Opinion
136 MM 2024
11-18-2024
THE REPUBLICAN NATIONAL COMMITTEE AND THE REPUBLICAN PARTY OF PENNSYLVANIA, Petitioners v. ALL 67 COUNTY BOARDS OF ELECTIONS (ADAMS COUNTY BOARD OF ELECTIONS; ALLEGHENY COUNTY BOARD OF ELECTIONS; ARMSTRONG COUNTY BOARD OF ELECTIONS; BEAVER COUNTY BOARD OF ELECTIONS; BEDFORD COUNTY BOARD OF ELECTIONS; BERKS COUNTY BOARD OF ELECTIONS; BLAIR COUNTY BOARD OF ELECTIONS; BRADFORD COUNTY BOARD OF ELECTIONS; BUCKS COUNTY BOARD OF ELECTIONS; BUTLER COUNTY BOARD OF ELECTIONS; CAMBRIA COUNTY BOARD OF ELECTIONS; CAMERON COUNTY BOARD OF ELECTIONS; CARBON COUNTY BOARD OF ELECTIONS; CENTRE COUNTY BOARD OF ELECTIONS; CHESTER COUNTY BOARD OF ELECTIONS; CLARION COUNTY BOARD OF ELECTIONS; CLEARFIELD COUNTY BOARD OF ELECTIONS; CLINTON COUNTY BOARD OF ELECTIONS; COLUMBIA COUNTY BOARD OF ELECTIONS; CRAWFORD COUNTY BOARD OF ELECTIONS; CUMBERLAND COUNTY BOARD OF ELECTIONS; DAUPHIN COUNTY BOARD OF ELECTIONS; DELAWARE COUNTY BOARD OF ELECTIONS; ELK COUNTY BOARD OF ELECTIONS; ERIE COUNTY BOARD OF ELECTIONS; FAYETTE COUNTY BOARD OF ELECTIONS; FOREST COUNTY BOARD OF ELECTIONS; FRANKLIN COUNTY BOARD OF ELECTIONS; FULTON COUNTY BOARD OF ELECTIONS; GREENE COUNTY BOARD OF ELECTIONS; HUNTINGDON COUNTY BOARD OF ELECTIONS; INDIANA COUNTY BOARD OF ELECTIONS; JEFFERSON COUNTY BOARD OF ELECTIONS; JUNIATA COUNTY BOARD OF ELECTIONS; LACKAWANNA COUNTY BOARD OF ELECTIONS; LANCASTER COUNTY BOARD OF ELECTIONS; LAWRENCE COUNTY BOARD OF ELECTIONS; LEBANON COUNTY BOARD OF ELECTIONS; LEHIGH COUNTY BOARD OF ELECTIONS; LUZERNE COUNTY BOARD OF ELECTIONS; LYCOMING COUNTY BOARD OF ELECTIONS; MCKEAN COUNTY BOARD OF ELECTIONS; MERCER COUNTY BOARD OF ELECTIONS; MIFFLIN COUNTY BOARD OF ELECTIONS; MONROE COUNTY BOARD OF ELECTIONS; MONTGOMERY COUNTY BOARD OF ELECTIONS; MONTOUR COUNTY BOARD OF ELECTIONS; NORTHAMPTON COUNTY BOARD OF ELECTIONS; NORTHUMBERLAND COUNTY BOARD OF ELECTIONS; PERRY COUNTY BOARD OF ELECTIONS; PHILADELPHIA COUNTY BOARD OF ELECTIONS; PIKE COUNTY BOARD OF ELECTIONS; POTTER COUNTY BOARD OF ELECTIONS; SCHUYLKILL COUNTY BOARD OF ELECTIONS; SNYDER COUNTY BOARD OF ELECTIONS; SOMERSET COUNTY BOARD OF ELECTIONS; SULLIVAN COUNTY BOARD OF ELECTIONS; SUSQUEHANNA COUNTY BOARD OF ELECTIONS; TIOGA COUNTY BOARD OF ELECTIONS; UNION COUNTY BOARD OF ELECTIONS; VENANGO COUNTY BOARD OF ELECTIONS; WARREN COUNTY BOARD OF ELECTIONS; WASHINGTON COUNTY BOARD OF ELECTIONS; WAYNE COUNTY BOARD OF ELECTIONS; WESTMORELAND COUNTY BOARD OF ELECTIONS; WYOMING COUNTY BOARD OF ELECTIONS; AND YORK COUNTY BOARD OF ELECTIONS), Respondents
ORDER
PER CURIAM.
AND NOW, this 18th day of November, 2024, the Application for Leave to Intervene filed by DSCC and Bob Casey for Senate, Inc., is GRANTED. The Application for Leave to file Amicus Brief filed by the Pennsylvania Department of State and Secretary of the Commonwealth Al Schmidt is GRANTED.
Petitioners' Application for the Exercise of King's Bench Power or Extraordinary Jurisdiction is GRANTED in part. The Court hereby ASSUMES its King's Bench authority over the instant Application, see 42 Pa.C.S. § 502, only to DIRECT that all Respondents, including the Boards of Elections in Bucks County, Montgomery County, and Philadelphia County, SHALL COMPLY with the prior rulings of this Court in which we have clarified that mail-in and absentee ballots that fail to comply with the requirements of the Pennsylvania Election Code, see 25 P.S. §§ 3146.6(a), 3150.16(a), SHALL NOT BE COUNTED for purposes of the election held on November 5, 2024. See Ball v. Chapman, 289 A.3d 1, 28 (Pa. 2023) ("The Election Code commands absentee and mail-in electors to date the declaration that appears upon ballot return envelopes, and failure to comply with that command renders a ballot invalid as a matter of Pennsylvania law."); see also New PA Project Educ. Fund v. Schmidt, 2024 WL 4410884, at *1 (Pa. Oct. 5, 2024) (per curiam) ("This Court will neither impose nor countenance substantial alterations to existing laws and procedures during the pendency of an ongoing election."); Baxter v. Phila. Bd. of Elections, 2024 WL 4650792, at *1 (Pa. Nov. 1, 2024) (staying a Commonwealth Court order that had required a county election board to canvass undated ballots for purposes of the 2024 general election).
The Application is DENIED in all other respects. In particular, we deny the request to exercise plenary jurisdiction over related matters that have been commenced in various courts of common pleas. This order shall be deemed authoritative and controlling in all such matters and as to all county election board members.
Justice Wecht files a concurring statement in which Justice Mundy joins.
Justice Brobson files a concurring statement in which Justices Wecht and Mundy join.
Justice Donohue files a dissenting statement in which Chief Justice Todd and Justice McCaffery join.
CONCURRING STATEMENT
WECHT JUSTICE
I join the per curiam Order of this Court. I also join Justice Brobson's Concurring Statement. It is critical to the rule of law that individual counties and municipalities and their elected and appointed officials, like any other parties, obey orders of this Court. As Justice Felix Frankfurter once wrote: "If one man can be allowed to determine for himself what is law, every man can. That means first chaos, then tyranny. . . . The greater the power that defies law the less tolerant can this Court be of defiance."
United States v. United Mine Workers of Am., 330 U.S. 258, 312 (1947) (Frankfurter, J., concurring). See also Cty. of Fulton v. Sec. of the Commonwealth, 292 A.3d 974, 1020 (Pa. 2023) ("When an individual or a private or public entity deliberately violates a court order, such violation constitutes a clear and present danger to the effective function of the judiciary, the orderly administration of justice, and the rule of law. When such a violation passes without consequences equal to its gravity, we can anticipate violations of increasing frequency.").
Justice Mundy joins this concurring statement.
CONCURRING STATEMENT
BROBSON JUSTICE
I join the per curiam Order in all respects. I write separately to disabuse local elections officials of the notion that they have the authority to ignore Election Code provisions that they believe are unconstitutional. Only the courts under our charter may declare a statute, or provision thereof, unconstitutional. Thornburgh v. Lewis, 470 A.2d 952, 955 (Pa. 1983) ("It is the province of the Judiciary to determine whether the Constitution or laws of the Commonwealth require or prohibit the performance of certain acts.") Indeed, this Court has held that administrative agencies, like county boards of elections, lack the authority to declare unconstitutional the very statutes from which they derive their existence and which they are charged to enforce. Lehman v. Pa. State Police, 839 A.2d 265, 275 (Pa. 2003) ("[A]gencies have authority to consider the validity of their regulations . . ., but they must refuse to consider the validity of their organic statutes.").
See Respondents Philadelphia, Montgomery, and Bucks County Boards of Elections Answer at 8 (claiming, without citation to legal authority, that "each county board (and each [commissioner thereof]) has an independent obligation to consider whether the Constitution requires counting . . . ballots with dating errors-an issue this Court has not resolved on the merits").
Justices Wecht and Mundy join this concurring statement.
DISSENTING STATEMENT
DONOHUE JUSTICE
I am unpersuaded that the Republican National Committee and Republican Party of Pennsylvania ("Petitioners") have established grounds for this Court to exercise its sparingly invoked King's Bench jurisdiction because there is an avenue for review of the challenges Petitioners raise found in Section 3157 of the Election Code. I have far more confidence in our courts of common pleas to apply the law than do some of my colleagues.
Although Petitioners nominally seek an exercise of our King's Bench or extraordinary jurisdiction, at no point do they ask the Court to assume jurisdiction over the appeals they have pending in various courts of common pleas. See 42 Pa.C.S. § 726 (providing that through extraordinary jurisdiction, this Court "may … assume plenary jurisdiction" over any matter pending before a tribunal involving an issue of immediate public importance).
Section 3157(a) provides in relevant part as follows:
Any person aggrieved by any order or decision of any county board regarding the computation or canvassing of the returns of any primary or election … may appeal therefrom within two days after such order or decision shall have been made, whether then reduced to writing or not, to the court specified in this subsection, setting forth why he feels that an injustice has been done, and praying for such order as will give him relief. … Upon the payment to the prothonotary of a fee for filing such appeal, a judge of the court shall fix a time and place for hearing the matter in dispute within three days thereafter, of which due notice
shall be served, with a copy of such appeal, by the appellant upon a member of the county board whose action is complained of and upon every attorney, watcher or candidate who opposed the contention of the appellant before the county board, and upon any other person that the judge shall direct, at least two days before the matter shall be reviewed by the court.25 P.S. § 3157(a) (emphasis added).
Petitioners identify three counties in which they claim the county boards of election are improperly counting undated and/or misdated mail in ballots. Petitioners allege that Bucks County Board of Elections has counted 405 such mail-in against the advice of its counsel. Application for the Exercise of Kings' Bench or Extraordinary Jurisdiction ("Application"), 11/14/2024, at 9. Petitioners filed a statutory appeal from this determination on November 13, 2024. See id. at 10; Philadelphia, Montgomery and Bucks County Boards of Elections' Answer, 11/15/2024, at 4 (citing McCormick v. Bucks Cty. Bd. of Elecs., No. 2024-7228 (Bucks Cty.)). Petitioners further assert that Philadelphia and Centre Counties "have similarly decided to count undated and misdated ballots[,]" yet they provided no further detail. Application at 9. Petitioners admit that they are challenging these decisions in the Philadelphia and Centre County Courts of Common Pleas. Id. Respondents reveal that Petitioners filed their statutory challenge in Philadelphia County on November 15, 2024 (the same day Petitioners filed this Application), id., and that while Petitioners filed a statutory appeal in Centre County, it was "dismissed with prejudice as jurisdictionally time-barred." Centre County Board of Election's Response, 11/15/2024, at 3. Although they do not identify it in their Application, Petitioners also filed a statutory appeal in Montgomery County.
By their very actions, Petitioners demonstrate that there is an existing avenue of review for their challenges to the decisions of these Boards of Elections. For instance, publicly available dockets reveals that a hearing is scheduled for tomorrow, November 19, 2024, in Bucks County on Petitioners' statutory appeal. Quite simply, there is nothing extraordinary or urgent about the Petitioners' challenges. They are challenging the decision of three county boards of elections to count certain mail-in ballots. Their ability to do so - and the timeframe in which to do so - is clearly established in Section 3157. If the court of common pleas does not grant the relief they seek, Petitioners have the right to appeal to the Commonwealth Court. Pursuant to an order this Court entered on August 27, 2024, the period for filing that appeal has been truncated and the appeals process expedited, ensuring that these challenges move through the normal appellate process in an expeditious manner. Although Petitioners make the claim that time is of the essence, they do not explain why. Any concerns about expediency have been accounted for in our August 27, 2024 order.
See In re Temporary Modification and Suspension of the Rules of Appellate Procedure and Judicial Administration for Appeals Arising Under the Pennsylvania Election Code, 622 J.A., 8/27/2024 (per curiam) (modifying Pa.R.A.P. 903(c)(1)(ii) to reduce the ten-day appeal period for a matter arising under the Election Code to three days, modifying Pa.R.A.P. 1113(c)(1) to reduce the ten-day period for filing a petition for allowance of appeal from an order arising under the Election Code to three days, excluding holidays and weekends from the calculation of these deadlines, providing that appellant's briefs must be filed within twenty-four hours of the notice of appeal, and providing that no reply briefs, reconsideration or reargument petitions will be permitted).
Moreover, entering an order of statewide effect effectively resurrects Petitioners' fatally untimely appeal in Centre County and awards them the relief they sought, despite their botched attempt to comply with the terms of the Election Code, and also grants Petitioners relief in any and all counties in which they did not file a statutory appeal. It should not be ignored that Petitioners filed this Application after they found themselves out of court in Centre County because of their failure to comply with the statutory appeals timeframe. Allowing litigants to circumvent the statutorily established timeframe in Section 3157(a) under the guise of a King's Bench petition, in my view, causes confusion and sows distrust in the judiciary, as the Court has voted to patently flout an appeal procedure established by our General Assembly. For these reasons, and my confidence in our courts of common pleas to apply the law, I dissent from the order entered today.
Chief Justice Todd and Justice McCaffery join this dissenting statement.