Opinion
1381 CD. 2021 1382 C.D. 2021 1383 C.D. 2021 1384 C.D. 2021 1385 C.D. 2021 1395 C.D. 2021 1396 C.D. 2021 1397 C.D. 2021 1398 C.D. 2021 1399 C.D. 2021 1403 C.D. 2021
01-10-2022
In Re: Election in Region 4 for Downingtown School Board Precinct Uwchlan 1 Petition of Katherine R. Carpenter, Andrea G. Cauble, and Jessica M. Neff for a Recount of the Election of Uwchlan 1 Pursuant to the Election Code 25 P.S. 3261, 25 P.S. 3031.18(1) and 25 P.S. 3263 Appeal of: Katherine R. Carpenter, Andrea G. Cauble, and Jessica M. Neff In Re: Election in Region 4 for Downingtown School Board Precinct Uwchlan 3 Petition of Carrie D. Gross, Sanda Oyola, and Marsha Brofka-Berends for a Recount of the Election of Uwchlan 3 Pursuant to the Election Code 25 P.S. 3261, 25 P.S. 3031.18(1) and 25 P.S. 3263 Appeal of: Carrie D. Gross, Sandra Oyola, and Marsha Brofka-Berends In Re: Election in Region 4 for Downingtown School Board Precinct Uwchlan 4 Petition of Marisa Norma Pereyra, Katherine J. Farnum, and Michael A. Farnum for a Recount of the Election of Uwchlan 4 Pursuant to the Election Code 25 P.S. 3261, 25 P.S. 3031.18(1) and 25 P.S. 3263 Appeal of: Marisa Norma Pereyra, Katherine J. Farnum and Michael A. Farnum In Re: Election in Region 4 for Downingtown School Board Precinct Uwchlan 5 Petition of Margaret L. Quinn, Barbara L. Phillips, and Hugh N. O'Donnell for a Recount of the Election of Uwchlan 5 Pursuant to the Election Code 25 P.S. 3261, 25 P.S. 3031.18(1) and 25 P.S. 3263 Appeal of: Margaret L. Quinn, Barbara L. Phillips, and Hugh N. O'Donnell In Re: Election in Region 4 for Downingtown School Board Precinct Uwchlan 9 Petition of Susan R. Morgan, Brandyn C. Muller Campbell and Diane W. O'Dwyer for a Recount of the Election of Uwchlan 9 Pursuant to the Election Code 25 P.S. 3261, 25 P.S. 3031.18(1) and 25 P.S. 3263 Appeal of: Brandyn C. Muller Campbell and Diane W. O'Dwyer In Re: Election in Region 4 for Downingtown School Board Precinct Uwchlan 1, Petitions of Katherine R. Carpenter, Andrea G. Cauble, and Jessica M. Neff for a recount Pursuant to the Election Code 25 P.S. §§ 3161, 3031.18(1), and 3263 Appeal of: Board of Elections of the County of Chester In Re: Election in Region 4 for Downingtown School Board Precinct Uwchlan 3 Petition of Carrie D. Gross, Sandra Oyola, and Marsha Brofka- Berends for Recount of the Election of Uwchlan 3 Pursuant to the Election Code 25 P.S. §§ 3161, 3031.18(1), and 3263 Appeal of: Board of Elections of the County of Chester In Re: Election in Region 4 for Downingtown School Board Precinct Uwchlan 4 Petition of Marisa Norma Pereyra, Katherine J. Farnum and Michael A. Farnum for Recount of the Election of Uwchlan 4 Pursuant to the Election Code 25 P.S. §§ 3161, 3031.18(1), and 3263 Appeal of: Board of Elections of the County of Chester In Re: Election in Region 4 for Downingtown School Board Precinct Uwchlan 5 Petition of Margaret L. Quinn, Barbara L. Phillips, and Hugh O'Donnell for Recount of the Election of Uwchlan 5 Pursuant to the Election Code 25 P.S. §§ 3161, 3031.18(1), and 3263 Appeal of: Board of Elections of the County of Chester In Re: Election in Region 4 for Downingtown School Board Precinct Uwchlan 9 Petition of Susan R. Morgan, Brandyn C. Muller Campbell, and Diane W. O'Dwyer for Recount of the Election of Uwchlan 9 Pursuant to the Election Code 25 P.S. §§ 3161, 3031.1 8(1), and 3263 Appeal of: Board of Elections of the County of Chester In Re: Election in Region 4 for Downingtown School Board Precincts Uwchlan 1, 3, 4, 5, and 9 Appeal of: Margie Miller
OPINION NOT REPORTED
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
This matter was assigned to the panel before January 3, 2022, when President Judge Emerita Leavitt became a senior judge on the Court.
MEMORANDUM OPINION
BONNIE BRIGANCE LEADBETTER, PRESIDENT JUDGE EMERITA
That this case is difficult is confirmed by the fact that our panel was unable to reach a majority opinion on the entire case and thus our order reflects the results of differing majority conclusions with respect to two of the issues. This opinion sets out my views of the varying claims raised in these appeals.
Before us for disposition are five related and consolidated appeals and cross appeals emanating from a December 6, 2021, order of the Court of Common Pleas of Chester County. That court granted in part and denied in part Petitioners' request to recount and inspect six ballots in Chester County pertaining to the election in region 4 for Downingtown School Board Precincts Uwchlan 1, 3, 4, 5, and 9, filed pursuant to the Pennsylvania Election Code. The disputed ballots include: (1) three mail-in ballots marked VS-1, VS-2, and VS-3; (2) two provisional ballots marked VS-4 and VS-5; and (3) one undated mail-in ballot marked VS-6.
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591. In October 2019, the General Assembly enacted Act 77 of 2019, which amended the Election Code and authorized "mail-in voting" for the first time in the Commonwealth. See generally Article XIII-D of the Election Code, added by the Act of October 31, 2019, P.L. 552, No. 77, 25 P.S. §§ 3150.11-3150.17.
Following a hearing and argument, the trial court determined that the recount request for the six disputed ballots was timely filed, essentially determining that Section 1407(a) of the Election Code, 25 P.S. § 3157(a), was inapplicable. In relevant part, that provision provides:
Any person aggrieved by any order or decision of any county board regarding the computation or canvassing of the returns of any primary or election, or regarding any recount or recanvass thereof . . . may appeal therefrom within two days after such order or decision shall have been made, whether then reduced to writing or not, to the court specified in this subsection, setting forth why he feels that an injustice has been done, and praying for such order as will give him relief.25 P.S. § 3157(a). In support, the trial court noted that there was no evidence presented that a dispute existed at any time during the computation of votes as to the validity of the disputed ballots, there was no evidence presented "regarding any 'decision' by any county board with regard thereto[, ]" and no witness appeared on behalf of the Board of Elections or any other county board to demonstrate that the request was untimely. (Trial Ct.'s Dec. 6, 2021 Op. at 2-3 n.1.)
As for the ballots, the trial court ordered:
(1) The request to inspect the six ballots is moot;
(2) The two provisional ballots marked VS-4 and VS-5 shall be counted;
(3) The three mail-in ballots marked VS-1, VS-2, and VS-3 shall not be counted; and
(4) The undated ballot marked as VS-6 shall be counted.(Id. at 1.)
The pertinent background is as follows. Following the initial tabulation of the race for Downingtown School Director Region 4, candidate Rebecca Britton had 1, 184 votes and candidate (and Intervenor here) Margie Miller had 1, 186 votes. Subsequently, the trial court conducted a December 2, 2021 hearing and heard arguments on the recount request. At the hearing, the Board of Elections presented the testimony of Stephanie Saitis, the Assistant Director of Voter Services. She testified as to Chester County's process and procedures for tabulating votes and protecting the integrity of the election process. Following her testimony, the attorneys presented legal argument in support of their respective positions.
Ultimately, the trial court determined as follows with respect to the disputed ballots. With respect to the three mail-in ballots that were rejected during the initial canvassing of votes because the outer envelopes of two appeared to be cut open and resealed with tape, and the third had a mangled/torn outer envelope, the trial court determined that they should not be counted. In support, the trial court cited the requirement in Section 1306-D(a) of the Election Code, 25 P.S. § 3150.16(a), that mail-in ballots be "securely sealed" and opined that the opened outside envelopes implicated concerns of fraud.
With respect to the two provisional ballots (VS-4 and VS-5) that were not placed in secrecy envelopes as required by Section 1210(a.4)(3) of the Election Code, 25 P.S. § 3050(a.4)(3), but, instead, were placed in the outer provisional ballot envelope after the elector voted in a privacy booth at the polling place and returned to the judge of elections, the trial court concluded that these ballots should be counted. In support, the trial court cited the testimony of Ms. Saitis that they did not raise concerns of tampering or fraud.
As for the undated ballot (VS-6) that was excluded from the computation, the trial court concluded that it should be counted. In support, the trial court cited the testimony of Ms. Saitis that it arrived at Voter Services on October 21, 2021, well in advance of Election Day. In addition, the trial court noted that it was dated upon receipt at Voter Services and contained no other irregularities.
For the reasons that follow, I would hold that the ballots marked VS-2 and VS-3 may be counted, so long as the envelopes contain secrecy envelopes that are sealed and undisturbed. However, I would not allow the ballots marked VS-1, VS-4, VS-5, and VS-6 to be counted.
With respect to the provisional ballots, the Election Code provides not only that after casting his or her ballot, the voter shall place it in a secrecy envelope and then into the provisional ballot envelope, but specifically mandates that, "A provisional ballot shall not be counted if . . . a provisional ballot envelope does not contain a secrecy envelope . . . ." 25 P.S. § 3050(a.4)(5)(ii)(C) (emphasis added). While we agree with the trial court that voters should not be lightly disenfranchised where there is no real question raised that the ballot is the genuine vote of the elector, we simply are not free to disregard the explicit directive of the statute. Accordingly, all three judges agree that the ballots marked VS-4 and VS-5 may not be counted.
25 P.S. § 3050(a.4)(3).
It is undisputed that the mail-in ballot marked VS-6 complied with all requirements except that the elector had not dated the outer envelope and that the ballot was received well in advance of Election Day. The validity of such a ballot was before our Supreme Court in In re Canvass of Absentee and Mail-in Ballots of November 3, 2020 General Election, 241 A.3d 1058 (Pa. 2020) (plurality). In that case the undated ballots were allowed to be counted. Justice Donohue's opinion announcing the judgment of the Court stated:
Here we conclude that while failures to include a handwritten name, address or date in the voter declaration on the back of the outer envelope, while constituting technical violations of the Election Code, do not warrant the wholesale disenfranchisement of thousands of Pennsylvania voters.Id. at 1079. Further:
[O]nly failures to comply with mandatory obligations, which implicate both legislative intent and "weighty interests" in the election process, like ballot confidentiality or fraud prevention, will require disqualification. [citing Pa. Democratic Party v. Boockar, 238 A.3d 345, 379-80 (Pa. 2020).]
. . . .
[W]e hold that a signed but undated declaration is sufficient and does not implicate any weighty interest.
. . . .
[W]e conclude that dating the declaration is a directory, rather than a mandatory, instruction, and thus the inadvertent failure to comply does not require that ballots lacking a date be excluded from counting.Id. at 1076-78.
Nonetheless, the opinion was joined by only two other justices, while two additional justices joined Justice Dougherty in dissent, believing that the date requirement was mandatory. The judgment of the Court, then, hinged upon the concurring opinion of Justice Wecht, who opined:
[T]he 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, when determining noncompliance requires no exercise of subjective judgment by election officials. . . . [D]isqualification is appropriate "[s]o long as the Secretary and county boards of elections provide electors with adequate instructions for completing the declaration of the elector-including conspicuous warnings regarding the consequences for failing strictly to adhere" to those requirements.Id. at 1089 (Wecht, J., concurring) [citing and quoting Pa. Democratic Party, 238 A.3d at 389 (emphasis omitted) (footnote omitted)]. However, because he felt that those circumstances were not present in the 2020 election, he opined:
[I]in future elections, I would treat the date and sign requirement as mandatory in both particulars, with the omission of either item sufficient without more to invalidate the ballot in question. However, under the
circumstances in which the issue has arisen, I would apply my interpretation only prospectively.In re Canvass of Absentee and Mail-in Ballots of Nov. 3, 2020 Gen. Election, 241 A.3d at 1079-80.
In this regard, we note that the outer envelope of VS-6 in the present case stated: "YOUR BALLOT WILL NOT BE COUNTED UNLESS: you sign and date the voter's declaration in your own handwriting" and at the signature line it was noted: "Voter, sign or mark here (Required)." (Dec. 2, 2021 Hearing, Copy Ex. VS-6.) Further, Ms. Saitis testified that in 2021 for the current election, these instructions were printed in red ink. (Id., Notes of Testimony "N.T." at 52.)
Accordingly, there is no binding precedent that controls our decision here. However, while I might prefer the result reached by the plurality opinion, I must conclude that the prevailing view of our Supreme Court is that of Justice Wecht, i.e., that the requirement that the outer envelope be dated by the voter is mandatory and must be strictly enforced in elections held after that of 2020. See also Ritter v. Lehigh Cnty. Bd. of Elections (Pa. Cmwlth., No. 1322 C.D. 2021, filed January 3, 2022) (special election panel) (Majority relied on In re Canvass of Absentee and Mail-in Ballots of November 3, 2020 General Election, and held that mail-in ballots without a date must be set aside and not counted). Therefore, I would not allow the ballot marked VS-6 to be counted. Judge Leavitt concurs in this view.
With respect to ballots VS-1, VS-2, and VS-3, there is no allegation or evidence of fraud; rather the issue here is whether they must be rejected for failure to comply with the requirement that a mail-in ballot must be enclosed in an outer envelope that is "securely sealed" before mailing. 25 P.S. § 3150.16(a). The secrecy envelope must also be securely sealed and placed inside the outer envelope, but that provision is not in issue here. At the hearing, the trial court and all counsel were able to view the original envelopes marked VS-1, VS-2, and VS-3, but these were returned to Voter Services and photocopies were substituted in the original record. Unfortunately, these photocopies are of such poor quality that we can discern nothing from them concerning the envelopes' conditions, so the only record evidence is the descriptions in the testimony and the trial court's findings. With respect to VS-1, Ms. Saitis testified that "the outer envelope is fairly destroyed. It is completely open." (Dec. 2, 2021 Hearing, Notes of Testimony "N.T." at 19.) The trial court similarly characterized it as "mangled and torn open." (Trial Ct.'s Op. at 5.) As to VS-2, Ms. Saitis stated that "the back of the envelope had been opened and then taped shut." (N.T. at 21.) She further testified that envelope VS-3 "had been sliced open at the top and then taped shut." Id. The trial court found both VS-2 and VS-3 "appear to have been cut open and resealed, in part, with tape." (Trial Ct.'s Op. at 5.) Ms. Saitis also testified that it was not uncommon to receive mail-in ballots where the outer envelope had been opened and resealed and that such ballots were accepted if there was a notation on the envelope, ostensibly from the voter, stating that he or she had opened and resealed it. (N.T. at 64-65.)
Unlike the other statutory provisions discussed above, I believe the legislative mandate at issue here to be ambiguous. The Election Code does not have any definition of the term "securely sealed." Obviously, VS-1, described as mangled and "completely open" was not sealed at all, and so our panel agrees that this ballot cannot be counted. However, VS-2 and VS-3 arrived at Voter Services with their taped closure intact. In addition, the statute does not prohibit voters from opening and re-sealing the outer envelope if they had, for instance, forgotten to seal the secrecy envelope or neglected to put the ballot in the secrecy envelope at all, let alone provide that such action will invalidate the ballot. Given the lack of clear statutory directive, I believe that, absent some evidence of tampering by a third party, this issue should weigh in favor of allowing the vote to be counted, particularly if the secrecy envelope remains undisturbed and unopened inside the resealed outer envelope. Thus, with that proviso, I would allow VS-2 and VS-3 to be counted. As neither Judge Covey nor Judge Leavitt agrees with this analysis, we will order those ballots to remain uncounted.
Aside from the ballots, which all parties agree is "the heart of the issue," two allegations of error remain. First, Petitioners argue that the trial court erred in failing to act on their request for a second full recount of Precinct 653. We disagree. First, the relevant provision, inter alia, provides: "Any petition to open a ballot box or recanvass . . . shall be filed no later than five days after the completion of the computational canvassing of all returns of the county by the county board." Section 1703(a)(1) of the Election Code, 25 P.S. § 3263(a)(1) (emphasis added). In this case, aside from any timeliness issues, there was no petition nor was any such request filed. Rather, counsel made an oral request during the hearing concerning the six ballots. Moreover, there had already been one hand recount of the precinct and no irregularity was alleged, but only that the recount had changed the results by a single vote. Our panel agrees that the trial court did not abuse its discretion in refusing to act on this oral request.
Finally, in her cross-appeal, Intervenor argues that the petition challenging ballots marked VS-1 through VS-6 was untimely pursuant to Section 1407(a) of the Election Code, 25 P.S. § 3157(a), providing in pertinent part that, "Any person aggrieved by any order or decision of any county board regarding the computation or canvassing of the returns of any primary or election may appeal therefrom within two days after such order or decision shall have been made . . . ."On November 24, 2021, Petitioners filed their petition seeking permission to recount and inspect the six ballots. This was the date on which the hand recount was completed, and it appears that Petitioners discovered issues with the six disqualified ballots at that time. Arguably, the Board's completion of the hand recount again implicated the rejection of the six ballots at issue such that the petition was timely. In addition, the trial court found that neither the Board nor Intervenor presented any evidence as to when the Board acted to disqualify the six ballots. While the relevant dates may not be reasonably subject to dispute, neither party asked the trial court to take judicial notice of any such date, nor did either make any particular argument to the trial court as to what event should be considered the triggering action of the Board. All parties proceeded to the merits of the validity of the six ballots without objection. The trial court concluded, "Therefore, being guided by the principle to construe the [Election Code] liberally to allow voting but strictly to prevent fraud, we will liberally construe the Election Code to allow this challenge to move forward." (Trial Ct.'s Op. at 3.) Here, also, we all agree there was no abuse of discretion.
In Candidate Miller's preliminary objections and petition to quash the document entitled "Seeking Permission to Recount and Inspect Six Ballots by the Petitioners" and in her brief to this Court, Ms. Miller claims that Petitioners ignored the Election Code's additional deadlines for challenging provisional ballots found in 25 P.S. § 3050(a.4)(4) because they did not challenge the six ballots during the initial count when they were first disqualified, essentially making a claim of waiver. The trial court did not address 25 P.S. § 3050(a.4)(4) in its December 6, 2021 order and opinion. Given the fact that we have held the provisional ballots to be invalid, we will not address this statutory provision further.
For the reasons set forth here and in the opinions of my colleagues, we will order that none of the contested ballots may be counted.