
Petitioners claim the Board violated the requirements of 25 P.S. §§ 3146.6(a) and
3150.16(a) by canvassing and counting absentee and mail-in ballots where the outer declaration
envelope has not been properly "filled out" with the elector's address. The Board maintains the
above provisions do not require the elector to provide their address and the outer envelopes comply
III. DISCUSSION
The five statutory provisions of the Election Code at issue do not specifically require the
absentee or mail-in elector to provide their address below the declaration on the outer envelope.
25 P.S. §§ 3146.6(a) and 3150.16(a) govern voting by absentee and mail-in electors. Sections
3146.4. and 3150.14(b) address the form of the declaration on the outer envelope. Section
(a) Except as provided in paragraphs (2) and (3), at any time after
receiving an official absentee ballot, but on or before eight o'clock
P.M. the day of the primary or election, the 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,
3
Both the Board and Intervenor, DNC, have argued that the 2020 amendments to the Election Code have eliminated
time-of-canvassing challenges entirely from§ 3146.8(g)(3). The court is not addressing the merits of this argument.
4
postage prepaid, except where franked, or deliver it in person to said
county board of election.
25 P.S. § 3146.6(a) (emphasis added). The same requirements are set forth with respect to mail-in
ballots. See 25 P.S. § 3150.16(a) ("The elector shall then fill out, date and sign the declaration
Sections 3146.4 and 3150.14(b), regarding absentee and mail-in ballots respectively, both
delegate the form of the declaration to the Secretary of the Commonwealth. For absentee ballots,
These two provisions, specific to the content of the voter declaration, do not require the elector's
5
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g ~ thereon with that contained in the "Registered Absentee and Mail-
~
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a in Voters File," the absentee voters' list and/or the "Military
~ -o Veterans and Emergency Civilians Absentee Voters File,"
oc:
~ ~ whichever is applicable. If the county board has verified the proof
~~ of identification as required under this act and is satisfied that the
E
o...Cll.l2 declaration is sufficient and the information contained in the
~~ "Registered Absentee and Mail-in Voters File," the absentee voters'
~~ list and/or the "Military Veterans and Emergency Civilians
·sa;g
·iil Absentee Voters File" verifies his right to vote, the county board
~~ shall provide a list of the names of electors whose absentee ballots
~ 2 or mail-in ballots are to be pre-canvassed or canvassed.
£~
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~
:.::::c:
s 25 P.S. § 3146.8(g)(3) (emphasis added).
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~ '6 The court agrees with the Board's interpretation of§ 3146.6(a) and 3150.16(a). The
c:~
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:§ ~ statutory provisions provide that "[t]he elector shall then fill out, date and sign the declaration
10-8
:S-o
~~ printed on such envelope." 25 P.S. §§ 3146.6(a), 3150.16(a). The Legislature did not include a
iji,g
~~ requirement that the elector include their address on the outer envelope. By contrast, in sections
ii::.s2
Cll.£;
~~ 3146.6(a)(3) and 3150.16(a.l), the Legislature explicitly imposed the requirement of a "Complete
OCII
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': 8 Address of Witness" when an elector is unable to sign the declaration due to illness or physical
CliO>
~ .£;
~-~ disability. 4 Sections 3146.6(a) and 3150.16(a) do not include an explicit requirement to include
:g&
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0 10 the address of the elector as is clearly stated and required in subsequent subsections of the same
C\l.c:
o-
~~
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.....
statute. "It is a well established principle of statutory interpretation that we 'may not supply
c:~
~~ omissions in the statute when it appears that the matter may have been intentionally omitted."' In
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By comparison, 25 P.S. § 3150.16(a.l) states as follows:
g '! (
a.l) Signature.--Any elector who is unable to sign the declaration because of illness or physical
8~ disability, shall be excused from signing upon making a declaration which shall be witnessed by
~~ one adult person in substantially the following form:
~a
oo
~~ I hereby declare that I am unable to sign my declaration for voting my mail-in ballot
~ 5l without assistance because I am unable to write by reason of my illness or physical
10 ~ disability. I have made or received assistance in making my mark in lieu of my signature.
ijl.!l! (Mark)
-c:
~ ~ (Date)
8~ (Complete Address ofWitness)
l7 ~ (Signature ofWitness)
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~~
~~
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~~
re November 3, 2020 General Election, No. 149 MM 2020, 2020 WL 6252803, at *14 (Pa. Oct.
23, 2020) (citing Sivickv. State Ethics Commission, No. 62 MAP 2019,2020 WL 5823822, at *10
(Pa. Oct. 1, 2020)) (holding, inter alia, that the Election Code does not require signature
comparison).
The instructions by the Board accompanying each absentee or mail-in ballot do not inform
the voter that their address is required or that its omission will invalidate their ballot. The
instructions state "Be sure that you sign and date your [return] envelope." Exhibit A, Stipulated
Facts, filed 1119/20 (emphasis in original). Underneath that instruction, it is stated "Please Note:
Your ballot cannot be counted without a signature on the return envelope." Ibid. The instructions
do not state that a ballot will be not be counted without an address on the outer declaration
envelope. Additionally, the checkbox reminder on the top of the outer envelope only asks the
elector if they have signed the declaration in their own handwriting and if they have put their ballot
inside the secrecy envelope and placed it in the outer envelope. It would be patently improper and
unfair to invalidate a ballot where a voter reasonably relies upon lawful voting instructions by their
election board. 5 In re Recount ofBallots Cast in General Election on November 6, 1973, 325 A.2d
303, 308-309 (Pa. 1974) ("[T]he invalidation of a ballot where the voter has complied with all
instructions communicated to him and in the absence of any evidence of improper influence having
been exerted, invalidation would necessarily amount to an unreasonable encroachment upon the
franchise and the legislative enactment should not be interpreted to require such a result.") (holding
that votes must be counted where electors failed to remove, as explicitly required by the Election
Code, a perforated comer containing identifying information where "[t]here was no direction on
5
The court is aware that "erroneous guidance from the Department or county boards of elections cannot nullify the
express provisions of the Election Code." In re Scroggin, 237 A.3d 1006, 1021 (Pa. Sept. 17, 2020). However, the
court finds that requiring an elector to "fill out" their address on the outer envelope is not expressly stated in the
Election Code. The Board's instructions to voters is consistent with the requirements of the Election Code.
7
&
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s.
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g ~ the face of the ballot instructing the voter of the need to remove that particular portion before
~a
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~ -o casting the ballot").
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0111
"(c:
~~ Petitioners urge the court to construe "fill out" in Sections 3146.6(a) and 3150.16(a) to
o...E
Cll.l2
~~ mean "fill out your address in order for your vote to be counted." The Election Code does not
0.\!!
(I)~
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·s §
;g explicitly state as such and the court will not add language to the statute imposing a voting
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~ 2 condition which the Legislature did not specifically include. Even if one assumes, arguendo, that
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~ s
:.::::c:
the address requirement may be required, 556 of 592 challenged ballots include the electors'
9..~
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~ '6 addresses on the outer declaration envelopes (266 of which contain both the electors' pre-printed
c:~
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:§ ~ addresses and hand-written/typed mailing labels on the return addresses of the outer envelope, 243
10-8
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~~ of which contain the electors' pre-printed addresses, and 47 ofwhich contain the electors' hand-
iji,g
~~ written/typed mailing labels on the return addresses of the outer envelope). The remaining 36
ii::.s2
Cll.£;
~~ ballots contain a bar code which links the outer envelope to the voter's registration file contained
OCII
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': 8 in the Statewide Uniform Registry ofElectors system (validating their addresses) provided to state
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~ .£;
~- ~ election officials earlier in 2020. 6 By signing and dating the declaration, the elector has declared
:g5-
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i they are "qualified to vote the enclosed ballot." 7
o-
~~
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In order to vote by absentee or mail-in ballot, an elector must submit an application where he or she must attest to
~"tJ
~ ~ their address at least annually or for each election. See 25 P.S. § 3150.12(g)(l) ("A mail-in ballot application mailed
§ !! to an elector under this section [permanent mail-in voting list], which is completed and timely returned by the elector,
~~ shall serve as an application for any and all primary, general or special elections to be held in the remainder of that
0... 8: calendar year and for all special elections to be held before the third Monday in February of the succeeding year.");
g'!
5£
25 P.S. § 1350.12(b)(l)(ii) (requiring an application for mail-in ballot to contain the length of time the elector has
0 '0 been a resident of the voting district); 25 P.S. § 3146.2(e.l); 25 P.S. § 3146.2(b). There is no similar requirement for
~~ an in-person voter. While an in-person voter could vote at the polls without having submitted their address for many
~ 8 years, a mail-in or absentee elector can only receive a ballot if they have provided an address and attested to its
~~ accuracy as set forth above.
~lll
1ii ~ 7
25 P.S. § 2811- Qualifications of Electors- states that every citizen of the Commonwealth at least eighteen years
1!·~ of age, if properly registered, shall be entitled to vote if the elector possesses the following qualifications:
~~
8~
<oC:
(1) He or she shall have been a citizen of the United States at least one month.
<'?~
::5 '0 (2) He or she shall have resided in the State ninety days immediately preceding the election.
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~~
~~
~-
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~~
Voters should not be disenfranchised by reasonably relying upon voting instructions
provided by election officials which are consistent with the Election Code. There is a
"longstanding and overriding policy in this Commonwealth to protect the elective franchise."
Pennsylvania Democratic Party v. Boockvar, No. 133 MM 2020, 2020 WL 5554644, at *9 (citing
Shambach v. Bickhart, 845 A.2d 793, 798 (Pa. 2004)). "[A]lthough election laws must be strictly
construed to prevent fraud, they ordinarily will be construed liberally in favor of the right to vote."
Ibid. "[B]allots containing mere minor irregularities should only be stricken for compelling
reasons." Shambach v. Bickhart, 845 A.2d 793,798 (Pa. 2004). The Supreme Court has recognized
that "marking a ballot in voting is not a matter of precision engineering but of an unmistakable
registration of the voter's will in substantial conformity to the statutory requirements." !d. at 799
Petitioners' concerns about a voter's address are legitimate. A voter's address is a core
qualification to vote. It is true that 36 of the outer envelopes in this case do not contain any written
or pre-printed indicia of the voter's address. This omission should not, and will not, disqualify a
declared, qualified voter from participating in this election - particularly where the bar code
confirms the recently declared address of the mail-in voter with the state registry and where no
IV. CONCLUSION
The Election Code does not require a voter to provide their address on the declaration
envelope. The Montgomery County Board of Elections properly was satisfied, in accordance with
section 3146.8(g)(3), that the voters' declarations are "sufficient." The court finds that the Board
(3) He or she shall have resided in the election district where he or she shall offer to vote at least
thirty days immediately preceding the election, except that if qualified to vote in an election district
prior to removal of residence, he or she may, if a resident of Pennsylvania, vote in the election
district from which he or she removed his or her residence within thirty days preceding the election.
9
properly overruled Petitioners' objections to all 592 challenged ballots. These ballots must be
counted.
Accordingly, based upon all of the foregoing, the court denies Plaintiffs' petition for review
BY THE COURT:
RICHARD P. HAAZ, J.
10
COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA
CIVIL ACTION
v.
ORDER
AND NOW, this 13th day of November, 2020, upon consideration of the Petition for
Review of Decision by the Montgomery County Board of Elections filed on behalf of Petitioners
Donald J. Trump for President, Inc., Republican National Committee, Heidelbaugh for Attorney
General, Inc., Garrity for PA, and Daniel J. Wissert, and the responses in opposition thereto filed
by Respondent Montgomery County Board of Elections, Intervenor Democratic National
Committee, Amici Curiae on behalf of the NAACP-Pennsylvania State Conference, Common
Cause Pennsylvania, League of Women Voters of Pennsylvania, and the Black Political
Empowerment Project, it is hereby ORDERED and DECREED that said Petition for Review is
DENIED. The Montgomery County Board of Elections is ORDERED to count the 592 ballots
which are the subject of the petition.
BY THE COURT:
~
RICHARD P. HAAZ, J.
11
Case# 2020-18680-36 Docketed at Montgomery County Prothonotary on 1111312020 4:06 PM, Fee = $0. 00. The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified
Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.
~
~
~
=
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Case# 2020-18680-36 Docketed at Montgomery County Prothonotary on 1111312020 4:06 PM, Fee = $0. 00. The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified
Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.
~
~
~
=
~
=
~
=
Case# 2020-18680-36 Docketed at Montgomery County Prothonotary on 1111312020 4:06 PM, Fee = $0. 00. The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified
Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.
~
~
~
=
~
=
~
~
Case# 2020-18680-36 Docketed at Montgomery County Prothonotary on 1111312020 4:06 PM, Fee = $0. 00. The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified
Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.
~
~
~
=
~
=
~
~
Case# 2020-18680-36 Docketed at Montgomery County Prothonotary on 1111312020 4:06 PM, Fee = $0. 00. The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified
Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.
~
~
~
=
~
=
~
~
Case# 2020-18680-36 Docketed at Montgomery County Prothonotary on 1111312020 4:06 PM, Fee = $0. 00. The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified
Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.
Case# 2020-18680-36 Docketed at Montgomery County Prothonotary on 1111312020 4:06 PM, Fee = $0. 00. The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified
Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.