PENNSYLVANIA DEMOCRATIC PARTY, NILOFER NINA AHMAD, DANILO BURGOS, AUSTIN DAVIS, DWIGHT EVANS, ISABELLA FITZGERALD, EDWARD GAINEY, MANUEL M. GUZMAN, JR., JORDAN A. HARRIS, ARTHUR HAYWOOD, MALCOLM
No. 133 MM 2020
IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT
DECIDED: September 17, 2020
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
SUBMITTED: September 8, 2020
OPINION
JUSTICE BAER
In Oсtober 2019, the General Assembly of the Commonwealth of Pennsylvania enacted Act 77 of 2019, which, inter alia, created for the first time in Pennsylvania the opportunity for all qualified electors to vote by mail, without requiring the electors to demonstrate their absence from the voting district on Election Day,
I. FACTS AND PROCEDURAL HISTORY
On July 10, 2020, Petitioner filed its petition for review in the Commonwealth Court against Secretary of the Commonwealth Kathy Boockvar (“Secretary“) and all 67 county election boards (“Boards“).3 In its petition, Petitioner requested that the Commonwealth Court issue declaratory and injunctive relief “so as to protect the franchise of absentee and mail-in voters.” Petition for Review (“Petition“), 7/10/2020, at 5.4
Specifically, Petitioner raised several discrete issues for the Commonwealth Court‘s consideration, which are discussed in more detail infra. Briefly, in Count 1, Petitioner requested declaratory relief to
In Count 2, Petitioner sought an injunction to “lift the deadline in the Election Code across the state to allow any ballot postmarked by 8:00 p.m. on Election Night to be counted if it is received by the Boards” by 5:00 p.m. on Tuesday, November 10, which is the deadline for ballots to be received under the Federal Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA“).5 Id. at 50, ¶ 178. In the alternative, Petitioner posited that the Commonwealth Court could, with a few caveats, “enjoin the Counties to extend a more tailored ballot extension deadline to the date that is 21 dаys after the particular voter‘s ballot is mailed by the county[.]” Id. at ¶ 179.
In Count 3, Petitioner highlighted that the “procedure for mail-in ballots often leads to minor errors, which result in many ballots being rejected and disenfranchising voters who believe they have exercised their right to vote.” Id. at 51, ¶ 186. In anticipation of these expected errors, Petitioner again sought an injunction requiring Boards that have knowledge of an incomplete or incorrectly filled out ballot and the elector‘s contact
information to contact the elector and provide them “the opportunity to cure the facial defect until the UOCAVA deadline.” Id. at 52, ¶ 187.
In Count 4, Petitioner requested a declaration that there is no statutory authority to set aside an absentee or mail-in ballot solely for failure to place it into the official election ballot envelope (hereinafter referred to as the “secrecy envelope“), as well as an injunction prohibiting any “naked ballots,” which are otherwise without error, from being invalidated.6 Id. at 54, ¶ 198-199. A “naked ballot” refers to an official mail-in ballot that is not placed in the secrecy envelope before mailing.
Finally, in Count 5, Petitioner sought a declaration that the “Election Code‘s poll watcher residency requirement does not violate the United States Constitution‘s First and Fourteenth Amendments, its Equal Protection Clause, or the Equal Protection and Free and Equal Elections Clauses of the Pennsylvania Constitution.” Id. at 55, ¶ 207.
On August 13, 2020, the Secretary filed an Answer and New Matter to the petition. In addition, twenty of the named Boards filed answers with new matter, fourteen of the Boards filed answers, and nine of the Boards filed preliminary objections.7 Requests
Pennsylvania, The Black Political Empowerment Project (“B-PEP“), Make the Road Pennsylvania, a project of Make the Road States (“Make the Road PA“), Patricia M. DeMarco, Danielle Graham Robinson, and Kathleen Wise filed a joint application to intervene as co-petitioners.
On August 16, 2020, the Secretary filed an application asking this Court to exercise extraordinary jurisdiction over Petitioner‘s petition for review.8 Highlighting, inter alia, the two major political parties’ “diametric positions” on the interpretation of several Act 77 provisions and the fast-approaching 2020 General Election, the Secretary asserted that “[t]he exercise of extraordinary jurisdiction by this Court is the only means available to resolve these disputes without disrupting the election.” Secretary‘s Application for Extraordinary Relief, 8/16/2020, at 14-16. On August 19, 2020, Petitioner filed an Answer to the Secretary‘s application, noting that it had no objection to this Court exercising its extraordinary jurisdiction.9
Faced with a national election scheduled to occur on November 3, 2020 and substantial legal issues that required the highest court of Pennsylvania‘s analysis and response to ensure a free and fair election, on September 1, 2020, this Court granted the Secretary‘s Application and set forth a schedule for supplemental briefing and filings.10
Later, on September 3, 2020, this
respective positions, and this matter is now ripe for disposition of the discrete five legal issues before us.
II. RELEVANT OVERARCHING PRINCIPLES OF LAW
Generally speaking, each of the five issues presented by Petitioner presents a pure question of law, over which our standard of review is de novo and our scope of review is plenary. In re Vencil, 152 A.3d 235, 241 (Pa. 2017). Specifically, in large part, Petitioner requests relief in the form of declarations of law regarding Act 77 pursuant to the Declaratory Judgments Act,
The Declaratory Judgments Act, which is to be liberally construed and administered, was promulgated to “settle and to afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations[.]”
When presented with matters of statutory construction, this Court is guided by Pennsylvania‘s Statutоry Construction Act,
Moreover, we recognize that in this Commonwealth, “[e]lections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”
“specifically intended to equalize the power of voters in our Commonwealth‘s election process[.]” Id. at 812.
Finally, this Court has previously observed that the purpose and objective of the Election Code, which contains Act 77, is “[t]o obtain freedom of choice, a fair election and an honest election return[.]” Perles v. Hoffman, 213 A.2d 781, 783 (Pa. 1965). To that end, the Election Code should be liberally construed so as not to deprive, inter alia, electors of their right to elect a candidate of their choice. Id. at 784. With these general principles in mind, this Court will address in turn each of the five discrete issues presented by Petitioner.
III. ISSUES
A. COUNT I OF THE PETITION FOR REVIEW
Section 3150.16(a) of the Election Code,
(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.
her “county board of election” or, more relevant to this issue, “deliver it in person to said county board of election.”
In Count I of its petition for review, Petitioner seeks a declaration that a reasonable interpretation of Section 3150.16(a) of the Election Code permits county boards of election to provide electors with as many secure and easily accessible locations to deliver personally their mail-in ballots as each board deems appropriate.13 Petitioner suggests that these locations can consist of mobile or temporary collection sites and that county boards of election may utilize secure drop-boxes for the collection of hand-delivered mail-in ballots.
Indeed, Petitioner contends that, by enacting Section 3150.16(a) of the Election Code, the General Assembly clearly and unambiguously intended to provide the various county boards of election with the option of accepting hand-delivered mail-in ballots at any location controlled by the boards, not just at the boards’ central offices. In support of this position, Petitioner points out, inter alia, that pursuant to Section 3151 of the Election Code, the General Assembly empowered each county board of election to receive “ballot
boxes and returns” in their offices or “in any such other place as has been designated by the board.”14
The Secretary builds on Petitioner‘s argument. In so doing, the Secretary highlights that, in construing Section 3150.16(a) of the Election Code, the Court should consider that the General Assembly defined “county board” or “board” as meaning “the county board of elections of any county herein provided for.”
In further support of this position, the Secretary asserts that the Election Code contemplates that county boards of election will operate out of multiple locations. See
boxes and returns” may be received “in the office of the county elections board, or received in such other places as has been designated by the board.”
The Secretary insists that the Election Code is devoid of any language limiting county boards of election from accepting delivery of mail-in votes solely at their primary office addresses. In fact, the Secretary takes the position that to hold otherwise would contravene the plain language of the Election Code. However, assuming arguendo that this Court deems the Election Code ambiguous on this point, the Secretary advocates that a reasonable interpretation of the Code nonetheless authorizes county boards of election to utilize multiple drop-off sites to accept hand-delivered mail-in ballots.
In this regard, the Secretary focuses on the statutory considerations to which this Court may refer when construing an ambiguous statute,
Contrary to the contentions of the Secretary and Petitioner, Respondent submits that the Election Code prohibits county boards of election from designating locations other than their established county offices for hand delivery of mail-in ballots. Rather, according to Respondent, Section 3150.16(a) of the Election Code unambiguously mandates that an elector must either mail her mail-in ballot to the office address of the county board of
election or deliver that ballot in person to the same office address. Stated differently, Respondent takes the position that the Election Code requires electors either to place their mail-in ballots, addressed to their county boards of election, into the United States Postal Service‘s [“USPS“] system or personally to deliver their mail-in ballot to that office.
In further support of this position, Respondent highlights the Election Code‘s
Next, Respondent reminds us that the Secretary and Petitioner are asking this Court to interpret thе Election Code to allow voters to deliver their mail-in ballots to locations that will include unmanned drop-boxes. Respondent contends that Petitioner and the Secretary fail to articulate where the Election Code mentions “drop-boxes” or “satellite locations.” Respondent then asserts that, if this Court were to interpret the Election Code as Petitioner and the Secretary propose, the Court would invalidate an alleged requirement of Act 77, i.e., the need to deliver mail-in ballots to the established offices of county boards of election.
In addition, Respondent suggests that the preferred interpretation of the Election Code advocated by the Secretary and Petitioner permits the individual counties to
implement differing ballot-return regimes. Respondent avers that this outcome would violate principles of equal protection. In support, Respondent quotes Pierce v. Allegheny County Bd. of Elections, 324 F.Supp.2d 684, 697 (W.D. Pa. 2003), for the proposition that “[a] state must impose uniform statewide standards in each county in order to protect the legality of a citizen‘s vote. Anything less implicates constitutional problems under the equal protection clause of the Fourteenth Amendment.” For these reasons, Respondent contends that the interpretation of the Election Code posited by Petitioner and the Secretary must fail.
The primary argument of the Caucus largely tracks that of Respondent, particularly the contention that the relief proposed by Petitioner and the Secretary would create an equal protection problem. According to the Caucus, pursuant to the solution offered by Petitioner and the Secretary, some counties will provide more locations for voters to deliver their mail-in ballots, while other counties will allow voters to convey their mail-in ballots solely to the office addresses of the county boards of election. The Caucus views this possibility as a violation of equal protection.
Notably, in an apparent break from Respondent‘s position, subject to its equal protection argument, the Caucus seems to concede that Pennsylvania law allows county boards of election to provide for in person delivery of mail-in ballots at more than one county election board office located within the county‘s borders. However, the Caucus insists that additional offices must comply with various requirements, including those outlined in Section 2645(b) of the Election Code. See
county seat, as may be necessary“). In closing, the Caucus submits that unstaffed drop-boxes would not constitute a branch office of a county board of election and are otherwise not authorized by the Election Code as a method for collecting hand-delivered mail-in ballots.
Turning to our analysis, we observe that the question before us consists of the following two-part query regarding the Election Code: Does the Election Code allow a Pennsylvania voter to deliver her mail-in ballot in person to a location other than the established office address of her county‘s board of election, and if so, what means can county boards of election utilize to accept hand-delivered mail-in ballots? For the reasons that follow, we find that the parties’ competing interpretations of the Election Code on this issue are reasonable, rendering the Code ambiguous as it relates to this query. See A.S. v. Pennsylvania State Police, 143 A.3d 896, 905-06 (Pa. 2016) (explaining that a “statute is ambiguous when there are at least two reasonable interpretations of the text“).
In reaching this conclusion, we observe that Section 3150.16(a) of the Election Code explicitly allows an elector to deliver in person her securely sealed envelope containing her mail-in ballot “to said county board of election.”
branch offices for the board in cities other than the county seat, as may be necessary“). Therefore, on the one hand, these рrovisions tend to favor the view of Petitioner and the Secretary that the General Assembly did not intend to limit voters to delivering personally their mail-in ballots solely to the established office addresses of their county boards of election. Rather, as these parties rationally contend, when this definition is utilized for purposes of construing Section 3150.16(a), that exercise suggests that a voter can hand deliver her mail-in ballot to any location designated by the county board of election as a place where the board will accept these ballots.
Alternatively, we recognize that Section 3150.16(a) of the Election Code directs that an elector may deliver her mail-in ballot in person only to “the county board of election.”
Accordingly, we turn to interpretive principles that govern ambiguous statutes generally and election matters specifically. In so doing, we are mindful of the “longstanding and overriding policy in this
and necessity for, the mischief to be remedied by, and the object to be obtained by the statute.
With all of that said, we need not belabor our ultimate conclusion that the Election Code should be interpreted to allow county boards of election to accept hand-delivered mail-in ballots at locations other than their office addresses including drop-boxes. This conclusion is largely the result of the clear legislative intent underlying Act 77, which animates much of this case, to provide electors with options to vote outside of traditional polling places. Section 3150.16(a) of the Election Code undeniably exemplifies this intent by granting the Pennsylvania electorate the right to vote by way of а mail-in ballot beyond the circumstances that ordinarily allow this alternative, such as voter absenteeism.
Accordingly, although both Respondent and the Caucus offer a reasonable interpretation of Section 3150.16(a) as it operates within the Election Code, their interpretation restricts voters’ rights, as opposed to the reasonable interpretation tendered by Petitioner and the Secretary. The law, therefore, militates in favor of this Court construing the Election Code in a manner consistent with the view of Petitioner and the Secretary, as this construction of the Code favors the fundamental right to vote and enfranchises, rather than disenfranchises, the electorate.
In light of this conclusion, we will briefly address the equal protection argument of Respondent and the Caucus. The premise of that argument, as detailed supra, is that, if this Court interprets the Election Code in a manner that is consistent with the position of Petitioner and the Secretary, which we have, then the county boards of election will employ myriad systems to accept hand-delivered mail-in ballots, which allegedly will be unconstitutionally disparate from one another in so much as some systems will offer more legal protections to voters than others will provide. However, the exact manner in which each county board of election will accept these votes is entirely unknown at this point;
thus, we have no metric by which to measure whether any one system offers more legal protection than another, making an equal protection analysis impossible at this time. Accordingly, the equal protection argument of Respondent and the Caucus does not alter our conclusion in this matter.
Thus, for these reasons, this Court declares that the Election Code permits county boards of election to accept hand-delivered mail-in ballots at locations other than their office addresses including drop-boxes.15
In its second count, Petitioner presents this Court with an as-applied challenge to the Election Code‘s deadline for receiving ballots (“received-by deadline“), which requires mail-in and absentee ballots to be returned to Boards no later than 8:00 p.m. on Election Day,
As noted above, the Free and Equal Elections Clause provides that “[e]lections shall bе free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right to suffrage.”
a timely manner so as to allow electors to participate in the election through mail-in voting. Petition at 49, ¶ 176.
In support of its as-applied challenge in regard to the upcoming General Election, Petitioner recounts this Commonwealth’s recent experience during the June Primary. It emphasizes that, during the Primary, the Boards were inundated with over 1.8 million requests for mail-in ballots, rather than the expected 80,000 - 100,000, due in large part to the COVID-19 pandemic, which caused many voters to be wary of congregating in polling places. Petitioner’s Brief at 2, 51. Petitioner asserts that “[t]his crush of applications created massive disparities in the distribution and return of mail-in ballots.” Petition at 24, ¶ 70.
It explains that, while some Boards were able to process the requests within the statutory requirements established by Act 77,16 other boards, especially those in areas hard-hit by the pandemic, were unable to provide electors with ballots in time for the electors to return their ballot in accord with the statutory deadline. Petition at 23, ¶ 66. Indeed, it avers that in Delaware County, thousands of ballots were “not mailed out until the night” of the Primary, making timely return impossible. Petition at 26, ¶ 77. Bucks County apparently experienced similar delays.
To remedy this situation, the Election Boards of Bucks and Delaware Counties sought relief in their county courts.17
granted [the courts the] authority to provide relief when there is a natural disaster or emergency” that threatens to deprive electors of the opportunity to participate in the electoral process, the Courts of Common Pleas of Bucks and Delaware Counties extended the deadline for the return of mail-in ballots for seven days, so long as the ballot was postmarked by the date of the Primary. In re: Extension of Time for Absentee and Mail-In Ballots to be Received By Mail and Counted in the 2020 Primary Election, No. 2020-02322-37 (C.P. Bucks) (McMaster, J.); see also In re: Extension of Time for Absentee and Mail-In Ballots to be Received By Mail and Counted in the 2020 Primary Election, No.-CV 2020-003416 (C.P. Delaware).
Petitioner also observes that voters in six counties received an extension to the return deadline pursuant to an executive order issued by Governor Wolf, invoking the Emergency Management Services Code,
During such period said court shall act as a committing magistrate for any violation of the election laws; shall settle summarily controversies that may arise with respect to the conduct of the election; shall issue process, if necessary, to enforce and secure compliance with the election laws; and shall decide such other matters pertaining to the election as may be necessary to carry out the intent of this act.
the received-by deadline for seven days, so long as the ballots were postmarked by the date of the Primary. Governor Wolf, Executive Order No. 2020-02 (June 1, 2020).
While voters in specified counties benefitted from extensions of time to return their ballots, Petitioner emphasizes that the Commonwealth Court rejected a request for a statewide extension of the ballot received-by deadline in Delisle v. Boockvar, 319 M.D. 2020 (Pa. Cmwlth. June 2, 2020) (Memorandum Opinion), favoring instead a county-by-county remedy. Indeed, while not mentioned by Petitioner, this Court additionally denied relief to a petitioner seeking a statewide extension of the ballot received-by deadline weeks before the June Primary, where the petitioner similarly argued for the extension based upon the overwhelming number of mail-in ballot applications and delays in the USPS system. Disability Rights Pa. v. Boockvar, No. 83 MM 2020, 2020 WL 2820467 (Pa. May 15, 2020).
In light of the lessons learned from the June Primary, Petitioner asserts that a statewide remedy is now necessary for the General Election. It suggests that the lack of a statewide remedy risks an equal protection challenge as only some voters would benefit from the extended deadline based on their county court’s determination. Petition at 32-33, ¶ 105. Moreover, it emphasizes that a statewide order from this Court early in the election process would reduce voter confusion, as compared to the last-minute county-by-county relief granted during the Primary to address emergency situations. Petitioner’s Brief at 26-27 n.9.
Petitioner avers that the difficulties encountered by Boards processing the ballot applications prior to the June Primary will only be exacerbated in the November General Election. It emphasizes the continued grip of the pandemic, and a potential second
Petitioner asserts that the overwhelming demand on the Boards will be exacerbated by delays in the USPS mail delivery system. Petitioner observes that historically the law presumed that a document placed in a mail collection box would be delivered within three days of placement, rather than the current two to five day delivery expectation of the USPS. Id. at 50. Petitioner avers that substantial delivery delays have resulted from a combination of recent operational changes at the USPS and decreased staffing caused by the pandemic. Id. at 20-21. It emphasizes that the USPS recently warned that there is a “significant risk” that Pennsylvania voters who submit timely ballot requests will not have sufficient time to complete and return their ballot to meet the Election Code’s received-by deadline. Id. at 2-3 (quoting USPS General Counsel and Executive Vice President Thomas Marshall’s July 29, 2020 letter to the Secretary (hereinafter “USPS General Counsel’s Letter”), discussed in detail infra).
Petitioner avers that this Court has the authority to act to protect electors’ right to cast their ballot, as protected by Pennsylvania’s Free and Equal Elections Clause. It emphasizes that “‘[c]ourt[s] possess broad authority to craft meaningful remedies’ when ‘regulations of law . . . impair the right of suffrage.’” Id. at 48-49 (quoting League of Women Voters of Pa., 178 A.3d at 809, 822) (alterations in original). It observes that courts have exercised that authority to provide equitable relief to voters faced with natural disasters that impede their right to vote. As an example, Petitioner highlights the Commonwealth Court’s actions in In re General Election-1985, 531 A.2d 836, 838-39 (Pa. Cmwlth. 1987), in which the court affirmed a two-week suspension in an election where severe flooding prevented electors from safely voting due to “circumstances beyond their control.” Petitioner asserts that Pennsylvania electors in the November General Election similarly face a threat to their ability to vote due to no fault of their own, but instead due to a perfect storm combining the dramatic increase in requested ballots due to the COVID-19 pandemic and the inability of the USPS to meet the delivery standards required by the Election Code.
Accordingly, Petitioner asks this Court to grant an injunction ordering the Respondent to “lift the deadline in the Election Code across the state in a uniform standard to allow any ballot postmarked by 8 p.m. on Election Night to be counted if it is received by the deadline for ballots to be received” under the UOCAVA, specifically by 5:00 p.m. on Tuesday, November 10.19 Petition at 50, ¶ 178. Recognizing
As an alternative remedy, Petitioner proposes that each ballot could have an individualized deadline twenty-one days after the specific ballot is mailed by the county, so long as it is received before the UOCAVA deadline. Petition at 50, ¶ 108, 179. asserts that this Court has the authority to alter those deadlines to be consistent with the relief granted in this case. Id. at 55.
As noted, the Secretary sought extraordinary jurisdiction to allow this Court to resolve the various challenges to the mail-in ballot process in an orderly and timely fashion before the impending General Election, where she estimates more than three million Pennsylvanians will exercise their right to vote by mail. Secretary’s Brief at 1. The Secretary observes that she previously advocated against a similar request for an extension of the received-by deadline for mail-in and absentee ballots in the Crossey case. She, however, reassessed her position following receipt of the USPS General Counsel’s Letter, which she attaches to her Application. Secretary’s Application at 10, Exhibit A.
Significantly, the USPS General Counsel’s Letter opined that “certain deadlines for requesting and casting mail-in ballots are incongruous with the Postal Service’s delivery standards,” providing for 2-5 day delivery for domestic First Class Mail and 3-10 day delivery for domestic Marketing Mail. USPS General Counsel’s Letter at 1. As the parties recognize, the Election Code designates October 27, 2020, as the last day for electors to request a mail-in ballot.
In light of the information contained in the USPS General Counsel’s Letter, the Secretary concludes that a temporary extension of the Election Code’s received-by deadline is necessary for the upcoming General Election to ensure a free and equal election as protected by
The Secretary emphasizes that the remedy sought here is not the invalidation of the Election Code’s received-by deadline, but rather the grant of equitable relief to extend temporarily the deadline to address “mail-delivery delays during an on-going public health disaster.” Secretary’s Brief at 18. As no party is seeking the invalidation of the received-by deadline, the Secretary rejects the suggestion of Respondent and the Caucus that the remedy would trigger the nonseverability provision of Act 77, reasoning that the Court would be granting “a temporary short extension to address the exigencies of a natural
disaster” rather than “the invalidation of a statutory deadline.” Id. at 21 (referencing Section 11 of Act 77 set forth infra). She emphasizes that the statutory deadline would remain unchanged for future elections.
The Secretary observes that courts hаve previously granted temporary equitable relief to address natural disasters, given that neither the Election Code nor the Constitution “provides any procedure to follow when a natural disaster creates an emergency situation that interferes with an election.” Id. at 19 (citing In re: General Election-1985, 531 A.2d at 839).21 She argues that the current pandemic is equivalent to other natural disasters and that it necessitates the requested extension of the Election Code’s received-by deadline for mail-in ballots.
In contrast, Respondent contends that Petitioner asks this Court to rewrite the plain language of Act 77 and to substitute its preferred ballot deadline for the statutory deadline that resulted from the legislative compromise during the bi-partisan enactment of Act 77. It emphasizes that this Court “recently reaffirmed [that] the judiciary ‘may not usurp the province of the legislature by rewriting [statutes].’” Respondent’s Supplemental Brief at 16 (quoting In re Fortieth Statewide Investigating Grand Jury, 197 A.3d 712, 721 (Pa. 2018)).
Judicial restraint, according to Respondent, is especially necessary in regard to election law, where this Court has long recognized that “[t]he power to regulate elections is a legislative one, and has been exercised by the General Assembly since the foundation of the government.” Id. at 17 (quoting Winston v. Moore, 91 A. 520, 522 (Pa. 1914)). Indeed, it observes that the United States Constitution dictates that “[t]he Times,
Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each state by the Legislature thereof,” subject to directives of Congress,
Respondent additionally warns that if this Court were to deem application of the deadline unconstitutional and substitute a judicially-determined deadline, it would trigger the nonseverability provision of Act 77, which would invalidate the entirety of the Act, including all provisions creating universal mail-in voting. Specifically, Section 11 provides: “Sections 1, 2, 3, 3.2, 4, 5, 5.1, 6, 7, 8, 9 and 12 of this act are nonseverable. If any provision of this act or its application to any person or circumstances is held invalid, the remaining provisions or applications of this act are void.” Act 77, § 11. It emphasizes that this Court has previously deemed nonseverability provisions tо be constitutionally proper and additionally recognized that nonseverability provisions are crucial to the legislative process as they “may be essential to securing the support necessary to enact the legislation in the first place.” Respondent’s Supplemental Brief at 18 (citing Stilp v. Commonwealth, 905 A.2d 918, 978 (Pa. 2006)). Respondent asserts that it is clear that the severability provision in Act 77 “was intended to preserve the compromise struck” in the bipartisan enactment. Id. at 19.
On the merits, Respondent asserts that the plain language of the Election Code setting the deadline for submission of ballots by 8:00 p.m. on Election Day does not violate the Free and Equal Elections Clause but instead provides “a neutral, evenhanded rule that applies to all Pennsylvania voters equally.” Respondent’s Answer to the Secretary’s Application at 21. It emphasizes that numerous courts, including this Court during the June Primary, have upheld the application of mail-in deadlines during the COVID-19 pandemic. Respondent’s Supplemental Brief at 24 (citing, inter alia, Disability Rights Pa. v. Boockvar, No. 83 MM 2020, 2020 WL 2820467 (Pa. May 15, 2020)).
Respondent additionally rejects the Secretary’s assertion that the deadline should be extended based upon the threat of mail delays. It avers that these concerns are “speculative at best.” Id. at 25. Moreover, it contends that “given Pennsylvania’s unparalleled and generous absentee and mail-in voting period, any voter’s inability to cast a timely ballot is not caused by the Election Day received-by deadline but instead by their own failure to take timely steps to effect completion and return of their ballot.” Id. at 26-27 (internal citation and quotation marks omitted).
Respondent further supports its argument by attaching to its Supplemental Brief a declaration of USPS Vice President Angela Curtis, which in turn attaches the statement provided by Postmaster General Louis DeJoy to the Senate Committee on Homeland Security and Governmental Affairs on August 21, 2020 and his statement of August 24, 2020, to the House Committee on Oversight and Reform. In his statement,
While disputing the validity of the accusations, the Postmaster General provided the following commitments relating to the delivery of election mail:
[R]etail hours at Post Offices won’t be changed, and mail processing equipment and blue collection boxes won’t be removed during this period. No mail processing facilities will be closed and we have terminated the pilot program that began in July that expeditеd carrier departures to their delivery routes, without plans to extend or expand it. To clear up any confusion, overtime has, and will continue to be, approved as needed. Finally, effective October 1, 2020, we will engage standby resources in all areas of our operations, including transportation, to satisfy any unforeseen demand for the election.
Statement of Postmaster General Louis DeJoy provided to Senate Committee on Homeland Security and Governmental Affairs Hearing of Aug. 21, 2020, at 14; Statement of Postmaster General Louis DeJoy provided to House Committee on Oversight and Reform of Aug. 24, 2020, at 14. Respondent emphasizes that Postmaster General DeJoy also asserted that the “USPS has not changed [its] delivery standards, [its] processing, [its] rules, or [its] prices for Election Mail[,]” and that it “can, and will, handle the volume of Election Mail [it] receive[s].” Respondent’s Supplemental Brief at 10.
Finally, Respondent argues that moving the received-by deadline until after Election Day would undermine the federal designation of a uniform Election Day, as set forth in three federal statues, specifically
The Caucus also files a brief with this Court arguing against the extension of the deadline for mail-in votes. It asserts that “[t]here is no constitutional right to vote by mail” and that states have broad authority to enact regulations to ensure the integrity of its elections, including mail-in ballots, as was done in Act 77, including by setting a deadline for the receipt of ballots. Caucus’s Brief at 19.
The Caucus warns that granting an extension of the mail-in ballot received-by deadline in this case “would have a cascading effect on other election cоde deadlines,
fully debated and properly enacted by the peoples’ representatives in the Pennsylvania General Assembly.” Id. at 29.
Unlike other provisions of Act 77 currently before this Court, we are not asked to interpret the statutory language establishing the received-by deadline for mail-in ballots. Indeed, there is no ambiguity regarding the deadline set by the General Assembly:
Deadline.--Except as provided under
25 Pa.C.S. § 3511 24 (relating to receipt of voted ballot), a completed mail-in ballot must be received in the office of the county board of elections no later than eight o‘clock P.M. on the day of the primary or election.
application of the statutory language to the facts of the current unprecedented situation results in an as-applied infringement of electors’ right to vote.
In considering this issue, we reiterate that the Free and Equal Elections Clause of the Pennsylvania Constitution requires that “all aspects of the electoral process, to the greatest degree possible, be kept open and unrestricted to the voters of our Commonwealth, and, also, conducted in a manner which guarantees, to the greatest degree possible, a voter’s right to equal participation in the electoral process for the selection of his or her representatives in government.” League of Women Voters, 178 A.3d at 804. Nevertheless, we also recognize that “the state may enact substantial regulation containing reasonable, non-discriminatory
As we have recently seen, an orderly and efficient election process can be crucial to the protection of a voter’s participation in that process. Indeed, the struggles of our most populous counties to avoid disenfranchising voters while processing the overwhelming number of pandemic-fueled mail-in ballot applications during the 2020 Primary demonstrates that orderly and efficient election processes are essential to safeguarding the right to vote. An elector cannot exercise the franchise while her ballot application is awaiting processing in a county election board nor when her ballot is sitting in a USPS facility after the deadline for ballots to be received.
We are fully cognizant that a balance must be struck between providing voters ample time to request mail-in ballots, while also building enough flexibility into the election timeline to guarantee that ballot has time to travel through the USPS delivery system to ensure that the completed ballot can be counted in the election. Moreover, we recognize that the determination of that balance is fully enshrined within the authority granted to the Legislature under the United States and Pennsylvania Constitutions. See
Nevertheless, we find the Commonwealth Court’s rationale in In re: General Election-1985 germane to the current challenge to the application of the ballot received-by deadline. In that case, the court recognized that, while neither the Constitution nor the Election Code specified “any procedure to follow when a natural disaster creates an emergency situation that interferes with an election,” courts could look to the direction of
We have no hesitation in concluding that the ongoing COVID-19 pandemic equates to a natural disaster. See Friends of Devito v. Wolf, 227 A.3d 872, 888 (Pa. 2020) (agreeing “that the COVID-19 pandemic qualifies as a ‘natural disaster’ under the Emergency Code”). Moreover, the effects of the pandemic threatened the disenfranchisement of thousands of Pennsylvanians during the 2020 Primary, when several of the Commonwealth’s county election boards struggled to process the flow of mail-in ballot applications for voters who sought to avoid exposure to the virus. See, e.g., Delaware County Board of Elections’ Answer to Petition at 15, ¶ 77 (acknowledging that it “mailed out thousands of ballots in the twenty-four hour period preceding the election”). It is beyond cavil that the numbers of mail-in ballot requests for the Primary will be dwarfed by those applications filed during the upcoming highly-contested Presidential Election in the midst of the pandemic where many voters are still wary of congregating in crowded locations such as polling places. We acknowledge that the Secretary has estimated that nearly three million Pennsylvanians will apply for mail-in applications, in contrast to the 1.5 million cast during the Primary. Secretary’s Brief at 1.
Under our Extraordinary Jurisdiction, this Court can and should act to extend the received-by deadline for mail-in ballots to prevent the disenfranchisement of voters. We have previously recognized that, in enforcing the Free and Equal Elections Clause, this “Court possesses broad authority to craft meaningful remedies when required.” League of Women Voters, 178 A.3d at 822 (citing
After consideration, we adopt the Secretary’s informed recommendation of a three-day extension of the absentee and mail-in ballot received-by deadline to allow for the tabulation of ballots mailed by voters via the USPS and postmarked by 8:00 p.m. on Election Day to reduce voter disenfranchisement resulting from the conflict between the Election Code and the current USPS delivery standards, given the expected number of Pennsylvanians opting to use mail-in ballots during the pandemic.26 We observe that this extension
it allows the tabulation of military and overseas ballots received up to seven days after Election Day.
C. COUNT III OF THE PETITION FOR REVIEW
In Count III of its petition, Petitioner seeks to require that the Boards contact qualified electors whose mail-in or absentee ballots contain minor facial defects resulting from their failure to comply with the statutory requirements for voting by mail, and provide them with an opportunity to cure those defects. More specifically, Petitioner submits that when the Boards have knowledge of an incomplete or incorrectly completed ballot as well as the elector’s contact information, the Boards should be required to notify the elector using the most expeditious means possible and provide the elector a chance to cure the facial defect up until the UOCAVA deadline of November 10, 2020, discussed supra.
Petitioner bases this claim on its assertion that the multi-stepped process for voting by mail-in or absentee ballot inevitably leads to what it describes as minor errors, such as not completing the voter declaration or using an incorrect ink color to complete the ballot. See
Petitioner submits that voters should not be disenfranchised by technical errors or incomplete ballots, and that the “notice and opportunity to cure” procedure ensures that all electors who desire to cast a ballot have the opportunity to do so, and for their ballot to be counted. Petitioner further claims there is no governmental interest in either: (1) requiring the formalities for the completion of the outside of the mailing envelope to be finalized prior to mailing as opposed to prior to counting, or (2) rejecting the counting of a ballot so long as ballots continue to arrive under federal law, which is the UOCAVA deadline of seven days after Election Day.
As legal support for its position, Petitioner relies upon the Free and Equal Elections Clause.
Unlike the other claims asserted herein, the Sеcretary opposes Petitioner’s request for relief in this regard. She counters that there is no statutory or constitutional basis for requiring the Boards to contact voters when faced with a defective ballot and afford them an opportunity to cure defects. The Secretary further notes that, while Petitioner relies upon the Free and Equal Elections Clause, that Clause cannot create statutory language that the General Assembly chose not to provide. See Winston, 91 A. at 522 (noting that “[t]he power to regulate elections is legislative”).
The Secretary submits that so long as a voter follows the requisite voting procedures, he or she “will have an equally effective power to select the representative of his or her choice.” League of Women Voters, 178 A.3d at 809. Emphasizing that Petitioner presents no explanation as to how the Boards would notify voters or how the voters would correct the errors, the Secretary further claims that, while it may be good policy to implement a procedure that entails notice of defective ballots and an opportunity to cure them, logistical policy decisions like the ones implicated herein are more properly addressed by the Legislature, not the courts.
Respondent echoes the Secretary’s opposition to Petitioner’s request for relief.27 Specifically, it reiterates that Petitioner has failed to assert a legal basis to support imposing a “notice and opportunity to cure” procedure, noting that the Free and Equal Elections Clause does not enable courts to rewrite the Election Code to align with a litigant’s notion of good election policy. Respondent emphasizes that “ballot and election laws have always been regarded as peculiarly within the province of the legislative branch of government,” Winston, 91 A. at 522, and that to the extent restrictions are burdensome, relief should be sought in the Legislature. Id. at 525.
Respondent also discusses the practical implications of granting Petitioner’s request, expressing concern that implementing a “notice and opportunity to cure” procedure would be a monumental undertaking requiring the expenditure of significant resources, particularly on the eve of an election. Respondent thus reiterates that the
Legislature, not this Court, is the entity best suited to address the procedure proposed by Petitioner.
Respondent adds that the tardiness of Petitioner’s request is alone a sufficient basis to deny it and that, in any event, Petitioner cannot show a “plain, palpable and clear abuse of the [legislative] power which actually infringes on the rights of the electors” with respect to this claim. Patterson v. Barlow, 60 Pa. 54, 75 (1869). Respondent notes that, to the contrary, a
Upon review, we conclude that the Boards are not required to implement a “notice and opportunity to cure” procedure for mail-in and absentee ballots that voters have filled out incompletely or incorrectly. Put simply, as argued by the parties in opposition to the requested relief, Petitioner has cited no constitutional or statutory basis that would countenance imposing the procedure Petitioner seeks to require (i.e., having the Boards contact those individuals whose ballots the Boards have reviewed and identified as including “minor” or “facial” defects—and for whom the Boards have contact information—and then afford those individuals the opportunity to cure defects until the UOCAVA deadline).
While the Pennsylvania Constitution mandates that elections be “free and equal,” it leaves the task of effectuating that mandate to the Legislature. Winston, 91 A. at 522. As noted herein, although the Election Code provides the procedures for casting and counting a vote by mail, it does not provide for the “notice and opportunity to cure” procedure sought by Petitioner. To the extent that a voter is at risk for having his or her ballot rejected due to minor errors made in contravention of those requirements, we agree that the decision to provide a “notice and opportunity to cure” procedure to alleviate that risk is one best suited for the Legislature. We express this agreement particularly in light of the open policy questions attendant to that decision, including what the precise contours of the procedure would be, how the concomitant burdens would be addressed, and how the procedure would impact the confidentiality and counting of ballots, all of which are best left to the legislative branch of Pennsylvania’s government. Thus, for the reasons stated, the Petitioner is not entitled to the relief it seeks in Count III of its petition.
D. COUNT IV OF THE PETITION FOR REVIEW
In Count IV, Petitioner seeks a declaration that under Act 77, the Boards must “clothe and count naked ballots,” i.e., place ballots that were returned without the secrecy envelope into a proper envelope and count them, rather than invalidate them. It further seeks a preliminary injunction prohibiting the Boards from excluding such ballots frоm the canvass.
To understand the nature of a “naked ballot,” as well as Petitioner’s claim that such ballots are valid and should be counted, we examine the relevant provisions of Act 77. The Act directs Boards to send to the qualified mail-in elector an official mail-in ballot, the list of candidates when authorized, the uniform instructions as prescribed by the Secretary, and two envelopes to be returned to the Boards, as described in detail infra.
Section 3150.14(a) (“Envelopes for official mail-in ballots”) explains the nature of the envelopes sent to the mail-in voter. This provision directs the Boards to “provide two additional envelopes for each official mail-in ballot of a size and shape as prescribed by the Secretary of the Commonwealth, in order to permit the placing of one within the other and both within the mailing envelope” addressed to the elector.
As noted, Section 3150.16(a) directs the mail-in elector to mark the ballot in secret with the enumerated ink or lead pencil and then fold the ballot, enclose it, and secure it in the smaller envelope on which is printed “Official Election Ballot.”
Act 77 additionally sets forth the procedure by which mail-in ballots are canvassed. See
The crux of Petitioner’s position is that although Act 77 directs a mail-in voter to utilize the secrecy envelope in submitting the mail-in ballot, there is no provision in the Election Code authorizing the Boards to discard a ballot on grounds that the voter failed to insert the ballot into the secrecy envelope before returning it to the Boards. Rather, Petitioner asserts, the statute directs the Boards to reject mail-in ballots only if the mail-in elector died prior to Election Day,
Moreover, Petitioner emphasizes that the General Assembly was aware of how to invalidate ballots for lack of a secrecy envelope, as it expressly did so in another provision of the Election Code regarding provisional ballots. See
Absent statutory authority directing thе Boards to invalidate a ballot based exclusively on the lack of a secrecy envelope, Petitioner contends that the refusal to canvass and count ballots cast without a secrecy envelope violates the Election Code, as well as the rights of electors to have their vote counted under the Free and Equal Elections Clause. It posits that rather than disenfranchising the voter in contravention of these edicts, the Boards could take corrective measures to protect privacy, such as placing the naked ballot inside a replacement secrecy envelope before canvassing.
Accordingly, Petitioner requests a declaration that naked ballots must be counted, as well as injunctive relief requiring Boards to undertake reasonable measures to protect the privacy of naked ballots cast by mail-in electors.
The Secretary’s position aligns with Petitioner on this issue as she agrees that the counting of naked ballots is permitted by the Election Code and furthers the right to vote under the Free and Equal Elections Clause and the First and Fourteenth Amendments to the United States Constitution.29
The Secretary contends that the secrecy envelope procedure set forth in Section 3150.16(a) is merely directory, and that this Court’s longstanding precedents establish that ballots should not be disqualified based upon the failure to follow directory provisions. See Bickhart, 845 A.2d at 803 (holding that although the Election Code provides that an elector may cast a write-in vote for any person not printed on the ballot, a write-in vote for a candidate whose name, in fact, appears on the ballot is not invalid where there is no evidence of fraud and the voter’s intent is clear); Wieskerger Appeal, 290 A.2d 108, 109 (Pa. 1972) (holding that the elector’s failure to mark the ballot with the statutorily enumerated ink color does not render the ballot invalid unless there is a clear showing that the ink was used for the purpose of making the ballot identifiable or otherwise indicating fraud).
The Secretary further opines that no fraud arises from counting naked ballots, considering that the naked ballot remains sealed in an envelope and the sealed ballot is certified by the elector. Accordingly, the Secretary concludes that no voter should be disenfranchised for failing to place his or her mail-in ballot in the secrecy envelope before returning it to the Boards.
In response, Respondent argues that the statutory language of Section 3150.16(a), providing that the mail-in elector “shall
Respondent observes that the Election Code further directs election officials to “set aside and declare[] void” a ballot whose secrecy envelope contains “any text, mark, or symbol which reveals the identity of the elector, the elector’s political affiliation or the elector’s candidate preference.”
Respondent discounts the Secretary’s suggestion that because there is no fraud involved in the submission of a naked ballot, the ballot should be counted. The secrecy envelope provision of the statute, in Respondent’s view, advances the distinct constitutional interest of protecting the sanctity of the ballot by preventing the ballot from disclosing the elector’s identity. The significance of this interest, it submits, distinguishes this matter from cases involving noncompliance with minor procedural demands set forth in the Election Code, such as the color of ink used to mark a ballot or the listing of a write-in candidate whose name already appears on the ballot. Accordingly, Respondent requests that we deny Petitioner’s request for declaratory and injunctive relief.
The Caucus reiterates all of the arguments expressed by Respondent. It contends that in addition to violating voter secrecy, the counting of naked ballots raises the concern of voter fraud. It contends that when a ballot arrives at the county election board without the protective shield of a sealed privacy envelope, the election official cannot guarantee that the ballot travelled from the voter’s hand to the county election board without compromise. It argues that there is no way for the election official to verify that the vote was accurately recorded, because the mere act of ascertaining the voter’s identity from the elector’s declaration may violate the secrecy protections of Article VII, Section
Turning now to our analysis, we observe that, in determining the propriety of naked ballots, we must ascertain the General Assembly’s intention by examining the statutory text of the secrecy envelope provision to determine whether it is mandatory or directory, as that will govern the consequences for non-compliance. See JPay, Inc. v. Dep’t of Corr. & Governor‘s Office of Admin., 89 A.3d 756, 763 (Pa. Cmwlth. 2014) (internal citation omitted) (observing that “[w]hile both mandatory and directory provisions of the Legislature are meant to be followed, the difference between a mandatory and directory provision is the consequence for non-compliance: a failure to strictly adhere to the requirements of a directory statute will not nullify the validity of the action involved”).
Upon careful examination of the statutory text, we conclude that the Legislature intended for the secrecy envelope provision to be mandatory. We respectfully reject the contentions of Petitioner and the Secretary that because the General Assembly did not delineate a remedy narrowly linked to the mail-in elector’s failure to utilize a secrecy envelope, the language of the Election Code is directory, and an elector’s violation of the command inconsequential.
As noted, Section 3150.16(a) provides:
[The mail-in elector] shall, in secret, . . . enclose and securely seal the [ballot] in the envelope on which is printed, stamped or endorsed “Official Election Ballot.” This envelope shall then be placed in the second one, on which is printed the form of declaration of the elector, and the address of the elector’s county board of election and the local election district of the elector.
This statutory text must be read in pari materia31 with Subsection 3146.8(g)(4)(ii), which also speaks directly to secrecy envelopes, providing:
If any of the envelopes on which are printed, stamped or endorsed the words ‘Official Election Ballot’ contain any text, mark or symbol which reveals the identity of the elector, the elector’s political affiliation or the elector’s candidate preference, the envelopes and the ballots contained therein shall be set aside and declared void.
These provisions make clear the General Assembly’s intention that, during the collection and canvassing processes, when the outer envelope in which the ballot arrived is unsealed and the sealed ballot removed, it should not be readily apparent who the elector is, with what party he or she affiliates, or for whom the elector has voted. The secrecy envelope properly unmarked and sealed ensures that result, unless it is marked with identifying information, in which case that goal is compromised. Whatever the wisdom of the requirement, the command that the mail-in elector utilize the secrecy envelope and leave it unblemished by identifying information is neither ambiguous nor unreasonable.
As noted cogently by Respondent, this case is distinguishable from those cases
Similarly, in Appeal of Weiskerger, supra, this Court declined to invalidate a ballot based upon the “minor irregularity” that it was completed in the wrong color of ink. The statute at issue provided: “Any ballot that is marked in blue, black or blue-black ink . . . shall be valid and counted.” 290 A.2d at 109 (citing
As posited by Respondent, most analogous to the instant case is our decision in Appeal of Pierce. There, we held that the Election Code’s “in-person” ballot delivery requirement, see
This Court, however, was unpersuaded and declined the invitation to interpret “shall” as anything less than mandatory. Moreover, the Court rejected precisely the same reasoning for interpreting “shall” as directory that Petitioner and the Secretary offer in this case. As in the instant case, the provision of the Election Code at issue in Appeal of Pierce did not expressly provide for voiding a ballot delivered by someone other than the voter. Nevertheless, we held that to construe the in-person requirement “as merely directory would render its limitation meaningless and, ultimately, absurd.” Id. at 1232. The Court further distinguished Weiskerger and its safe harbor for “minor irregularities,” noting that the in-person requirement served the salutary purpose of “limit[ing] the number of third persons who unnecessarily come in contact with the ballot[,] . . . provid[ing] some safeguard that the ballot was filled out by the actual voter, . . . and that once the ballot has been marked by the actual voter in secret, no other person has the opportunity to tamper with it.” Id. The provision thus served the spirit of the Code, “which requires that a voter cast his ballot alone, and that it remain secret and inviolate.” Id.
Petitioner and the Secretary attempt to distinguish Appeal of Pierce by emphasizing that there was no statutory provision in that case that was inconsistent with the judicially inferred remedy, such as the provisional
The clear thrust of Appeal of Pierce, however, is that, even absent an express sanction, where legislative intent is clear and supported by a weighty interest like fraud prevention, it would be unreasonable to render such a concrete provision ineffective for want of deterrent or enforcement mechanism. What we learn from that decision is that violations of the mandatory statutory provisions that pertain to integral aspects of the election process should not be invalidated sub silentio for want of a detailed enumeration of consequences.
We must in all instances assume that the General Assembly does not intend a statute to be interpreted in a way that leads to an absurd or unreasonable result. See
We reach the same result here. It is clear that the Legislature believed that an orderly canvass of mail-in ballots required the completion of two discrete steps before critical identifying information on the ballot could be revealed. The omission of a secrecy envelope defeats this intention. Moreover, in providing for the disqualification of mail-in ballots that arrive in secrecy envelopes that bear markings identifying the elector, the elector’s party affiliation, or the elector’s vote, all categories of information that appear on the ballot itself, the Legislature signaled beyond cavil that ballot confidentiality up to a certain point in the process is so essential as to require disqualification. Thus, we find that our holding in Appeal of Pierce leads to the inescapable conclusion that a mail-in ballot that is not enclosed in the statutorily-mandated secrecy envelope must be disqualified.
Accordingly, we hold that the secrecy provision language in Section 3150.16(a) is mandatory and the mail-in elector’s failure to comply with such requisite by enclosing the ballot in the secrecy envelope renders the ballot invalid.
E. COUNT V OF THE PETITION FOR REVIEW
In Count V of its petition, Petitioner seeks a declaration specifying that the poll watcher residency requirement, found in Section 2687(b) of the Election Code,
The Election Code permits candidates and political parties to appoint “poll watchers” to monitor the integrity of the voting process.33 “Each watcher so appointed
must be a qualified registered elector of the county in which the election district for which the watcher was appointed is located.”
Each watcher so appointed must be a qualified registered elector of the county in which the election district for which the watcher was appointed is located. Each watcher so appointed shall be authorized to serve in the election district for which the watcher was appointed and, when the watcher is not serving in the election district for which the watcher was appointed, in any other election district in the county in which the watcher is a qualified registered elector: Provided, That only one watcher for each candidate at primaries, or for each party or political body at general, municipal or special elections, shall be present in the polling place at any one time from the time that the election officers meet prior to the opening of the polls under section 1208 until the time that the counting of votes is complete and the district register and voting check list is locked and sealed, and all watchers in the room shall remain outside the enclosed space. It shall not be a requirement that a watcher be a resident of the election district for which the watcher is appointed. After the close of the polls and while the ballots are being counted or voting machine canvassed, all the watchers shall be permitted to be in the polling place outside the enclosed space. Each watcher shall be provided with a certificate from the county board of elections, stating his name and the name of the candidate, party or political body he represents. Watchers shall be required to show their certificates when requested to do so. Watchers allowed in the polling place under the provisions of this act, shall be permitted to keep a list of voters and shall be entitled to challenge any person making application to vote and to require proof of his qualifications, as provided by this act. During those intervals when voters arе not present in the polling place either voting or waiting to vote, the judge of elections shall permit watchers, upon request, to inspect the voting check list and either of the two numbered lists of voters maintained by the county board: Provided, That the watcher shall not mark upon or alter these official election records. The judge of elections shall supervise or delegate the inspection of any requested documents.
Petitioner observes that the General Assembly enacted the current poll watcher residency requirement in 2004 and that no changes were made to this requirement in Act 77. Petitioner asserts that this provision does not suffer from any constitutional infirmities and notes that the provision has been upheld as constitutional by the federal District Court for the Eastern District
The Secretary likewise maintains that the poll watcher residency requirement is constitutional. The Secretary notes that the United States Supreme Court in Anderson v. Celebrezze, 460 U.S. 780 (1983), recognized the importance of States in regulating elections. There, the Court stated,
We have recognized that, ‘as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.’
Id. at 788 (citing Storer v. Brown, 415 U.S. 724, 730, (1974)). In this regard, the Secretary observes that the Election Code provides a comprehensive scheme of regulations for voting and elections in the Commonwealth. The Secretary maintains that these regulatory interests are generally considered sufficient to justify reasonable, nondiscriminatory restrictions on elections. Id.; see also Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (specifying that “[s]tates may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder”).
Regarding the provisions in the Election Code requiring that poll watchers be qualified registered electors from the county in which they serve, like Petitioner, the Secretary observes that although this Court has not previously addressed the question of whether this requirement is constitutional, the federal District Court for the Eastern District of Pennsylvania has done so and rejected a constitutional challenge to the poll watcher residency requirement in Cortés, supra.
Specifically, there, the District Court considered a constitutional challenge to Section 2687(b) of the Election Code by the respondent here. Respondent claimed that the poll watcher residency requirement found at Sectiоn 2687(b), requiring poll watchers to reside in the county in which they serve, is violative of its Fourteenth Amendment rights to due process and equal protection and their rights to free speech and association under the First Amendment.
The District Court rejected these claims, noting first, that the regulation does not violate due process or equal protection. The court observed that serving as a poll watcher does not implicate a fundamental constitutional right, like the right to vote, but rather, is a right conferred by statute. Id. at 408. Additionally, the court found that because the state’s regulation of the qualifications of who may serve as a poll watcher does not burden one’s voting rights or any other constitutional right, the state imposing the regulation need only cite a rational basis for the regulation to be upheld. Id. (citing Donatelli v. Mitchell, 2 F.3d 508, 514 & n.10 (3d Cir. 1993) (declining to apply intermediate scrutiny standards because the plaintiffs’ fundamental rights were not burdened by state law)); and Voting for Am., Inc. v. Andrade, 488 Fed.Appx. 890, 899 (5th Cir. 2012) (applying rational basis review as opposed to an intermediate balancing test because state election law did not implicate or burden specific constitutional rights). In this regard, the court concluded as follows:
There is a rational basis for Section 2678(b)’s requirement that poll watchers be qualified electors in the county in which they work. The Secretary notes that in 1937, the General Assembly enacted a county-based scheme to manage
elections within the state, and consistent with that scheme the legislature endeavored to allow county election officials to oversee a manageable portion of the state in all aspects of the process, including in credentialing poll watchers. In short, Pennsylvania opted to design a county-by-county system of elections; in doing so it ensured as much coherency in this patchwork system as possible. To that end it ensured that participants in the election--voters and watchers alike--were qualified electors in the relevant county. The legislature’s decision to allow county election officials to credential only poll watchers from their own county is rationally related to the state’s interest in maintaining its county-run election system; each county election official is tasked with managing credentials for a discrete part of the state’s population. As the Secretary’s counsel noted at the hearing, the legislature chose to ‘draw the lines’ at the county level, something entirely rational in fashioning a scheme for a state as large as Pennsylvania.
Cortés, 218 F.Supp. 3d at 409.
The District Court, likewise, rejected Respondent’s claims that Section 2687 violates the First Amendment. The court first noted that courts have found that “poll watching is not incidental to” the right of free association and has “no distinct First Amendment protection.” Id. at 414 (citing Cotz v. Mastroeni, 476 F.Supp.2d 332, 364 (S.D. N.Y. 2007); and Dailey v. Hands, No. 14-00423, 2015 WL 1293188, at *5 (S.D. Ala. Mar. 23, 2015) (“[P]oll watching is not a fundamental right protected by the First Amendment.”)). Moreover, the court found that poll watchers do not engage in core political speech while completing their duties. Id. at 415. Rather, the court observed that “when a poll watcher reports incidents of violations, he is performing a public function delegated by the state.” Id. (citing Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978) (stating that “[w]hile the Constitution protects private rights of association and advocacy with regard to the election of public officials, [the Supreme Court] cases make it clear that the conduct of the elections themselves is an [e]xclusively public function.”)). Thus, the District Court found that the Commonwealth’s county poll watcher residency requirement did not implicate poll watchers’ private rights of association or advocacy and, therefore, did not violate the First Amendment.
Respondent again maintains that the poll watcher residency requirement set forth in the Election Code is unconstitutional.34 First, Respondent maintains that Cortés is distinguishable from this matter because of the procedural posture and the timing of that case. Specifically, Respondent emphasizes the fact that in Cortés it sought a preliminary injunction eighteen days before the general election and that on this basis the court found the request for relief to be untimely. Thus, it contends that the court’s further discussion of the constitutionality of the poll watcher residency requirement was dicta.
Additionally, Respondent argues that the court in Cortés, like the Secretary here, gave short shrift to the Commonwealth’s obligation to safeguard the electorate from voter fraud, noting that “every voter in a federal . . . election, whether he votes for a candidate with little chance of winning or for one with little chance of losing, has a right under the Constitution to have his vote fairly counted,
Turning to the merits, initially, regarding Respondent’s assertion that the District Court’s discussion of the constitutionality of the poll watcher residency requirement constitutes dicta because the court found the claims there to be untimely, we note that
although that court pointed out that the emergent nature of Respondent’s claims amounted to a “judicial fire drill” based on their late filing, the court opined further that the relief sought “would be inappropriate for a number of reasons, not the least of which is that at this late hour courts should not disrupt an impending election ‘absent a powerful reason for doing so.’” Cortés, 218 F.Supp.3d. at 405 (citation omitted). The court then went on to analyze the merits of the constitutional claims asserted and denied relief. Accordingly, it appears the court made its decision on multiple bases, including the merits as well as the timing of the claims. Moreover, regardless of the status of the District Court’s determination of the constitutional issues presented there, we find its analysis persuasive and agree with its reasoning in upholding the constitutionality of the poll watcher residency requirement.
The “times, places and manner” of conducting elections generally falls to the states.
This provision is a legislative enactment which enjoys the presumption that the General Assembly did not intend to violate constitutional norms, “in part because there exists a judicial presumption that our sister branches take seriously their constitutional oaths.” Stilp v. Commonwealth, 905 A.2d 918, 938–39 (Pa. 2006); see also
In analyzing whether a state election law violates the constitution, courts must first examine the extent to which a challenged regulation burdens one’s constitutional rights. Burdick v. Takushi, 504 U.S. 428, 434 (1992). Upon determining the extent to which rights are burdened, courts can then apply the appropriate level of scrutiny needed to examine the propriety of the regulation. See id. (indicating that “the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation
Where a state election regulation imposes a “severe” burden on a plaintiff’s right to vote, strict scrutiny applies and requires that the regulation is “narrowly drawn to advance a state interest of compelling importance.” Id. When a state election law imposes only “reasonable, nondiscriminatory restrictions,” upon the constitutional rights of voters, an intermediate level of scrutiny applies, and “the State’s important regulatory interests are generally sufficient to justify” the restrictions. See Id. (upholding Hawaii’s ban on write-in voting in the primary where doing so places a minimal burden on one’s voting right and supports the state’s interest in supporting its ballot access scheme). Where, however, the law does not regulate a suspect classification (race, alienage, or national origin) or burden a fundamental constitutional right, such as the right to vote, the state need only provide a rational basis for its imposition. See Donatelli, 2 F.3d at 510 & 515.
In examining the constitutionality of the poll watcher residency provision at issue here, we conclude, as the District Court in Cortés concluded, that it imposes no burden on one’s constitutional right to vote and, accordingly, requires only a showing that a rational basis exists to be upheld. In this regard, as the District Court aptly noted, there is no individual constitutional right to serve as a poll watcher; rather, the right to do so is conferred by statute. Cortés, 218 F.Supp.3d at 408. Additionally, courts have indicated that “poll watching is not incidental to” the right of free association and, thus, “has no distinct First Amendment protection.” Cotz, 476 F.Supp.2d at 364. Finally, poll watching does not implicate core political speech. Cortés, 218 F.Supp.3d at 415.
As the poll watcher county residency requirement does not burden one’s constitutional voting rights, the regulation only needs to be shown to satisfy a rational basis for its imposition. Again, as the District Court aptly recounted, from its inception, Pennsylvania has envisioned a county-based scheme for managing elections within the Commonwealth. Consistent therewith, the Legislature has endeavored to allow county election officials to oversee and manage their portion of the state in all aspects of the election process, including credentialing poll watchers. Given that Pennsylvania’s General Assembly chose a county-based scheme for conducting elections, it is reasonable that the Legislature would require poll watchers, who serve within the various counties of the state, to be residents of the counties in which they serve. Thus, there is a clear rational basis for the county poll watcher residency requirement, and we determine, therefore, that this requirement should be upheld.
Respondent does not claim that poll watching involves a fundamental constitutional right or that a level of scrutiny other than rational basis needs to be shown regarding the regulation of poll watcher qualifications. Instead, Respondent claims that poll watchers are vital to protect against voter fraud and that because of the distribution of voters throughout Pennsylvania, the residency requirement makes it difficult to identify poll watchers in all precincts. While Respondent asserts the greater need for poll watchers because of heightened election fraud involving mail-in voting, these claims are unsubstantiated and are specifically belied by the Act 35 report issued by the Secretary on August 1, 2020, concerning mail in voting in the Primary Election, finding:
[D]ata provided by the counties reinforces numerous independent studies that conclude that mail ballot fraud is
exceedingly rare, and it demonstrates that the errors that occurred [in the Primary Election] accounted for a very small fraction of the nearly 1.5 million absentee and mail-in ballots requested and cast by voters.
Pennsylvania 2020 Primary Election Act 35 of 2020 Report at 39; Appendix to Petitioner’s Brief, Exhibit F. Moreover, Respondent’s speculative claim that it is “difficult” for both parties to fill poll watcher positions in every precinct, even if true, is insufficient to transform the Commonwealth’s uniform and reasonable regulation requiring that poll watchers be residents of the counties they serve into a non-rational policy choice.
Based on the foregoing, we conclude that the poll watcher residency requirement does not violate the state or federal constitutions.35 Accordingly, we grant the relief sought by Petitioner in their petition for review and declare the poll watcher residency requirement set forth in Section 2687(b) of the Election Code,
IV. CONCLUSION
Based on our disposition of all of the claims set forth above, we grant relief on the claims set forth in Counts I, II, and V of the Democratic Party’s petition for review as follows and hold that: (Count I) the Election Code permits county boards of election to collect hand-delivered mail-in ballots at locations other than their office addresses including drop-boxes as indicated herein, see supra. at 20 n. 15; (Count II) a three-day extension of the absentee and mail-in ballot received-by deadline is adopted such that
ballots mailed by voters via the United States Postal Service and postmarked by 8:00 p.m. on Election Day , November 3, 2020, shall be counted if they are otherwise
Justices Todd, Dougherty, and Wecht join the opinion.
Chief Justice Saylor and Justice Mundy join Parts I, II, and III(C), (D) and (E) of the opinion.
Justice Donohue joins Parts I, II, and III(A), III(C), III(D) and III(E) of the opinion.
Justice Wecht files a concurring opinion.
Chief Justice Saylor files a concurring and dissenting opinion in which Justice Mundy joins.
Justice Donohue files a concurring and dissenting opinion in which Chief Justice Saylor and Justice Mundy join Part II.
Notes
may, on its own motion or upon petition of any party, in any matter pending before any court or magisterial district judge of the Commonwealth involving an issue of immediate public importance, assume plenary jurisdiction of such matter at any stage thereof and enter a final order or otherwise cause right and justice to be done.
Each county board of elections shall cause its office to remain open, in charge of one or more members of the board, during the entire duration of each primary and election, and after the close of the polls, until all the ballot boxes and returns have been received in the office of the county elections board, or received in such other place as has been designated by the board.
§ 3511. Receipt of voted ballot
(a) Delivery governs.--A valid military-overseas ballot cast under section 3509 (relating to timely casting of ballot) shall be counted if it is delivered by 5 p.m. on the seventh day following the election to the address that the appropriate county election board has specified.
(b) Rule regarding postmarks.--If, at the time of completing a military-overseas ballot and balloting materials, the voter has declared under penalty of perjury that the ballot was timely submitted, the ballot may not be rejected on the basis that it has a late postmark, an unreadable postmark or no postmark.
We emphasize that voters utilizing the USPS must cast their ballots prior to 8:00 p.m. on Election Day, like all voters, including those utilizing drop boxes, as set forth supra. We refuse, however, to disenfranchise voters for the lack or illegibility of a postmark resulting from the USPS processing system, which is undeniably outside the control of the individual voter.
- Statutes or parts of statutes are in pari materia when they relate to the same persons or things or to the same class of persons or things.
- Statutes in pari materia shall be construed together, if possible, as one statute.
Each candidate for nomination or election at any election shall be entitled to appoint two watchers for each election district in which such candidate is voted for. Each political party and each political body which had nominated candidates in accordance with the provisions of this act, shall be entitled to appoint three watchers at any general, municipal or special election for each election district in which the candidates of such party or political body are to be voted for. Such watchers shall serve without expense to the county.