Summary
holding Election Code's dating provision are mandatory
Summary of this case from Black Political Empowerment Project v. SchmidtOpinion
No. 102 MM 2022
11-01-2022
David BALL, James D. Bee, Jesse D. Daniel, Gwendolyn Mae Deluca, Ross M. Farber, Lynn Marie Kalcevic, Vallerie Siciliano-Biancaniello, S. Michael Streib, Republican National Committee, National Republican Congressional Committee, and Republican Party of Pennsylvania, Petitioners v. Leigh M. CHAPMAN, in Her Official Capacity as Acting Secretary of the Commonwealth, and All 67 County Boards of Elections, Respondents
Adam Craig Bonin, Esq., for Amicus Curiae Democratic Senatorial Campaign Committee (DSCC). Joel L. Frank, Esq., for Amicus Curiae The Honest Elections Project. Brian Patrick Gallagher, Esq., for Amicus Curiae Bradford County Republican Committee and Friends of the Committee. Jennifer L. Gilliland-Vanasdale, Esq., Gilliland Vanasdale Sinatra Law Office, LLC, for Amicus Curiae Butler County Republican Committee. Linda Ann Kerns, Esq., Law Offices of Linda A. Kerns, LLC, for Amicus Curiae Lawyers Democracy Fund. Curtis Michael Schube, Esq., Dhillon Law Group, for Amici Curiae Citizens United, Citizens United Foundation, Presidential Coalition. Witold J. Walczak, Esq., American Civil Liberties Union of Pennsylvania, for Amici Curiae The League of Women Voters of Pennsylvania, Philadelphians Organized to Witness, Empower and Rebuild, Black Political Empowerment Project, Common Cause Pennsylvania, Make the Road Pennsylvania, The NAACP Pennsylvania State Conference. Zachary Michael Wallen, Esq., Chalmers & Adams LLC, for Amici Curiae Bryan Cutler, Kerry Benninghoff, Jake Corman, Kim Ward, Pennsylvania House Republican Caucus, Pennsylvania Senate Republican Caucus. Walter S. Zimolong III, Esq., Zimolong LLC, for Amicus Curiae Thomas More Society. Adam Craig Bonin, Esq., Justin Baxenberg, Esq., Daniel Cohen, Esq., Daniela Lorenzo, Esq., Uzoma N. Nkwonta, Esq., Elias Law Group, LLP, Daniel C. Osher, Esq., for Intervenor Democratic Congressional Campaign Committee (DCCC). Adam Craig Bonin, Esq., Peter Poggi Elliot, Esq., Kevin Michael Greenberg, Esq., Adam R. Roseman, Esq., Greenberg Traurig, LLP, Clifford B. Levine, Esq., Emma Frances Elizabeth Shoucair, Esq., Alice Birmingham Mitinger, Esq., Dentons Cohen & Grigsby, for Intervenor Pennsylvania Democratic Party. Adam Craig Bonin, Esq., Clifford B. Levine, Esq., Alice Birmingham Mitinger, Esq., Emma Frances Elizabeth Shoucair, Esq., Dentons Cohen & Grigsby, for Intervenor Democratic National Committee. Katheleen Marie Kotula, Esq., Pennsylvania Department of State, for Participant Department of State. Joshua D. Shapiro, Esq., for Participant Office of Attorney General. Thomas E. Breth, Esq., Thomas W. King III, Esq., Dillon McCandless King Coulter & Graham, LLP, Kathleen A. Gallagher, Esq., Russell David Giancola, Esq., Gallagher Giancola LLC, for Petitioners. Brian Howard Benjet, Esq., Ilana H. Eisenstein, Esq., DLA Piper, Zachary Gene Strassburger, Esq., City of Philadelphia, for Respondent Philadelphia County Board of Elections. Jacob Biehl Boyer, Esq., Michael John Fischer, Esq., Pennsylvania Office of Attorney General, Carmen Iguina Gonzalez, Esq., Elizabeth Pidcock Lester-Abdalla, Esq., Joshua Matz, Esq., Raymond P. Tolentino, Esq., Robert Andrew Wiygul, Esq., Hangley, Aronchick, Segal, Pudlin & Schiller, for Respondent Acting Secretary Leigh M. Chapman. Nicholas Michael Centrella Jr., Esq., James Manly Parks, Esq., Duane Morris LLP, for Respondent Delaware County Board of Elections. Anthony V. Clarke, Esq., for Respondent McKean County Board of Elections. Joseph Matthias Cosgrove, Esq., Selingo Guagliardo, LLC, for Respondent Luzerne County Board of Elections. Casey Alan Coyle, Esq., Elizabeth A. Dupuis, Esq., Babst, Calland, Clements and Zomnir, PC, Anna Skipper Jewart, Esq., for Respondents Bedford County Board of Elections, Carbon County Board of Elections, Centre County Board of Elections, Columbia County Board of Elections, Dauphin County Board of Elections, Fayette County Board of Elections, Huntingdon County Board of Elections, Indiana County Board of Elections, Jefferson County Board of Elections, Lawrence County Board of Elections, Lebanon County Board of Elections, Northumberland County Board of Elections, Venango County Board of Elections, York County Board of Elections. Matthew Robert Cravitz, Esq., for Respondent Snyder County Board of Elections. James V. Fareri, Esq., McFall, Layman & Jordan, P.C., for Respondent Monroe County Board of Elections. Jonathan Paul Foster, Esq., Foster Law Office PLLC, for Respondent Bradford County Board of Elections. Colleen Mary Frens, Esq., Nicholas J. Stevens, Esq., County of Chester, Faith Anne Mattox-Baldini, Esq., Chester County Solicitor's Office, for Respondent Chester County Board of Elections. Christopher P. Furman, Esq., for Respondents Clarion County Board of Elections, Susquehanna County Board of Elections, Tioga County Board of Elections. Carmen Iguina Gonzalez, Esq., Joshua Matz, Esq., Raymond P. Tolentino, Esq., Robert Andrew Wiygul, Esq., Hangley, Aronchick, Segal, Pudlin & Schiller, for Respondent Jessica Mathis. Daniel Donovan Grieser, Esq., Bucks County, Jessica L. VanderKam, Esq., Stuckert and Yates, for Respondent Bucks County Board of Elections. Robert Eugene Grimm, Esq., for Respondent Greene County Board of Elections. Melissa Ann Guiddy, Esq., Westmoreland County Solicitor's Office, for Respondent Westmoreland County Board of Elections. Maureen E. Herron, Esq., John Amos Marlatt, Esq., Montgomery County Solicitor's Office, for Respondent Montgomery County Board of Elections. Jennifer B. Hipp, Esq., Bogar & Hipp Law Offices, LLC, for Respondent Cumberland County Board of Elections. George M. Janocsko, Esq., Allegheny County Law Department, Lisa G. Michel, Esq., Bacharach & Michel, Allan Joseph Opsitnick, Esq., Opsitnick and Associates, for Respondent Allegheny County Board of Elections. Nathan W. Karn, Esq., for Respondent Blair County Board of Elections. Cody Lee Kauffman, Esq., Berks County Solicitor's Office, for Respondent Berks County Board of Elections. Frank J. Lavery Jr., Esq., Lavery Law PC, Andrew W. Norfleet, Esq., for Respondent Perry County Board of Elections. Lauren Lynn Mathews, Esq., Vorys, Sater, Seymour and Pease LLP, for Respondent Washington County Board of Elections. Molly Ruth Mudd, Esq., for Respondent Adams County Board of Elections. Melvin Eugene Newcomer, Esq., Kluxen, Newcomer & Dreisbach, for Respondent Lancaster County Board of Elections. Catharine Meade Roseberry, Esq., Lehigh County, for Respondent Lehigh County Board of Elections. Andrew Joseph Sacco, Esq., Steiner Sacco Law, for Respondent Armstrong County Board of Elections. Nathaniel Justus Schmidt, Esq., Warren County Solicitor's Office, for Respondent Warren County Board of Elections. Joseph David Smith, Esq., McCormick Law Firm, for Respondent Lycoming County Board of Elections. Elliott Bernard Sulcove, Esq., for Respondent Franklin County Board of Elections. H. William White III, Esq., Butler County Solicitor's Office, for Respondent Butler County Board of Elections. Donald Kenneth Zagurskie, Esq., for Respondent Juniata County Board of Elections. Beaver County Board of Elections, Pro Se. Cambria County Board of Elections, Pro Se. Cameron County Board of Elections, Pro Se. Clearfield County Board of Elections, Pro Se. Clinton County Board of Elections, Pro Se. Crawford County Board of Elections, Pro Se. Elk County Board of Elections, Pro Se. Erie County Board of Elections, Pro Se. Forest County Board of Elections, Pro Se. Fulton County Board of Elections, Pro Se. Lackawanna County Board of Elections, Pro Se. Mercer County Board of Elections, Pro Se. Mifflin County Board of Elections, Pro Se. Montour County Board of Elections, Pro Se. Northampton County Board of Elections, Pro Se. Pike County Board of Elections, Pro Se. Potter County Board of Elections, Pro Se. Schuylkill County Board of Elections, Pro Se. Somerset County Board of Elections, Pro Se. Sullivan County Board of Elections, Pro Se. Union County Board of Elections, Pro Se. Wayne County Board of Elections, Pro Se. Wyoming County Board of Elections, Pro Se.
Adam Craig Bonin, Esq., for Amicus Curiae Democratic Senatorial Campaign Committee (DSCC).
Joel L. Frank, Esq., for Amicus Curiae The Honest Elections Project.
Brian Patrick Gallagher, Esq., for Amicus Curiae Bradford County Republican Committee and Friends of the Committee.
Jennifer L. Gilliland-Vanasdale, Esq., Gilliland Vanasdale Sinatra Law Office, LLC, for Amicus Curiae Butler County Republican Committee.
Linda Ann Kerns, Esq., Law Offices of Linda A. Kerns, LLC, for Amicus Curiae Lawyers Democracy Fund.
Curtis Michael Schube, Esq., Dhillon Law Group, for Amici Curiae Citizens United, Citizens United Foundation, Presidential Coalition.
Witold J. Walczak, Esq., American Civil Liberties Union of Pennsylvania, for Amici Curiae The League of Women Voters of Pennsylvania, Philadelphians Organized to Witness, Empower and Rebuild, Black Political Empowerment Project, Common Cause Pennsylvania, Make the Road Pennsylvania, The NAACP Pennsylvania State Conference.
Zachary Michael Wallen, Esq., Chalmers & Adams LLC, for Amici Curiae Bryan Cutler, Kerry Benninghoff, Jake Corman, Kim Ward, Pennsylvania House Republican Caucus, Pennsylvania Senate Republican Caucus.
Walter S. Zimolong III, Esq., Zimolong LLC, for Amicus Curiae Thomas More Society.
Adam Craig Bonin, Esq., Justin Baxenberg, Esq., Daniel Cohen, Esq., Daniela Lorenzo, Esq., Uzoma N. Nkwonta, Esq., Elias Law Group, LLP, Daniel C. Osher, Esq., for Intervenor Democratic Congressional Campaign Committee (DCCC).
Adam Craig Bonin, Esq., Peter Poggi Elliot, Esq., Kevin Michael Greenberg, Esq., Adam R. Roseman, Esq., Greenberg Traurig, LLP, Clifford B. Levine, Esq., Emma Frances Elizabeth Shoucair, Esq., Alice Birmingham Mitinger, Esq., Dentons Cohen & Grigsby, for Intervenor Pennsylvania Democratic Party.
Adam Craig Bonin, Esq., Clifford B. Levine, Esq., Alice Birmingham Mitinger, Esq., Emma Frances Elizabeth Shoucair, Esq., Dentons Cohen & Grigsby, for Intervenor Democratic National Committee.
Katheleen Marie Kotula, Esq., Pennsylvania Department of State, for Participant Department of State.
Joshua D. Shapiro, Esq., for Participant Office of Attorney General.
Thomas E. Breth, Esq., Thomas W. King III, Esq., Dillon McCandless King Coulter & Graham, LLP, Kathleen A. Gallagher, Esq., Russell David Giancola, Esq., Gallagher Giancola LLC, for Petitioners.
Brian Howard Benjet, Esq., Ilana H. Eisenstein, Esq., DLA Piper, Zachary Gene Strassburger, Esq., City of Philadelphia, for Respondent Philadelphia County Board of Elections.
Jacob Biehl Boyer, Esq., Michael John Fischer, Esq., Pennsylvania Office of Attorney General, Carmen Iguina Gonzalez, Esq., Elizabeth Pidcock Lester-Abdalla, Esq., Joshua Matz, Esq., Raymond P. Tolentino, Esq., Robert Andrew Wiygul, Esq., Hangley, Aronchick, Segal, Pudlin & Schiller, for Respondent Acting Secretary Leigh M. Chapman.
Nicholas Michael Centrella Jr., Esq., James Manly Parks, Esq., Duane Morris LLP, for Respondent Delaware County Board of Elections.
Anthony V. Clarke, Esq., for Respondent McKean County Board of Elections.
Joseph Matthias Cosgrove, Esq., Selingo Guagliardo, LLC, for Respondent Luzerne County Board of Elections.
Casey Alan Coyle, Esq., Elizabeth A. Dupuis, Esq., Babst, Calland, Clements and Zomnir, PC, Anna Skipper Jewart, Esq., for Respondents Bedford County Board of Elections, Carbon County Board of Elections, Centre County Board of Elections, Columbia County Board of Elections, Dauphin County Board of Elections, Fayette County Board of Elections, Huntingdon County Board of Elections, Indiana County Board of Elections, Jefferson County Board of Elections, Lawrence County Board of Elections, Lebanon County Board of Elections, Northumberland County Board of Elections, Venango County Board of Elections, York County Board of Elections.
Matthew Robert Cravitz, Esq., for Respondent Snyder County Board of Elections.
James V. Fareri, Esq., McFall, Layman & Jordan, P.C., for Respondent Monroe County Board of Elections.
Jonathan Paul Foster, Esq., Foster Law Office PLLC, for Respondent Bradford County Board of Elections.
Colleen Mary Frens, Esq., Nicholas J. Stevens, Esq., County of Chester, Faith Anne Mattox-Baldini, Esq., Chester County Solicitor's Office, for Respondent Chester County Board of Elections.
Christopher P. Furman, Esq., for Respondents Clarion County Board of Elections, Susquehanna County Board of Elections, Tioga County Board of Elections.
Carmen Iguina Gonzalez, Esq., Joshua Matz, Esq., Raymond P. Tolentino, Esq., Robert Andrew Wiygul, Esq., Hangley, Aronchick, Segal, Pudlin & Schiller, for Respondent Jessica Mathis.
Daniel Donovan Grieser, Esq., Bucks County, Jessica L. VanderKam, Esq., Stuckert and Yates, for Respondent Bucks County Board of Elections.
Robert Eugene Grimm, Esq., for Respondent Greene County Board of Elections.
Melissa Ann Guiddy, Esq., Westmoreland County Solicitor's Office, for Respondent Westmoreland County Board of Elections.
Maureen E. Herron, Esq., John Amos Marlatt, Esq., Montgomery County Solicitor's Office, for Respondent Montgomery County Board of Elections.
Jennifer B. Hipp, Esq., Bogar & Hipp Law Offices, LLC, for Respondent Cumberland County Board of Elections.
George M. Janocsko, Esq., Allegheny County Law Department, Lisa G. Michel, Esq., Bacharach & Michel, Allan Joseph Opsitnick, Esq., Opsitnick and Associates, for Respondent Allegheny County Board of Elections.
Nathan W. Karn, Esq., for Respondent Blair County Board of Elections.
Cody Lee Kauffman, Esq., Berks County Solicitor's Office, for Respondent Berks County Board of Elections.
Frank J. Lavery Jr., Esq., Lavery Law PC, Andrew W. Norfleet, Esq., for Respondent Perry County Board of Elections.
Lauren Lynn Mathews, Esq., Vorys, Sater, Seymour and Pease LLP, for Respondent Washington County Board of Elections.
Molly Ruth Mudd, Esq., for Respondent Adams County Board of Elections.
Melvin Eugene Newcomer, Esq., Kluxen, Newcomer & Dreisbach, for Respondent Lancaster County Board of Elections.
Catharine Meade Roseberry, Esq., Lehigh County, for Respondent Lehigh County Board of Elections.
Andrew Joseph Sacco, Esq., Steiner Sacco Law, for Respondent Armstrong County Board of Elections.
Nathaniel Justus Schmidt, Esq., Warren County Solicitor's Office, for Respondent Warren County Board of Elections.
Joseph David Smith, Esq., McCormick Law Firm, for Respondent Lycoming County Board of Elections.
Elliott Bernard Sulcove, Esq., for Respondent Franklin County Board of Elections.
H. William White III, Esq., Butler County Solicitor's Office, for Respondent Butler County Board of Elections.
Donald Kenneth Zagurskie, Esq., for Respondent Juniata County Board of Elections.
Beaver County Board of Elections, Pro Se.
Cambria County Board of Elections, Pro Se.
Cameron County Board of Elections, Pro Se.
Clearfield County Board of Elections, Pro Se.
Clinton County Board of Elections, Pro Se.
Crawford County Board of Elections, Pro Se.
Elk County Board of Elections, Pro Se.
Erie County Board of Elections, Pro Se.
Forest County Board of Elections, Pro Se.
Fulton County Board of Elections, Pro Se.
Lackawanna County Board of Elections, Pro Se.
Mercer County Board of Elections, Pro Se.
Mifflin County Board of Elections, Pro Se.
Montour County Board of Elections, Pro Se.
Northampton County Board of Elections, Pro Se.
Pike County Board of Elections, Pro Se.
Potter County Board of Elections, Pro Se.
Schuylkill County Board of Elections, Pro Se.
Somerset County Board of Elections, Pro Se.
Sullivan County Board of Elections, Pro Se.
Union County Board of Elections, Pro Se.
Wayne County Board of Elections, Pro Se.
Wyoming County Board of Elections, Pro Se.
TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
Justice Wecht delivers the Opinion of the Court with respect to Parts I, II, III(A), III(B), and IV, and delivers an opinion with respect to Part III(C) joined by Chief Justice Todd and Justice Donohue.
OPINION
JUSTICE WECHT The Election Code states that a voter who submits an absentee or mail-in ballot "shall ... fill out, date and sign the declaration" that is printed on the envelope in which the ballot is returned. Petitioners contend that failure to comply with this instruction renders a ballot invalid, and they challenge guidance from the Acting Secretary of the Commonwealth that instructs county boards of elections to canvass and pre-canvass "[a]ny ballot return-envelope that is undated or dated with an incorrect date but that has been timely received by the county." , Petitioners ask this Court: to declare that absentee and mail-in ballots which are "undated or incorrectly dated" cannot be included in the pre-canvass or canvass of votes; to segregate such ballots; and to direct the Acting Secretary to withdraw her guidance.
25 P.S. §§ 3146.6(a) (absentee ballots); 3150.16(a) (mail-in ballots).
On October 21, 2022, this Court granted Petitioners’ Application for the Exercise of King's Bench Power or Extraordinary Jurisdiction, assuming King's Bench jurisdiction, see Pa. Const. art. V, § 10 ; 42 Pa.C.S. § 502, to consider their request for injunctive and declaratory relief concerning undated and incorrectly dated mail-in and absentee ballots. Petitioners are eight individual voters ("Voter Petitioners"), the Republican National Committee ("RNC"), the National Republican Congressional Committee ("NRCC"), and the Republican Party of Pennsylvania ("RPP").
See Pennsylvania Department of State, Guidance Concerning Examination of Absentee and Mail-in Ballot Return Envelopes (Sept. 26, 2022); Application Ex. A.
See Application for the Exercise of King's Bench Power or Extraordinary Jurisdiction at 26-27. Because no dispute was pending before a lower court in this instance, King's Bench Power is appropriate, as opposed to Extraordinary Jurisdiction. See In re Bruno , 627 Pa. 505, 101 A.3d 635, 668-70 (2014) (explaining the distinction).
The Acting Secretary challenges Petitioners’ standing and opposes their claim that the Election Code requires disqualification of undated and incorrectly dated absentee and mail-in ballots. Moreover, she argues that failing to count ballots which do not comply with the Election Code's date requirement would violate federal law, specifically, the "materiality provision" of the Civil Rights Act of 1964.
Petitioners instituted this action against the boards of elections in all sixty-seven counties as well. For ease of reference, and in light of the Acting Secretary's submission of the most extensive briefing on these questions, this Opinion refers to the Acting Secretary rather than the county boards.
By order dated October 21, 2022, we distilled these claims into the following questions:
1. Do the Petitioners have standing to bring the instant appeal?
2. Does the Election Code's instruction that electors "shall ... date" absentee and mail-in ballots, 25 P.S. §§ 3146.6(a) ; 3150.16(a), require that the votes of those electors who do not comply with that instruction are not counted?
3. Assuming, arguendo , that this Court answers the second issue in the affirmative, would such a result violate the materiality provision of the Civil Rights Act of 1964? See 52 U.S.C. § 10101(a)(2)(B).
Following expedited review of the briefing that ensued, we issued a per curiam order dated November 1, 2022, granting Petitioners’ requested relief in part and denying it in part. For the November 8, 2022 election, we ordered the county boards of elections to refrain from counting any absentee or mail-in ballots that arrived in undated or incorrectly dated envelopes. We directed county boards to segregate and preserve such ballots. And we dismissed Voter Petitioners from the case for lack of standing. We divided evenly on the issue of whether failing to count undated or incorrectly dated ballots violated federal law, and accordingly issued no decision on that question. This Opinion provides the rationale that our November 1 order promised.
By supplemental order dated November 5, 2022, the Court identified "incorrectly" dated ballots for purposes of the November 8, 2022 election as those mail-in ballots arriving in envelopes "with dates that fall outside the date range of September 19, 2022, through November 8, 2022," and absentee ballots arriving in envelopes "with dates that fall outside the date range of August 30, 2022, through November 8, 2022."
I. Background
Pennsylvania law allows qualified electors to vote by mail, whether on an absentee basis or on a no-excuse basis. The Election Code sets forth instructions for those processes. An elector must mark his or her ballot before 8:00 p.m. on Election Day, place the marked ballot in a secrecy envelope marked "Official Election Ballot," and then deposit the secrecy envelope in a ballot return envelope. The ballot return envelope bears a pre-printed declaration that contains "a statement of the [elector's] qualifications, together with a statement that such elector has not already voted in such primary or election." The Election Code states that electors "shall ... fill out, date and sign" the declaration.
25 P.S. §§ 3146.1 ; 3150.11.
Id. §§ 3146.6(a) ; 3150.16(a).
Id. §§ 3146.4; 3150.14(b).
Id. §§ 3146.6(a) ; 3150.16(a).
In 2020, this Court considered the Election Code's date requirement. On that occasion, candidates challenged the decisions of county boards of elections to count absentee and mail-in ballots that had been timely received but lacked complete and accurate handwritten declarations on their ballot return envelopes. The Commonwealth Court issued a decision in one of the cases, and ordered that the ballots not be counted. We stayed that order, granted allowance of appeal to several parties, invoked extraordinary jurisdiction with respect to others, and consolidated the relevant appeals.
See In re Canvass of Absentee and Mail-In Ballots of November 3, 2020 , ––– Pa. ––––, 241 A.3d 1058 (2020) ("In re 2020 Canvass ").
See id. at 1062-63. Nicole Ziccarelli, a candidate for Pennsylvania Senate in the 45th Senatorial District, challenged the Allegheny County Board of Elections’ decision to count 2,349 such ballots. Donald J. Trump for President, Inc., a presidential campaign organization, challenged the Philadelphia County Board's decision to count 8,329 such ballots.
See In re 2,349 Ballots in 2020 Gen. Election , 1162 C.D. 2020, 2020 WL 6820816, 241 A.3d 694 (Pa. Cmwlth. Nov. 19, 2020) (unpublished).
The ensuing Opinion Announcing the Judgment of the Court ("OAJC") explained three Justices’ conclusion that, "while failures to include a handwritten name, address or date in the voter declaration on the back of the outer envelope" constituted "technical violations of the Election Code," those failures did not warrant "the wholesale disenfranchisement of thousands of Pennsylvania voters." These three Justices maintained that the use of the word "shall" in a statute "is not always indicative of a mandatory directive" and, "in some instances ... is to be interpreted as merely directory." Under this Court's precedent interpreting the requirements of the Election Code, the OAJC understood the question as implicating the distinction between a "minor irregularity," which is nonfatal to a ballot, and a "weighty interest," which is critical to the integrity of the election and must be applied strictly. Because "a signed but undated declaration is sufficient and does not implicate any weighty interest," these Justices would have held that "the lack of a handwritten date cannot result in vote disqualification."
The OAJC in In re 2020 Canvass was authored by Justice Donohue and joined by then-Justice Baer and then-Justice Todd.
In re 2020 Canvass , 241 A.3d at 1079.
Id. at 1071 (citations omitted).
See, e.g. , Shambach v. Bickhart , 577 Pa. 384, 845 A.2d 793 (2004) (declining to invalidate a write-in vote cast for a candidate whose name was already on the ballot, in violation of the Election Code's instructions); In re Luzerne Cnty. Return Bd., Appeal of Elmer V. Weiskerger , 447 Pa. 418, 290 A.2d 108 (1972) ("Appeal of Weiskerger ") (declining to invalidate ballots because it was only a "minor irregularity" that they were completed in red and green ink, as opposed to blue or black ink, as the Election Code required).
See, e.g. , Pa. Democratic Party v. Boockvar , 662 Pa. 39, 238 A.3d 345 (2020) (holding that the failure of a mail-in voter to put the ballot into the inner secrecy envelope rendered the ballot void); In re Canvass of Absentee Ballots of November 4, 2003 Gen. Election, Appeal of John Pierce , 577 Pa. 231, 843 A.2d 1223 (2004) ("Appeal of Pierce ") (holding that in-person delivery of ballots was mandatory, and that votes delivered by third parties were void).
In re 2020 Canvass , 241 A.3d at 1073.
All 8,329 ballots challenged in Philadelphia County and all 2,349 ballots challenged in Allegheny County had been received by the county boards of elections before 8:00 p.m. on Election Day. Therefore, according to the OAJC, there was "no danger that any of [them] was untimely or fraudulently back-dated." In re 2020 Canvass , 241 A.3d at 1077. Moreover, other canvassing procedures precluded double voting, as well as the "unlikely hypothetical scenario" of an elector being qualified to vote at the time of applying for a ballot, but being disqualified sometime before Election Day. Id.
Id. at 1078.
Three Justices dissented in relevant part. They declined to characterize "the absence of a date as a mere technical insufficiency" that the Court could "overlook." In these Justices’ view, the date on the ballot return envelope "provides proof of when the ‘elector actually executed the ballot in full [and] ... establishes a point in time against which to measure the elector's eligibility to cast the ballot.’ " The date requirement thus carried an "unquestionable purpose." Accordingly, these three Justices would have ruled that the ballots in question were not to be counted, for failure to comply with the Election Code.
See id. at 1090-91 (Dougherty, J., concurring and dissenting). Justice Dougherty's concurring and dissenting opinion was joined by then-Chief Justice Saylor and Justice Mundy.
Id. at 1090.
Id. (quoting In re 2,349 Ballots in the 2020 Gen. Election , 2020 WL 6820816 at *6 ).
Id.
This author concurred in the result of the OAJC but not in its rationale, and filed a concurring and dissenting opinion. That opinion expressed this author's view that "the Election Code should be interpreted with unstinting fidelity to its terms, and ... election officials should disqualify ballots that do not comply with unambiguous statutory requirements." The opinion recognized, though, that the Secretary of the Commonwealth had "issued confusing, even contradictory guidance" regarding the date requirement, such that "local election officials and voters alike lacked clear information regarding the consequence" of failing to "record the date beside the voter's declaration signature." Our question was one of first impression that had not been considered by the Commonwealth Court or this Court at any time before 2020, which was "an historically tumultuous year." Because our ruling was "not foreshadowed by existing law," this author proposed to apply the limiting interpretation of the Election Code only prospectively. Accordingly, for purposes of the 2020 election, four votes supported the result of counting non-compliant ballots.
See id. at 1079-89 (Wecht, J., concurring and dissenting).
Id. at 1089.
Id.
Id. at 1088.
Id. (citing Appeal of Zentner , 533 Pa. 564, 626 A.2d 146 (1993) ).
The Commonwealth Court has weighed the precedential effect of our 2020 ruling on multiple occasions, albeit in non-binding memoranda. Twice, that court denied requests to count undated and incorrectly dated absentee and mail-in ballots. In other disputes, the Commonwealth Court reached the opposite conclusion, and ordered that undated and incorrectly dated absentee and mail-in ballots could be counted.
See In re Election in Region 4 for Downingtown Sch. Bd. Precinct Uwchlan 1 , 1381-85 C.D. 2021, 1395-99 C.D. 2021, 1403 C.D. 2021, 2022 WL 96156 at *3 (Pa. Cmwlth. Jan. 10, 2022) (Memorandum Opinion Stating the View of Senior Judge Leadbetter) ("I must conclude that the prevailing view of our Supreme Court is that of Justice Wecht"); Ritter v. Lehigh Cnty. Bd. of Elections , 1322 C.D. 2021, 2022 WL 16577 at *7 (Pa. Cmwlth. Jan. 3, 2022) (concluding that "[Justice Dougherty's concurring and dissenting opinion], in conjunction with [Justice Wecht's opinion concurring in the result] should be considered as precedential authority that is binding on this Court and controls the outcome of this case").
See Chapman v. Berks Cnty. Bd. of Elections , 355 M.D. 2022, 2022 WL 4100998 at *23 (Pa. Cmwlth. Aug. 19, 2022) (single-Judge memorandum) (" ‘[W]hen a court is faced with a plurality opinion, usually only the result carries precedential weight; the reasoning does not[.]’ ... For these reasons, the [c]ourt does not view the reasoning set forth in the In re [2020 ] Canvass opinions as binding precedent on other parties under other factual circumstances.") (quoting Commonwealth v. Bethea , 574 Pa. 100, 828 A.2d 1066, 1073 (2003) (emphasis and footnote omitted)).
Following one of these Commonwealth Court decisions— Ritter —individual Lehigh County voters filed a federal lawsuit, claiming that applying the date requirement to disqualify non-compliant mail-in ballots violates the materiality provision of the federal Civil Rights Act of 1964. That statute provides that:
[n]o person acting under color of law shall ... deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.
A federal district court disposed of the Lehigh County case on summary judgment, reasoning that Congress had not intended to create a private right of action to enforce the materiality provision. The United States Court of Appeals for the Third Circuit reversed, finding that the materiality provision was enforceable under 42 U.S.C. § 1983, and that disqualification of ballots for failure to comply with the date requirement violated that provision. Before the Lehigh County Board of Elections could count the 257 disputed ballots in question, the candidate who had been leading in the race for a seat on the Lehigh County Court of Common Pleas—David Ritter—applied for a stay, which Justice Samuel Alito of the Supreme Court of the United States granted. Shortly thereafter, however, the full Court denied the stay and vacated Justice Alito's order. Ritter petitioned for a writ of certiorari . While his petition was pending, Lehigh County proceeded to count the disputed ballots and certified the election in favor of Ritter's opponent. Then, on October 11, 2022, the Supreme Court granted Ritter's petition, vacated the judgment of the Third Circuit, and remanded the matter with instructions to dismiss the case as moot in light of the certification.
See Migliori v. Lehigh Cnty. Bd. of Elections , No. 5:22-cv-00397, 2022 WL 802159 at *13 (E.D. Pa. Mar. 16, 2022).
See Migliori v. Cohen , 36 F.4th 153 (3d Cir. 2022).
Ritter v. Migliori , ––– U.S. ––––, 143 S.Ct. 297, 214 L.Ed.2d 129 (2022) (Mem.). See United States v. Munsingwear, Inc. , 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950) (establishing the practice that, "in dealing with a civil case from a court in the federal system which has become moot while on its way [to the Supreme Court of the United States] or pending [the Court's] decision on the merits," and where the lack of review is attributable to "happenstance," the judgment will be reversed or vacated, and remanded with instructions to dismiss the case as moot).
Before the Supreme Court of the United States disposed of Ritter , the Acting Secretary issued guidance on September 26, 2022, directing county boards of elections to count undated or incorrectly dated ballots. The Supreme Court's ensuing vacatur in Ritter prompted the Acting Secretary to issue the following statement:
See supra note 3.
Every county is expected to include undated ballots in their official returns for the Nov. 8 election, consistent with the Department of State's guidance. That guidance followed the most recent ruling of the Pennsylvania Commonwealth Court holding that both Pennsylvania and federal law prohibit excluding legal votes because the voter omitted an irrelevant date on the ballot return envelope.
Today's order from the U.S. Supreme Court vacating the Third Circuit's decision on mootness grounds was not based on the merits of the issue and does not affect the prior decision of Commonwealth Court in any way. It provides no justification for counties to exclude ballots based on a minor omission, and we expect that counties will continue to comply with their obligation to count all legal votes.
Acting Secretary of State Issues Statement on SCOTUS Order on Undated Mail Ballots , (Oct. 11, 2022) (emphasis in original), available at https://www.media.pa.gov/pages/state-details.aspx?newsid=536 (last visited November 18, 2022).
Five days later, Petitioners filed the instant Application. They asserted that the state of the law was clear, and that ballots which do not comply with the date requirement should not be counted. Furthermore, Petitioners argued that there was insufficient time for the "ordinary process of law" to resolve the issues they presented, and that it might prove impossible to grant effectual relief once pre-canvassing and canvassing started. We promptly granted review. II. Arguments
See Friends of Danny DeVito v. Wolf , 658 Pa. 165, 227 A.3d 872, 884, cert. denied , ––– U.S. ––––, 141 S. Ct. 239, 208 L.Ed.2d 17 (2020).
Our order of October 21, 2022 also granted Intervenor status to the Democratic Congressional Campaign Committee, the Democratic National Committee, and the Pennsylvania Democratic Party, and allowed for the filing of amicus briefs. See Pa.R.Civ.P. 2327(4) (allowing for intervention where the determination of the action "may affect any legally enforceable interest" of the applicant).
A. Standing
The various campaign arms of the Republican Party ("Party Petitioners") advance three theories of standing. First, they assert that their organizations devote substantial time and resources to training election monitors. Party Petitioners allege that the Acting Secretary's guidance and Commonwealth Court precedent created "a lack of clarity" regarding the meaning and application of the date requirement. Without such clarity, Party Petitioners assert, their "training and monitoring activities" will be rendered "less effective, wasting the considerable resources they have devoted to those activities, or requiring them to devote even more resources to them."
See Berks Cnty. Bd. of Elections , 2022 WL 4100998 at *23 (finding that In re 2020 Canvass did not constitute binding precedent).
Petitioners’ Br. at 14.
Id.
Second, Party Petitioners argue that the lack of clarity concerning the meaning of the date requirement will affect the resources and expenditures that they devote to ensuring that Republican candidates and their prospective voters "understand the rules governing the election process." Third, they claim a concrete interest in winning elections, and they assert that, if left uncorrected, the Acting Secretary's guidance will result in a broad range of non-compliant ballots being counted in a way that could alter the final tallies of votes. In support, Party Petitioners point to the Lehigh County litigation in which the counting of ballots that did not comply with the date requirement decided the outcome of a race for a seat on the Court of Common Pleas. Party Petitioners assert an interest in preserving "the structur[e] of the competitive environment" in which the election is to be run.
Id. at 15.
Id. at 16.
Id. at 17; see Migliori v. Lehigh Cnty. Bd. of Elections , No. 5:22-cv-00397, 2022 WL 802159 at *13 (E.D. Pa. Mar. 16, 2022) ; Migliori v. Cohen , 36 F.4th 153 (3d Cir. 2022).
Petitioners’ Br. at 16 (quoting Shays v. Fed. Election Comm'n , 414 F.3d 76, 86 (D.C. Cir. 2005) ).
For their part, Voter Petitioners cite the "right to vote and to have one's vote counted" as a basis for standing. The right to vote is "of little moment," they submit, if the weight of that vote can be " ‘debase[d] or dilut[ed]’ by the counting of invalid ballots." Voter Petitioners observe as well that this Court has not precluded individual voters from raising claims that sound in dilution or the impact of which would sweep far beyond their own political activity.
Albert v. 2001 Legislative Reapportionment Comm'n , 567 Pa. 670, 790 A.2d 989, 994 (2002).
Petitioners’ Br. at 17-18 (citing Bush v. Gore , 531 U.S. 98, 105, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000) ).
Id. at 20 (discussing Erfer v. Commonwealth , 568 Pa. 128, 794 A.2d 325, 329-30 (2002) (permitting plaintiffs to challenge entire reapportionment plans and not only the lines of the district in which the plaintiffs reside)).
The Acting Secretary argues that all of the various Petitioners lack standing, because none of them has the "substantial, direct, and immediate interest" our precedent requires. A professed interest in obedience to the law generally is not an interest that surpasses that of any other citizen or the public at large. With respect to Voter Petitioners, the Acting Secretary submits that we rejected identical arguments for standing in Kauffman v. Osser , 441 Pa. 150, 271 A.2d 236 (1970). There, this Court dismissed, for lack of standing, a challenge brought by a group of voters to rules allowing certain electors to vote by absentee ballot. We explained that the petitioners’ interest was "not peculiar to them," "not direct," and "too remote and too speculative" to afford them standing. The Kauffman electors’ challenge assumed that the votes to which they objected would be cast "for candidates ... other than those for whom [they] would vote and thus will cause a dilution of [their] votes." Because that assumption was "unsupported factually" and "unwarranted," their vote dilution theory was insufficient to establish standing.
Various amici and several of the County Respondents—representing Adams County, Allegheny County, Bucks County, Chester County, Delaware County, Luzerne County, Montgomery County, and Philadelphia County—filed briefs in opposition to Petitioners’ requested relief. Because their arguments largely echo those advanced by the Acting Secretary, we do not elaborate upon them here. We treat the amici who filed briefs in support of Petitioners in the same manner.
See Markham v. Wolf , 635 Pa. 288, 136 A.3d 134, 140 (2016).
See Fumo v. City of Phila. , 601 Pa. 322, 972 A.2d 487, 496 (2009).
Kauffman , 271 A.2d at 239.
Id. at 239-40.
Id. at 240.
B. The Date Requirement
Petitioners view our 2020 decision as holding that, after the 2020 election, the date requirement would be deemed mandatory and that the counting of non-compliant ballots would be barred in future elections. In their view, the General Assembly's use of the mandatory "shall" in 25 P.S. §§ 3146.6(a) and 3150.16(a) renders invalid any ballots arriving in return envelopes that bear no date or an incorrect date. Petitioners further assert that this result coheres with our decisions in Appeal of Pierce and Boockvar , and that the contrary result in Appeal of Weiskerger —which adopted the "minor irregularity" / "weighty interests" approach—could be attributed to the fact that it predated enactment of the Statutory Construction Act. The Statutory Construction Act provides that courts should consider indicia of legislative intent only when the text of a statute is ambiguous. Thus, Petitioners argue, while the Weiskerger Court could look to underlying legislative intent even in the face of clear statutory language, later courts could not. It would be absurd, in Petitioners’ view, if the word "shall" in consecutive sentences of the Election Code could bear two different meanings.
See Petitioners’ Br. at 21 (discussing In re 2020 Canvass ).
843 A.2d at 1231-32. See supra , note 19.
238 A.3d at 379-80. See supra , note 19.
See Petitioners’ Br. at 31 (citing 1 Pa.C.S. § 1921(b) ); see also supra , note 18.
Petitioners also dispute the idea that the Free and Equal Elections Clause of the Pennsylvania Constitution can support a liberal construction of clear statutory commands. As evidence that the date requirement has an "unquestionable purpose," Petitioners point to a circumstance in Lancaster County wherein officials discovered that a ballot was fraudulent because the outer envelope had been dated twelve days after the putative elector had died. Finally, Petitioners argue that "any state judicial or administrative construction ... that fails to uphold the date requirement's plain and mandatory meaning for federal elections violates the Elections Clause[ ] of the U.S. Constitution."
Pa. Const. art. I, § 5 ("Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.").
Petitioners’ Br. at 33-34 (citing Appeal of Pierce , 843 A.2d at 1231 ).
See In re 2020 Canvass , 241 A.3d at 1090 (Dougherty, J., concurring and dissenting).
See Petitioners’ Br. at 27.
U.S. Const. art. I, § 4, cl. 1 ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators.").
Petitioners’ Br. at 28. This last argument stems from the "independent state legislature" theory, the idea that the federal Constitution singularly delegates the authority to regulate federal elections to state legislatures, to the exclusion of state courts and state executive branches, and regardless of state constitutional provisions. See Republican Party of Pa. v. Degraffenreid , ––– U.S. ––––, 141 S. Ct. 732, 732-38, 209 L.Ed.2d 164 (2021) (Thomas, J., dissenting from the denial of certiorari ); Moore v. Harper , ––– U.S. ––––, 142 S. Ct. 1089, 1089-92, 212 L.Ed.2d 247 (2022) (Alito, J., dissenting from the denial of a stay).
The Acting Secretary advances three main arguments against construing the Election Code in a way that would invalidate undated or incorrectly dated absentee and mail-in ballots. First, she argues that nothing in the statutory language compels that result, as evidenced by (i) the structure of the Code and its use of "sufficiency"; (ii) the express provision that certain defects, but not others, will result in ballots not being counted; and (iii) the history of the Code's development. Separate sections of the Election Code govern the casting of ballots and the counting of ballots. The sections that govern counting, the Acting Secretary alleges, make clear that the touchstone is whether the board of elections is "satisfied that the declaration is sufficient." By using the word "sufficient," she asserts, "the legislature made clear that less than perfect compliance with the voting instructions was acceptable for a ballot to be counted, so long as the declaration achieves its purpose." Where the General Assembly intended that failure to comply would result in disqualification, it said so unambiguously.
Compare 25 P.S. § 3146.8(g)(4) ("Canvassing of official absentee ballots and mail-in ballots"), with 25 P.S. § 3146.6(a) ("Voting by absentee electors"). When legislative efforts—which ultimately proved unsuccessful—proposed to require that these ballots be discounted, the General Assembly attempted to amend those sections dealing with counting ballots, not casting them. See Respondents’ Br. at 24 (citing HB 1300, Session of 2021, § 20).
Respondents’ Br. at 25.
See, e.g. , 25 P.S. § 3146.8(g)(4)(ii) (providing that, if an envelope "contain[s] any text, mark or symbol which reveals the identity of the elector, the elector's political affiliation or the elector's candidate preference," the ballot shall be "declared void").
The Acting Secretary alleges that history bears out her reading because, beginning in 1945, the Election Code affirmatively required county boards of elections to "set aside" ballots that were untimely. When the General Assembly removed that provision in 1968, she argues, all that was left was the benchmark of "sufficiency," and disqualification of ballots was no longer required.
Respondents’ Br. at 29 (citing Act of Mar. 9, 1945, P.L. 29, No. 17, sec. 10, § 1307).
The Acting Secretary warns as well that Petitioners’ statutory interpretation countenances results that would be "absurd, impossible of execution or unreasonable." The word "shall" appears "thousands of times" in the Election Code, providing direction for "virtually every step to be taken in the planning and execution of an election." If Petitioners were to prevail, the Acting Secretary predicts, "the next similar challenge could involve ink color, or pen or pencil types." She asserts that such "draconian" consequences for "insignificant errors" could implicate the Free and Equal Elections Clause, as well as the Supreme Court of the United States’ precedent on the right to vote. Finally, the Acting Secretary argues that none of the proffered justifications for the date requirement withstand scrutiny, and that if the Court finds any ambiguity in the Election Code, such ambiguity should be resolved in favor of the exercise of the franchise.
Respondents’ Br. at 35.
Id. at 37.
Id.
The Acting Secretary rebuts several arguments for the date requirement's functionality. It cannot be used to determine voter eligibility, she argues, because that is determined based on an elector's qualifications "as of Election Day ," not as of the moment that the elector fills out a ballot. Respondents’ Br. at 41 (emphasis in original). It cannot be used to ensure timeliness, because counties already have procedures for time-stamping ballots that have been received and for scanning their barcodes into the SURE system. Id. at 42. It cannot be used to confirm that an elector intended to vote by ballot—in a circumstance where the voter both mails a ballot and casts a provisional one at the polling place—because, by statute, only the absentee or mail-in ballot would count. Id. at 44 (citing 25 P.S. § 3050(a.4)(5)(ii)(F) ). Finally, in the isolated case of alleged fraud in Lancaster County that Petitioners cited, the Acting Secretary submitted that "the date played no role in determining that the ballot at issue would not be counted." Id. at 45. County commissioners already had determined, via the SURE system, that the elector had died prior to the date of the primary, and so an investigation would have followed no matter what was written on the return envelope. See id. (citing Berks Cnty. Bd. of Elections , 2022 WL 4100998 at *21 n.14 ) (noting that "the ballot at issue had already been separated by the chief clerk because the scan of the return envelope revealed, through the SURE system, that the elector was deceased"). See Boockvar , 238 A.3d at 361 (adopting a "construction of the Code that favors the fundamental right to vote and enfranchises, rather than disenfranchises, the electorate").
C. The Materiality Provision
Petitioners maintain that their reading of the Election Code would not violate federal law. In their view, an elector whose absentee or mail-in "ballot is not counted because it was not filled out correctly ... is not denied ‘the right to vote’ "; rather, "that individual's vote is not counted because he or she did not follow the rules for casting a ballot." Congress enacted the materiality provision, Petitioners assert, to "forbid ... the practice of disqualifying voters for their failure to provide information irrelevant to their eligibility to vote." The focus was upon regulations that "requir[ed] unnecessary information for voter registration," such as one's age in the "exact number of months and days," intending to "increase the number of errors or omissions on the application forms, thus providing an excuse to disqualify potential voters." Because determining that a ballot return envelope is missing a date or has been incorrectly dated does not pertain to a qualification determination, Petitioners argue, the materiality provision is irrelevant here.
Petitioners’ Br. at 43-44 (quoting Ritter v. Migliori , ––– U.S. ––––, 142 S. Ct. 1824, 213 L.Ed.2d 1034 (Mem.) (2022) (Alito, J., dissenting from the denial of a stay)); see also Vote.Org v. Callanen , 39 F.4th 297, 305 n.6 (5th Cir. 2022) ("It cannot be that any requirement that may prohibit an individual from voting if the individual fails to comply denies the right of that individual to vote under [the materiality provision].").
Id. at 45 (quoting Schwier v. Cox , 340 F.3d 1284, 1294 (11th Cir. 2003) ) (emphasis in brief).
Id.
While Petitioners concede that "an absentee or mail-in ballot and the declaration is a ‘record or paper,’ " they maintain that "casting a ballot—which, under Pennsylvania law, requires completing the declaration—constitutes the act of voting, not an application, registration, or other act requisite to voting." In other words, "[v]oting is voting; it is not an act requisite to voting." Petitioners assert that, under Pennsylvania law, "completing the declaration is part and parcel of voting by absentee or mail-in ballot." To read the materiality provision otherwise would " ‘subject virtually every electoral regulation’ related to voting records and papers to the superintendence of the federal materiality provision, ‘hamper the ability of States to run efficient and equitable elections, and compel federal courts to rewrite state electoral codes.’ " Relevantly, Petitioners argue that the Acting Secretary never reconciled her position that the signature requirement does not violate federal law with her broad interpretation of the materiality provision.
Id. at 47 (citation omitted) (emphases in original).
Id.
Id. at 51.
Id. at 49 (quoting Clingman v. Beaver , 544 U.S. 581, 593, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005) ). Notably, Clingman concerned not the materiality provision, but rather claims that a semi-closed primary system placed a severe burden on associational rights.
See id. at 50.
The Acting Secretary replies that Petitioners’ strict interpretation of "deny the right ... to vote" is contrary to the Civil Rights Act's definitions, and that it would render the provision itself—"which operates only when there is non-compliance with some prerequisite to voting—completely null." Furthermore, she argues, while it is true that Congress passed Section 10101(a)(2)(B) to thwart efforts that disenfranchised African-American voters by requiring unnecessary information to register to vote, Congress may "choose a broader remedy" when "combating specific evils." Here, she maintains, Congress did so. According to the Acting Secretary, the materiality provision applies whenever a state "would deny someone the right to vote for failing to satisfy a state's request for information if that information was not needed to judge the voter's qualifications." Second, the Acting Secretary argues, completing a declaration on a ballot return envelope cannot be subsumed within the act of voting, because that would read the words "act requisite to voting" out of the statute. She contends that disqualifying ballots for failure to follow the ordinary election regulations that Petitioners identified would not trigger the materiality provision, because none of them pertain to an "error or omission on any record or paper" related to voting.
See 52 U.S.C. § 10101(e). For purposes of the materiality provision, "the word ‘vote’ includes all action necessary to make a vote effective including, but not limited to, registration or other action required by State law prerequisite to voting, casting a ballot, and having such ballot counted and included in the appropriate totals of votes cast with respect to candidates for public office and propositions for which votes are received in an election[.]"
Respondent's Br. at 51 (emphasis in original).
Id. at 52 (quoting Florida State Conference of NAACP v. Browning , 522 F.3d 1153, 1173 (11th Cir. 2008) ).
Id. at 52-53.
See id. at 53.
Id. at 54 (citing Petitioners’ Br. at 44) (suggesting that the Acting Secretary's interpretation of the materiality provision might apply to an elector who "show[s] up to the polls after Election Day, fail[s] to sign or to use a secrecy envelope for an absentee or mail-in ballot, return[s] the ballot to the wrong location, or arriv[es] at the wrong polling place").
See id . at 54.
Because the statutory definition of "vote" includes "all action necessary to make a vote effective including ... having such ballot counted and included in the appropriate totals of votes cast," the Acting Secretary argues that the materiality provision applies. In her view, the date requirement "serve[s] no purpose other than as a means of inducing voter-generated errors that could be used to justify" denying the right to vote. She observes that county boards act under color of state law, a ballot return envelope is a "record or paper," and the lack of a date or an incorrect date is an "error or omission." Moreover, she notes, many federal courts have concluded that setting aside an individual ballot falls within the scope of the statute. Accordingly, the Acting Secretary concludes, federal law requires that ballots sent in return envelopes that do not comply with the date requirement must nevertheless be counted.
Respondents’ Br. at 47 (quoting Browning , 522 F.3d at 1173 ).
See Respondents’ Br. at 49 (citing La Unión del Pueblo Entero v. Abbott , 604 F.Supp.3d 512, 540 (W.D. Tex. 2022) ; Sixth Dist. of Afr. Methodist Episcopal Church v. Kemp , 574 F.Supp.3d 1260, 1282 (N.D. Ga. 2021) ; Martin v. Crittenden , 347 F.Supp.3d 1302, 1308-09 (N.D. Ga. 2018) ; League of Women Voters of Ark. v. Thurston , No. 5:20-CV-05174, 2021 WL 5312640 at *4 (W.D. Ark. Nov. 15, 2021) ); see also Common Cause v. Thomsen , 574 F.Supp.3d 634, 636 (W.D. Wis. 2021) ("[T]he text of § 10101(a)(2)(B) isn't limited to race discrimination or voter registration.").
III. Analysis
As we exercise this Court's King's Bench authority here, our standard of review for these purely legal questions is de novo , and the scope of our review is plenary.
See Commonwealth v. Williams , 634 Pa. 290, 129 A.3d 1199, 1213 (2015) ; Stilp v. Commonwealth , 588 Pa. 539, 905 A.2d 918, 930 (2006).
A. Standing
We begin with standing. Pennsylvania standing doctrine "stems from the principle that judicial intervention is appropriate only where the underlying controversy is real and concrete, rather than abstract," and its touchstone is "protect[ing] against improper plaintiffs." To support standing, a plaintiff's interest in the outcome of a given suit must be "substantial, direct, and immediate." An interest is "substantial when it surpasses the interest of all citizens in procuring obedience to the law"; it is "direct when the asserted violation shares a causal connection with the alleged harm"; and it is "immediate when the causal connection with the alleged harm is neither remote nor speculative."
Justice Dougherty surveys case law in which this Court has granted King's Bench review, and opines that "normal justiciability concerns simply do not exist" when we exercise this "sweeping ... authority." Concurring and Dissenting Op. at 32 (Dougherty, J.). Because standing is one of these concerns, he posits that "whether petitioners have standing to pursue their claim is irrelevant for purposes of our consideration here on King's Bench." Id. at 32. To be sure, a lack of standing is something that the Court may, in its discretion, overlook when exercising this power. See, e.g. , In re Off. of Philadelphia Dist. Att'y , 244 A.3d 319, 321 (per curiam ) (considering the claims of a deceased police officer's widow despite the fact that private citizens and victims generally lack standing to intervene in a criminal proceeding). But it does not necessarily follow that a standing inquiry becomes irrelevant. This Court may still exercise its broad discretion in King's Bench jurisdiction to consider standing as a prudential matter, and may wield that discretion as a means of identifying the proper parties that might be entitled to relief. Indeed, that is what the Court did here. See Order, 11/1/22, at 2 (per curiam ) (dismissing Voter Petitioners from the case for lack of standing, without any noted dissent on that question). In any event, as Justice Dougherty notes, this case was a suitable vehicle for the Court to offer guidance regarding challenges to party standing in elections cases. See Concurring and Dissenting Op. at 32–33 (Dougherty, J.).
City of Phila. v. Commonwealth , 575 Pa. 542, 838 A.2d 566, 577 (2003).
In re Application of Biester , 487 Pa. 438, 409 A.2d 848, 851 (1979).
Markham , 136 A.3d at 140.
Commonwealth, Office of Governor v. Donahue , 626 Pa. 437, 98 A.3d 1223, 1229 (2014).
We agree with the Acting Secretary that an organization's expenditure of resources alone ordinarily does not confer standing, but we are unpersuaded that the instant dispute falls within the category of "general grievance[s] about the correctness of governmental conduct." Had Party Petitioners facially challenged an existing interpretation of settled law, or simply sought to compel the Commonwealth to act in a way that aligns with its mission or its investment of resources, that challenge would have been unlikely to succeed. But the particular facts giving rise to this case are highly relevant, and they must guide our analysis. The Commonwealth Court has issued contradictory interpretations as to the import of our 2020 ruling. The Acting Secretary published unambiguous guidance that was consistent with one of these competing approaches and that was, in part, based upon a reading of recent federal decisions that had been vacated for mootness. Accordingly, Party Petitioners could not have asserted an interest in adherence to the law, because the law was unclear with respect to which ballots should be discounted.
See Respondents’ Br. at 19-20; see also Havens Realty Corp. v. Coleman , 455 U.S. 363, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) ; Fair Hous. Council of Suburban Phila. v. Montgomery Newspapers , 141 F.3d 71, 79 (3d Cir. 1998) ("[Havens ] did not base standing on the diversion of resources from one program to another, but rather on the alleged injury that the defendants’ actions themselves had inflicted upon the organization's programs.") (quoting Fair Emp't Council of Greater Washington, Inc. v. BMC Mktg. Corp. , 28 F.3d 1268, 1277 (D.C. Cir. 1994) ).
Cf. Markham , 136 A.3d at 145.
See supra notes 32 and 33 (discussing the application of In re 2020 Canvass ).
Under these circumstances, we hold that Party Petitioners’ expenditure of resources to educate candidates, electors, and voting officials concerning adherence to the Election Code constitutes a substantial interest. The alleged violation (the Secretary's guidance regarding an unsettled legal question) shares a causal connection with the alleged harm (Party Petitioners’ inability to educate candidates, electors, and voting officials effectively), and that connection is neither remote nor speculative. Accordingly, we hold that Party Petitioners have standing.
See Markham , 136 A.3d at 140 ; Donahue , 98 A.3d at 1229.
Conversely, Voter Petitioners’ argument for standing is foreclosed by this Court's ruling in Kauffman . There, electors sought to "enjoin and restrain the election officials from issuing or recognizing a certain class of absentee ballots on the ground that the provisions of the Absentee Ballot Law authorizing such class of ballots [were] invalid under the federal and state constitutions." But, as we observed, a fundamental assumption of the Kauffman appellants’ theory of standing was that "those who obtain absentee ballots, by virtue of statutory provisions which [the appellants deemed] invalid, [would] vote for candidates ... other than those for whom the appellants [would] vote and thus [would] cause a dilution of appellants’ votes." This assumption was unsupported by facts, and its centrality to their arguments defeated their attempts to demonstrate injury that was "peculiar to them." The same is true here. Voter Petitioners have not substantiated their assumption that the ballots they believe should not be counted would dilute their own. There is no way of knowing whether undated or incorrectly dated absentee or mail-in ballots will be cast for Republicans, Democrats, or others. Accordingly, Voter Petitioners lack standing.
See 271 A.2d at 239-40.
Id. at 237 (footnote omitted).
Id. at 239-40.
Id. at 240.
In light of our finding that Party Petitioners have standing, we proceed to the merits.
B. The Date Requirement
1. Undated Ballots
Petitioners assert that a "majority of this Court has already concluded that ... the date requirement is unambiguous and mandatory." Meanwhile, the Acting Secretary insists that, by virtue of its divergent rationales, our 2020 ruling did not "put this issue to rest." Petitioners’ view is correct.
Petitioners’ Br. at 21 (citing In re 2020 Canvass , 241 A.3d at 1079 (Wecht, J., concurring and dissenting); id. at 1090 (Dougherty, J., concurring and dissenting)).
Respondents’ Br. at 8 (discussing In re 2020 Canvass ).
As this Court has observed, "it is possible to cobble together a holding out of a fragmented decision." Doing so requires "a majority of the Court [to] be in agreement on the concept which is to be deemed the holding." In 2018's T.S. decision, for instance, we considered the precedential import of this Court's fractured decision in In re Adoption of L.B.M. , 639 Pa. 428, 161 A.3d 172 (2017). L.B.M. yielded a lead opinion, a concurring opinion, and two dissenting opinions. Notwithstanding the fact that none of the four writings was joined by more than two other Justices, the appellant in T.S. argued that the three-Justice plurality in L.B.M. constituted binding precedent. The T.S. Court disagreed, stating that the "majority view of [four] Justices was apparent from the face of the opinions in L.B.M. ," even though all four of those Justices expressed their support for that holding from a concurring or dissenting posture.
Pap's A.M. v. City of Erie , 553 Pa. 348, 719 A.2d 273, 278 (1998), rev'd on other grounds , 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000).
Id.
See In re T.S. , 648 Pa. 236, 192 A.3d 1080, 1088 (2018).
Id. (emphasis added) (citations omitted); see L.B.M. , 161 A.3d at 184 (Saylor, C.J., concurring, joined by Todd, J.) (finding that the "propriety" of the same individual serving both as counsel and as a guardian ad litem for children during a contested termination of parental rights proceeding "should be determined on a case-by-case basis"); id. at 188-89 (Baer, J., dissenting, joined by Mundy, J.) (finding that the statute in question did not "mandate" the appointment of a distinct individual, absent a conflict of interest); id. at 190-91 (Mundy, J., dissenting, joined by Baer, J.) (concluding that, under applicable court rules, a single individual can serve as both counsel and guardian ad litem , unless there is a conflict of interest); see also In re T.S. , 192 A.39 at 1099 (Wecht, J., dissenting).
Similarly, in Commonwealth v. McClelland , 660 Pa. 81, 233 A.3d 717, 732-33 (2020), we ruled upon the precedential value of Commonwealth ex rel. Buchanan v. Verbonitz , 525 Pa. 413, 581 A.2d 172 (1990). In Verbonitz , this Court had considered whether hearsay evidence alone is sufficient to establish a prima facie case in criminal proceedings. The lead opinion, authored by Justice Larsen and joined by Justices Zappala and Papadakos, concluded that such evidence standing alone is not sufficient, and that any determination otherwise was a violation of the defendant's right to confront witnesses against him. Justice Flaherty wrote a concurrence, which Justice Cappy joined, reaching the same conclusion but with a different rationale. While these two Justices agreed that hearsay evidence alone is not sufficient to establish a prima facie case, they deemed their conclusion "to be a requirement of due process ," not of the right to witness confrontation. In McClelland , we opined that "five Justices in Verbonitz agreed a prima facie case cannot be established by hearsay evidence alone, and the common rationale among those Justices involved due process considerations." Accordingly, "although Verbonitz is nominally a plurality decision, it [was] clear that a five-member majority of the Court" had held that hearsay evidence alone would not suffice in establishing a prima facie case. Verbonitz thus had precedential value notwithstanding the fact that the lead opinion and the minority expression diverged with respect to some finer points of the legal analysis.
See id. at 175-76.
Id. at 175 (Flaherty, J., concurring) (emphasis added).
Id. at 733.
Consistent with our approach in T.S. and in McClelland , we recognize that, although the Court's rationale was expressed in serial opinions, an undeniable majority already has determined that the Election Code's command is unambiguous and mandatory, and that undated ballots would not be counted in the wake of In re 2020 Canvass . This result was "apparent from the face of the opinions." Four Justices agreed that failure to comply with the date requirement would render a ballot invalid in any election after 2020. Pennsylvania's candidates, electors, and local officials therefore were on notice that ballots must be dated, and that failure to provide a date would result in disqualification. As a matter of statutory interpretation of our Election Code, we now reaffirm that conclusion.
Compare In re 2020 Canvass , 241 A.3d at 1086-87 (Wecht, J., concurring and dissenting) (rejecting the "minor irregularity" / "weighty interest" dichotomy and relying upon the statutory use of mandatory language), with id. at 1090-91 (Dougherty, J., concurring and dissenting) (concluding that the date requirement serves "weighty interests.").
See In re 2020 Canvass , 241 A.3d at 1079 (Wecht, J., concurring and dissenting) ("[the date] requirement is stated in unambiguously mandatory terms, and nothing in the Election Code suggests that the legislature intended that courts should construe its mandatory language as directory"); id. at 1090 (Dougherty, J., concurring and dissenting) ("the meaning of the terms ‘date’ and ‘sign’ ... are self-evident, they are not subject to interpretation, and the statutory language expressly requires that the elector provide them").
T.S. , 192 A.3d at 1088.
2. Incorrectly Dated Ballots
Petitioners’ prayer for relief identifies for disqualification not only ballots that arrive in undated return envelopes, but those that arrive in "incorrectly dated" return envelopes as well. While the In re 2020 Canvass Court did not address what constitutes an "incorrectly" dated ballot, this has been the subject of judicial attention from the Commonwealth Court in Berks County Board of Elections and from the Third Circuit in Migliori .
See Application for the Exercise of King's Bench Power or Extraordinary Jurisdiction at 26-27.
In Berks County Board of Elections , President Judge Cohn Jubelirer observed that the Election Code "says ‘date,’ " but it "does not specify which date." In Migliori , a panel of the Third Circuit recognized that, per guidance promulgated by the Department of State, "ballots with obviously incorrect dates" were routinely counted. On this reading, because the statute simply instructs electors to "date" the declaration, any date is sufficient, even if it bears no correlation with the action of marking the ballot or signing the declaration.
2022 WL 4100998 at *18 (emphasis added).
36 F.4th at 163 ; see id. at 165 n.3 (Matey, J., concurring).
We reject this interpretation. Implicit in the Election Code's textual command that electors "shall ... fill out, date and sign the declaration," is the understanding that "date" refers to the day upon which an elector signs the declaration. To hold otherwise would be to require unnecessarily specific drafting on the part of the General Assembly. For instance, it need not be specified in an instruction such as "sign" that an elector must sign his or her own name, as opposed to someone else's. Similarly, when an instruction to "date" something appears in close quarters with other actions—here, filling out and signing the declaration—it is evident that the instruction refers to the day upon which those actions are completed, and not one selected at random. How county boards are to verify that the date an elector provides is, in truth, the day upon which he or she completed the declaration is a question that falls beyond our purview. Our supplemental order of November 5, 2022 sought—for purposes of the November 8, 2022 election—to provide guidance and to promote uniformity without the benefit of having yet issued this Opinion. In that order, we identified mail-in ballots arriving in envelopes "with dates that fall outside the date range of September 19, 2022, through November 8, 2022," and absentee ballots arriving in envelopes "with dates that fall outside the date range of August 30, 2022, through November 8, 2022" as being "incorrectly" dated within the context of the November 8, 2022 election. These date ranges were intended to capture the broadest discernible period of time within which an elector could have an absentee or mail-in ballot in hand, and thus could become able to "fill out, date and sign" the declaration on the return envelope. For purposes of the 2022 General Election, a date outside these ranges, therefore, is incapable of being the "correct" date, i.e. , the date of signing of the declaration.
25 P.S. §§ 3146.6(a) ; 3150.16(a).
Justice Donohue disagrees, and contends that the word " ‘date,’ unencumbered by qualification is not express and its meaning is not self-evident," as demonstrated by several voters’ "confusion about what date to provide." Concurring Op. at 31 (Donohue, J.). But our conclusion does not stem from the notion that "date," standing alone, bears an implicit meaning. Rather, that instruction must be read in the context of what proceeds and follows it. See Gavin v. Loeffelbein , 651 Pa. 465, 205 A.3d 1209, 1221 (2019) ("[W]e must always read the words of a statute in context, not in isolation"). To read the phrase "fill out , date and sign ," 25 P.S. §§ 3146.6(a) ; 3150.16(a) (emphases added) to allow for any date, regardless of its relation to the acts of filling out and signing the declaration on an absentee or mail-in ballot would be to sanction an absurd result. See 1 Pa.C.S. § 1922(1).
Supplemental Order, 11/5/2022, at 1-2. By statute, county boards of elections may receive applications for mail-in ballots "not earlier than 50 days before the primary or election." See 25 P.S. § 3150.12a(a). Applications received earlier than fifty days before the election "shall be held and processed upon commencement of the 50-day period or at such earlier time as the county board of elections determines may be appropriate." Id. § 3150.12a(b). Fifty days prior to November 8, 2022 is September 19, 2022. Depending upon their location of origin, absentee ballots could be mailed seventy days prior to an election, or forty-five days prior to an election, at the earliest. See 25 P.S. § 3146.5(a). Seventy days prior to November 8, 2022 is August 30, 2022.
25 P.S. §§ 3146.6(a) ; 3150.16(a).
This Court having now issued guidance for the conduct of the most recent election, county boards of elections retain authority to evaluate the ballots that they receive in future elections—including those that fall within the date ranges derived from statutes indicating when it is possible to send out mail-in and absentee ballots—for compliance with the Election Code.
For purposes of this subsection, all uses of "we" and "our" refer only to those Justices who would find that disqualifying ballots that arrive in undated or incorrectly dated return envelopes would constitute a violation of federal law.
Having held, as a matter of statutory interpretation, that our Election Code requires the disqualification of ballots that arrive in undated or incorrectly dated return envelopes, we now must examine whether that disqualification would nonetheless violate federal law. The materiality provision of the federal Civil Rights Act of 1964 states that:
In our view, when this Court granted review of the materiality question, it agreed to resolve an issue of substantial public importance that required timely intervention. See Bruno , 101 A.3d at 670. The opinions addressing this federal question provide the rationales that underlie this Court's deadlock.
[n]o person acting under color of law shall ... deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is
qualified under State law to vote in such election.
The Acting Secretary cites the Third Circuit's holding that such disqualification would offend the materiality provision, and she suggests that "this Court should follow [that] rationale." While this Court is not bound by the decisions of federal circuit or district courts on issues of federal law, and while we consider such decisions for their persuasive value only, we find ourselves in agreement here with the Third Circuit's result.
Migliori , 36 F.4th at 162-64.
Respondents’ Br. at 48. The Acting Secretary explains that federal appeals courts often treat cases in which the Supreme Court of the United States has vacated a judgment on mootness grounds as persuasive authority, assuming that the vacatur was not an assessment of the merits. See Respondents’ Br. at 48 (collecting cases).
See Hall v. Pennsylvania Bd. of Prob. and Parole , 578 Pa. 245, 851 A.2d 859, 865 (2004).
We begin with the statutory text, which may be broken down into six distinct elements. Violations of the materiality provision occur when: (1) a "person acting under color of law"; (2) "den[ies] the right of an individual to vote in any election"; (3) "because of an error or omission"; (4) "on any record or paper"; (5) "relating to an application, registration, or other act requisite to voting"; (6) if that error "is not material in determining" whether an elector is qualified to vote.
No party disputes that (1) election officers and county boards of elections are actors under color of law, or that (3) the failure to include a date, or to include a correct date, constitutes an error or omission. Petitioners concede that "an absentee or mail-in ballot and the declaration" constitute (4) a "record or paper," and they recognize that the date requirement is (6) not material to the determination of whether an individual is qualified to vote. Accordingly, our focus is whether invalidation of a ballot for failure to comply with the date requirement (2) "den[ies] the right of an individual to vote in any election," and whether ballot return envelopes are records or papers (5) "relating to an application, registration, or other act requisite to voting." Upon examination, we answer both questions in the affirmative.
See Petitioners’ Br. at 46-47. According to Petitioners, the four qualifications to vote in Pennsylvania are: "being at least 18 years of age on the date of the election; having been a citizen of Pennsylvania for at least one month; having lived in the relevant election district for at least 30 days; and not being imprisoned for a felony." Petitioners’ Br. at 47 (citing 25 Pa.C.S. § 1301 ). Because the date requirement bears no relation to the demonstration of any of these qualifications, Petitioners argue that "it is outside the plain terms [of] ... the federal materiality provision." Id. However, rather than demonstrating that the materiality provision is inapplicable to the date requirement, Petitioners’ logic in fact establishes that the date requirement is simply "not material in determining whether such individual is qualified" to vote. 52 U.S.C. § 10101(a)(2)(B).
Petitioners argue that, when a ballot is not counted because of a defect in the date on the declaration, the elector "is not denied ‘the right to vote,’ " but, rather, that individual's vote is "not counted because he or she did not follow the rules for casting a ballot." This analysis would be persuasive if not for the fact that the statute provides Congress’ own expansive definition for the word "vote," a definition which we are not at liberty to ignore. For purposes of the materiality provision:
Petitioners’ Br. at 43-44 (quoting Ritter , 142 S. Ct. at 1825 (Alito, J., dissenting from the denial of a stay)).
[T]he word "vote" includes all action necessary to make a vote effective including, but not limited to, registration or other action required by State law prerequisite to voting, casting a ballot, and having such ballot counted and included in the appropriate totals of votes cast with respect to candidates for public office and propositions for which votes are received in an election[.]
Congress, then, has foreclosed Petitioners’ reading by instructing courts to look not only for individuals being stripped of their ability to exercise the right to vote generally, but for individuals who are denied the right to have their ballots counted and included in the tallies for an individual election. Federal courts that have evaluated the materiality provision in similar contexts concur in this reading.
See id.
See supra note 96.
Moreover, the Acting Secretary is correct that Petitioners’ reading would render the materiality provision "completely null." The provision is only triggered by an error or omission—i.e. , when an elector has failed to follow the rules for voting. If Petitioners’ interpretation prevailed, 52 U.S.C. § 10101(a)(2)(B) would never be violated, because every "error or omission" would constitute an elector's accidental forfeiture of his or her vote by failing to follow the rules for voting, rather than a denial of the "right to vote" for which a state actor would be responsible. The text draws no distinction between an "error or omission" that would justify denying the right to vote and one that would not. It does not differentiate between a requirement that has a valid purpose and one that does not. We therefore decline to read such considerations into the language of the Act. In light of the statutory definition of "vote," and in order to render the materiality provision effectual, we find that invalidating ballots received in return envelopes that do not comply with the date requirement denies an individual the right of "having such ballot counted and included in the appropriate totals of votes cast," and therefore (2) "den[ies] the right of an individual to vote in any election."
Respondents’ Br. at 51.
Indeed, one aim of the materiality provision may well have been for courts to eschew an examination of the "validity" of state election regulations, or their animating purposes. The statute provides one legitimate basis upon which an error or omission can result in the disqualification of a ballot—it must be "material in determining whether such individual is qualified under State law to vote in such election." 52 U.S.C. § 10101(a)(2)(B). All others fail.
Id. § 10101(a)(2)(B).
Petitioners raise additional arguments, grounded in the legislative history and congressional intent behind enacting the materiality provision. None are persuasive. The thrust of these points is that—contrary to the law's definitions section—Congress used "right to vote" in a narrow sense, as opposed to the expansive one set forth above in the statute's text. Petitioners therefore contend that individual instances of ballot exclusion do not rise to 52 U.S.C. § 10101(a)(2)(B) ’s purview. Petitioners likely are correct that the principal focus of the materiality provision was forbidding "the practice of requiring unnecessary information for voter registration," such as listing one's age in the "exact number of months and days," which was intended to "increase the number of errors or omissions on the application forms, thus providing an excuse to disqualify potential voters." But Congress’ aims and unstated intent are irrelevant. "The text is the law, and it is the text that must be observed." Even assuming that Congress passed the materiality provision to combat Jim Crow-era efforts that sought to disenfranchise African-American voters by denying them the opportunity to register to vote, it is within Congress’ prerogative to "choose a broader remedy" in "combating specific evils." Here, it did so. The "right to vote," as Congress defined it in the materiality provision, is to be understood broadly, and it includes the right to have an individual vote counted in a particular election notwithstanding errors or omissions that are immaterial to determining whether the voter is qualified to vote.
Petitioners’ Br. at 45 (quoting Schwier , 340 F.3d at 1294 ).
Antonin Scalia, A Matter of Interpretation 22 (Amy Gutmann ed., 1997); see also Bostock v. Clayton Cnty., Georgia , ––– U.S. ––––, 140 S.Ct. 1731, 1737, 207 L.Ed.2d 218 (2020) ("Only the written word is the law, and all persons are entitled to its benefit.").
Browning , 522 F.3d at 1173. See also Scalia , supra note 150, at 29 ("the objective indication of the words, rather than the intent of the legislature, is what constitutes the law"); id. at 35 (discussing the idea that a duly enacted statute merits the attention of courts because it has "been passed by the prescribed majority," and opining that whether the legislators acted "with or without adequate understanding " of what the statute would do is irrelevant) (emphasis in original).
Finally, filling out a declaration on the return envelope in which an elector's ballot will travel constitutes (5) an "act requisite to voting." A reasonable starting point for the determination of what "act requisite to voting" means is the delineation of what it certainly cannot mean. By using the word "other," Congress made clear that, though registering to vote and applying for an absentee ballot unquestionably are acts requisite to voting, the statute sweeps more broadly than that; an "other act requisite to voting" must be something else. Logic and ordinary rules of statutory construction also dictate that an "act requisite to voting" must be different from voting itself. Accordingly, we can exclude from the category of "other act[s] requisite to voting" the marking of a ballot to indicate support for candidates or ballot measures, and the action of transporting a ballot to the appropriate authorities for it to be counted. Without either, an individual has not successfully voted.
Id. (emphasis added).
Because writing a date as part of a declaration on a ballot return envelope neither relates to registering to vote, nor to applying for a mail-in ballot, nor to marking an individual ballot nor to transporting it to the appropriate authorities to be counted, it must be an "other act requisite to voting." While we might also conceive of all the steps involved in casting a ballot—from filling it out to completing the declaration to affixing it with postage to dropping it in a mailbox, and so on—as voting, the rule against superfluities counsels against such a reading. This familiar interpretive canon instructs courts to construe a statute's language "so that effect is given to all its provisions, [and] so that no part will be inoperative or superfluous, void or insignificant." If all of the steps involved in casting a ballot are encompassed in voting, then "other act requisite to voting" bears no meaning. We must avoid such a result.
Cf. Ritter , 142 S. Ct. at 1826 n.2 (Alito, J., dissenting from the denial of a stay) ("A mail-in ballot is a ‘record or paper’ ... [T]he casting of a ballot constitutes the act of voting."). As mentioned, the declaration that is the subject of this appeal does not appear on the mail-in ballot itself, but rather on the return envelope in which the ballot travels.
Corley v. United States , 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) (citations omitted); see Commonwealth v. Mack Bros. Motor Car Co. , 359 Pa. 636, 59 A.2d 923, 925 (1948) (articulating this rule in Pennsylvania).
In the event that Congress’ meaning in the phrase "other act requisite to voting" might be deemed ambiguous, we would reach the same result. In such a circumstance, failure to comply with the date requirement would not compel the discarding of votes in light of the Free and Equal Elections Clause, and our attendant jurisprudence that ambiguities are resolved in a way that will enfranchise, rather than disenfranchise, the electors of this Commonwealth. See Pa. Const. art. I, § 5 ; Boockvar , 238 A.3d at 361.
Petitioners raise various ancillary arguments regarding the consequences of this reading of the materiality provision, but none compels a different conclusion. They warn, for instance, that the Secretary's "sweeping" interpretation risks subjecting " ‘virtually every electoral regulation’ related to voting records and papers to the superintendence of the federal materiality provision, ‘hamper[ing] the ability of States to run efficient and equitable elections, and compel[ling] federal courts to rewrite state electoral codes.’ " While much of this statement is accurate, Petitioners draw a faulty conclusion. First, state election regulations are indeed subject to the superintendence of federal law, and recognizing as much is neither controversial nor improper. Second, Petitioners’ own phrasing of the ostensible threat demonstrates the narrow nature of this discrete congressional action. The materiality provision only affects regulations "related to voting records and papers ," and does not threaten the states’ broad authority to institute and operate election systems of their own design. For this reason, it does not hamper a state's ability to run elections, nor does it in any way compel the rewriting of regulations by federal courts.
Petitioners’ Br. at 49 (quoting Clingman , 544 U.S. at 593, 125 S.Ct. 2029 ); see supra note 84.
See U.S. Const. art. VI, cl. 2. ("This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.").
Petitioners’ Br. at 49 (emphasis added).
The latter part of this argument seems to have originated from Clingman , in which the plaintiffs’ requested relief ostensibly would have involved a federal court ordering the State of Oklahoma to develop a new primary system. See 544 U.S. at 593, 125 S.Ct. 2029. Such an argument has no bearing here, where compliance with the federal materiality provision would require simply that county boards of elections not disqualify absentee and mail-in ballots for failure to comply with the date requirement.
Though we need not—and do not—pass upon questions or challenges that are not before us, it is worth noting that many of the rules for voting that Petitioners identify as being under threat from the Acting Secretary's reading likely fall outside of the materiality provision's purview. "[S]howing up to the polls after Election Day" or "arriving at the wrong polling place," for instance, do not implicate an "error or omission on any record or paper relating to any application, registration, or other act requisite to voting." Furthermore, it would be challenging to argue that failure to "use a secrecy envelope," constitutes an "omission on any record or paper," as opposed to the omission of any record or paper. While signature requirements may constitute a closer call, they likely could be upheld under factor (6) of the materiality provision; a signature serves as a means of verifying that the individual who fills out information on a ballot or record is indeed the individual who is qualified and registered to vote. Therefore, there is at least a colorable argument that signatures are material.
Petitioners’ Br. at 44 (citing Ritter , 142 S. Ct. at 1825 (Alito, J., dissenting from the denial of a stay)).
52 U.S.C. § 10101(a)(2)(B) (emphasis added).
Petitioners’ Br. at 44.
52 U.S.C. § 10101(a)(2)(B) (emphasis added).
See Petitioners’ Br. at 44.
In any event, the Court's task today is not to survey the entirety of the Election Code for instances of non-compliance with the materiality provision, nor is it to interpret federal law in a way that prospectively would save as many of those regulations as possible. Our constitutional obligation is simple and straightforward: to apply the text as it is written and to answer the question before us. Because application of the relevant provision of the Election Code would result in (1) county boards of elections (2) denying an elector the right to have his or her ballot counted (3) due to an erroneous or absent date (4) in a declaration on a ballot return envelope, (5) completion of which is an act requisite to voting, and (6) because that date is not material in determining an elector's qualifications, failure to count such ballots would violate federal law. Accordingly, we would order county boards of elections to count all absentee and mail-in ballots arriving in undated or incorrectly dated mail-in return envelopes, provided that they have been timely received.
IV. Conclusion
Based upon our disposition of all of the claims set forth above, we found that Party Petitioners have standing, and we granted their requested relief in part. The Election Code commands absentee and mail-in electors to date the declaration that appears upon ballot return envelopes, and failure to comply with that command renders a ballot invalid as a matter of Pennsylvania law. The Court having divided evenly on the question of the federal materiality provision, we issued no order on that basis, but the analysis above offers a rationale that aligns with the Third Circuit's interpretation.
Justice Donohue files a concurring opinion in which Chief Justice Todd joins.
Justice Dougherty files a concurring and dissenting opinion.
Justice Brobson files a concurring and dissenting opinion in which Justice Mundy joins.
JUSTICE DONOHUE, concurring
I join the Majority opinion except for Section III(B)(2) dealing with incorrectly dated declarations provided on the outer envelopes used to return absentee and mail-in ballots.
In re Canvass of Absentee and Mail-in Ballots of November 3, 2020 General Election , ––– Pa. ––––, 241 A.3d 1058 (2020) (" In re 2020 Canvass "), established that undated absentee and mail-in ballots would not be counted following the general election that occurred in 2020. As the author of the Opinion Announcing the Judgment of the Court and as expressed therein, I disagreed with that conclusion. In my view, the dating requirements found in Sections 3146.6(a) (relating to absentee ballots) and 3150.16(a) (relating to mail-in ballots) of the Election Code, 25 P.S. §§ 3146.6(a), 3150.16(a), are not mandatory but directory, such that the failure to include a date does not require that absentee or mail-in ballots without dates must be set aside and not counted. In re 2020 Canvass , 241 A.3d at 1077.
Both provisions provide in relevant part that "[t]he elector shall then fill out, date and sign the declaration printed" on the provided envelope. See 25 P.S. §§ 3146.6(a), 3150.16(a).
See Patrick Marley, How Votes Are Cast and Counted is Increasingly Decided in Courtrooms , Wash. Post (Oct. 26, 2022, 8:13 a.m.), https://www.washingtonpost.com/politics/2022/10/26/2022-election-lawsuits-legal-challenges/ ("Over the past 20 years, the rate of election litigation has nearly tripled[.]").
I acknowledge, however, that the law is settled to the contrary, and I join in the Majority in following the precedent established only two years prior. For elections after the 2020 general election, this Court concluded, as to the questions presented, that the "longstanding and overriding policy" within this Commonwealth to protect the right to vote, id. at 1071 (quoting Shambach v. Bickhart , 577 Pa. 384, 845 A.2d 793, 798 (2004) ), did not control our interpretive function. Finding no ambiguity in the General Assembly's use of the word "shall," it was decided that voters must date mail-in and absentee ballots for them to be counted. See id. at 1079 (Wecht, J., concurring and dissenting) (finding the statutory requirement to date the voter declaration "stated in unambiguously mandatory terms, and nothing in the Election Code suggests that the legislature intended that courts should construe its mandatory language as directory"); see also id. at 1090 (Dougherty, J., concurring and dissenting) ("[T]he meaning of the terms ‘date’ and ‘sign’ — which were included by the legislature — are self-evident, they are not subject to interpretation, and the statutory language expressly requires that the elector provide them.").
Robust case law developed around that policy called for the liberal construction of the Election Code in favor of the franchise. In re 2020 Canvass , 241 A.3d 1058, 1071 (Pa. 2020); see also Pa. Democratic Party v. Boockvar, 662 Pa. 39, 238 A.3d 345, 361 (2020) ; In re Luzerne Cnty. Return Bd. , 447 Pa. 418, 290 A.2d 108, 109 (1972) ("In construing election laws while we must strictly enforce all provisions to prevent fraud [our] overriding concern at all times must be to be flexible in order to favor the right to vote. Our goal must be to enfranchise and not to disenfranchise.").
Although the Acting Secretary's answer referenced the federal law issue, see Acting Secretary's Answer to Petitioners’ Application for the Exercise of King's Bench Power or Extraordinary Relief at 35-36, it omitted any request that we invoke King's Bench to consider that issue. In fact, the Acting Secretary expressly asked us to "deny the request to exercise either King's Bench Power or Extraordinary Jurisdiction." Id . at 42.
Specifically, I join Parts I, II, and III(A) and (B) of the majority opinion.
Today, the Court provides a rationale for the ultimate unanimous order we entered on November 5, 2022, on an expedited basis directing that "incorrectly dated" ballots would not be counted in the 2022 general election. This author was part of that unanimous court. Since that order controlled the manner in which votes were counted in the 2022 General Election, I feel compelled to concur in the result reached by the Majority that "incorrectly dated" ballots should not have been counted in that election. However, I am unconvinced by the Majority's rationale supporting our expedited order, and I cannot provide an acceptable alternative to support that ruling in future elections. One need not look any further than the history of that order to discern the problem with the rationale of the Majority in support of it: to wit, there is an "implicit" "understanding" in the election code that "date" means the date of signature. Majority Op. at 19–22.
We initially entered an order on November 1, 2022 stating, in pertinent part, that the county boards of election were "ordered to refrain from counting any absentee and mail-in ballots ... that are contained in undated or incorrectly dated outer envelopes." Per Curiam Order, 11/1/2022. Four days later, on November 5, 2022, we entered a "supplemental order" stating the following:
For purposes of the November 8, 2022 general election, "incorrectly dated outer envelopes" are as follows: (1) mail-in ballot outer envelopes with dates that fall outside the date range of September 19, 2022, through November 8, 2022; and (2) absentee ballot outer envelopes with dates that fall outside the date range of August 30, 2022, through November 8, 2022.
Per Curiam Order, 11/5/2022. With due respect to the Majority, if the meaning of the word "date" in the context of Sections 3146.6(a) and 3150.16(a) is implicitly understood, there would have been no need for the supplemental order. More importantly, our supplemental order did not require a determination of the date on which the outer envelopes were signed. It described a range of dates on which the signature could have been affixed.
From a concurring posture, Justice Brobson now further explains that the timeframes provided in the supplemental order represented the "broadest possible date range" of dates upon which an absentee or mail-in voter could have been in possession of a ballot. He emphasizes that these ranges were calculated for the November 8, 2022 general election only, that the terms of this Court's order should be understood as confined thereto, and for future elections, suggests that each county may identify its own "narrower" date range based upon when it makes absentee and mail-in ballots available to electors. Concurring and Dissenting Op. at 35–36 (Brobson, J.).
Accordingly, I do not join Part III(C) of the lead opinion.
In contrast to the previous call for strict interpretation of Sections 3146.6(a) and 3150.16(a) in In re 2020 Canvas , the Majority now writes language into those provisions by finding that "date" as used therein means only the date upon which the elector signed the declaration (more or less). This approach is in direct derogation of the rationale upon which the Court relied to support its determination that undated ballots may not be counted - its insistence that the Court look no further than the plain and unambiguous language of the statutes.
The Majority explains its conclusion with reference to an "implicit" understanding within the Election Code that "date" means the date of signature. Majority Op. at 19–20. Such surmising requires that we look beyond the plain language of the statute, which, I reiterate, contravenes the rationale employed in In re 2020 Canvass to conclude that the Election Code requires that the absentee or mail-in elector fill in a date on the declaration printed on the envelope. The Majority attempts to define this implicit understanding by analogizing a signature with the provision of a date. Id. at 20 (theorizing that just as a command to "sign" is understood to refer to a person's own name, an attendant command to "date" is understood to mean the date of signing). A person has but one name to sign; there is no other reasonable interpretation of what is meant when the statutes say that the elector shall sign the declaration. A dating requirement simply does not share the singularity that a signature requirement does, such that we can presume that it carries a universal understanding. It obviously does not. This point is proven by the fact that ballots apparently have been returned with dates that could not be the date of signature (such as a date in a year preceding the election). That we have been asked to address this issue at all belies the Majority's assumption that it is "evident" that the date instruction means date of signature. What is evident to the Majority is apparently not evident to some voters attempting to exercise the franchise. Absent some metaphysical phenomenon, the signature and date could only be affixed during the period of time in which the ballot is in the possession of the elector. Consequently, a date outside of that timeframe can only reflect the voter's confusion about what date to provide on the declaration contained on the outer envelope.
Petitioners’ argument regarding incorrectly dated declarations is sparse, as they consistently refer to undated and incorrectly dated ballots together and without distinction. See Petitioners’ Brief at 7, 35, 42, 52. Approaching the end of their argument, Petitioners acknowledge that In re 2020 Canvass did not involve incorrectly dated ballots, but contend that the Court's interpretation in that case "broadly supports the General Assembly's date requirement in all applications, not merely as applied to some scenarios." Id. at 34. While they hypothesized that a date would be incorrect if it were outside of the period between the date the ballot was mailed to the elector and the date it was returned to election officials, id. at 8, they offer no examples of returned ballots that met this definition. The lone example of a problematic ballot offered by Petitioners involved a declaration dated twelve days after the elector's death. Id. at 27. This example was offered in support of their broad proposition that a dating requirement functions to prevent fraud, not as an example of an incorrectly dated declaration. Id. Indeed, Petitioners do not contend that this ballot was received outside of the timeframe they have identified, nor do they suggest that this was an improperly dated declaration. See id. The lack of a developed argument dedicated to incorrectly dated ballots or a factual foundation in support of this claim is evidence to me of a longshot and afterthought attempt to invalidate as many ballots as possible.
The Secretary argues that Petitioners are attempting to "piggyback[ ]" on In re 2020 Canvass ’s holding regarding undated ballots to have other ballots set aside. Secretary's Brief at 37. The Secretary explains that prior to this litigation, no county board of elections has tried to exclude ballots based on a purported incorrect date because of the impossibility of identifying whether a date is correct. Id.
Act of June 3, 1937, P.L. 1333, as amended , 25 P.S. §§ 2600 -3591.
Now that we have re-written Sections 3146.6(a) and 3150.16(a) to include a specified date (but in actuality, a range of dates), a voter who followed the instructions of the General Assembly and affixed a different date is disenfranchised, even though the signed and dated envelope containing his or her ballot is received by election day.
In In re 2020 Canvass , the Court held that the General Assembly clearly intended that outer envelopes containing mail-in and absentee ballots must be signed and dated because "the statutory language expressly requires that the elector provide them." In re 2020 Canvass , 241 A.3d at 1090 (Dougherty, J., concurring and dissenting). However, "date," unencumbered by qualification, is not express and its meaning is not self-evident. This ambiguity must be resolved in favor of protecting the franchise. Pa. Democratic Party v. Boockvar, 662 Pa. 39, 238 A.3d 345, 361 (2020) ; In re Luzerne Cnty. Return Bd. , 447 Pa. 418, 290 A.2d 108, 109 (1972). In my view, a mail-in or absentee ballot received on or before election or primary day should be counted if it is signed and bears any date affixed by the elector.
The General Assembly could have, but did not, enact statutes that provide:
The elector shall then fill out and sign the declaration printed on such envelope, and affix the date on which the elector signed the declaration.
See Application for Reconsideration/Motion to Clarify Supplemental Order of November 5, 2022 of Respondent Blair County Board of Elections (filed Nov. 6, 2022).
Chief Justice Todd joins this concurring opinion.
JUSTICE DOUGHERTY, concurring and dissenting
I join Sections I, II, and III(B) of the majority opinion in full, and Section III(A) subject to the following caveat. In our order granting expedited consideration of this significant election matter, we identified it as an "appeal." See Ball v. Chapman , ––– Pa. ––––, 284 A.3d 1189 (2022) (per curiam ) (assuming "King's Bench authority over the instant appeal"). But our characterization was inaccurate. This is not an appeal. We "assum[ed] King's Bench jurisdiction ... to consider [petitioners’] request for injunctive and declaratory relief concerning undated and incorrectly dated mail-in and absentee ballots." Majority Opinion at 8 n.2; see id . at 8 n.4 (explaining the Court exercised King's Bench power rather than extraordinary jurisdiction "[b]ecause no dispute was pending before a lower court"). In addition, upon prompting from the Acting Secretary of the Commonwealth, see Acting Secretary's Answer to Petitioners’ Application for the Exercise of King's Bench Power or Extraordinary Relief at 35-42, we ordered briefing on two other important issues: (1) whether petitioners have standing, and (2) whether enforcing Pennsylvania law in the manner petitioners propose with respect to undated and incorrectly dated ballots would violate the "materiality provision" of the Civil Rights Act of 1964, 52 U.S.C. § 10101(a)(2)(B).
Regarding standing, I emphasize that we deemed this case important enough to warrant an exercise of our "very high and transcendent" King's Bench authority even though no matter was pending in any court below. In re Bruno , 627 Pa. 505, 101 A.3d 635, 669 (2014). In granting King's Bench, we necessarily suspended all usual, well-founded "prudential concerns implicating courts’ self-imposed limitations." Robinson Twp. v. Commonwealth , 623 Pa. 564, 83 A.3d 901, 917 (2013) ; accord Town of McCandless v. McCandless Police Officers Ass'n , 587 Pa. 525, 901 A.2d 991, 1002 (2006) (explaining standing, ripeness, and mootness are related justiciability considerations that "are concerned with the proper timing of litigation" but do not involve a court's jurisdiction). Indeed, although it appears we have never directly said as much, our case law confirms normal justiciability concerns simply do not exist when we consider a case under our sweeping King's Bench authority. See generally In re Bruno , 101 A.3d at 669 ("The exercise of King's Bench authority is not limited by prescribed forms of procedure ...; the Court may employ any type of process or procedure necessary for the circumstances."); id. at 671 ("[w]e have often undertaken flexible measures deriving from our broad power at King's Bench"); id . at 672 ("the power of King's Bench allow[s] the Court to innovate a swift process and remedy appropriate to the exigencies of the event"); see also id . at 669-70 (collecting King's Bench cases and explaining "[n]ot all of [this Court's] exercises of power result in published decisions" and "thus, a survey of the Pennsylvania Reporter does not account for the parameters of the Court's authority"). This includes standing. See, e.g. , In re Off. of Philadelphia Dist. Att'y , 244 A.3d 319, 321 (Pa. 2020) (per curiam ) (exercising King's Bench power to consider claims raised by widow of deceased police officer even though private citizens, including victims, generally lack standing to intervene in criminal proceedings).
As a result, whether petitioners have standing to pursue their claim is irrelevant for purposes of our consideration here on King's Bench, and I was not under the impression the Court viewed it otherwise. Instead, it was my understanding that we added the standing issue because we saw this case as a suitable vehicle through which to provide much-needed guidance to our lower courts. Obviously, election litigation has exploded in recent years.1 And, as a natural corollary, challenges to party standing — which tend to weed out the most tenuous of these cases — have also swelled in significance and number. It was understandable, then, that we seized the opportunity to offer guidance in this area of the law despite the fact it has absolutely no bearing on our ability to proceed to the merits under our King's Bench authority. Accordingly, while I join the majority's thoughtful merits analysis of the standing issue, I distance myself from any suggestion that standing (or any ordinary prudential concern, for that matter) could ever impede our review on King's Bench. With that qualification, I otherwise join Section III(A) of the majority opinion.
That we exercised King's Bench authority over this matter is also central to my next point concerning Section III(C) of the majority opinion. As our November 1, 2022 order revealed, following expedited briefing (but without oral argument) the Court was "evenly divided on the issue of whether failing to count such ballots violates 52 U.S.C. § 10101(a)(2)(B)." Ball v. Chapman , ––– Pa. ––––, 284 A.3d 1189 (2022) (per curiam ). Typically, when the votes of the participating members of an appellate court are evenly divided, the result is an automatic affirmance of the lower court's order. See, e.g. , Commonwealth v. Koch , 630 Pa. 374, 106 A.3d 705, 705 (2014) (per curiam ) ("[T]he Court being evenly divided, the Order of the Superior Court is affirmed."). This practice stems from the rule that "where courts consist of several members, [ ] no affirmative action can be had ... where the judges are equally divided in opinion as to the judgment to be rendered or order to be made." Durant v. Essex Co. , 74 U.S. 107, 110, 7 Wall. 107, 19 L.Ed. 154 (1868). When this happens within the context of an appeal, in which "the affirmative action sought [by the appellant] is to set aside or modify an existing judgment or order, the division operates as a denial of the application, and the judgment, or order, stands in full force, to be carried into effect by the ordinary means." Id . ; see id . at 112, 7 Wall. 107 ("In cases of appeal[,] ... [i]f the judges are divided, the reversal cannot be had, for no order can be made.").
Most jurisdictions take this approach. As well, "[s]ince at least 1792, the [United States Supreme] Court has followed the rule that where the Justices are evenly divided, the lower court's decision is affirmed, and the Supreme Court's order has no precedential effect." Justin Pidot, Tie Votes in the Supreme Court , 101 MINN. L. REV. 245, 245 (2016). Yet, we differ in one important respect: whereas the High Court's "usual practice is not to express any opinion" when it hits an impasse, Ohio ex rel. Eaton v. Price , 364 U.S. 263, 264, 80 S.Ct. 1463, 4 L.Ed.2d 1708 (1960) (per curiam ), this Court has long permitted the authoring of dueling opinions in the face of a deadlock on appeal. See Pa. Sup. Ct. INTERNAL OPERATING PROCEDURES § 4(B)(3) ("When the votes [of the participating justices] are equally divided, any resulting opinions shall be designated as the ‘Opinion in Support of Affirmance’ or ‘Opinion in Support of Reversal,’ as the case may be.").
I reiterate, however, that what is presently before us is not an appeal. It is a case taken on King's Bench authority. We granted petitioners’ application with respect to the state law claim and sua sponte tacked on two others pertaining to standing and the federal Civil Rights Act.2 Because we ultimately deadlocked on the federal law issue, "we issued no order on that basis[.]" Majority Opinion at 28; see id . at 9 (explaining we "issued no decision on that question"). This is significant, because "[t]he operative legal act performed by a court is the entry of a judgment; an opinion is simply an explanation of reasons for that judgment." Edward A. Hartnett, A Matter of Judgment, Not a Matter of Opinion , 74 N.Y.U. L. REV . 123, 126 (1999) ; see id . at 133 ("each member of a multimember court ... must ultimately vote on the judgment[,]" the tally of which "produces a judgment of the court"); see also Durant , 74 U.S. at 110, 7 Wall. 107 ("The judgment of affirmance [by an equally divided court is] the judgment of the entire court. The division of opinion between the judges [i]s the reason for the entry of that judgment; but the reason is no part of the judgment itself."). Thus, when a tie emerges on appeal , opinions are permissible because a "judgment of affirmance is, after all, a judgment, and an opinion explaining that judgment, or one's vote on that judgment, is therefore not a forbidden advisory opinion." Edward A. Hartnett, Ties in the Supreme Court of the United States , 44 WM. & MARY L. REV. 643, 661 n.77 (2002). But the same cannot be said here.
Although the exercise of King's Bench jurisdiction "is not, strictly speaking, [the exercise of] original jurisdiction[,]" Commonwealth v. Balph , 111 Pa. 365, 3 A. 220, 230 (1886), the two concepts share one important attribute: both situations "by definition present no lower court ruling to affirm" in the event of a tie. Michael Coenen, Original Jurisdiction Deadlocks , 118 YALE L.J. 1003, 1003 (2009) ; see id . at 1007 ("the procedural posture of original jurisdiction cases precludes extension of the clear-cut summary affirmance rule governing appellate ties; after all, one cannot affirm the lower court when there is no lower court to affirm"). It thus stands to reason that, because a tie vote in a King's Bench case yields no judgment (at least when there is no lower court ruling to affirm), any opinions in support of or against that result are prohibited as advisory. See BLACK'S LAW DICTIONARY (11th ed. 2019) (defining advisory opinion as "[a] nonbinding statement by a court of its interpretation of the law on a matter submitted for that purpose."). Indeed, our own internal operating procedures support this understanding by limiting the acceptable opinion designations to two: those supporting affirmance and those supporting reversal. See Pa. Sup. Ct. INTERNAL OPERATING PROCEDURES § 4(B)(3); see also Phila. Entm't and Dev. Partners v. City of Phila. , 594 Pa. 468, 937 A.2d 385, 392 (2007) (courts "should not give answers to academic questions or render advisory opinions"); Pa. Pub. Util. Comm'n v. Allegheny Cty. , 415 Pa. 313, 203 A.2d 544, 546 (1964) ("[W]e will not render a decision which would be solely advisory in character.").
Because our deadlock prevented us from taking any action on the federal law question we asked the parties to brief, I respectfully believe it is improper to opine on that unresolved issue through what are plainly advisory expressions. See Majority Opinion at Section III(C). From my point of view, "the better course is not to speak at all [on this issue], for [we] cannot fulfill [our] responsibility to provide guidance to lower courts." United States v. Hamrick , 43 F.3d 877, 891 n.1 (4th Cir. 1995) (Ervin, C.J., dissenting). I thus join those sections of the majority's opinion noted above, which "provide[ ] the rationale that our November 1 order promised" as it pertains to the questions of standing and interpretation of the Election Code. Majority Opinion at 8–9. But, with respect to the unresolved federal law issue, I would let our November 1st order speak for itself and say no more.
JUSTICE BROBSON
By per curiam Order dated November 1, 2022, this Court unanimously ruled on two questions. First, the Court held that the individual petitioners lack standing, but that the Republican National Committee, the National Republican Congressional Committee, and the Republican Party of Pennsylvania (Committees) have standing to advance their claims and pursue relief in this matter. Second, the Court held that, under Pennsylvania law, undated and incorrectly dated absentee and mail-in ballots are not to be counted by county boards of elections. Due to an evenly-divided vote of the Justices hearing the matter, the Court did not resolve a third question—that being whether enforcing Pennsylvania law with respect to undated and incorrectly dated ballots would violate federal law, specifically, the so-called "materiality" or "material error" provision set forth in Section 1971 of the Civil Rights Act of 1964, codified at 52 U.S.C. § 10101(a)(2)(B) (Section 1971).
This opinion serves two purposes. First, while I join in full the majority opinion on the two questions of state law resolved by the Court,2 I write to expand upon the majority's discussion of incorrectly dated ballots and how our ruling impacts future elections. Second, while the Court did not resolve the federal law question, I write to explain the reasons why I believe enforcing our state law does not violate federal law.3
I. Concurring Opinion
With respect to the majority's discussion of incorrectly dated ballots (see Maj. Op. at 22–24), I write to emphasize that our November 5, 2022 supplemental per curiam Order sought only to provide guidance and uniformity with respect to the administration of the November 8, 2022 General Election. In so doing, the Court, guided by provisions in the Pennsylvania Election Code (Code),4 established the broadest possible date range to easily identify those ballots that, on the face of the outside envelope alone, could simply not be "correctly" dated and, therefore, should not be counted.
As the majority correctly notes, our order in this regard is expressly limited in application to the November 8, 2022 General Election. In so doing, I believe the Court recognized that the date on which county boards of elections first make their mail-in and absentee ballots available to voters may not be the earliest date contemplated by the Code and may, in fact, vary from county-to-county.5 In future elections, then, county boards of elections may identify a narrower date range based on when a county first makes its mail-in and absentee ballots available to voters. This would be entirely consistent with this Court's disposition.
In addition, it bears repeating that this Court's disposition with respect to incorrectly dated ballots deals only with those ballots that are incorrectly dated on their face and thus shall not be counted under the Code. It would be wrong to interpret this Court's disposition on this narrow point as a tacit ruling that all ballots with a facially correct date—i.e. , a date that falls within the range of the possible—must ipso facto be counted. To the contrary, while a ballot that contains a facially invalid date cannot be counted, a ballot that contains a facially valid date remains subject to scrutiny under the canvassing procedures set forth in Section 1308 of the Code, 25 P.S. § 3146.8.
II. Dissenting Opinion
Turning to the federal issue, I first express my reluctance to write at all on a question that this Court has not resolved. In situations where this Court is acting in its appellate jurisdiction, our deadlock would ordinarily mean the affirmance of the lower court's judgment on the question. When this occurs, an individual Justice may wish to write to explain why, in that jurist's view, the undisturbed lower court judgment is correct or incorrect. By contrast, where, like here, we are acting under our King's Bench authority, our inability to reach consensus on an issue means nothing in terms of this Court's or any lower court's view of that unanswered question. In my respectful view, an opinion on an unanswered question in this context provides no clarity in the law and has little, if any, value to the bench, the bar, or the public. Not all of my colleagues, however, feel the same way, at least with respect to the undecided federal question in this case. Accordingly, notwithstanding my preference to remain silent on the undecided federal question, I am compelled to offer some counter-explanation for why I believe our unanimous decision to enforce state law in this matter does not violate the federal material error provision.
But see Howard J. Bashman, Considering the Prospect of an Extended Vacancy on Pa.’s Highest Court, The Legal Intelligencer (Oct. 10, 2022), available at https://www.law.com/thelegalintelligencer/2022/10/10/considering-the-prospect-of-an-extended-vacancy-on-pa-s-highest-court/ ("Writing opinions in support of affirmance and reversal where the court is evenly divided is not only a complete waste of time and effort, but it also risks locking the justices into positions that they would otherwise be free to reconsider once a seventh justice joins the court.").
See Pa. Const. art. V, § 10 ; 42 Pa. C.S. § 502.
The question of whether enforcement of the Code with respect to undated and incorrectly dated mail-in and absentee ballots violates federal law is the subject of two pending lawsuits in the United States District Court for the Western District of Pennsylvania. See Pa. State Conf. of the NAACP v. Chapman (W.D. Pa., No. 1:22-cv-00339, filed Nov. 4, 2022); Eakin v. Adams Cnty. Bd. of Elections (W.D. Pa., No. 1:22-cv-00340, filed Nov. 7, 2022).
In addition to my concerns expressed above, the parties have not at all addressed the question of whether a private right of action exists to enforce the federal material error provision or, instead, whether that authority lies exclusively with the United States Attorney General. The United States Supreme Court has not spoken on this issue, and there is a split among our federal circuit courts on this question. The United States Court of Appeals for the Sixth Circuit has held that the material error provision is enforceable only by the United States Attorney General and not by private citizens. McKay v. Thompson , 226 F.3d 752, 756 (6th Cir. 2000). The Sixth Circuit reaffirmed its view more recently in Northeast Ohio Coalition for the Homeless v. Husted , 837 F.3d 612, 630 (6th Cir. 2016). The Northeast Ohio Coalition for the Homeless, the Columbus Coalition for the Homeless, and the Ohio Democratic Party filed a Petition for Writ of Certiorari, asking the United States Supreme Court to review the single question of whether private parties can sue to enforce Section 1971's provisions. They noted the circuit court split in their petition. Nonetheless, the United States Supreme Court declined the petition, leaving the Sixth Circuit's decision intact. See Ne. Ohio Coal. for the Homeless v. Husted , ––– U.S. ––––, 137 S. Ct. 2265, 198 L.Ed.2d 699 (2017) (mem.). The United States Court of Appeals for the Eleventh Circuit has concluded otherwise, finding a private right of action to enforce the material error provision through 42 U.S.C. § 1983. Schwier v. Cox , 340 F.3d 1284, 1296 (11th Cir. 2003). Recently, in Migliori v. Cohen , 36 F.4th 153 (3d Cir. 2022), the United States Court of Appeals for the Third Circuit, like the Eleventh Circuit, concluded that private parties could sue to enforce the material error provision. Migliori , 36 F.4th at 162. The United States Supreme Court, however, vacated that Third Circuit decision. See Ritter v. Migliori , ––– U.S. ––––, 143 S. Ct. 297, 214 L.Ed.2d 129 (2022) (mem.). The lack of advocacy on this threshold question is another reason I am reluctant to offer a viewpoint on the merits in this private party action.
In relevant part, the material error provision set forth in Section 1971 provides:
No person acting under color of law shall[ ] ... deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election .
(Emphasis added.) The material error provision can be broken down into six distinct elements: (1) the person engaging in the applicable conduct must be "acting under color of law"; (2) the conduct must have the effect of "deny[ing] the right of any individual to vote"; (3) the denial of the right to vote must be "because of an error or omission"; (4) the "error or omission" must be "on [a] record or paper"; (5) the "record or paper" must "relat[e] to [an] application, registration, or other act requisite to voting"; and (6) the "error or omission" must "not [be] material in determining whether such individual is qualified under [Pennsylvania] law to vote." 52 U.S.C. § 10101(a)(2)(B).
"The construction of a federal statute is a matter of federal law." Council 13, Am. Fed'n of State, Cnty. & Mun. Emps., AFL–CIO v. Commonwealth , 604 Pa. 352, 986 A.2d 63, 80 (2009). "Under federal rules of statutory construction, in determining the meaning of a federal statute, the courts look not only to particular statutory language, but also to the design of the statute as a whole and to its purposes." Id. Section 1971, read in its entirety, targets conduct, or state laws, that restrict who may vote. There are three subjects covered in subsection (a)(2) toward this aim. The first—(a)(2)(A)—makes it unlawful for political subdivisions to apply discriminatory voter qualification standards, practices, or procedures. The third—(a)(2)(C)—generally bars literacy tests as a qualification for voting, with some exceptions. The second—(a)(2)(B)—is the material error provision. Read in its entirety and in context, like the other two, it relates to determinations of who may vote—i.e. , voter qualifications.
Accord Roethlein v. Portnoff Law Assocs., Ltd. , 623 Pa. 1, 81 A.3d 816, 822 (2013) ("In giving effect to the words of the legislature, we should not interpret statutory words in isolation, but must read them with reference to the context in which they appear.").
Of the six distinct elements set forth above, the sixth is the most critical in discerning the legislative meaning of the prohibition. It informs us that, like the other two provisions in subsection (a)(2), Congress was concerned about state laws that may require extraneous, unnecessary, or even discriminatory—i.e. , immaterial—information that does not bear on determining whether an individual "is qualified under State law to vote in such election." 52 U.S.C. § 10101(a)(2)(B). Under this provision, if a voter makes an error in supplying this information or fails to do so, officials are prohibited from using that error or omission "in determining whether such individual is qualified under State law to vote in such election." Thus, it is not enough that the error or omission be immaterial to whether the individual is qualified to vote; the paper or record must also be used "in determining" the voter's qualifications.
This understanding that the scope of the material error provision is limited to records or papers used in determining a voter's qualifications is supported by the ejusdem generis canon of statutory construction. Under that canon, courts are instructed "to interpret a general or collective term at the end of a list of specific items in light of any common attributes shared by the specific items." Sw. Airlines Co. v. Saxon , ––– U.S. ––––, 142 S. Ct. 1783, 1789, 213 L.Ed.2d 27 (2022) (internal quotation marks omitted); see also Dep't of Env't Prot. v. Cumberland Coal Res. , 628 Pa. 17, 102 A.3d 962, 976 (2014) (noting that, under ejusdem generis canon, general catch-all phrases "should not be construed in their widest context," but rather, should "be construed as applicable only to ... things of the same general nature or class as those enumerated"). As applied here, the statutory catch-all phrase "other act requisite to voting" is limited by the prior list of "acts," which consist of applying or registering to vote. Limiting the catch-all phrase in this manner is entirely consistent with the remaining text of the material error provision and further supports a conclusion that the material error provision only has in its view those records and papers used "in determining" whether an individual is qualified to vote under State law.
Turning back to the provisions of the Code at issue, the first question is whether Sections 1306(a) of the Code, 25 P.S. § 3146.6(a) (relating to voting by absentee ballot), and 1306-D(a) of the Code, 25 P.S. § 3150.16(a) (relating to voting by mail-in ballot), are provisions used "in determining whether [an] individual is qualified under State law to vote." If they are, then it would be appropriate to test the legality of enforcement of these provisions against the material error provision in Section 1971. If they are not, then they do not fall within the scope of state laws that are subject to the material error provision.
If we do not ask this question first, we risk bringing within the sweep of Section 1971 state election laws that impose requirements "on any record or paper relating to any application, registration, or other act requisite to voting," even when the state election law imposes the requirement for valid purposes other than determining voter qualification. And if we do that, all such laws would certainly run afoul of Section 1971 and be unenforceable because they indisputably do not at all relate to voter qualification and thus are not "material in determining" voter qualification. Indeed, they were not intended for that purpose.
Take for example the provisions in Sections 1306(a) and 1306-D(a) of the Code relating to secrecy envelopes. In Pennsylvania Democratic Party v. Boockvar , 662 Pa. 39, 238 A.3d 345 (2020), this Court held that the requirement of securing a ballot in a secrecy envelope was mandatory with the purpose being to maintain the confidentiality of the ballot. Pa. Democratic Party , 238 A.3d at 380. In an effort to blunt this Court's decision on the secrecy envelope requirement, it would not surprise me at all to see, in future litigation, an argument that the absence of a secrecy envelope should be considered an "omission" on any record or paper (the ballot). If that potential argument wins the day, under the broad reading of Section 1971 that the Respondents and their supporters propose here, because the secrecy envelope is "not material [to] determining whether such individual is qualified under State law to vote in such election," federal law would require local elected officials to count mail-in and absentee ballots that arrive without a secrecy envelope. The same can be said of the requirement in these sections that the elector sign the verification accompanying the mail-in or absentee ballot. Like the date requirement, the signature requirement does not bear on an elector's qualification to vote.
The fact is that none of the provisions of Sections 1306(a) and 1306-D(a) of the Code have any bearing on determining voter qualification at all, a point the Justices who joined in the Opinion Announcing the Judgment of the Court (OAJC) expressly embraced in In re Canvass of Absentee and Mail-in Ballots of November 3, 2020 General Election , ––– Pa. ––––, 241 A.3d 1058 (2020). As the OAJC observed, these sections "set forth ... requirements for how a qualified elector may cast a valid absentee or mail-in ballot," not how a person may qualify to be an elector. In re Canvass , 241 A.3d at 1071 (emphasis added). The qualification of the elector is established under Pennsylvania law before the mail-in or absentee ballot is sent to the elector, through the application and approval process set forth in Section 1302.2 of the Code, 25 P.S. § 3146.2b (relating to absentee ballot application approval), and Section 1302.2-D of the Code, 25 P.S. § 3150.12b (relating to mail-in ballot application approval).
None of the Justices who wrote minority opinions in In re Canvass took issue with this portion of the OAJC.
Obviously, because these provisions of the Code impose requirements relating to a person's qualification to vote, they could be subject to a challenge under Section 1971.
Because Sections 1306(a) and 1306-D(a) of the Code set forth requirements on how a qualified elector may cast a valid absentee or mail-in ballot and not to determine whether the elector, in fact and law, is qualified to do so, they do not fall within the scope of the laws that Congress targets in Section 1971. I, therefore, find it unnecessary to delve further into my view of the other five elements of the federal statute. On the other hand, if Respondents are correct, no election law that imposes informational requirements on a record or paper unrelated to determining voter qualification can survive a Section 1971 challenge. That cannot be correct. For these reasons, I do not believe that this Court's unanimous resolution of the state law questions here runs afoul of the federal material error provision in Section 1971.
On this point, the United States Court of Appeals for the Fifth Circuit has recently opined:
A plausible argument can be made that [Section] 1971 is tied to only voter registration specifically and not to all acts that constitute casting a ballot. For example, if a voter goes "to the polling place on the wrong day or after the polls have closed," is that voter denied the right to vote under [Section] 1971? Ritter v. Migliori , ––– U.S. ––––, 142 S. Ct. 1824, 1824 [213] L.Ed.2d [1034] (2022) (Alito, J., dissenting from denial of application for stay). It cannot be that any requirement that may prohibit an individual from voting if the individual fails to comply denies the right of that individual to vote under [Section] 1971. Otherwise, virtually every rule governing how citizens vote would is [sic] suspect. "Even the most permissive voting rules must contain some requirements, and the failure to follow those rules constitutes the forfeiture of the right to vote, not the denial of that right." Id.
Vote.Org v. Callanen , 39 F.4th 297, 305 n.6 (5th Cir. 2022). Justices Thomas and Gorsuch joined Justice Alito's dissent in Ritter .
In Part III(C) of the lead opinion, Justice Wecht, writing for those Justices who would find a violation of federal law, claims agreement with "the Third Circuit's result" and that their "analysis ... offers a rationale that aligns with the Third Circuit's interpretation." (Lead Op. at 23 n.132, 24, 28.) Presumably, Justice Wecht is referring to the Third Circuit's decision in Migliori . As indicated above, however, the United States Supreme Court vacated the Third Circuit's judgement in Migliori . See Ritter , ––– U.S. ––––, 143 S. Ct. 297, 214 L.Ed.2d 129. As a result, the Third Circuit's "result" and "interpretation" in Migliori have no precedential value. See O'Connor v. Donaldson , 422 U.S. 563, 577 n.12, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975) (citing U.S. v. Munsingwear , 340 U.S. 36, 41, 71 S.Ct. 104, 95 L.Ed. 36 (1950) ).
Justice Mundy joins this concurring and dissenting opinion.