IN RE: CANVASS OF ABSENTEE AND MAIL-IN BALLOTS OF NOVEMBER 3, 2020 GENERAL ELECTION
Nos. 31 EAP 2020, 32 EAP 2020, 33 EAP 2020, 34 EAP 2020, 35 EAP 2020, 29 WAP 2020
IN THE SUPREME COURT OF PENNSYLVANIA
November 23, 2020
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-2020]
IN RE: CANVASS OF ABSENTEE AND MAIL-IN BALLOTS OF NOVEMBER 3, 2020 GENERAL ELECTION
No. 31 EAP 2020
SUBMITTED: November 18, 2020
APPEAL OF: DONALD J. TRUMP FOR PRESIDENT, INC.
IN RE: CANVASS OF ABSENTEE AND MAIL-IN BALLOTS OF NOVEMBER 3, 2020 GENERAL ELECTION
No. 32 EAP 2020
SUBMITTED: November 18, 2020
APPEAL OF: DONALD J. TRUMP FOR PRESIDENT, INC.
IN RE: CANVASS OF ABSENTEE AND MAIL-IN BALLOTS OF NOVEMBER 3, 2020 GENERAL ELECTION
No. 33 EAP 2020
SUBMITTED: November 18, 2020
APPEAL OF: DONALD J. TRUMP FOR PRESIDENT, INC.
IN RE: CANVASS OF ABSENTEE AND MAIL-IN BALLOTS OF NOVEMBER 3, 2020 GENERAL ELECTION
No. 34 EAP 2020
SUBMITTED: November 18, 2020
APPEAL OF: DONALD J. TRUMP FOR PRESIDENT, INC.
IN RE: CANVASS OF ABSENTEE AND MAIL-IN BALLOTS OF NOVEMBER 3, 2020 GENERAL ELECTION
No. 35 EAP 2020
SUBMITTED: November 18, 2020
APPEAL OF: DONALD J. TRUMP FOR PRESIDENT, INC.
IN RE: 2,349 BALLOTS IN THE 2020 GENERAL ELECTION
No. 29 WAP 2020
Appeal from the Order of the Commonwealth Court entered November 19, 2020 at No. 1162 CD 2020, reversing the Order of the Court of Common Pleas of Allegheny County entered November 18, 2020 at No. GD 20-011654 and remanding
APPEAL OF: ALLEGHENY COUNTY BOARD OF ELECTIONS
SUBMITTED: November 20, 2020
Justice Donohue announces the judgment of the Court, joined by Justices Baer, Todd and Wecht, and files an opinion joined by Justices Baer and Todd
OPINION ANNOUNCING THE JUDGMENT
JUSTICE DONOHUE
DECIDED: November 23, 2020
These appeals present the question of whether the Election Code requires a
We are guided by well-established interpretive principles including that where the language of a statute is unambiguous, the language shall be controlling.
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.
Appeal of James, 105 A.2d 64, 65-66 (Pa. 1954).
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, whеre no fraud or irregularity has been alleged.
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In connection with five of these consolidated appeals, Petitioner Donald J. Trump 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 with their casting. The Campaign instead contends that these votes should not be 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. Thе Campaign pursued an appeal to the Commonwealth Court. This Court granted the Philadelphia Board‘s application to exercise our extraordinary jurisdiction,
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 Senate in the 45th Senatorial District (Allegheny-Westmoreland counties) challenged the 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 request to this Court, on November 19, 2020, a three-judge panel of the Commonwealth 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 undated outer envelopes should be invalidated. We stayed the order of the Commonwealth Court pending the outcome of this appeal and consolidated it with the Philadelphia Board cases.
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.
Section 3146.6(a) provides as follows with respect to absentee ballots:
(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 еndorsed “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.
Section 3150.16(a) sets forth the procedure for the submission of a mail-in ballot:
(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 plaсed 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.
Sections 3146.4 and 3150.14(b) delegate to the Secretary of the Commonwealth the responsibility to prescribe the form of the elector‘s declaration on the outer envelope used to mail the absentee and mail-in ballots:
§ 3146.4. Envelopes for official absentee ballots
The county boards of election shall provide two additional envelopes for each official absentee ballot of such size and shape as shall be prescribed by the Secretary of the Commonwealth, in order to permit the placing of one within the other and both within the mailing envelope. On the smaller of the two envelopes to be enclosed in the mailing envelope shall be printed, stamped or endorsed the words “Official Election Ballot,” and nothing else. On the larger of the two envelоpes, to be enclosed within the mailing envelope, shall be printed the form of the declaration of the elector, and the name and address of the county board of election of the proper county. The larger envelope shall also contain information indicating the local election district of the absentee voter. Said form of declaration and envelope shall be as prescribed by the Secretary of the Commonwealth and shall contain among other things a statement of the electors qualifications, together with a statement that such elector has not already voted in such primary or election. The mailing envelope addressed to the elector shall contain the two envelopes, the official absentee ballot, lists of candidates, when authorized by section 1303 subsection (b) of this act, the uniform instructions in form and substance as prescribed by the Secretary of the Commonwealth and nothing else.
§ 3150.14. Envelopes for official mail-in ballots
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(b) Form of declaration and envelope.--The form of declaration and envelope shall be as prescribed by the Secretary of the Commonwealth and shall contain, among other things, a statement of the elector‘s qualifications, together with a statement that the elector has not already voted in the primary or election.
The pre-canvassing or canvassing of absentee and mail-in ballots proceed in accordance with the dictates of
§ 3146.8. Canvassing of official absentee ballots and mail-in ballots
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) [a voter who dies before the election] 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 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 mаil-in ballots are to be pre-canvassed or canvassed.
Pursuant to the authority granted in
I hereby declare that I am qualified to vote from the below stated address at this election; that I have not already voted in this election; and I further declare that I marked my ballot in secret. I am qualified to vote the enclosed ballot. I understand I am no longer eligible to vote at my polling place after I return my voted ballot. However, if my ballot is not received by the county, I understand I may only vote by provisional ballot at my polling place, unless I surrender my balloting materials, to be voided, to the judge of elections at my polling place.
[BAR CODE]
Voter, sign or mark here/Votante firme o margue aqui
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)[LABEL – Voters’ name and address]
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 issued the following guidance:
3. EXAMINATION OF DECLARATION ON BALLOT RETURN ENVELOPES:
The county board of elections is responsible for approving ballots to be counted during pre-canvassing.
To promote consistency across the 67 counties, the county boards of elections should follow the following steps when processing returnеd absentee and mail-in ballots.
After setting aside ballots of elector‘s who died prior to the opening of the polls, 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 the information contained in the “Registered Absentee and Mail-in Voters File, the absentee voter‘s list and/or the Military Veterans’ and Emergency Civilians Absentee Voters File.”
If the Voter‘s Declaration on the return envelope is blank, that ballot return envelope
must be set aside and not counted. If the board determines that a ballot should not be counted, the final ballot disposition should be noted in SURE. The ballot return status (Resp Type) should be noted using the appropriate drop-down selection. If 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 unless challenged in accordance with the Pennsylvania Election Code.
Guidance Concerning Examination of Absentee and Mail-in Ballot Return Envelopes, 9/11/2020, at 3. On September 28, 2020, the Secretary offered additional guidance on the treatment of ballot return envelopes:
With regard to the outer ballot-return envelope:
A ballot-return envelope with a declaration that is filled out, dated, and signed by an elector who was approved to receive an absentee or mail-in ballot is sufficient and counties should continue to pre-canvass and canvass these ballots.
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. Ballot-return envelopes must be opened in such a manner as not to destroy the declarations executed thereon.
All ballot-return envelopes containing executed declarations must be retained for a period of two years in accordance with the Election Code.
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Pre-canvass and Canvass Procedures
At the pre-canvass or canvass, as the case may be, the county board of elections should:
- Segregate the unopened ballots of voters whose applications were challenged by the challenge deadline (5:00 PM on the Friday before the election).
- These ballots must be placed in a secure, sealed container until the board of eleсtions holds a formal hearing on the challenged ballots.
- Ballot applications can only be challenged on the basis that the applicant is not qualified to vote.
- Set aside the ballot of any voter who was deceased before election day.
- Set aside any ballots without a filled out, dated and signed declaration envelope.
- Set aside any ballots without the secrecy envelope and any ballots in a secrecy envelope that include text, mark, or symbol which reveals the identity of the voter, the voter‘s political affiliation (party), or the voter‘s candidate preference.
The Election Code does not permit county election officials to reject applications or voted ballots based solely on signature analysis.
No challenges may be made to mail-in or absentee ballot applications after 5:00 pm on the Friday before the election.
No challenges may be made to mail-in and absentee ballots at any time based on signature analysis.
NOTE: For more information about the examination of return envelopes, please refer to the Department‘s September 11, 2020 Guidance Concerning Examination of Absentee аnd Mail-in Ballot Return Envelopes.
Guidance Concerning Civilian Absentee and Mail-in Ballot Procedures, 9/28/2020, at 5, 8-9.
Pursuant to the General Assembly‘s passage of Act 77 of 2019, voters in 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 that “all of the information” supplied in the mail-in or absentee ballot application is “true and correct.”
The pre-canvassing or canvassing of absentee and mail-in ballots then proceeds in accordance with the dictates of
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) [a voter who dies before the election] 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 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.
Pursuant to this section, on November 9, 2020, the Philadelphia Board met to 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) 4,027 ballots that were not submitted in a secrecy envelope.
In contrast, the Philadelphia Board approved as sufficient to be pre-canvassed or 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
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 as sufficient to be pre-canvassed or canvassed. In each petition for review, the Campaign 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 handwritten names, addresses and dates constituted violations of mandatory obligations under 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 must be reversed. Id. at 32.
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 contest either that all of the ballots at issue were signed by the voters or that they had 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 absentee or mail-in ballot. Id. at 38.
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
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 extraordinary jurisdiction,
In our order granting the Philadelphia Board‘s application for the exercise of extraordinary jurisdiction, we stated the issue to be decided as follows:
Does the Election Code require county boards of elections to disqualify mail-in or absentee ballots submitted by qualified electors who signed their ballot‘s outer envelopes but did not handwrite their name, their address, and/or a date, where no fraud or irregularity has been alleged?
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 dеcision 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 Allegheny County Board on or before November 3, 2020. At a hearing, via Microsoft 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 granted. At the hearing, Ziccarelli stated that she was not claiming voter fraud regarding the challenged ballots.
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.
Ziccarelli immediately appealed Judge James’ decision to the Commonwealth 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 for extraordinary jurisdiction.
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 competent evidence and to correct any conclusions of law erroneously made.” In re 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., Banfield v. Cortés, 110 A.3d 155, 166 (Pa. 2015).
II. ARGUMENTS OF THE PARTIES
Although more fully developed in our analysis set forth later in this opinion, we here briefly summarize the arguments of the parties and intervenors.
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
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 voter declaration. Philadelphia Board‘s Brief at 12. Contrary to the Campaign‘s 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 counted. The Allegheny County Board agrees with its Philadelphia counterpart. It counters Ziccarelli‘s reliance on In Re Nov. 3, 2020 General Election by noting that 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 policy in this Commonwealth to protect the elective franchise.” Shambach v. Birkhart, 845 A.2d 793, 798 (Pa. 2004). “The Electiоn 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 the integrity of the voting process.
We agree with the Campaign‘s observation that in Sections 3146.6(a) and 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 “shall” in this context, it is of necessity that the directive is a mandatory one, such that a failure to comply with any part оf 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 directive; in some instances, it is to be interpreted as merely directory. See, e.g., 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 the proposition it asserts is misplaced.
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 distinction between mandatory and discretionary provisions in the Election Code, 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).
In Shambach, the Court declined to invalidate a write-in vote сast for a candidate who was named on the ballot, in direct violation of the
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
In Pa. Democratic Party, we compared these cases to our decision in In re 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
Based upon this comparison between Shambach, Weiskerger and Appeal of 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
To determine whether the
(1) Failures to include handwritten names and addresses
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
The
The Campaign argues that we should read the “handprinted name and address” requirement into the directives in
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
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. from the declaration itself. A voter could reasonably have concluded that the blanks requesting his or her name and address needed to be “filled out” only if the name and/or address on the label was incorrect or incomplete, as it was unnecessary to provide 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
Finally, the text of the
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) [a voter who dies before the election] 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.
As such, as relevant for our purposes,
The following sentence in this section further suggests that the General Assembly intended such bifurcation.
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 ... the absentee voters’ list 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.
(2) Failures to include dates
Both the Campaign and Ziccarelli argue that the requirement to state the date on which declaration was signed is a mandatory obligation requiring disenfranchisement for lack of compliance. We disagree, as we conclude that dating the declaration is a 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
The Commonwealth Court and Ziccarelli relied upon the
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 person is a “qualified elector” еntitled to vote in a particular election. Pursuant to
This unlikely hypothetical scenario is not evidence of a “weighty interest” in the date on the document for assuring the integrity of Pennsylvania‘s system for administering mail-in voting. Among other things, the canvassing statute,
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
Id. at *12-13. This statement is being taken out of context. Our statement in 2020 General 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 indicаting 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
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. depends in significant part on whether dating was a mandatory, as opposed to a directive, 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 lack of a handwritten date cannot result in vote disqualification.
IV. CONCLUSION
As we recognized in Pa. Democratic Party, “while both mandаtory and directory provisions of the Legislature are meant to be followed, the difference between a mandatory and directory provision is the consequence for non-compliance: a failure to strictly adhere to the requirements of a directory statute will not nullify the validity of the action involved.” 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
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 Allegheny County Court of Common Pleas is reinstated.
Justices Baer and Todd join the opinion.
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 Saylor and Justice Mundy join.