In re Provisional Ballots in the 2024 Primary Election

Full title: IN RE: CANVASS OF PROVISIONAL BALLOTS IN THE 2024 PRIMARY ELECTION APPEAL…

Court: Supreme Court of Pennsylvania

Date published: Sep 13, 2024

55 MAP 2024 (Pa. Sep. 13, 2024)

Opinion

55 MAP 2024 J-59-2024

09-13-2024

IN RE: CANVASS OF PROVISIONAL BALLOTS IN THE 2024 PRIMARY ELECTION APPEAL OF: JAMIE WALSH

MUNDY, JUSTICE

SUBMITTED: August 7, 2024

Appeal from the Order of the Commonwealth Court at 628 CD 2024 dated July 1, 2024 Reversing the Order of the Luzerne County Court of Common Pleas, Civil Division, at 2024-05082 dated May 15, 2024.

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

OPINION

MUNDY, JUSTICE

In this appeal by allowance, Appellant Jamie Walsh challenges the Commonwealth Court's ruling that a particular provisional ballot cast in Luzerne County should not be counted because the outer envelope was unsigned. He also disputes that court's separate ruling that a different provisional ballot should be counted because the voter resided in the election district within 30 days before the date of the election.

I. Background

Walsh and Mike Cabell competed in the April 23, 2024, primary election for the Republican nomination to represent the 117th District in Pennsylvania's House of Representatives. Several dozen provisional ballots were returned by voting districts in Luzerne County. Walsh led Cabell by three votes before any of them were counted. On April 29, 2024, the Luzerne County Board of Elections began hearings for interested parties to review the provisional ballots. Cabell challenged a ballot submitted by Timothy Wagner on the basis that the envelope was not signed, and Walsh challenged a provisional ballot submitted by Shane O'Donnell, who was registered to vote in McAdoo, Schuylkill County. The Board ultimately determined the Wagner ballot should be counted, but the O'Donnell ballot should not be counted.

Cabell appealed to the common pleas court, which held a hearing at which Wagner and O'Donnell provided testimony. Wagner testified that on election day he went to the polling place and was informed by a poll worker that because he had been issued a mail-in ballot, but did not return it, he would have to vote by provisional ballot. He followed the election worker's instructions in completing the ballot, placing it in a secrecy envelope, and placing that envelope in an outer envelope, the latter of which he was required by law to sign. See 25 P.S. § 3050(a.4)(3) (discussed below). Wagner later called a phone number he was given at the polling place and was told his ballot had been accepted. At the hearing Wagner could not remember whether he had signed the outer envelope, and he thought he "probably" did, see N.T., May 9, 2024, at 22, but it turned out he did not. In the end, because there was no evidence of fraud and Wagner's intent to vote for Walsh was clear, the county court affirmed the Board's decision to canvass the ballot.

O'Donnell testified that he appeared at his polling place in Butler Township, Luzerne County on election day but the poll workers could not find his name on the voter list. They let him vote by provisional ballot because he had previously voted in the district. O'Donnell had purchased a home in McAdoo in June 2023, but he resided with his mother and brother in Butler Township from that point until March 29, 2024, while his new home underwent renovations. O'Donnell noted he had changed the address for his vehicle registration in December 2023, and he expressed that PennDOT must have made the change to his voter registration at that time.¹ Although March 29 was less than 30 days before the election, the trial court affirmed the Board's decision not to count his vote because that decision did not disenfranchise O'Donnell inasmuch as he could have voted in his new district in Schuylkill County.

1 An election official testified this was consistent with PennDOT's practice.

A divided three-judge panel of the Commonwealth Court reversed both rulings in a memorandum opinion. In re Canvass of Provisional Ballots in the 2024 Primary Election, No. 628 C.D. 2024, 2024 WL 3252970 (Pa. Cmwlth. July 1, 2024) ("Luzerne Provisional 2024"). In relation to the Wagner ballot, the majority acknowledged that where the language of the Election Code is uncertain, it should be interpreted liberally in favor of the right to vote. Here, however, the Election Code states a provisional ballot "shall not be counted" if the voter fails to sign the envelope. 25 P.S. § 3050(a.4)(5)(ii). Based on the plain language of that provision, the majority held Wagner's ballot should not be counted. In reaching its holding, the majority quoted from a prior unpublished decision in which it had arrived at the same conclusion. See Luzerne Provisional 2024, 2024 WL 3252970, at *4 (quoting In re: Allegheny Cnty. Provisional Ballots in the 2020 Gen. Election, No. 1161 C.D. 2020, slip op. at 7-9 (Pa. Cmwlth. Nov. 20, 2020) ("Allegheny Provisional 2020"), alloc. denied, 242 A.3d 307 (Pa. 2020)).²

2 The court noted it may reference such unreported decisions for their persuasive value. See id. at 7 n.7 (citing 210 Pa. Code § 69.414(a)).

Regarding the O'Donnell ballot, the majority pointed out that under Section 701(3) of the Election Code a person who moves out of his voting district within 30 days prior to the election is allowed to vote in his old district. See 25 P.S. § 2811(3). Because O'Donnell moved into his new home less than 30 days before the election, the majority held the trial court erred by excluding his ballot. See Luzerne Provisional 2024, 2024 WL 3252970, at *5.

Judge Wolf filed a responsive opinion in which he joined the majority with regard to the counting of the O'Donnell ballot but dissented as to the Wagner ballot. See id. at *5-*7. In this respect, he focused on the precept that election laws should be construed liberally in favor of the right to vote, and he characterized Wagner's failure to sign the envelope as a technicality. Given that Wagner's testimony made his electoral intent clear (to vote for Walsh) and given that Wagner had followed the instructions of the poll workers, Judge Wolf opined Wagner's ballot should be canvassed. As to the Allegheny Provisional 2020 decision, he expressed that Judge Wojcik issued a dissenting opinion in that matter faithfully applying this Court's precedent which suggests courts should not "blithely disenfranchise" voters who "merely neglected to enter a signature" on one of the documents. Id. at *7 (quoting Allegheny Provisional 2020, slip op. at 5 (Wojcik, J., dissenting)).

We granted Walsh's petition for allowance of appeal in which he raised the following issues:

Whether an unsigned provisional ballot should be counted where the voter demonstrated "exceedingly clear" electoral intent, acted in conformity with instructions of election officials and subsequently verified that his ballot had been counted?

Whether a provisional ballot submitted by a voter domiciled and registered to vote elsewhere should be rejected?

See In re: Canvass of Provisional Ballots in the 2024 Primary Election (Petition of Walsh), ___A.3d ___, 2024 WL 3517407 (Pa. July 24, 2024) (per curiam).

II. The Wagner ballot

Walsh contends that where a voter's intent is clear, there is no fraud, the voter follows the direction of election officials, and later verifies his vote was accepted, his vote should be canvassed. He acknowledges that Allegheny Provisional 2020, on which the panel below relied, held such votes should not be counted, but he points out that decision was unpublished, and thus, non-binding. Furthermore, Walsh posits that it appears to conflict with this Court's ruling in In re Canvass of Absentee and Mail-In Ballots of November 3, 2020 General Election, 241 A.3d 1058 (Pa. 2020) ("Absentee & Mail-In 2020"), which reinforced that wherever possible, provisions regulating the elective franchise should

be so construed as to insure rather than defeat the exercise of the right of suffrage. Technicalities should not be used to make the right of the voter insecure. No construction of a statute should be indulged that would disfranchise any voter if the law is reasonably susceptible of any other meaning.

Id. at 1062 (Opinion Announcing the Judgment of the Court) (quoting Appeal of James, 105 A.2d 64, 65-66 (Pa. 1954)).

Walsh portrays Absentee & Mail-In 2020 as holding that, although the Election Code used "shall" with respect to dating absentee and mail-in ballot envelopes, the word was held to be directory and not mandatory because the date was "unnecessary." This meant ballots lacking a hand-written date should be counted notwithstanding the statutory "shall." Walsh argues Wagner's signature was likewise unnecessary as his name was already on the list of persons to receive a mail-in ballot, and then he showed up in person to vote by provisional ballot. See Brief for Appellant at 17-18 (citing Absentee & Mail-In 2020, 241 A.3d at 1076-77). Walsh additionally emphasizes Wagner provided a fully-executed affidavit attesting that the ballot was the only one he submitted in that election. See 24 P.S. § 3050(a.4)(2). As such, Walsh characterizes the envelope signature requirement as "unnecessary and superfluous." Brief for Appellant at 19.

The Luzerne County Board of Elections has filed a brief denominated as an Appellee's brief, although it favors reversal of the Commonwealth Court's ruling as to the Wagner ballot. In its brief, the Board largely agrees with Walsh's arguments, but it adds that under the Free and Equal Elections Clause,³ the electoral process must, "to the greatest degree possible, be kept open and unrestricted." Brief for Appellee (Board) at 16 (quoting League of Women Voters v. Commonwealth, 178 A.d 737, 804 (Pa. 2018)). In this vein, the Board suggests voting regulations are constitutionally suspect if they "deny the franchise itself, or make it so difficult as to amount to a denial." Id. (quoting Winston v. Moore, 91 A. 520, 523 (Pa. 1914)).⁴

3 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.").

4 The Pennsylvania Department of State and Secretary of the Commonwealth Al Schmidt have filed a joint amicus brief arguing the Wagner ballot should be counted, but the O'Donnell ballot should not. As well, the Democratic National Committee and the Pennsylvania Democratic Party have filed a joint amicus brief in favor of counting the Wagner ballot while taking no position on the O'Donnell ballot. Separately, In This Together Northeast PA, which also supports the counting of the Wagner ballot, seeks leave to file an amicus brief out of time. The parties have all filed no-answer letters. Leave to file is granted in light of multiple factors: the condensed briefing schedule, the filing of the brief before Cabell's brief was due, and the parties' decision not to object.

Article XII of the Pennsylvania Election Code⁵ relates to the conduct of primaries and elections.⁶ Within Article XII, Section 1210 lists, inter alia, the steps for voting by provisional ballot. See 25 P.S. § 3050. When an elector arrives at the polling place, if there is any doubt about his eligibility to vote, he may cast a provisional ballot. See id. § 3050(a.2). Before doing so, pursuant to paragraph (a.4) he must execute an affidavit giving information such as his name, date of birth, and address at the time of registration. See id. § 3050(a.4)(2). Paragraph (a.4) continues, in relevant part:

5 Act of June 3, 1937, P.L. 1333, No. 320 (as amended 25 P.S. §§ 2601-3591).

6 Under the Election Code, "election" is defined as "any general, municipal, special or primary election, unless otherwise specified." 24 P.S. § 2602. Nothing in Article XII or Section 1210 specifies any other meaning.

(3) After casting the provisional ballot, the individual shall place it in a secrecy envelope. The individual shall place the secrecy envelope in the provisional ballot envelope and shall place his signature on the front of the provisional ballot envelope. All provisional ballots shall remain sealed in their provisional ballot envelopes for return to the county board of elections.

* * * * *

(5)(i) Except as provided in subclause (ii), if it is determined that the individual was registered and entitled to vote at the election district where the ballot was cast, the county board of elections shall compare the signature on the provisional ballot envelope with the signature on the elector's registration form and, if the signatures are determined to be genuine, shall count the ballot if the county board of elections confirms that the individual did not cast any other ballot, including an absentee ballot, in the election.

(ii) A provisional ballot shall not be counted if: (A) either the provisional ballot envelope under clause (3) or the affidavit under clause (2) is not signed by the individual; (B) the signature required under clause (3) and the signature required under clause (2) are either not genuine or are not executed by the same individual; . . .

Id. § 3050(a.4)(3), (5)(i), (ii)(A), (B) (emphasis added).

Although the above plainly states that an elector voting by provisional ballot "shall" sign the front of the provisional ballot envelope, id. § 3050(a.4)(3), there have been times when this Court has interpreted the word "shall" as directory rather than mandatory - meaning the failure to complete the action did not result in the ballot's disqualification. In Absentee & Mail-In 2020, we addressed whether county election boards should canvass absentee and mail-in ballots where the declaration on the outer envelope lacked certain information to be supplied by the voter. Some of these items were required under guidance issued by the Secretary of the Commonwealth, while others were mandated by the Election Code itself. In this latter respect, Section 1306(a) specified that, for absentee voters, after placing the secrecy envelope containing the ballot inside the outer envelope, "[t]he elector shall then fill out, date and sign the declaration printed on such envelope." 25 P.S. §3146.6(a) (emphasis added). Section 1306-D contained an identical instruction for mail-in voters. See id. § 3150.16(a); see also Absentee & Mail-In 2020, 241 A.3d at 1063-64 (quoting these provisions).

In that matter, this Court was divided over whether a missing date disqualified a ballot. The three Justices in the plurality concluded the word "shall" in these provisions was directory and not mandatory, reasoning that no "weighty interests" were served by having the elector supply the date. The plurality thus found it would be inappropriate to disqualify the ballot due to the date's omission. See id. at 1076-78.⁷ Dissenting on that point, three other Justices viewed the date as serving weighty interests such as providing a point in time against which to measure the elector's eligibility to cast the ballot, and ensuring the elector completed it within the proper timeframe. They accordingly viewed the statutory language as mandatory. See id. at 1090-91 (Dougherty, J., concurring and dissenting). For his part, Justice Wecht opined the date requirement is "stated in unambiguously mandatory terms," and he observed nothing in the Election Code suggests it should be construed as merely directory. He nonetheless provided the fourth vote for the result, noting he would only apply his interpretation prospectively due to the "circumstances under which the issue has arisen[.]" Id. at 1079-80 (Wecht, J., concurring and dissenting); see also Ball v. Chapman, 289 A.3d 1, 9-11 (Pa. 2023) (Opinion by Wecht, J., more fully summarizing the judicial expressions in Absentee & Mail-In 2020). The upshot is that when we decided Absentee & Mail-In 2020 four years ago, a majority of this Court agreed that the phrase "shall then . . . date" should, as a matter of Pennsylvania law, be deemed mandatory for all cases subsequent to that decision. Accord Ball, 289 A.3d at 28.

7 See also Shambach v. Bickhart, 845 A.2d 793, 801-02 (Pa. 2004) (finding the Election Code's provision that an elector may write in the name of a person not already on the ballot was directory; therefore, write-in votes for a person already on the ballot should be counted - particularly as the Election Code did not specify that such votes should not be counted); In re Luzerne Cnty. Return Bd., 290 A.2d 108, 109 (Pa. 1972) (where the Election Code required ballots to be marked in blue, black, or blue-black ink, reasoning the purpose of such provision was to prevent ballots from being identifiable, and holding ballots marked in green or red ink should be counted - particularly as the Election Code did not specify that any other color ink would void the ballot).

Presently, the "shall place his signature" language in paragraph 3050(a.4)(3) is equally clear and unambiguous, and the interests it serves are evident from the statute itself: the Board must compare the signature on the outer envelope with the one on the elector's registration form to assess whether it is genuine and executed by the same person who signed the affidavit. Only then is the board permitted to count the ballot. See 25 P.S. § 3050(a.4)(5)(i). See generally Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) (recognizing States have "important regulatory interests" in orderly elections, and those interests are sufficient to justify the enforcement of reasonable, nondiscriminatory rules governing candidate eligibility, voter registration, and the voting process). And Section 1210 buttresses this requirement by directing that a provisional ballot with an unsigned envelope "shall not be counted." Id. § 3050(a.4)(5)(ii). The General Assembly has thus spelled out the consequences for an elector's failure to sign the outer envelope - a factor that distinguishes this case from Absentee & Mail-In 2020, Shambach, and Luzerne County Return Board. See supra note 7; see also Oncken v. Ewing, 8 A.2d 402, 404 (Pa. 1939) ("If the law itself declares a specified [election] irregularity to be fatal the courts will follow that command, irrespective of their views of the importance of the requirement.") (internal quotation marks and citation omitted). Because there is no ambiguity in this language, there is presently no room for application of the concept that "technicalities should not be used to make the right of the voter insecure," James, 105 A.2d at 66, or the interpretive principle that the Election Code is subject to a liberal construction in favor of the right to vote. Those precepts are venerable and well established, but they only apply where there is some uncertainty about what the Election Code requires. There is no uncertainty here. See generally Absentee & Mail-In 2020, 241 A.3d at 1089 (Wecht, J., concurring) ("In case after case involving the Election Code, . . . we have been reminded how important it is that the General Assembly provide unambiguous guidance for the administration of the election process. But it is imperative that we recognize when the legislature has done precisely that, and resolve not to question the legislature's chosen language when it has done so.").

Because the statute contains no exceptions, moreover, it does not allow for differential treatment where the voter's electoral intent is clear and there is no suggestion of fraud, or where the voter is later informed by telephone that the ballot was accepted. These considerations are presently forwarded as reflecting equitable principles, but we have held that where the General Assembly "has attached specific consequences to particular actions or omissions, Pennsylvania courts may not mitigate the legislatively prescribed outcome through recourse to equity." In re Guzzardi, 99 A.3d 381, 386 (Pa. 2014). That being the case, the Board's decision to canvass the Wagner ballot, and the county court's affirmance of that decision, failed to comply with the Election Code's requirements.⁸

8 There is no suggestion in the record, nor did the trial court find as a fact, that the election workers told Wagner not to sign the envelope. Wagner testified he was told he did not have to date some unspecified document, see N.T., May 9, 2024, at 22, but he never claimed he was told not to sign the outer envelope. As noted above, at the trial court hearing Wagner thought he "probably" did sign that envelope. Id. at 24. The issue before us might be different if the record reflected that the government or its agents affirmatively dissuaded Wagner from signing the envelope. We leave for another day whether that difference would materially change our analysis.

In the dissenting portion of her responsive opinion, Justice Donohue proposes that the above procedures do not apply to an elector who is issued a mail-in ballot and then shows up on election day to vote in person. Although such individuals are directed to "vote by provisional ballot under section 1210(a.4)(1)," 25 P.S. § 3150.16(b)(2), the dissent views the concept of casting a ballot "under" that paragraph as distinct from casting a ballot "in accordance with subsection [1210](a.4)," 25 P.S. § 3050(a.2), noting further that the General Assembly "pinpointed" paragraph (1) of subsection (a.4). Concurring and Dissenting Op. at 9. The dissent thus asserts that only paragraph (a.4)(1) applies in that type of situation, and so paragraphs (a.4)(2)-(12) have no application. See id. at 9-10 (indicating "the other provisions that fall under Section 3050(a.4)" including the signature and signature-comparison requirements of (a.4)(3) and (5), "simply do not apply" to voters in Wagner's circumstances).

Paragraph (a.4)(1) states, in its entirety:

At all elections an individual who claims to be properly registered and eligible to vote at the election district but whose name does not appear on the district register and whose registration cannot be determined by the inspectors of election or the county election board shall be permitted to cast a provisional ballot. Individuals who appear to vote shall be required to produce proof of identification pursuant to subsection (a) and if unable to do so shall be permitted to cast a provisional ballot. An individual presenting a judicial order to vote shall be permitted to cast a provisional ballot.

25 P.S. § 3050(a.4)(1).⁹ As can be seen, paragraph (a.4)(1) allows a voter to "cast a provisional ballot" but it includes no method for doing so. The remaining paragraphs are integrally intertwined with paragraph (1) as they spell out the mechanics by which the ballot referred to in paragraph (1) is to be cast and handled thereafter by the poll workers and the county election board.¹⁰ Such paragraphs are thus essential to the operation of the scheme by which any provisional ballot may be cast.

9 The above references proof of identification pursuant to subsection (a), which provides, in full: "(a) At every primary and election each elector who appears to vote and who desires to vote shall first present to an election officer proof of identification. The election officer shall examine the proof of identification presented by the elector and sign an affidavit stating that this has been done." Id. § 3050(a).

10 See, e.g., id. § 3050(a.4)(3) (requiring all provisional ballots to remain in their sealed envelopes for return to the county election board); id. § 3050(a.4)(4) (requiring the election board to examine provisional ballot envelopes within seven days after the election and giving the means for challenges); id. § 3050(a.4)(8) (requiring the judge of elections to certify the total number of provisional ballots cast and transmitted to the election board).

In contrast, under the dissent's interpretation, because only paragraph (a.4)(1) would pertain there would be no statutory methodology at all. There would be no requirement that the voter place the ballot in a secrecy envelope or that the ballot be sealed in an outer envelope for return to the county election board, nor would the voter need to sign an affidavit attesting that this is the only ballot he is casting in the present election - as those mandates are stated in paragraphs (a.4)(2) and (3). The ballot could remain "naked" with no statutory instructions concerning how it is to be handled. Furthermore, there could remain nothing associated with the ballot to record the fact that a particular voter cast it, as ballots do not themselves have such identifying information. While the poll workers may have no record that the elector's mail-in ballot was already received, mail-in ballots need not arrive at the county election board until 8:00 p.m. on election night. This could open up an opportunity for double-voting.

In characterizing its reading as giving rise to an ambiguity, the dissent makes no mention of what procedure would be required by law, opting instead to focus on the concept that one of the difficulties the signature mandate alleviates is less compelling where the election workers are able to locate the person's name on the district register as someone who requested a mail-in ballot. But even assuming arguendo the need for a signature on the outer envelope is not as pronounced in that instance as in other scenarios, see Concurring and Dissenting Op. at 11-13 (referring to the "mischief to be remedied" in each circumstance), the dissent does not explain why all the other mechanical facets of paragraphs (a.4)(2)-(12) are unnecessary - and it would be arbitrary to view some but not all of the procedural requirements inherent in paragraphs (a.4)(2)-(12) as being presently applicable.

A more natural reading - and one that avoids a result that is "absurd, impossible of execution or unreasonable," 1 Pa.C.S. § 1922(1) - is that the General Assembly intended that any provisional ballot cast "under" (a.4)(1) necessarily implicates the procedures given in the succeeding paragraphs for how that ballot is to be cast and treated thereafter.

Finally, we are not persuaded constitutional principles require us to ignore such statutory requirements. Although the Board references this Court's pronouncement that voting regulations may not "deny the franchise itself, or make it so difficult as to amount to a denial," Winston v. Moore, 91 A. 520, 523 (Pa. 1914), the Board does not indicate how a statute that requires an elector voting by provisional ballot to sign the ballot's outer envelope denies the franchise or makes it so difficult as to amount to a denial.

III. The O'Donnell ballot

Turning now to the O'Donnell ballot, Walsh contends the Commonwealth Court erred in allowing that ballot to be canvassed given that O'Donnell's voter registration had been transferred to Schuylkill County. He argues O'Donnell always intended to return to his home that was undergoing renovations, which was therefore O'Donnell's legal domicile well before he physically moved back there. Cabell responds that the panel's interpretation of Section 701 was sound and accorded with its plain terms, which state:

Every citizen of this Commonwealth eighteen years of age, possessing the following qualifications, shall be entitled to vote at all elections, provided he or she has complied with the provisions of the acts requiring and regulating the registration of electors:

(1) He or she shall have been a citizen of the United States at least one month.

(2) He or she shall have resided in the State ninety days immediately preceding the election.

(3) He or she shall have resided in the election district where he or she shall offer to vote at least thirty days immediately preceding the election, except that if qualified to vote in an election district prior to removal of residence, he or she may, if a resident of Pennsylvania, vote in the election district from which he or she removed his or her residence within thirty days preceding the election.

25 P.S. § 2811 (emphasis added). Cabell notes the trial court found O'Donnell physically moved out of his mother's house and into his newly-renovated house on March 29, 2024, which was within 30 days preceding the election, and he argues we should not disturb that finding as it is supported by O'Donnell's testimony.

A person's legal residence is not simply "wherever he says it is or where he says he intends it to be." In re Stabile, 36 A.2d 451, 452 (Pa. 1944) (emphasis in original). It is a question of fact to be determined based on the evidence of record. See id. While a person may have several residences, see Melmark, Inc. v. Schutt, 206 A.3d 1096, 1102 n.4 (Pa. 2019), "only one of those residences may qualify as that person's residence or domicile for purposes of the Election Code." In re Nomination Petition of Driscoll, 847 A.2d 44, 49-50 (Pa. 2004). Under Section 704 of the Election Code, when determining a voter's residence, the following rules, where applicable, are to be followed:

(a) That place shall be considered the residence of a person in which his habitation is fixed, and to which, whenever he is absent, he has the intention of returning.

(b) A person shall not be considered to have lost his residence who leaves his home and goes into another state or another election district of this State for temporary purposes only, with the intention of returning.

(c) A person shall not be considered to have gained a residence in any election district of this State into which he comes for temporary purposes only, without the intention of making such election district his permanent place of abode.

(d) The place where the family of a married man or woman resides shall be considered and held to be his or her place of residence, except where the husband and wife have actually separated and live apart, in which

case the place where he or she has resided for two months or more shall be considered and held to be his or her place of residence.

(e) If a person removes to another state with the intention of making such state his permanent residence, he shall be considered to have lost his residence in this State.

(f) If a person removes to another state with the intention of remaining there an indefinite time and making such state his place of residence, he shall be considered to have lost his residence in this State, notwithstanding he may entertain an intention to return at some indefinite future period.

(g) If a person removes to the District of Columbia or other Federal territory or foreign country to engage in the government service, he shall not be considered to have lost his residence in this State during the period of such service, and the place where the person resided at the time of his removal shall be considered and held to be his place of residence.

(h) If a person goes into another state and while there exercises the right of a citizen by voting, he shall be considered to have lost his residence in this State.

25 Pa.C.S. § 2814; see also 25 Pa.C.S. § 1302(b) (reflecting a similar list of rules for determining residence).

A review of these rules demonstrates that intent does play a crucial role in the establishment of residency under the Election Code. For example, under the first rule a person's move to another election district does not divest that person of residency in the original district where that person intends the move to be temporary and intends to return. A similar focus on intent is evident from rules (c), (e), and (f). Accord Driscoll, 847 A.2d at 50 (explaining a person cannot simply declare a new residence by purchasing a home; that person must intend to live there permanently); see also In re Lesker, 105 A.2d 376, 380 (Pa. 1954) (distinguishing a "tarrying place for some specific purpose of business or pleasure" from a "fixed, permanent, final home to which one always intends to return"). Because of this, Walsh emphasizes O'Donnell always intended to live permanently in the McAdoo home he purchased in June 2023. Walsh posits such intent is only confirmed by O'Donnell's act of changing his vehicle registration to that address in December 2023, well over 30 days before the election. See Brief for Appellant a 22-23.

While these arguments are forceful as to the intent element, they omit consideration of the date O'Donnell moved to McAdoo. The trial court found as a fact that O'Donnell physically moved to his new house on March 29, 2024. As that finding was based on O'Donnell's testimony, which the trial court expressly credited, see In re: Canvass of Provisional Ballots in 2024 Primary Election, slip op. at 5 (C.P. Luzerne May 22, 2024) (unnumbered), reprinted in Brief for Walsh at Exhibit B, we will not disturb it.¹¹ This factor is relevant because the Election Code's rules pertaining to residence (listed above) reflect that a person's intent to stay in a place must be combined with a physical move to that place in order for a new residence to be established. There is no suggestion that establishment of a new place of residence can be accomplished through intent only prior to the actual relocation. Accord In re Prendergast, 673 A.2d 324, 327-28 (Pa. 1996) ("A new domicile can be acquired only by physical presence at a new residence plus intent to make that new residence the principal home."); In re Hanssens, 821 A.2d 1247, 1251-52 (Pa. Cmwlth. 1998) (same). We therefore agree with the Commonwealth Court and the trial court that O'Donnell's residence for Election Code purposes remained in Butler Township until March 29, 2024.

11 Appellate courts review deferentially the facts as found by the trier of fact, who hears witness testimony first-hand and is thus better positioned to evaluate the credibility of the evidence. See Commonwealth v. Johnson, 231 A.3d 807, 818 (Pa. 2020). Here, the finding is adequately supported by the record. O'Donnell's testimony reflects that when he purchased the house it was "basically unlivable," and thus, a great deal of work had to be done before he could move in. N.T., May 9, 2024, at 31-32. While O'Donnell may have spent a few sporadic nights at the house, this was only to oversee the work that was taking place, and he did not move most of his belongings there, and move in with the intent of staying, until March 29, 2024. See id. at 32-33.

Still, the Board argues that on election day O'Donnell could have voted in his new election district in Schuylkill County based on PennDOT having transferred his voter registration to that location in response to the change to his vehicle registration. See Brief for Appellee (Board) at 19-22. The Board references provisions of the National Voter Registration Act (NVRA),¹² and the Pennsylvania Voter Registration Act (PVRA),¹³ under which motor-vehicle driver's license applications trigger voter registrations or registration changes. See id. at 20-21 (citing 25 Pa.C.S. § 1323; 52 U.S.C. §§ 20502, 20504). Conceding that the definition of a driver's license for NVRA purposes is limited to a state-issued "personal identification document," 52 U.S.C. § 20502(3) (emphasis added), the Board nonetheless insists such definition encompasses a vehicle registration. The Board adds that, once O'Donnell's registration was thus transferred in compliance with NVRA and PVRA, he lost his legal authorization to vote in Butler Township. See 25 Pa.C.S. § 1301.

12 Pub. L. No. 103-31, 107 Stat. 77, May 20, 1993 (codified as amended at 52 U.S.C. §§ 20501-20511).

13 Act of Jan. 31, 2002, P.L. 18, No. 3 (codified as amended at 25 Pa.C.S. §§ 1301-1329).

The Board's argument is not well taken. In the first place, there is little reason to believe Congress intended the term "personal identification document" to subsume vehicle registration documents - and the Board cites no authority for that tenuous reading. For its part, in passing PVRA the General Assembly clearly had a different understanding,¹⁴ as PVRA only authorizes PennDOT to provide a simultaneous application for voter registration, including an application to update an existing voter registration, in conjunction with the process for obtaining a driver's license per 75 Pa.C.S. § 1510.¹⁵ Any administrative decision by PennDOT or the Pennsylvania Department of State to transfer an elector's voter registration without that person's affirmative consent in conjunction with a PennDOT application to change a vehicle registration, as opposed to a driver's license, is therefore of questionable validity, particularly where, as here, no party has identified a valid administrative regulation authorizing such action.

14 PVRA was intended to adopt NVRA's voter registration requirements so as to allow Pennsylvania to maintain a single voter registry for federal, state, and local elections. See In re Vodvarka, 140 A.3d 639, 648 (Pa. 2016), superseded by statute on other grounds, as recognized by In re Major, 248 A.3d 445, 447-48 (Pa. 2021).

15 See 25 Pa.C.S. § 1323(a); see also id. § 1321 (reflecting four ways an individual may register to vote, including by applying for a driver's license, but not including applying for a vehicle registration or a registration change).

Even if we were to accept arguendo that O'Donnell's voter registration was validly changed in combination with the change to his vehicle registration, he could not have lawfully voted in the new district because he did not reside there until March 29, 2024. See Pa. Const. art. VII, § 1(3) (setting forth as a qualification to vote that a person must have "resided in the election district . . . at least sixty (60) days immediately preceding the election").¹⁶ Moreover, his entitlement to vote in Butler Township was guaranteed by Section 701(3) of the Election Code, see 25 P.S. § 2811(3), so long as his change of residence occurred within 30 days prior to the election - unless there is some reason to believe Section 701(3) did not apply under the present circumstances. Along these lines, the Board highlights that Section 1301(c) of PVRA, see 25 Pa.C.S. § 1301(c), reflects a general rule that a residence change results in an elector losing his right to vote in his old district. If set forth without exception, that rule might conflict with Section 701(3) of the Election Code. But it is not without exception: it is stated to be "except as provided by law," which necessarily includes Section 701.¹⁷ While certainly O'Donnell could not lawfully vote in two places in the same election, where, as here, his residence changed "within thirty days preceding the election," he was "entitled to vote" in his old district. 25 P.S. § 2811(3); see also Pa. Const. art. VII, § 1 (directing that every qualified elector "may, if a resident of Pennsylvania, vote in the election district from which he or she removed his or her residence within sixty (60) days preceding the election").

16 We offer no opinion concerning the difference between the statutory 30 days and the 60 days reflected in the Constitution, as no such issue has been raised in this case.

17 To be precise, Section 1301(c) is made applicable "except pursuant to the provisions of this section," one of which is subsection 1301(b). That subsection, in turn, states that "[n]o individual shall be permitted to vote at any election unless the individual is registered under this subsection, except as provided by law[.]" 25 Pa.C.S. § 1301(b) (emphasis added). To the extent there is any doubt about how these statutory provisions interact, as explained above it must be resolved to protect the franchise.

Finally, the Board contends this result will lead to confusion among county election officials. See Brief for Appellee (Board) at 22. The legislatively designed provisional-ballot mechanism seeks to alleviate some of this confusion by allowing a vote to be cast and any issues raised with respect to that vote to be cleared up within a reasonable interval after the election. In handling provisional ballots in the post-election timeframe, county election boards are directed to consult the governing law as clarified by the analysis contained in judicial decisions such as this one. In all events our obligation in resolving the present appeal is to faithfully interpret and apply that law. Any lingering confusion is a matter to be remedied by the General Assembly and/or the appropriate administrative agencies to the extent of their authorization.

IV. Conclusion

For the reasons given above, the order of the Commonwealth is affirmed.

Chief Justice Todd and Justices Dougherty, Wecht and Brobson join the opinion.

Justice Wecht files a concurring opinion in which Justice Brobson joins.

Justice Donohue files a concurring and dissenting opinion in which Justice McCaffery joins.

CONCURRING OPINION

WECHT JUSTICE

Yet again, we are called upon to decide whether the Election Code really means what it says. Like the Majority, I believe that it does, and that the two issues presented in this appeal are resolved by the plain statutory language and the facts established in the trial court. I join the Majority Opinion in full.

In the first issue on appeal, the appellant, Jamie Walsh, argues that the Luzerne County Board of Elections should be required to count the provisional ballot cast by Timothy Wagner, even though Wagner did not sign the outer envelope as the Election Code requires.¹ Rather than examining what the statute requires, Walsh would have us disregard the statute based upon Wagner's clear electoral intent, the instructions of election workers, and the absence of any allegation of fraud. The Majority correctly rejects this argument. Not only does the Election Code unambiguously require the signature-the voter "shall" place his or her signature on the front of the envelope²-the Code unambiguously imposes a consequence for failing to do so. The ballot "shall not be counted."³

1 25 P.S. § 3050(a.4)(3) ("After the provisional ballot has been cast, the individual shall place it in a secrecy envelope. The individual shall place the secrecy envelope in the provisional ballot envelope and shall place his signature on the front of the provisional ballot envelope. All provisional ballots shall remain sealed in their provisional ballot envelopes for return to the county board of elections.").

2 25 P.S. § 3050(a.4)(3).

3 25 P.S. § 3050(a.4)(5)(ii) (providing that a provisional ballot without the signature required by 20 P.S. § 3050(a.4)(3) "shall not be counted").

This appeal is the latest in a line of cases in which the courts are asked to disregard unambiguous statutory requirements for voting because those requirements are purportedly not a "necessity," because they are directives rather than mandates, or because they are mere "technicalities." Although the proffered reasons change, the idea is the same: this Court should disregard plain statutory requirements in favor of counting non-compliant votes. Although the Court has been amenable to such arguments in the past, I continue my efforts to turn this unfortunate tide. We must apply clear statutory mandates.

Seventy years ago, for example, construing a provision of the Election Code that authorized a voter to write-in the name of a candidate whose name was not already printed on the ballot,⁴ this Court focused not upon the statutory language but upon the principle that election laws are to be construed in favor of the right to vote, and that "[t]echnicalities should not be used to make the right of the voter insecure."⁵ In Appeal of Weiskerger,⁶ we held that the Election Code did not require the disqualification of ballots that were not completed in the color of ink that the Election Code required, because the statute's mandatory language was only directory, and because "minor irregularities" should only sparingly be used to disqualify a ballot.⁷

4 25 P.S. § 2963(e).

5 Appeal of James, 105 A.2d 64, 65-66 (Pa. 1954).

6 290 A.2d 108, 109 (Pa. 1972).

7 Id. at 109 (quoting Reading Election Recount Case, 188 A.2d 254, 256 (1963)).

Because the Court decided James and Weiskerger before the 1972 enactment of the Statutory Construction Act ("SCA"), which requires courts to consider legislative intent only when the statutory language is ambiguous,⁸ their continued viability is questionable.⁹ In In re Canvass of Absentee and Mail-In Ballots of November 3, 2020 General Election ("Absentee & Mail-In 2020"),¹⁰ however, the Opinion Announcing the Judgment of the Court ("OAJC") reanimated the ideas that we should continue to construe clear statutory law regulating voting "to insure rather than defeat the exercise of the right of suffrage," that "technicalities should not be used to make the right of the voter insecure," and that requirements that the Court believed to be "unnecessary" may be overlooked.¹¹ Because the statutory requirement was plainly made "in unambiguously mandatory terms," I indicated my intent to treat the requirements of the Election Code as mandatory in future elections.¹²

8 See 1 Pa.C.S. § 1921(b).

9 Appeal of Pierce, 843 A.2d 1223, 1231 (Pa. 2004).

10 241 A.3d 1058 (Pa. 2020) (plurality).

11 Id. at 1062 (quoting James, 105 A.2d at 66)

12 Id. at 1079 (Wecht, J., concurring and dissenting). The statutory requirements at issue were contained in 25 P.S. §§ 3146(a) and 3250.16(a), which provided that absentee and mail-in voters "shall" date the outer envelope of the ballot. Although I found the statutory requirement to be unambiguous, I also recognized the circumstances under which the issue arose, including confusing and contradictory guidance issued by the Secretary of State and the lack of information available to voters regarding the consequence of failing strictly to adhere to the requirements. Id. at 1089. These circumstances led me to apply my interpretation prospectively. Id. at 1080.

I am perplexed by the continued profusion and proliferation of briefing from litigants and amici curiae alike advocating for the acceptance of ballots that do not comply with the plain terms of the Election Code. I urge litigants and their amici to redirect their pleading from the judiciary to the political actors who have a role in establishing the statutory voting requirements. It is the legislature that drafts, and the Governor that approves, the legal prerequisites to having a ballot counted. Challenges to the counting of ballots or to the disregard of ballots inherently arise in a politics-laden area of the law. Arguments about voting requirements and efforts to liberalize provisions of the Election Code should be directed to these political branches.

The judiciary does not make policy judgments about the franchise outside of constitutional requirements¹³ or the common law. "[T]he judiciary should act with restraint, in the election arena, subordinate to express statutory directives. Subject to constitutional limitations, the Pennsylvania General Assembly may require such practices and procedures as it may deem necessary to the orderly, fair, and efficient administration of public elections in Pennsylvania."¹⁴ Indeed, it is befuddling and frustrating that advocacy to disregard the plain text of legislation continues in the judiciary, particularly given the amenability of the political branches to such lobbying. To the extent that Walsh believes that Wagner's electoral intent was clear, that Wagner followed the instructions of a poll worker, that there was no evidence of fraud, and that these circumstances militate in favor of disregarding the signature requirement of Section 1210(a.4)(3),¹⁵ these arguments should be directed to the General Assembly, not the courts.

13 See, e.g., Pa. Const. art. 1, § V ("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.").

14 In re Guzzardi, 99 A.3d 381, 386 (Pa. 2014).

15 25 P.S. § 3050(a.4)(3).

While we interpret ambiguous terms in favor of ensuring enfranchisement in the absence of fraud and in the presence of clear voter intent, our liberal construction does not give us license to disregard the plain language of the Election Code.¹⁶ As we recently explained, "while it is established public policy in this Commonwealth to protect the elective franchise, a liberal construction of Code provisions comes into play only where an election statute is ambiguous."¹⁷ Indeed, there is no need to liberally construe anything in the face of plain language.

16 Appeal of Pierce, 843 A.2d at 1231 ("All things being equal, the law will be construed liberally in favor of the right to vote but, at the same time, we cannot ignore the clear mandates of the Election Code."); Trust under Agreement of Taylor, 164 A.3d 1147, 1155 (Pa. 2017) ("If the language of the statute clearly and unambiguously sets forth the legislative intent, it is the duty of the court to apply that intent and not look beyond the statutory language to ascertain its meaning.").

17 In re Major, 248 A.3d 445, 450 (Pa. 2021) (internal quotations omitted); see also id. ("Only where there are at least two reasonable interpretations of the text do we then turn to interpretive principles that govern ambiguous statutes generally, and election matters specifically, including the principle that the Election Code must be liberally construed so as not to deprive an individual of his right to run for office, or the voters of their right to elect a candidate of their choice.") (internal quotations omitted); Pennsylvania Democratic Party v. Boockvar, 238 A.3d 345, 360-61 (Pa. 2020) ("PDP")(applying the interpretive principle that the Election Code is to be liberally construed after determining that the statute is ambiguous); Petition of Cianfrani, 359 A.2d 383, 384 (Pa. 1976) ("the policy of the liberal reading of the Election Code cannot be distorted to emasculate those requirements necessary to assure the probity of the process.").

Here, the General Assembly imposed a clear requirement for Wagner to sign the privacy envelope of his provisional ballot,¹⁸ and there is a clear consequence for his failure to do so: it "shall not be counted."¹⁹ It does not matter what Wagner's intent was, what result equity would favor,²⁰ whether fraud was absent, or whether Walsh viewed this requirement as a "technicality" that the courts are somehow free to disregard. Neither equitable nor extratextual considerations have any place in the application of the Election Code's plain language.²¹ This is true even if the General Assembly's requirement "appears to have a disenfranchising effect," or even if jurists think such a requirement is foolish or ridiculous or benighted, so long as the statute is constitutional.²² Our only task in applying unambiguous legislative enactments is to recognize that the legislature meant what it said.

18 25 P.S. § 3050(a.4)(3).

19 Id. § 3050(a.4)(5).

20 See Guzzardi, 99 A.3d at 382 (holding that Pennsylvania courts may not resort to principles of equity to override "the express statutory command that the failure of a candidate for statewide public office to file a timely statement of financial interests . . . shall . . . be a fatal defect to a petition to appear on the ballot") (quoting 65 Pa.C.S. § 1104(b)(3)).

21 Id. at 387 (holding that, "where the Legislature has attached specific consequences to particular actions or omissions, Pennsylvania courts may not mitigate the legislatively prescribed outcome through recourse to equity").

22 Canvass of Absentee & Mail-In 2020, 241 A.3d at 1082 (Wecht, J., concurring and dissenting).

In making his argument, Walsh asserts that the requirement for Wagner to place an additional signature on the front of the outer envelope was unnecessary. In Absentee & Mail-In 2020, the OAJC engaged in a similar analysis, holding that the requirement of a handwritten date was rendered "unnecessary" as a result of the date-stamping of ballots by county boards of elections.²³ Both of these analyses miss the mark. It is not a question of what a particular judge or justice or court may believe to be necessary. Indeed, if our opinions about what should be necessary were at all relevant to our interpretation of the Election Code, our work would never end. The legislature, with the Governor's approval, decides what is or is not necessary.²⁴ When those branches enacted the Election Code, with all of its mandates, the policy choices about what is or is not necessary were baked into the terms of the statute. The question for a court is not what is "necessary." The question is what the statute means. And if the language is plain, the answer is clear.

23 Id. at 1077.

24 Guzzardi, 99 A.3d at 386 (recognizing that the General Assembly is the arbiter of what is "necessary to the orderly, fair, and efficient administration of public elections in Pennsylvania").

Walsh attempts to overcome the plain language of Section 1210 of the Election Code by challenging the mandatory nature of the word "shall" contained therein.²⁵ Walsh again relies upon the OAJC in Absentee & Mail-In 2020 as holding that the Election Code's use of the word "shall" is directory, rather than mandatory, when the statutory requirement can be considered "unnecessary."²⁶ Walsh believes that Wagner's signature was "unnecessary and superfluous,"²⁷ rendering the statutory use of "shall" in 25 P.S. § 3050(a.4)(5)(ii) directory, not mandatory, and Wagner's failure to comply to be inconsequential.

25 25 P.S. § 3050(a.4)(3) (providing that the individual voting by provisional ballot "shall place his signature on the front of the provisional ballot envelope"); see also id. at § 3050(a.4)(5) (providing that a provisional ballot without such a signature "shall not be counted").

26 Appellant's Br. at 9.

27 Id. at 19.

In construing the requirement that a voter casting a provisional ballot "shall place his signature on the front of the provisional ballot envelope,"²⁸ the Majority recognizes that this Court has sometimes interpreted the word "shall" as directory rather than mandatory, and has refused to disqualify ballots that did not conform to the statute.²⁹Whether "shall" is directory-"you should"-or mandatory-"you must"-is a question that Pennsylvania courts have "labored mightily but in vain" to answer.³⁰

28 25 P.S. § 3050(a.4)(3).

29 Maj. Op. at 7.

30 PDP, 238 A.3d at 391 (Wecht, J., concurring and dissenting).

Although in James the Court disregarded a mandatory requirement indicated by use of the word "shall,"³¹ we held shortly thereafter that "shall" as used in Section 909 of the Election Code³² was "mandatory."³³ "To hold otherwise would be to thwart the evident intent and purpose of the provision and to introduce confusion, if nothing worse, in connection with the filing of nomination petitions."³⁴ And although Weiskerger ³⁵ held that a requirement of the Election Code was directory because the Code did not specify that noncompliance would void the ballot, Pierce called this analysis into question given the subsequent enactment of the SCA.³⁶ Applying the SCA to our interpretation of the Election Code in Pierce, we observed that, "all things being equal, the law will be construed liberally in favor of the right to vote but, at the same time, we cannot ignore the clear mandates of the Election Code."³⁷ Acknowledging that "some contexts may leave the precise meaning of the word 'shall' in doubt,"³⁸ the Pierce Court recognized "the unambiguous meaning of the word in most contexts" as carrying "an imperative or mandatory meaning."³⁹

31 James, 105 A.2d at 66.

32 25 P.S. § 2869.

33 In re Steel, 105 A.2d 139, 141 (Pa. 1954).

34 Steel, 105 A.2d at 141.

35 290 A.2d at 109.

36 Pierce, 843 A.2d at 1231 ("Wieskerger Appeal, of course, was decided before the enactment of the Statutory Construction Act, which dictates that legislative intent is to be considered only when a statute is ambiguous."); Oberneder v. Link Computer Corp., 696 A.2d 148, 150 n. 2 (Pa. 1997) (reliance on case for proposition that "shall" may be merely directory depending upon legislature's intent misplaced because case was decided before enactment of Statutory Construction Act).

37 Pierce, 843 A.2d at 1231.

38 Id. (citing B. Garner, Dictionary of Modern Legal Usage 939 (2d. ed. 1995) ("Courts in virtually every English speaking jurisdiction have held-by necessity-that shall means may in some contexts, and vice versa")).

39 Id.; see also Oberneder, 696 A.2d at 150 ("By definition, 'shall' is mandatory.").

Notwithstanding the Pierce Court's attempt to rein in the slippery language of Weiskerger, the Court reverted to type just days later in Shambach v. Bickhart,⁴⁰ holding that the Election Code's requirement that a write-in vote could only be made for a candidate not already on the ballot was directory, rather than mandatory, because the Code did not require non-compliant write-in votes to be excluded. The Shambach Court relied upon precedent pre-dating the SCA, as well as the absence of a legislative consequence for noncompliance.⁴¹

40 845 A.2d 793, 801-02 (Pa. 2004).

41 Id. at 801 (rejecting the argument that the Election Code requires write-in votes cast for listed candidates to be excluded; stating the Code "does not declare that such a write-in vote must be voided and may not be counted").

Later, in In re Scroggin, the Court returned to applying the language of the Election Code according to its terms, holding that the failure to comply with the affidavit requirement of 25 P.S. § 2911(e) was a fatal defect.⁴² In this context, we held that "the policy of the liberal reading of the Election Code cannot be distorted to emasculate" the mandatory affidavit requirement, which the General Assembly had deemed "necessary to assure the probity of the process."⁴³

42 237 A.3d 1006, 1019 (Pa. 2020).

43 Id. (quoting Cianfrani, 359 A.2d at 384)

In PDP, we applied the Election Code's mandatory requirement that mail-in ballots be sealed in secrecy envelopes and rejected the argument that "shall" should be interpreted as directory. Accepting such an argument would render the Election Code's clear language "meaningless and, ultimately, absurd."⁴⁴ Our analysis in PDP, as in Pierce, was clear: "shall means shall."⁴⁵ Although I joined the Majority in PDP, I wrote separately in support of the Court's ruling that a violation of the statutory requirement that mail-in ballots be returned in their secrecy envelopes resulted in the invalidation of those ballots.

44 238 A.3d at 379.

45 Absentee & Mail-in 2020, 241 A.3d at 1084 (Wecht, J., concurring and dissenting) (emphasis in original) (citing PDP, 238 A.3d at 380, Pierce, 843 A.2d at 1232).

In Absentee & Mail-In 2020, a plurality of the Court held that absentee and mail-in ballots should be counted even though the declaration on the outer envelope lacked a date, which the Election Code required the voter to supply.⁴⁶ In reaching this conclusion, the OAJC construed the word "shall" as directory ("i.e., a directive from the Legislature that should be followed but the failure to provide the information does not result in invalidation of the ballot"⁴⁷) rather than mandatory, because, in the plurality's view, the Election Code's date requirements did not serve any "weighty interests."⁴⁸ Because the Election Code's date requirement was clear and unambiguous, I did not agree. Rather, in my view, "the only practical and principled alternative" to having courts second-guess whether the legislature meant a requirement to be mandatory, "is to read 'shall' as mandatory."⁴⁹

46 Id. at 1062.

47 Id.

48 Id. at 1076-77 (quoting PDP, 238 A.2d at 379-80).

49 Id. at 1087 (Wecht, J., concurring and dissenting).

Concurring in both PDP and Absentee & Mail-In 2020, I have tracked my "increasing discomfort with this Court's willingness to peer behind the curtain of mandatory statutory language in search of some unspoken directory intent."⁵⁰ After all of these cases, we should not be haggling over whether a statutory requirement indicated by the verb "shall" is directory or mandatory. The General Assembly relies upon the judiciary to apply the language that it writes into statutes. It knows the difference between a suggestion and a mandate and how to differentiate between the two. The onus is upon the legislature to make policy judgments about what is necessary to ensure the integrity of our elections, and it is the duty of the judiciary to construe these mandates as the plain language directs. Only by reading "shall" as mandatory do we respect the legislative prerogative for making policy judgments about the conduct of elections.

50 Id. at 1080 (Wecht, J., concurring and dissenting).

Any arguments about the meaning of "shall" in 25 P.S. § 3050(a.4)(3) are particularly unpersuasive in this case because the General Assembly has attached a particular consequence for failing to adhere to the mandate to sign the privacy envelope of a provisional ballot.⁵¹ Having established a clear consequence for the failure to follow the mandatory signature requirement, the General Assembly avoids any textual confusion that may arise in light of our sometimes befuddling precedent construing the term "shall."

51 25 P.S. § 3050(a.4)(5)(ii)(A).

In advancing his argument, Walsh minimizes Wagner's failure to abide by the signature requirement as "a mere technical error."⁵² Encouraged by the OAJC in Absentee & Mail-In 2020, Walsh suggests that if a requirement of the Election Code can be considered a technicality, then noncompliance with that requirement may be excused.

52 Appellant's Br. at 19.

We are faced with the repeated invocation through litigation and jurisprudence that ballots are being disregarded because of "mere technicalities," as if the statutory requirements to have votes counted are meaningless drivel. The dissent in the Commonwealth Court, for example, disregarded the statutory language by characterizing Wagner's failure to sign his ballot as a "mere technicality."⁵³ The plurality in Absentee & Mail-In 2020 similarly portrayed statutory requirements as "technicalities" that "should not be used to make the right of the voter insecure."⁵⁴ In a similar vein, the plurality also purported to discern whether a statutory mandate was truly directory by distinguishing between "weighty interests" and "minor irregularities," as if the Court has the discretion to disregard plain statutory language in service of the latter but not the former.⁵⁵

53 In re Canvass of Provisional Ballots in 2024 Primary Election, 628 C.D. 2024, 2024 WL 3252970, at *7 (Pa. Cmwlth. 2024) (Wolf, J., dissenting) (unreported).

54 241 A.3d at 1062.

55 Id. at 1073.

By this measure, statutory interpretation, the development of the common law, and upholding the Constitution are all endeavors that are equally subject to the same attack. Courts live in a world of technicalities. Technicality is our bailiwick, our bread and butter. It is the reason that litigants seek the clarity that we provide. Everything we do is enmeshed with technicalities. Indeed, a large part of the stock and trade of the legal profession is to advise, counsel, and litigate technicalities. I have no patience for the repeated invocation of technicalities as a way to disparage this Court's role in applying the law as written. Technicalities play too big a role in all aspects of the law to be dismissed as meaningless. Indeed, "[i]t is well-settled that the 'so-called technicalities of the Election Code' must be strictly enforced, 'particularly where . . . they are designed to reduce fraud.'"⁵⁶ The parties and the courts seem to characterize a statutory requirement as a technicality, a "minor irregularity,"⁵⁷ or superfluous,⁵⁸ when they seek to overcome clear statutory requirements.

56 Scroggin, 237 A.3d at 1018 (citing Pierce, 843 A.2d at 1234).

57 See Absentee and Mail-In 2020, 214 A.3d at 1082 (Wecht, J., concurring and dissenting) (observing that this Court has yet to define "minor irregularity" with anything approaching suitable rigor).

58 Id. at 1077 ("The date stamp and the SURE system provide a clear and objective indicator of timeliness, making any handwritten date unnecessary and, indeed, superfluous.").

Within the bounds of constitutional protections, the legislature is free to impose technicalities, and the courts are bound to apply them. Although the Election Code will be interpreted "with unstinting fidelity to its terms,"⁵⁹ considerations under the Constitution's Free and Equal Election Clause may moderate its enforcement in particular cases.⁶⁰ Arguments advanced under federal statutes, such as the Voting Rights Act,⁶¹ may also require additional considerations and analyses. Neither the Pennsylvania Constitution nor federal law is implicated in this case.

59 Id. at 1089 (Wecht, J., concurring).

60 Pa. Const. art. I, § 5.

61 52 U.S.C. § 10301.

With respect to the second issue on appeal-the O'Donnell ballot-Walsh argues that, because O'Donnell had transferred his voter registration to his new address in Schuylkill County, his provisional ballot in Luzerne County cannot be counted. The Majority rightly rejects this argument based upon the fact, found by the trial court, that O'Donnell did not move from Luzerne County until March 29, 2024.⁶² In an attempt to overcome this factual finding, the Luzerne County Board of Elections argues that O'Donnell was able to vote in Schuylkill County because the Department of Transportation ("PennDOT") transferred his voter registration to the new address when O'Donnell renewed his vehicle registration.

62 Maj. Op. at 13.

The fact that PennDOT transferred a voter's registration to a new address based upon the renewal of a vehicle registration strikes me as peculiar and worthy of comment. Walsh asserts that O'Donnell voluntarily changed his voter registration to his new home in December 2023,⁶³ and the trial court explained that O'Donnell "opted to change" his voter registration when he made the renewal.⁶⁴ The trial court cited testimony by an election official concerning a change in PennDOT's vehicle registration system in Summer 2023. That change requires persons registering vehicles to opt out of concurrent updates of their voter registration. Absent affirmative opt-out selections, the voter's address is now updated to that at which the vehicle is being registered.⁶⁵

63 Appellant's Br. at 10.

64 Tr. Ct. Op. at 5.

65 Id. at 6.

The Pennsylvania Voter Registration Act provides several methods of voter registration, none of which is tied to the application or renewal of a vehicle registration.⁶⁶To the extent PennDOT has taken it upon itself to transform a vehicle registration renewal into a change in voter registration, it appears to have done so in the absence of any legislative directive.⁶⁷ Although PennDOT's rogue transfer of voter registration in this case ultimately did not deprive O'Donnell of the right to vote, it would be troubling if PennDOT has a practice of making such a transfer without statutory authorization, or even the voter's consent.

66 25 P.S. § 1321.

67 See Maj. Op. at 15.

A final point. The Pennsylvania Constitution imposes several qualifications for the entitlement to vote. One such qualification is that the citizen:

shall have resided in the election district where he or she shall offer to vote at least sixty (60) days immediately preceding the election, except that if qualified to vote in an election district prior to removal of residence, he or she may, if a resident of Pennsylvania, vote in the election district from which he or she removed his or her residence within sixty (60) days preceding the election.⁶⁸

68 Pa. Const. art. 7, § 1(3).

By contrast, the Election Code requires that the citizen:

shall have resided in the election district where he or she shall offer to vote at least thirty days immediately preceding the election, except that if qualified to vote in an election district prior to removal of residence, he or she may, if a resident of Pennsylvania, vote in the election district from which he or she removed his or her residence within thirty days preceding the election.⁶⁹

69 25 P.S. § 2811.

The discrepancy between the sixty-day requirement of the Constitution and the thirty-day requirement of the Election Code is curious, and would appear to create a potential pitfall for unwary voters. A citizen who changed residences forty-five days before an election, for example, would appear not to be permitted by the Constitution to vote in the election district of her new residence, but also is not permitted by the Election Code to vote in the election district of her old residence. As the Majority notes, however, the difference between the Constitution and the Election Code has no bearing on this case.⁷⁰

70 Maj. Op. at 16 n.14.

I join the Majority fully in its rejection of the arguments advanced by Walsh on appeal and in its affirmance of the Commonwealth Court's order.

Justice Brobson joins this concurring opinion.

CONCURRING AND DISSENTING OPINION

DONOHUE, JUSTICE

In the first issue before this Court, an elector cast a provisional ballot because he did not cast and did not surrender his requested mail-in ballot when he appeared to vote in person in his election district. I dissent from the Majority's holding that our Election Code¹ requires the Board of Elections to not count that provisional ballot because the elector failed to sign the provisional ballot envelope. In the second issue before this Court, an elector cast his provisional ballot in the election district of his former legal residence in circumstances where he was already registered in a different election district. I concur with the Majority's determination that his provisional ballot should have been counted by the Board of Elections.

1 25 P.S. §§ 2600-3591.

In the April 23, 2024 primary election, Petitioner, Jamie Walsh, and his opponent, incumbent Mike Cabell, competed to represent the Republican Party in the general election for the 117^th District of the Pennsylvania House of Representatives.² On April 29, 2024, the Luzerne County Board of Elections held hearings addressing Cabell's challenge to a provisional ballot cast by elector Timothy James Wagner ("Wagner ballot") on the basis that Wagner failed to sign the provisional ballot envelope. For his part, Walsh challenged a provisional ballot cast for Cabell by Cabell's cousin, Shane O'Donnell, ("O'Donnell ballot"), on the basis that O'Donnell was registered to vote in Schuylkill County, outside of the 117^th District. The Board of Elections concluded unanimously that the Wagner ballot should be counted but that the O'Donnell ballot should not, and Cabell petitioned for review in the trial court.³ Following a hearing held on May 8, 2024, at which both Wagner and O'Donnell testified, the trial court affirmed the Board's determinations on both ballots. Trial Court Order, 5/15/2024.

2 The 117^th District of the Pennsylvania House of Representatives encompasses all of Wyoming County and parts of Lackawanna and Luzerne Counties.

3 "The decision of the county board in upholding or dismissing any challenge may be reviewed by the court of common pleas of the county upon a petition filed by any petitioner aggrieved by the decision of the county board." 25 P.S. § 3050(a.4)(4)(v).

The Commonwealth Court reversed both determinations in an unpublished memorandum decision. In re Canvass of Provisional Ballots in 2024 Primary Election, 628 C.D. 2024, 2024 WL 3252970 (Pa. Commw. Ct. July 1, 2024) ("2024 Primary Election"). Citing the plain language of the Election Code, specifically 25 P.S. § 3050(a.4)(5)(ii)(A),⁴ the court ruled that the Wagner ballot could not be counted because Wagner did not sign the provisional ballot envelope. 2024 Primary Election, 2024 WL 3252970 at *4. Concerning the O'Donnell ballot, the Commonwealth Court deemed critical that the trial court found credible O'Donnell's claim that he did not move into his new residence in Schuylkill County until March 29, 2024. Because O'Donnell's change of residence ostensibly occurred only twenty-five days before the primary election, the court determined that under the Election Code, 25 P.S. § 2811,⁵ O'Donnell was permitted to vote in the Luzerne County election district from which he moved and, therefore, that his ballot should be counted, even though his registration had changed in December of 2023.

4 "A provisional ballot shall not be counted if: (A) either the provisional ballot envelope under clause (3) or the affidavit under clause (2) is not signed by the individual[.]" 25 P.S. § 3050(a.4)(5)(ii)(A).

5 That provision reads:

Every citizen of this Commonwealth eighteen years of age, possessing the following qualifications, shall be entitled to vote at all elections, provided he or she has complied with the provisions of the acts requiring and regulating the registration of electors:

(1) He or she shall have been a citizen of the United States at least one month.

(2) He or she shall have resided in the State ninety days immediately preceding the election.

(3) He or she shall have resided in the election district where he or she shall offer to vote at least thirty days immediately preceding the election, except that if qualified to vote in an election district prior to removal of residence, he or she may, if a resident of Pennsylvania, vote in the election district from which he or she removed his or her residence within thirty days preceding the election.

25 P.S. § 2811.

Following the Commonwealth Court's decision, we granted Walsh's petition for allowance of appeal as to the following questions:

1) Whether, as a matter of first impression and of significant public importance and because this opinion conflicts with a holding of this Court, an unsigned provisional ballot should be counted where the voter demonstrated "exceedingly clear" electoral intent,

acted in conformity with instructions of election officials and subsequently verified that his ballot had been counted?

2) Whether, as a matter of significant public importance, a provisional ballot submitted by a voter domiciled and registered to vote elsewhere should be rejected?

In re Canvass of Provisional Ballots in the 2024 Primary Election, No. 328 MAL 2024, 2024 WL 3517407, at *1 (Pa. July 24, 2024) (per curiam).

Statutory interpretation is a matter of law, and our standard of review is de novo and our scope of review is plenary. As this case requires us to engage in statutory interpretation, we are mindful of our paramount objective to give effect to the intent of our General Assembly in enacting the particular statute under review. When words of a statute are clear and explicit, we must follow them. It is only when the language is not explicit that we may examine other considerations.

U.S. Venture, Inc. v. Commonwealth, 255 A.3d 321, 334 (Pa. 2021) (internal citations and quotation marks omitted). We are further guided in our textual analysis of what the General Assembly intends by its rules of construction. See 1 Pa.C.S. 1921.

However, in addition to our ordinary canon of interpretative principles, there is a constitutional overlay to election statutes. Our Commonwealth's Constitution demands that our "[e]lections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage." PA. Const. art. 1, § 5. Thus, we have a "longstanding and overriding policy in this Commonwealth to protect the elective franchise." Petition of Cioppa, 626 A.2d 146, 148 (Pa. 1993). Therefore, with respect to our election statutes, "we adhere to the overarching principle that the Election Code should be liberally construed so as to not deprive, inter alia, electors of their right to elect a candidate of their choice." In re Canvass of Absentee & Mail-in Ballots of Nov. 3, 2020 Gen. Election, 241 A.3d 1058, 1062 (Pa. 2020) ("Ballots of Nov. 3, 2020"); see also Appeal of James, 105 A.2d 64, 65 (Pa. 1954) (stating that while our election statutes are to be "strictly enforced to prevent fraud," they are "ordinarily … construed liberally in favor of the right to vote"). In this vein, mere technicalities "should not be used to make the right of the voter insecure" and no "construction of a statute should be indulged that would disfranchise any voter if the law is reasonably susceptible of any other meaning." Appeal of James, 105 A.2d at 65-66 (citations and quotation marks omitted). Thus, while we must remain vigilant to protect against fraud in the enforcement of our Election Code, the Election Code's primary purpose is to enable our citizens to vote. It should not be read to disenfranchise voters based on formalistic readings of technical requirements, unless the terms of the Election Code cannot be subject to a reasonable alternative reading that preserves the right to suffrage.

Wagner ballot

The facts relating to the Wagner ballot are not in dispute. Wagner testified at the May 8, 2024 hearing before the trial court⁶ that he did not bring his mail-in ballot with him when he attempted to vote at his polling place in Lake Township, Luzerne County.⁷ Trial Court Opinion, 5/22/2024, at 2 (unnumbered pages). Due to his failure to present with his mail-in ballot, Wagner was instructed by a poll worker to complete a provisional ballot. Id. Wagner stated that he followed the instructions of the poll worker in completing his provisional ballot, and although he did not remember if he had signed the provisional ballot envelope, it is undisputed that he did not sign it. Id. at 2-3. There was no allegation or evidence of fraud regarding any aspect of the casting or canvassing of Wagner's provisional ballot. Id. at 4-5.

6 N.T., 5/9/2024, at 21-27.

7 Wagner could not recall if he had received one. See N.T., 5/9/2024, at 25.

Against the determination of both the Board of Elections and the trial court, the Majority affirms the Commonwealth Court's decision to discount Wagner's provisional ballot. Following the Commonwealth Court's rationale, it relies exclusively on the provisions of the Election Code that govern the casting and counting of provisional ballots and, in particular, the highlighted portions of Section 3050(a.4) below:

(a.4)(1) At all elections an individual who claims to be properly registered and eligible to vote at the election district but whose name does not appear on the district register and whose registration cannot be determined by the inspectors of election or the county election board shall be permitted to cast a provisional ballot. Individuals who appear to vote shall be required to produce proof of identification pursuant to subsection (a) and if unable to do so shall be permitted to cast a provisional ballot. An individual presenting a judicial order to vote shall be permitted to cast a provisional ballot.

(2) Prior to voting the provisional ballot, the elector shall be required to sign an affidavit stating the following:

I do solemnly swear or affirm that my name is __________, that my date of birth is __________, and at the time that I registered I resided at __________ in the municipality of __________ in __________ County of the Commonwealth of Pennsylvania and that this is the only ballot that I cast in this election.

Signature of Voter/Elector

Current Address

Check the Reason for Casting the Provisional Ballot.

Signed by Judge of Elections and minority inspector

(3) After the provisional ballot has been cast, the individual shall place it in a secrecy envelope. The individual shall place the secrecy envelope in the provisional ballot envelope and shall place his signature on the front of the provisional ballot envelope. All provisional ballots shall remain sealed in their provisional ballot envelopes for return to the county board of elections.

* * *

(5)(i) Except as provided in subclause (ii), if it is determined that the individual was registered and entitled to vote at the election district where the ballot was cast, the county board of elections shall compare the signature on the provisional ballot envelope with the signature on the elector's registration form and, if the signatures are determined to be genuine, shall count the ballot if the county board of elections confirms that the individual did not cast any other ballot, including an absentee ballot, in the election.

(ii) A provisional ballot shall not be counted if:

(A) either the provisional ballot envelope under clause (3) or the affidavit under clause (2) is not signed by the individual;

(B) the signature required under clause (3) and the signature required under clause (2) are either not genuine or are not executed by the same individual;

25 P.S. § 3050(a.4) (emphasis added).

The Majority reads these provisions rigidly, strictly enforcing Section 3050(a.4)(3)'s requirement for an individual to sign the provisional ballot envelope, in particular because of the role an envelope signature plays in Sections 3050(a.4)(5)(i) (requiring comparison of the envelope signature to the voter registration form), and 3050(a.4)(5)(ii) (requiring rejection of a provisional ballot if either the affidavit described in Section 3050(a.4)(2) or the provisional ballot envelope described in Section 3050(a.4)(3) are not signed). See Majority Op. at 9-11. Consequently, the Majority distinguishes Ballots of Nov. 3, 2020, where this Court held that statutory language requiring an elector to date a mail-in ballot envelope was directory and not mandatory, and that no weighty interests were served by having the elector supply the date. Id. at 9. The Majority further distinguishes this case because, unlike in Ballots of Nov. 3, 2020, the General Assembly has here "spelled out the consequences for an elector's failure to sign the outer envelope" in Section 3050(a.4)(5)(ii). Id. The Majority thus rejects our generous-to-the-franchise interpretive principles for election statutes because, although "venerable and well established," they ostensibly "only apply where there is some uncertainty about what the Election Code requires." Id. The Majority identifies "no uncertainty here." Id.

But there is uncertainty. An alternative reading of the Election Code exists that preserves Wagner's vote without reaching Section 3050(a.4)(3)'s envelope signature requirement. Here, we are confronted with an elector who appeared at the correct polling location and who undisputably was eligible to vote, but who was required to cast a provisional ballot only because he failed to present at that location with his requested mail-in ballot. Thus, the starting point of our statutory interpretation should not be Section 3050, but Section 3150.16, which concerns electors who attempt to vote in person despite having requested a mail-in ballot.

Under Section 3150.16, an "elector who receives and votes a mail-in ballot" is prohibited from casting a vote at a polling place. 25 P.S. § 3150.16(b)(1) (emphasis added). To prevent this risk of double voting, the "district register at each polling place shall clearly identify electors who have received and voted mail-in ballots as ineligible to vote at the polling place" and "shall not permit electors who voted a mail-in ballot to vote at the polling place[.]" Id. (emphasis added). But this prohibition is fully contingent upon the condition that the elector has already voted. Two options are available to an elector who appears to vote in person but who is listed on the register as having been issued a mail-in ballot. Ideally, the elector arrives with and surrenders their mail-in ballot at the polling location pursuant to Section 3150.16(b)(3). 25 P.S. § 3150.16(b)(3) (stating "an elector who requests a mail-in ballot and who is not shown on the district register as having voted the ballot may vote at the polling place if the elector remits the ballot and the envelope containing the declaration of the elector to the judge of elections to be spoiled and the elector signs a statement" indicating he or she has not cast their mail-in ballot). However, when an elector does not present with his mail-in ballot, Section 3150.16(b)(2) applies. That provision states: "An elector who requests a mail-in ballot and who is not shown on the district register as having voted may vote by provisional ballot under section 1210(a.4)(1)." 25 P.S. § 3150.16(b)(2) (emphasis added). That provision corresponds to Section 3050(a.4)(1) of Purdon's Pennsylvania Statutes, cited above.

Herein lies an ambiguity. Section 3150.16(b)(2) does not direct an elector who fails to appear with his mail-in ballot to cast a provisional ballot pursuant to the procedures of Section 3050(a.4) generally, nor does it direct such an elector to the provisions of Section 3050(a.2), which defines the typical circumstances under which a provisional ballot is permissible.⁸ Nor does Section 3150.16(b)(2) point to Section 3050 generally. Rather, Section 3150.16(b)(2) clearly pinpoints Section 3050(a.4)(1). One plausible explanation for why this is the case is that the other provisions that fall under Section 3050(a.4)-the signature requirement under (a.4)(3), the signature-comparison provision of (a.4)(5)(i), and the sanction provision of (a.4)(5)(ii)-simply do not apply to electors who were issued mail-in ballots but who nonetheless present on election day for in-person voting without their mail-in ballot.

8 That provision provides as follows:

(a.2) If any of the following apply, the elector shall be permitted to cast a provisional ballot in accordance with subsection (a.4):

(1) The elector is unable to produce proof of identification:

(i) on the grounds that the elector is indigent and unable to obtain proof of identification without the payment of a fee; or

(ii) on any other grounds.

(2) The elector's proof of identification is challenged by the judge of elections.

25 P.S. § 3050(a.2) (emphasis added).

When the General Assembly intended to apply Section 3050(a.4) more broadly, it knew how to do so with clarity. Under Section 3050(a.2), for instance, the General Assembly directed that, under certain conditions, "the elector shall be permitted to cast a provisional ballot in accordance with subsection (a.4)[.]" 25 P.S. § 3050(a.2) (emphasis added). With regard to situations where an "elector who receives an absentee ballot … and whose voted ballot is not timely received by the commission," such an elector "may only vote on election day by provisional ballot unless the elector brings the elector's absentee ballot" to be surrendered at the polling location. 25 P.S. 3146.3(e) (emphasis added). Thus, the provision directing mail-in ballot recipients to Section 3050(a.4)(1) is textually unique in its specificity among provisions that direct persons to cast provisional ballots.

This cannot be considered mere surplusage under our rules of construction. "When interpreting a statute, courts must presume that the legislature did not intend any statutory language to exist as mere surplusage; consequently, courts must construe a statute so as to give effect to every word." Commonwealth by Shapiro v. Golden Gate National Senior Care LLC, 194 A.3d 1010, 1034 (Pa. 2018) (emphasis added); 1 Pa.C.S. § 1921(a) ("The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions."). The legislative purpose behind this specificity in Section 3150.16(b)(2) is not explicit. However, when "the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering, among other matters: … (3) [t]he mischief to be remedied … [and] (6) [t]he consequences of a particular interpretation." 1 Pa.C.S. § 1921(c).

Here, there is a clear distinction between the mischief to be remedied in the case of electors who cast a provisional ballot after appearing to vote in person without surrendering a requested mail-in ballot under Section 3150.16(b)(2) and a typical person casting a provisional ballot who is subject to all the requirements of Section 3050(a.4). A signature on the provisional ballot envelope does nothing to prevent double voting-the principal mischief to be remedied in the former case. That mischief can only be remedied when the Board of Elections confirms that no mail-in ballot from the elector has been received within the required time frame.⁹ Nothing about the signature requirement of Section 3050(a.4)(3) provides any additional safeguard against such mischief. It simply has no bearing on whether a second, mail-in ballot will be received after the elector casts his provisional ballot.

9 This is a simple, mechanical determination by the Board of Elections. Either the mail-in ballot will be subsequently received or not. That determination requires no further inquiry into the elector's qualification to vote.

By contrast, the mischief to be remedied by the envelope-signing requirement can be inferred from Section 3050(a.4)(1), which permits the casting of a provisional ballot by an individual who "claims to be properly registered and eligible to vote at the election district but whose name does not appear on the district register and whose registration cannot be determined by the inspectors of election or the county election board … ." 25 P.S. § 3050(a.4)(1) (emphasis added). The risk of fraud when a person appears to vote but who does not appear on the election district's registry is self-evident. There is a doubt at the time of casting of the provisional ballot whether the individual is permitted to vote in the election district, or at all.

Wagner, like similarly-situated individuals who present without their mail-in ballot, is not an individual who claims to be registered and eligible to vote but who does not appear on the district register. To the contrary, as was obvious to the poll workers when Wagner arrived at the polling location, he was registered to vote in that election district, and would have been permitted to vote at that location but for his failure to surrender his mail-in ballot. This is why his name appeared on the list of electors who had requested mail-in ballots, as specifically required under Section 3150.16(a). 25 P.S. § 3150.16(a)(stating that the "district register at each polling place shall clearly identify electors who have received and voted mail-in ballots as ineligible to vote at the polling place") (emphasis added).

There was no question that Wagner was qualified to vote at the polling location. To apply for a mail-in ballot, voters must submit an application containing "the following information: (i) Date of birth. (ii) Length of time a resident of voting district. (iii) Voting district, if known. (iv) Party choice in case of primary. (v) Name." 25 P.S. §§ 3150.12(b). "They must also sign a declaration affirming, among other things, that they are 'eligible to vote by mail-in [or absentee] ballot at the forthcoming primary or election,' and that 'all of the information' supplied in the mail-in or absentee ballot application is 'true and correct.'" Ballots of Nov. 3, 2020, 241 A.3d at 1067 (citing 25 P.S. §§ 3150.12, 3146.2). Subsequently, "[u]pon receipt of the application, the county board of elections must confirm the elector's qualifications and verify that the elector's address on the application matches the elector's registration." Id. (emphasis added); see also 25 P.S. § 3150.12b ("The county board of elections, upon receipt of any application of a qualified elector under [25 P.S. § 3150.11 (concerning qualified mail-in electors)] shall determine the qualifications of the applicant by verifying the proof of identification and comparing the information provided on the application with the information contained on the applicant's permanent registration card.").

Thus, electors like Wagner, who present to vote in person without their mail-in ballots to surrender, have already undergone an extensive verification process in order to prove that they are entitled to vote in their election district. This renders the signature requirement in 25 P.S. § 3050(a.4)(3) wholly redundant with respect to that specific class of voters. And, importantly, the trial court found as fact that Wagner never cast another vote via his mail-in ballot. Trial Court Opinion at 2 n.2 (stating the "Acting Director of Luzerne County Elections … confirmed by way of her testimony that Wagner had been issued a mail-in ballot for the 2024 Primary Election but had not cast his mail-in ballot") (citing N.T., 5/9/2024, at 21-22).¹⁰ Once that fact was determined by the Board of Elections, there was no fair, just, or lawful reason to discard Wagner's ballot, unless one applies the Majority's rigid reading of Section 3050(a.4) without any consideration of its interplay with Section 3150.16.

10 The Director further testified that, before the Luzerne County Board of Elections makes any determination regarding the acceptance of provisional ballots filed due to an elector's failure to surrender their mail-in ballot, it confirms that no mail-in ballot was received from that elector. N.T., 5/9/2024, at 28.

For these reasons, there is a strong textual case to be made that Section 3150.16(b)(2)'s pinpoint citation to Section 3050(a.4)(1) is both purposeful and significant in the larger statutory scheme of the Election Code. Section 3050(a.4)(3)'s envelope-signing requirement, and the procedures for rejection of a provisional ballot in Sections 3050(a.4)(5)(i)-(ii), were never meant to apply to electors who vote by provisional ballot because they failed to surrender their mail-in ballot when they attempted to vote in person. This explains why Section 3150.16(b)(2) references only Section 3050(a.4)(1), to the exclusion of the remaining portions of Section 3050(a.4).

Contrary to the Majority's interpretation, I would determine that the envelope signing requirement did not apply to Wagner's provisional ballot. Moreover, even if the interaction between Sections 3150.16(b)(2) and 3050(a.4)(1) merely creates an ambiguity, we must follow the principle that no "construction of a statute should be indulged that would disfranchise any voter if the law is reasonably susceptible of any other meaning." Appeal of James, 105 A.2d at 66. It is reasonable to believe that the General Assembly did not intend to combat double voting by wholly ineffective measures at great risk of disenfranchising qualified electors where there is no evidence of fraud and the intention of the voter is clear.

In response, the Majority offers no analysis to explain why the General Assembly chose to pinpoint Section 3050(a.4)(1) only in Section 3150.16(b)(2). It is simply content to ignore the General Assembly's precise language as mere surplusage to avoid what it perceived to be an "absurd, impossible of execution[,] or unreasonable" result-the existence of provisional ballots divorced from the instructions provided by Sections 3050(a.4)(2)-(12). Majority Op. at 13 (quoting 1 Pa.C.S. §1922(2)). But the Majority's discomfort with the result is no cause to ignore the plain text, particularly where the alternative result is the disenfranchisement of an eligible voter for no reason based on the statute as written.

The Majority's anxiety is created by a lack of precise instruction on how to process provisional ballots in this context, a practical consequence of disentangling Section 3050(a.4)(1) from the remainder of Section 3050(a.4). The Majority's dilemma is a consequence of the manner in which Section 3150.16(b)(2) was drafted and does not affect the question in this appeal. Our task is to apply the provisions, as written, to Wagner's ballot. More precisely, the question is: Whether the signature requirement in Section 3050(a.4)(3) applies to Wagner's ballot where the Election Code instructs only that 3050(a.4)(1) applies to voters like Wagner? The answer must be that it does not and Wagner's ballot must be counted.

O'Donnell Ballot

O'Donnell's provisional ballot was not counted because it was determined by the Board of Elections that he was not registered to vote in the election district where he appeared to vote, a decision affirmed by the trial court and subsequently reversed by the Commonwealth Court. Although I believe that the evidence presented in the trial court was sufficient to show that O'Donnell established his residence in Schuylkill County long before March 29, 2024, the trial court did not make a clear factual finding to that effect. Consequently, I agree with the Majority's conclusion to affirm the decision of the Commonwealth Court based on the rationale set forth in the Commonwealth Court's opinion.

Conclusion

Contrary to the Majority's holding today, I would reverse the Commonwealth Court's decision with respect to the Wagner ballot. On that matter, I respectfully dissent. However, I concur with the Majority's decision to affirm the Commonwealth Court's decision regarding the O'Donnell ballot.

Justice McCaffery joins this concurring and dissenting opinion.