Opinion
33 M.D. 2024
08-23-2024
David H. Zimmerman and Kathy L. Rapp, Petitioners v. Al Schmidt, in his official capacity as Acting Secretary of the Commonwealth of Pennsylvania, the Commonwealth of Pennsylvania, Department of State, 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, Lycoming 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, 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
OPINION NOT REPORTED
Submitted: August 1, 2024
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE MATTHEW S. WOLF, Judge
This election law matter is being considered by a special panel pursuant to Section 112(b) of this Court's Internal Operating Procedures, 210 Pa. Code § 69.112(b) ("The President Judge may designate Judges to serve on a special court en banc or panel to hear election law matters, appellate or original jurisdiction, on an expedited basis.").
MEMORANDUM OPINION
RENÉE COHN JUBELIRER, PRESIDENT JUDGE
David H. Zimmerman, member of the Pennsylvania House of Representatives for the 99th District, and Kathy L. Rapp, member of the Pennsylvania House of Representatives for the 64th District (together, Petitioners), filed a Petition for Review (Petition) in this Court's original jurisdiction seeking declaratory and injunctive relief against Al Schmidt, the Secretary of the Commonwealth (Secretary), the Commonwealth of Pennsylvania, Department of State (Department), and all 67 county boards of elections (County Boards) (collectively, Respondents). Petitioners also filed an application for summary relief, seeking a declaration that certain provisions of the Pennsylvania Election Code (Election Code), namely, Section 1306(a), 25 P.S. § 3146.6(a), and Section 1308(a), 25 P.S. § 3146.8(a), the relevant guidance provided by the Secretary, and the policies and practices of the County Boards violate article VII, section 14(a) of the Pennsylvania Constitution, Pa. Const. art. VII, § 14(a). Specifically, Petitioners argue that article VII, section 14(a) provides that the delivery and canvassing of absentee ballots must be done in the district where the elector resides, but pursuant to the statutory provisions and the Secretary's guidance, the County Boards are receiving and canvassing absentee ballots on a county-wide basis. Respondents have filed various preliminary objections (POs) and cross-applications for summary relief seeking dismissal of the Petition asserting Petitioners lack standing, the claims are barred by the doctrine of laches, and this Court is bound by nearly half-a-century-old Supreme Court precedent addressing the exact issue raised by Petitioners, which found no constitutional violation. Because we agree that the Court is bound by the Supreme Court precedent, we grant Respondents' applications for summary relief, deny Petitioners' application for summary relief, dismiss the Petition with prejudice, and dismiss the POs as moot.
Petitioners named the Secretary as the "Acting" Secretary; however, the Secretary officially became so on June 29, 2023.
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.
Section 1306(a) of the Election Code, added by Section 11 of the Act of March 6, 1951, P.L. 3, provides, relevantly:
Except as provided in paragraphs (2) and (3), at any time after receiving an official absentee ballot, . . . the elector shall . . . mark the ballot . . . and then fold the ballot, enclose and securely seal the same in the envelope . . . . This envelope shall then be placed in the second one, on which is printed the form of declaration of the elector, and the address of the elector's county board of election and the local election district of the elector. The elector shall then fill out, date and sign the declaration printed on such envelope. Such envelope shall then be securely sealed and the elector shall send same by mail, postage prepaid, except where franked, or deliver it in person to said county board of election.25 P.S. § 3146.6(a) (emphasis added).
Section 1308(a) of the Election Code, added by Section 11 of the Act of March 6, 1951, P.L. 3, provides:
The county boards of election, upon receipt of official absentee ballots in sealed official absentee ballot envelopes as provided under this article and mail-in ballots as in sealed official mail-in ballot envelopes as provided under Article XIII-D, [Sections 1301-D-1307-D, added by the Act of October 31, 2019, P.L. 552, No. 77 (Act 77), 25 P.S. §§ 3150.11-3150.17,] shall safely keep the ballots in sealed or locked containers until they are to be canvassed by the county board of elections. An absentee ballot, whether issued to a civilian, military or other voter during the regular or emergency application period, shall be canvassed in accordance with subsection (g). A mail-in ballot shall be canvassed in accordance with subsection (g).25 P.S. § 3146.8(a) (emphasis added).
Article VII, section 14(a) provides:
The Legislature shall, by general law, provide a manner in which, and the time and place at which, qualified electors who may, on the occurrence of any election, be absent from the municipality of their residence, because their duties, occupation or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability or who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of election day duties, in the case of a county employee, may vote, and for the return and canvass of their votes in the election district in which they respectively reside.Pa. Const. art. VII, § 14(a) (emphasis added).
I. FILINGS AND ARGUMENTS
Petitioners filed their Petition on January 30, 2024, to which Respondents filed various answers or POs. Following a status conference on June 10, 2024, the Court issued an Order reflecting the parties' agreement that there were no issues of fact, the most expeditious way to resolve this matter was on cross-applications for summary relief, and the POs would be considered simultaneously with any cross-applications for summary relief. (June 10, 2024 Order.) Due to the voluminous number of parties and filings, this opinion combines the relevant arguments and summarizes the parties' filings as many of the arguments raised therein overlap.
A. Petitioners' Petition and Application for Summary Relief
1. The Petition
Petitioners are incumbent members of the Pennsylvania House of Representatives, were reelected in 2022, and are running for reelection in 2024. They are seeking an order from this Court directing that "absentee votes be delivered to and canvassed at the" elector's local precinct or polling location, and not at the county board level, in accordance with article VII, section 14(a), "[t]o ensure the integrity and legitimacy of the electoral franchise, including [Petitioners'] next reelection[.]" (Petition ¶¶ 8, 12.) Petitioners each allege that the county boards of elections in their respective districts reported receiving absentee ballots but that neither Petitioner received any absentee votes in their favor. (Id. ¶¶ 7, 11.) Petitioners assert that they have standing to pursue this action under Bonner v. Chapman, 298 A.3d 153, 162-63 (Pa. Cmwlth. 2023), (Petition ¶ 13), and that this Court has "the inherent power to enjoin the enforcement of unconstitutional statutes, . . . policies[,] and procedures," (id. ¶ 20). Petitioners allege that "[a]rticle VII, [s]ection 14 unambiguously dictates that all absentee ballots must be submitted to ('returned') and counted at ('canvassed') the local polling place or precinct ('election district')." (Id. ¶ 27.) Notwithstanding this requirement, Petitioners explain that "the Election Code appears to have been amended" to add Sections 1306 and 1308, and contend these provisions are in direct contradiction to article VII, section 14, by providing for the delivery to and canvassing of absentee ballots by the county boards rather than local precincts. (Id. ¶¶ 40-46.)
Taking the above allegations into consideration, Petitioners contend in Count I that Sections 1306 and 1308 "contravene and are inherently incompatible with [a]rticle VII, [s]ection 14," and request that we "enter judgment in their favor and grant Petitioners relief[.]" (Id. ¶ 65, Wherefore Clause.) In Count II, Petitioners assert that the Secretary and Department have issued guidance and/or directed the public to send absentee ballots to the electors' county boards and not to their local polling place in contravention of article VII, section 14." (Id. ¶¶ 67-72.) As relief, Petitioners seek a declaratory judgment decreeing that Sections 1306 and 1308 are facially unconstitutional and that the "[o]fficial [g]uidance and/or the [p]olicy and [p]ractice described above are [] unconstitutional[.]" (Id., Prayer for Relief.) Further, Petitioners request an injunction prohibiting Respondents from enforcing Sections 1306 and 1308, issuing and enforcing guidance to that effect, and canvassing absentee ballots at the county boards or anywhere that is not at the district level.
2. Petitioners' Application and Arguments
Petitioners assert in their Application for Summary Relief (Petitioners' Application) that they are entitled to their requested relief because Sections 1306 and 1308 are clearly at odds with the plain language of article VII, section 14. Petitioners admit that the Supreme Court's opinion in In re Canvass of Absentee Ballots of 1967 General Election, 245 A.2d 258 (Pa. 1968) (In re Canvass), is binding on this Court and believe it should be overturned by the Supreme Court. (See Petitioners' Brief (Br.) in Support (Supp.) at 20 n.9.) Petitioners also argue that, under a former version of the Election Code, the county boards of elections initially received and processed absentee ballots, which were then distributed to the local election boards for canvassing and inspection. (Petitioners' Omnibus Br. in Opposition (Opp'n) to POs at 8-9.) Petitioners explain that "[o]n April 23, 1968,[] following the 1967 joint resolution passed by the General Assembly, the electorate approved an amended constitutional provision that renumbered and revised then [a]rticle VIII, [s]ection 19 to [a]rticle VII, [s]ection 14" and "revised former [a]rticle VIII, [s]ection 19, in pertinent part, to remove the permissive and directory word 'may' . . . and replace it with the mandatory and imperative 'shall.'" (Id. at 6 (footnote omitted).) Petitioners continue that "[a]pproximately 8 months after the electorate approved the new [a]rticle VII, [s]ection 14, the General Assembly, in an apparent response to the change in language from 'may' to 'shall,' revised the provisions of the Election Code pertaining to absentee ballots" and mandated that the local election boards "receive and canvass absentee ballots." (Id. at 7.) Petitioners contend that "the Election Code continued to provide for the return and canvass of absentee ballots at the local polling place, precinct, or election district from 1968 to 2019, for over 50 years." (Id. at 10.) Petitioners assert that "[t]here is no evidence or reason to believe, especially at this stage in this litigation, that there were any practical, financial, or administrative problems with returning and canvassing absentee ballots at the local election districts." (Id. at 10-11.)
Petitioners also explain that they have standing as they are candidates in an upcoming election, and they run the risk of defeat if an unconstitutional law is upheld. Thus, Petitioners assert, their interests are substantial, direct, and immediate in knowing whether Respondents may continue to enforce an unconstitutional law. Petitioners argue the doctrine of laches is not applicable because they are seeking "prospective relief," and while their requested relief may incur costs and burdens, the constitutional requirements outweigh those concerns. (Petitioners' Omnibus Br. in Opp'n to POs at 37.)
B. Respondents' POs, Application, and Arguments
Various Respondents filed POs and applications for summary relief seeking dismissal of the Petition. The Secretary and Department, as well as a majority of County Boards, filed POs asserting Petitioners lack standing and demurred to both Counts I and II. Adams County Board of Elections filed the same POs but added that the Petition is barred by the doctrine of laches. The Secretary and Department later filed an application for summary relief, which was joined by numerous County Boards, and Adams County Board of Elections filed a separate application for summary relief, which was also joined by various County Boards (together, Respondents' Applications). Many of these arguments overlap, and, thus, unless otherwise noted, the summarized arguments below relate to all Respondents.
Allegheny, Armstrong, Bedford, Berks, Blair, Bradford, Bucks, Butler, Carbon, Centre, Chester, Clarion, Clearfield, Clinton, Columbia, Crawford, Dauphin, Delaware, Fayette, Franklin, Huntingdon, Indiana, Jefferson, Lackawanna, Lawrence, Lehigh, Luzerne, Monroe, Montgomery, Montour, Northumberland, Philadelphia, Snyder, Somerset, Susquehanna, Tioga, Venango, Warren, Westmoreland, and York County Boards of Elections join in the Secretary and Department's Application for Summary Relief.
Armstrong, Bedford, Bradford, Butler, Clarion, Fayette, Somerset, Susquehanna, Tioga, Warren, and Westmoreland County Boards of Elections join in Adams County Board of Elections' Application for Summary Relief.
It appears that Lancaster County Board of Elections, which is part of Petitioner Zimmerman's 99th District, has not filed an application for summary relief or joined any filed application for summary relief.
First, Respondents assert that Petitioners lack standing as they have not shown they are aggrieved and thus lack a substantial, immediate, and direct interest in the outcome of this dispute. In particular, Respondents maintain that Petitioners have not asserted any harm due to absentee ballots being delivered and canvassed at the county level, nor have they explained how their interest surpasses that of ordinary citizens.
Second, Respondents argue that Petitioners have failed to state a claim and Respondents are entitled to summary relief because this Court is bound by In re Canvass and a companion case, In re 223 Absentee Ballot Appeals, 245 A.2d 265 (Pa. 1968) (In re 223), which resolved the very question Petitioners present here. Respondents also respond to Petitioners' argument that the return and canvass of absentee ballots has occurred at the district level for over 50 years. The Secretary and Department contend that between 1968 and 2019, county boards of elections "recei[ved]" absentee ballots, secured them, and distributed them to the voters' election districts for canvassing. (Secretary and Department's Br. in Opp'n to Petitioners' (Pet'rs') Application (Appl.) at 20-21 (quoting Section 8 of the Act of December 11, 1968, P.L. 1183, 1198, No. 375).) Therefore, the Secretary and Department contend that Petitioners' requested relief, that we declare Sections 1306 and 1308 unconstitutional, seeks "[f]or the first time [that] more than 9,000 polling places, most of which are in public buildings, . . . receive and store absentee ballots in the weeks ahead of Election Day." (Id. at 21.) The Secretary and Department also argue that the 1968 amendments are consistent with In re Canvass in that article VII, section 14 "does not require absentee voters to return absentee ballots to election districts to be counted," and only requires that "absentee votes are counted 'in such a manner that the computation appears on the return in the district where it belongs.'" (Id. at 22, 25 (citing In re Canvass, 245 A.2d at 264) (emphasis in Secretary and Department's Br. in Opp'n to Pet'rs' Appl.).) Further, the Secretary and Department argue that the former version of article VII, section 14, then renumbered article VIII, section 19, was amended on May 16, 1967, and not April 23, 1968, as Petitioners contend. (Secretary and Department's Br. in Supp. of Appl. at 8.) The Secretary and Department express some confusion, however, as to why the Supreme Court cited article VIII, section 19, in In re Canvass, as opposed to article VII, section 14, as that language had already been amended by the time of the election at issue in In re Canvass and the Supreme Court's decision therein, but note that the Supreme Court was at least "aware" of the amendment as it acknowledged article VII, section 14, in its decision. (Id. at 22 n.8.) Adams County Board of Elections also explains that the "core issue" in In re Canvass was "the central canvassing of absentee ballots by the county [] board[s] rather than local election boards" and that case "cited to the exact same statute and constitutional provision that Petitioners cite to today." (Adams County Board of Elections' Appl. at 18.)
Respondents further highlight, as the Supreme Court did in In re Canvass and In re 223, the administrative difficulties that would arise if this Court granted Petitioners their requested relief. For example, the Secretary and Department highlight that "[t]o comply with Petitioners' requested relief, [] [the] County [Boards] would have to expend significant resources to open and staff 9,159 temporary polling places for several weeks to receive and securely store absentee ballots." (Secretary and Department's Br. in Supp. at 30 (citing Petition, Ex. A.).) The Secretary and Department also note that "polling places are usually schools, municipal buildings, or other public buildings, . . . [which] would create serious security and custody concerns, as well as logistical nightmares for functioning public spaces." (Id.)
Adams County Board of Elections also highlights these logistical concerns and adds that Petitioners' requested relief would create a system where mail-in ballots "would be canvassed in a central location by the [C]ounty [B]oard[s]," while "absentee ballots, which are not substantively different from mail-in ballots, would be required to be canvassed in the thousands of polling sites," which creates equal protection concerns. (Adams County Board of Elections' Appl. at 14-15.) Adams County further highlights the fact that election districts "do not have designated mailing addresses," and polling locations are often "not government-owned and are not designed to securely accept mail." (Id. at 20.) Moreover, Adams County Board of Elections asserts it is difficult to find polling places, which would be further complicated should Petitioners' requested relief be granted, because of the length of time they would be needed. (Id.) In addition, Adams County Board of Elections points out that these locations would have to be staffed "every day from the time absentee ballots are sent to voters until Election Day at 8 p[.]m[.]," as well as after the election for purposes of counting military ballots, resulting in significant expense to taxpayers. (Id. at 21.) Petitioners' requested relief would also have the effect of delaying Election Day returns, as local election boards would have to remain at the polling site after polls close to canvass absentee ballots. (Id.)
Last, Adams County Board of Elections, and those that joined that board's filings, asserts that Petitioners' claims are barred by the doctrine of laches as Petitioners have been in office for several years and the practice of which they complain has been statutorily authorized for over 50 years. Further, the County Boards would suffer substantial hardship due to the chaos that would ensue by granting the requested relief, which would require an overhaul to the current system for counting absentee ballots.
II. ANALYSIS
Pennsylvania Rule of Appellate Procedure 1532(b) states that "[a]t any time after the filing of a petition for review in an appellate or original jurisdiction matter, the court may on application enter judgment if the right of the applicant thereto is clear." Pa.R.A.P. 1532(b). This Court may only grant an application for summary relief where "a party's right to judgment is clear and no material issues of fact are in dispute." Banfield v. Cortes, 110 A.3d 155, 165 (Pa. 2015). The right to relief must be "free from doubt." O'Rourke v. Pa. Dep't of Corr., 730 A.2d 1039, 1041 (Pa. Cmwlth. 1999). We likewise view the record "in the light most favorable to the non- moving party[.]" Id. We will review the cross-applications herein with these standards in mind.
As stated in the June 10, 2024 Order, the POs, which raise substantially the same arguments, will be considered alongside Respondents' Applications.
A. Standing
Standing is a threshold matter, and "[o]ur inquiry is whether the putative plaintiff has demonstrated that she is 'aggrieved,' by establishing a substantial, direct and immediate interest in the outcome of the litigation." Allegheny Reprod. Health Ctr. v. Pa. Dep't of Hum. Servs., 309 A.3d 808, 832 (Pa. 2024) (citing Robinson Township, Washington County v. Commonwealth of Pennsylvania, 83 A.3d 901, 917 (Pa. 2013)).
Standing is an issue that "must be raised at the soonest possible opportunity[.]" In the Interest of K.N.L., 284 A.3d 121, 150 n.22 (Pa. 2022). Respondents have done so by raising this issue in their POs and in their applications.
A substantial interest in the outcome of litigation is one that surpasses the common interest of all citizens in procuring obedience to the law. Pa. Fed'n of Dog Clubs v. Commonwealth, 105 A.3d 51 (Pa. Cmwlth. 2014) . . . . A direct interest requires a causal connection between the asserted violation and the harm complained of. Id. An interest is immediate when the causal connection is not remote or speculative. Id.Phantom Fireworks Showrooms, LLC v. Wolf, 198 A.3d 1205, 1215 (Pa. Cmwlth. 2018). With respect to a substantial interest, "there must be some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law." William Penn Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 282 (Pa. 1975). Additionally, "[g]enerally speaking, in our Commonwealth, standing is granted more liberally than in federal courts." Allegheny Reprod. Health Ctr., 309 A.3d at 832.
All parties point to Bonner to support their positions on standing. In that case, this Court addressed, among other things, whether the petitioners had standing to enforce the nonseverability provision of Act 77 of 2019 (Act 77) where, they claimed, various court decisions seemed to invalidate certain provisions in Act 77. Many of the petitioners were past and future candidates for office who argued that this status provided them a direct, substantial, and immediate interest in whether the respondents were "permitted to continue to enforce and administer a law . . . that has become void by its own terms, and [that] their interests [were] distinguishable from the interests shared by all other citizens." Bonner, 298 A.3d at 162 (internal quotation marks and citation omitted). These petitioners also asserted they had standing because "their elections [would be] impacted by ballots that do not meet the requirements of the applicable law and by having to spend campaign funds to adapt their campaigns to comply with a now-void Act 77." Id. The Court "conclude[d] it [wa]s not sufficiently clear and free from doubt that [these p]etitioners lack standing so as to grant the [c]ross-[a]pplications and/or sustain the POs on this basis." Id. (emphasis added). Further, the Court concluded that it was not clear that the candidate petitioners did not have standing because as a class of candidates for office, these petitioners' interests were distinguishable "from the citizenry at large." Id. at 163.
Among other changes to the Election Code, Act 77 expanded mail-in voting to all registered voters without requiring a reason to vote by mail.
Here, we likewise conclude, as we did in Bonner, that it is "not sufficiently clear and free from doubt" that Petitioners do not have standing in this matter considering their status as past and current candidates with a quickly approaching election. 298 A.3d at 162. Petitioners are concerned with "integrity and legitimacy of the electoral franchise" and assert that Respondents promote the practice of or engage in a practice "whereby absentee votes are sent to, received by, and canvassed at" the County Boards, which could potentially include votes for them, in contravention of article VII, section 14. (Petition ¶¶ 8, 12, 39, 47-60.) Petitioners' status confers an interest in this matter that is distinguishable "from the citizenry at large." Bonner, 298 A.3d at 163. Accordingly, we will not dismiss the Petition on this basis.
This Court also recognizes that it is better to issue election-related decisions, where possible, before they confer a political benefit. See Matthew Queen and Richard L. Hansen, Ready for the Storm? What Judges Should Know About Election Law, 108 Judicature 34, 35-36 (2024), available at https://judicature.duke.edu/articles/what-judges-should-know-about-election-law/ (last visited Aug. 21, 2024) ("The worst situation is when a judge is called upon to make outcome-determinative rulings . . . . [I]t is far better, when possible, to rule on the substantive legal issues before it is clear who would politically benefit from such a ruling. . . .") (emphasis added). The Supreme Court apparently also recognizes the importance of addressing the merits of election matters before they become determinative as it recently granted a petition for allowance of appeal in In re: Canvass of Provisional Ballots in the 2024 Primary Election (Pa., No. 328 MAL 2024, filed July 24, 2024) (per curiam), where the ultimate resolution of the issue in that matter would not affect the outcome of the primary election, but may become outcome determinative in the upcoming 2024 general election.
B. Merits
In reviewing whether a statute is constitutional, "we are guided by the principle that 'acts passed by the General Assembly are strongly presumed to be constitutional.'" Commonwealth v. Neiman, 84 A.3d 603, 611 (Pa. 2013) (quoting Pa. State Ass'n of Jury Comm'rs v. Commonwealth, 64 A.3d 611, 618 (Pa. 2013)). Further, we will declare a statute "unconstitutional only if it is shown to be clearly, palpably, and plainly [violative of] the Constitution." Pa. Democratic Party v. Boockvar, 238 A.3d 345, 384 (Pa. 2020) (quoting West Mifflin Area Sch. Dist. v. Zahorchak, 4 A.3d 1042, 1048 (Pa. 2010)) (alterations in Boockvar).
Petitioners argue that their right to relief is clear as Sections 1306 and 1308 of the Election Code plainly violate article VII, section 14, while, conversely, Respondents argue that their right to relief is clear because this Court is bound by the Supreme Court's decision in In re Canvass, which Petitioners concede but argue the Supreme Court should overturn. The relevant constitutional, statutory, and precedential history is as follows. In 1951, Section 1306 was added to the Election Code by Section 11 of the Act of March 6, 1951, P.L. 3, and provided:
At any time after receiving an official military ballot, but on or before the day of the election, the elector, for the purpose of voting, may appear before any person of this or any other state or territory of the United States authorized to administer oaths by Federal, State or military laws. The elector shall first display the ballot to such person as evidence that the same in unmarked, and then shall proceed to mark the ballot with pencil, crayon, indelible pencil or ink, in the presence of such person, but in such manner that the person administering the oath is unable to see how the same is marked, and then fold the ballot, enclose and securely seal the same in the envelope on which is printed, stamped or endorsed "Official Military Ballot." This envelope shall then be placed in the second one, on which is printed the affidavit of the elector, the jurat of the person before whom the elector appears, and the address of the elector's county board of election. The elector shall then fill out, subscribe and swear to the affidavit printed on such envelope, and the jurat shall be subscribed and dated by the person before whom the affidavit was taken. Such envelope shall then be securely sealed and the elector shall send same by mail to said county board of election.25 P.S. § 3146.6 (1951) (emphasis added). In 1951, Section 1308(a) was also added to the Election Code by Section 11 of the Act of March 6, 1951, P.L. 3, and provided, relevantly:
The county boards of election, upon receipt of official military ballots in such envelopes, shall safely keep the same until they meet to canvass official military ballots, which canvass shall begin immediately . . . .25 P.S. § 3146.8(a) (1951) (emphasis added). In 1963, these provisions were amended by Sections 22 and 24 of the Act of August 13, 1963, P.L. 707, respectively, which included a revision to change "military ballot" to "absentee ballot," but provided the same procedure as in 1951 for these ballots to be delivered to and canvassed by the county boards of elections. See 25 P.S. § 3146.6 (1963); 25 P.S. § 3146.8(a) (1963). These were the statutory provisions at issue in In re Canvass.
On November 5, 1957, article VIII, section 19, was adopted and provided a provision for "Absentee Voting Due to Illness or Absence," which stated:
The Legislature may, by general law, provide a manner in which, and the time and place at which, qualified voters who may, on the occurrence of any election, be unavoidably absent from the State or county of their residence because their duties, occupation or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability, may vote, and for the return and canvass of their votes in the election district in which they respectively reside.Formerly Pa. Const. art. VIII, § 19 (emphasis added). On May 16, 1967, before In re Canvass, article VIII, section 19, was amended and subsequently renumbered as article VII, section 14, retitling the provision as "Absentee Voting" and providing as follows:
The Legislature shall, by general law, provide a manner in which, and the time and place at which, qualified electors who may, on the occurrence of any election, be absent from the municipality of their residence, because their duties, occupation or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability or who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of election day duties, in the case of a county employee, may vote, and for the return and canvass of their votes in the election district in which they respectively reside.Pa. Const. art. VII, § 14(a) (emphasis added).
In re Canvass was decided on September 4, 1968, and involved the November 7, 1967 General Election. According to the Governor's Proclamations of July 7, 1967, P.L. 1063 and P.L. 1077, the constitutional amendment was approved by the electorate at the May 16, 1967 primary. Petitioners contend that the electorate approved the constitutional amendment on April 23, 1968. (Pet'rs' Omnibus Br. in Opp'n to POs at 6.) For support, they cite the Constitution available on the General Assembly's website. (Id. at 6 n.3.) Following the table of contents, the website references seven "Proposals" that were recommended by a Constitutional Convention and approved by the electorate on April 23, 1968. Pa. Gen. Assemb., The Const. of Pa., available at https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=0, (last visited Aug. 22, 2024). However, those seven Proposals did not involve elections. See Constitutional Proposals Adopted by the Convention at 7, available at https://www.paconstitution.org/wpcontent/uploads/2019/09/Constitutional_Prop.pdf (last visited Aug. 22, 2024) (setting forth the ballot questions addressing the seven Proposals to appear on the ballot at the April 23, 1968 primary). The General Assembly website does identify various constitutional amendments including the May 16, 1967 one. Pa. Gen. Assemb., The Const. of Pa., available at https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=0 (last visited Aug. 22, 2024) (stating "[b]y statute, 1 Pa.C.S. § 906, the Constitution, as amended by referenda of May 17, 1966, November 8, 1966, May 16, 1967, and April 23, 1968, and as numbered by proclamation of the Governor of July 7, 1967, shall be known and may be cited as the Constitution of 1968") (emphasis added). Notwithstanding that the amendment predated the Constitution of 1968, pursuant to statute, it is to be referred to as the "Constitution of 1968." See 1 Pa.C.S. § 906(b).
In In re Canvass, the Supreme Court addressed whether the 1963 version of Section 1308 "clearly, palpably, [and] plainly" violated article VIII, section 19, of the Pennsylvania Constitution because it provided a process for "the return and canvass of absentee ballots on a county-wide basis" for a general election that took place on November 7, 1967. 245 A.2d at 260. The Supreme Court concluded that the 1963 version of Section 1308 was constitutional because the procedure of delivering and counting absentee ballots at the county level, which are then "applied . . . to the districts in which the absentee voters respectively resided[,]" is wholly consistent with article VIII, section 19, now article VII, section 14(a). Id. at 264 (emphasis added). In other words, "what the Constitution aims at is the counting of each vote not by the local elections district but in such a manner that the computation appears on the return in the district where it belongs." Id. (some emphasis added). The Supreme Court explained that the interpretation proffered by the petitioners in In re Canvass would create logistical difficulties for "opening, challenging, counting, and tabulating [] these ballots in each" district polling location. Id. at 263 (internal quotation marks omitted). The Supreme Court concluded that because "[t]he [c]ounty [b]oard of [e]lections tallied the absentee votes and applied the tallies to the districts in which the absentee voters respectively resided," the process was constitutional and the Court was "inevitably [led] to the conclusion that the framers of the controverted constitutional amendment never intended that the actual counting of the absentee ballots was to be performed in the local districts as against the more-convenient, expeditious, business-like operation of having them tabulated on a county-wide basis." Id. at 263 (emphasis added). In the companion case of In re 223, the Supreme Court reiterated its holding from In re Canvass and concluded "that no person has been deprived of any properly cast vote because the whole operation of the computation took place at the county level instead of at the district level." In re 223, 245 A.2d at 268.
It is unclear whether the Supreme Court was speaking to article VIII, section 19, or the newly amended article VII, section 14. However, both article VIII, section 19, and article VII, section 14, provided "for the return and canvass of their votes in the election district in which they respectively reside." Pa. Const. art. VII, § 14(a); formerly Pa. Const. art. VIII, § 19, which was the language at issue in In re Canvass.
In re 223 involved absentee ballots cast in the November 8, 1966 election. 245 A.2d at 265-66.
In 1968, after In re Canvass and In re 223, and after article VIII, section 19 was amended and renumbered to article VII, section 14, Sections 1306 and 1308 were amended again. See Section 8 of the Act of December 11, 1968, P.L. 1183. Section 1306 continued to provide for the delivery of absentee ballots to the county boards of elections. See 25 P.S. § 3146.6 (1968). Section 1308, however, was amended to change the procedure for canvassing ballots, and provided, relevantly, that the ballots should be distributed on election day to the election district:
The county boards of election, upon receipt of official absentee ballots in such envelopes, shall safely keep the same in sealed or locked containers until they distribute same to the appropriate local election districts in a manner prescribed by the Secretary of the Commonwealth.
The county board of elections shall then distribute the absentee ballots, unopened, to the absentee voter's respective election district concurrently with the distribution of the other election supplies. Absentee ballots shall be canvassed immediately and continuously without interruption until completed after the close of the polls on the day of the election in each election district. . . .25 P.S. § 3146.8(a) (1968) (emphasis added).
In 2019, Act 77 amended Sections 1306 and 1308. Today, Section 1306(a) of the Election Code continues to provide that the absentee ballots be delivered to the county board:
Except as provided in paragraphs (2) and (3), at any time after receiving an official absentee ballot, . . . the elector shall . . . mark the ballot . . . and then fold the ballot, enclose and securely seal the same in the envelope . . . . This envelope shall then be placed in the second one, on which is printed the form of declaration of the elector, and the address of the elector's county board of election and the local election district of the elector. The elector shall then fill out, date and sign the declaration printed on such envelope. Such envelope shall then be securely sealed and the elector shall send same by mail, postage
prepaid, except where franked, or deliver it in person to said county board of election.25 P.S. § 3146.6(a) (emphasis added). Section 1308 of the Election Code returned to the pre-1968 procedure of the absentee ballots being canvassed by county boards of elections:
The county boards of election, upon receipt of official absentee ballots in sealed official absentee ballot envelopes as provided under this article and mail-in ballots as in sealed official mail-in ballot envelopes as provided under Article XIII-D, [Sections 1301-D-1307-D, added by Act 77, 25 P.S. §§ 3150.11-3150.17,] shall safely keep the ballots in sealed or locked containers until they are to be canvassed by the county board of elections. An absentee ballot, whether issued to a civilian, military or other voter during the regular or emergency application period, shall be canvassed in accordance with subsection (g). A mail-in ballot shall be canvassed in accordance with subsection (g).25 P.S. § 3146.8(a) (emphasis added).
Petitioners argue that the previous version of article VII, section 14, was amended in new article VIII, section 19, to change "may" to "shall," and, after In re Canvass, Section 1308 was also amended to provide for the return and canvassing of absentee ballots at the district level consistent with the newly amended article VII, section 14. This shows, per Petitioners, that the legislature understood that the return and canvassing of ballots should take place at the district level. Petitioners are correct that former article VIII, section 19 was amended to change "may" to "shall," which is in the current provision, Pa. Const. art. VII, § 14(a), and that after In re Canvass was decided, Section 1308 was amended to provide for the canvassing of absentee ballots at the voting districts, 25 P.S. § 3146.8(a) (1968). Petitioners are also correct that Act 77 of 2019 changed the procedure to the canvassing of absentee ballots at the county level, 25 P.S. § 3146.8(a). All parties recognize that the statutory language of today's Section 1308 provides for the same procedure as the version of Section 1308 analyzed by the Supreme Court in In re Canvass - that the county boards of elections shall canvass absentee ballots - and that the Supreme Court determined that it complies with the Supreme Court's interpretation of the constitutional provision. The Supreme Court explained that Section 1308 provides for "the counting of each vote not by the local elections district but in such a manner that the computation appears on the return in the district where it belongs." In re Canvass, 245 A.2d at 264 (some emphasis added). We acknowledge there is a question, as the Secretary and Department recognize, as to whether the Supreme Court analyzed the 1963 version of Section 1308 under former article VIII, section 19, which it quotes, or article VII, section 14, which it acknowledges. Regardless, the Supreme Court held that the process of returning and canvassing absentee ballots at the county level served the intent of the language found in the constitutional provisions - "for the return and canvass of [electors'] votes," not ballots, "in the election district in which they respectively reside," Pa. Const. art. VII, § 14(a), formerly Pa. Const. art. VIII, §19 - and the same procedure is provided in the statutory provision challenged by Petitioners here. Accordingly, we agree with the parties that we are bound by the decision in In re Canvass.
To the extent that Petitioners appear to argue that Section 1306 is unconstitutional as it does not provide for the sending and delivering of absentee ballots to the voting districts by the absentee voters, we believe the reasoning of In re Canvass would also be applicable and binding on this Court. Just as in 1967, today, as the Respondents contend, district polling locations are usually schools or public and municipal buildings, which are used for election purposes only on election days and cannot receive absentee ballots except on election days. Both In re Canvass and In re 223 recognized the logistical difficulties of delivering absentee ballots to each district polling location in the weeks before the November 1967 election. These logistical difficulties continue to exist today, and as in 1967, Petitioners' requested relief would create logistical "nightmares," such as opening and staffing over 9,000 temporary polling locations not just on Election Day but before and after Election Day, as well, needing places to securely store absentee ballots, and needing places to securely mail absentee ballots. (See Secretary and Department's Br. in Supp. at 30 (citing Petition, Ex. A.); Adams County Board of Elections' Appl. at 14-15, 20-21.) Not to mention, Petitioners' requested relief would create a different system for mail-in ballots, "which are not substantively different from" absentee ballots. (Adams County Board of Elections' Appl. at 14-15.) Moreover, Petitioners do not seem to refute that Section 1306 has consistently provided that absentee ballots be mailed or delivered to the county boards of elections. (See Pet'rs' Omnibus Br. in Opp'n to POs at 5 & 10 n.4 (citing the 1951 version of Section 1306, 25 P.S. § 3146.6(a) (1951), which provided for the mailing of military/absentee ballots to the county boards of elections and remained so throughout the amendments to Section 1308 in 1968).
It appears that Petitioners do not cite to the 1951 version of Section 1306, as their quoted material does not match the 1951 version. (See Pet'rs' Br. in Supp. at 5 n.3.) Nevertheless, Petitioners' citation and argument shows they acknowledge that military/absentee ballots have been mailed or delivered to the county boards of elections and that process has remained through the amendments as described above.
The same rationales outlined in In re Canvass and In re 223 apply to this case. "It is elementary that unless the United States Supreme Court reverses a decision of [the Pennsylvania Supreme] Court, or [the Pennsylvania Supreme] Court overrules its own prior decision, 'the law emanating from the decision remains law.' Fiore v. White, . . . 757 A.2d 842, 847 ([Pa.] 2000)." Commonwealth v. Reid, 235 A.3d 1124, 1159 (Pa. 2020). In re Canvass and In re 223 held, as constitutional, the current procedure whereby absentee ballots are delivered and canvassed at the county level but the votes therein are then applied to the districts where the absentee voters reside, based on the Supreme Court's interpretation of the language of article VII, section 14. Given the Supreme Court's interpretation, which we must apply, Petitioners have not met the high bar of rebutting the strong presumption that Sections 1306 and 1308 "clearly, palpably, and plainly" violate article VII, section 14. Boockvar, 238 A.3d at 384; Neiman, 84 A.3d at 611. Accordingly, unless and until the Supreme Court reinterprets Section 1306 and 1308 under article VII, section 14, and concludes otherwise, we are bound by In re Canvass and its sound logic.
Due to our disposition, we need not consider whether the Petition is barred by the doctrine of laches.
III. CONCLUSION
In sum, Petitioners have standing to bring this matter as their status as present and future candidates confers upon them a substantial, direct, and immediate interest in knowing whether their candidacy may be affected by a purportedly unconstitutional provision. However, as Respondents argue and Petitioners concede, we are bound by the Supreme Court's precedent and ruling outlined in In re Canvass. Accordingly, we grant Respondents' Applications, deny Petitioners' Application, dismiss the Petition with prejudice, and dismiss the POs as moot.
ORDER
NOW, August 23, 2024, the Application for Summary Relief filed by Al Schmidt, in his official capacity as Secretary of the Commonwealth of Pennsylvania and the Commonwealth of Pennsylvania, Department of State, and the Application for Summary Relief filed by Adams County Board of Elections, both of which are joined in by various other County Boards of Elections (collectively, Respondents), are GRANTED, the Application for Summary Relief filed by David H. Zimmerman and Kathy L. Rapp (Petitioners) is DENIED, the Petition for Review filed by Petitioners is DISMISSED WITH PREJUDICE, and the Preliminary Objections of Respondents are DISMISSED as moot.
OPINION NOT REPORTED CONCURRING OPINION
PATRICIA A. McCULLOUGH, JUDGE
Upon review of what has become a legislative quagmire, I agree with the Majority that the Pennsylvania Supreme Court addressed in In re Canvass of Absentee Ballots of 1967 General Election, 245 A.2d 258 (Pa. 1968) (In re Canvass), and In re 223 Absentee Ballot Appeals, 245 A.2d 265 (Pa. 1968) (In re 223), both decided on September 4, 1968, whether language adopted in the Election Code similar to the case at hand violated the Pennsylvania Constitution regarding canvassing and return of ballots by local election districts. I acknowledge that the Supreme Court in those cases held that it did not, and based its decision on whether it was more feasible for election districts to canvass and return ballots as opposed to the county boards. Although the constitutional language has not changed since those cases were filed, for the reasons that follow, I believe In re Canvass and In re 223 could be distinguished as "old law."
A review of the history of the relevant amendments to the Pennsylvania Election Code and the Pennsylvania Constitution reveal a glaring conflict. The Constitution was amended with particular election language in 1957 and 1967, but the Election Code did not adopt that concise language or its purpose until 1968. Rather, the legislative amendments to the Election Code, up until December 11, 1968, and then again in 2019 in Act 77, were in conflict with the constitutional amendments, which precipitated the litigation in In re Canvass and In re 223. The following chart outlines the constitutional and Election Code amendments through 1963.
Election Code Statutory Provisions
PA Constitution Provisions
1951- legislature added Section 1306: Military ballots to be returned and sent to county boards of election.
1957- Art. VIII, Section 19 adopted “Absentee Voting Due To Absence” and provided for return and canvass of their votes in the election district in which they respectively reside.
1951- legislature added Section 1308(a) providing that county boards of election upon receipt of the official military ballots place in the necessary envelopes shall safely keep the same until they meet to canvass official military ballots.
1967- Art VIII, Section 19 was amended and renumbered by approval of electors at the May 16, 1967 primary. See Fn 14 of Majority. But it still provided that return and canvass of votes were to be in election districts.
Based on the above chart, one can see the constitutional amendments clearly provided that return and canvass of votes was to be in the election districts. Nonetheless, prior to 1968 and contrary to the constitutional amendments, the noted legislative amendments to the Election Code stated that they were to be returned and canvassed by the county boards.
Thereafter and notably, on December 11, 1968, three (3) months after the Supreme Court handed down its decisions in In re Canvass and In re 223, the legislature passed the following amendment to the Election Code which was in line with the constitutional provision that the election districts canvass the votes:
The county boards of election, upon receipt of all official absentee ballots in such envelopes, shall safely keep the same in sealed or locked containers until they distribute
same to the appropriate local election districts in a manner prescribed by the Secretary of the Commonwealth. Except as provided in section 1302.1(a.2), the county board of elections shall then distribute the absentee ballots, unopened, to the absentee voter's respective election district concurrently with the distribution of the other election supplies. Absentee ballots shall be canvassed immediately and continuously without interruption until completed after the close of the polls on the day of the election in each election district.
Former Section 1308(a) of the Election Code, formerly 25 P.S. § 3146.8(a) (repealed by Act 77) (emphasis added).
Important to the matter at hand, this 1968 election code amendment, which appeared to comport with the constitutional language, was not enacted until December 11, 1968, which was 3 months after In re 223 was filed and 3 months after In re Canvass was filed (Sept. 4, 1968). The timeline follows:
May 16, 1967: Constitutional Amendment Art. VIII Section 19 approved by electors;
September 4, 1968: In re Canvass and In re 223 filed; December 11, 1968: 1968 Election Code Amendment to Section 1308.
Since the 1968 Election Code Amendment was not passed until December 11, 1968, it is not discussed in either of the In re Canvass and In re 223 cases. If it had been before the Supreme Court, there would have been no issue to consider in those cases as the Election Code and the constitutional provisions would have mirrored each other. Rather, the Election Code section that was challenged in those cases was the prior Sections 1306 and 1308, which provided that county boards would canvass the votes and ballots. That is why the Court only held in those cases that this particular procedure made practical sense and that it therefore comported with the constitutional intent that votes be canvassed by the counties and returned to the election districts.
Also important for our consideration in light of this 1968 Election Code Amendment providing that election districts canvass the votes, is the subsequent and inconsistent 2019 amendment via Act 77, where the Election Code language in Sections 1306 and 1308 of the 1968 Amendment was revised to provide that ballots shall be sent to and canvassed by the county boards of elections:
absentee ballot . . . the elector shall send same by mail . . . or deliver in person to said county board of election . . .25 P.S. § 3146.6(a).
county boards of election . . . keep the ballots in sealed or locked containers until . . .canvassed by county board of elections. . .25 P.S. § 3146.8(a).
While the Majority believes In re Canvass and In re 223 are precedential and binding decisions on this Court concerning the issue before us, I believe the subsequent Code amendments support another look by the Court. Simply put, In re Canvass and In re 223 were decided PRIOR to the enactment of the 1968 legislative amendment to the Election Code, which was not enacted until December 11, 1968, as well as Act 77, which amended the 1968 language and was adopted in 2019.
Significantly, when the legislature enacted the 1968 amendment, In re Canvass and In Re 223 had already been decided. The legislature had to make a choice-allow county boards to canvass the ballots or votes, as was permitted by the In re Canvass and In re 223 cases, or adopt the constitutional language which is alleged here again to give election districts the canvassing task. It chose the election districts. It chose to adopt an Election Code amendment that provided election districts would canvass the votes, which seemed to mirror the constitutional language for return and canvass of votes in the election districts.
I believe when the legislature passed the 1968 amendment, the constitutional language was particularly evident to it after In re Canvass and In re 223, where it was brought to the forefront, and it chose instead to pass this 1968 amendment to the Election Code. This 1968 amendment and the subsequent amendments to sections 1306 and 1308 in Act 77 in 2019, were not considered by the Supreme Court in In re Canvass and In re 223 and as such I believe these cases could be rendered "old law."
Whether this precedent is deemed binding or "old law," the 1968 Election Code amendment, passed 3 months after these cases were filed, remained the law for canvassing absentee ballots for over 50 years. Presumably, although not clear from the record, local election districts were able to and did canvass those ballots during that 50 year period. Why the legislature chose to veer off from that language again in Act 77 is unclear. It is clear, however, that it was a major sea change from the 1968 Election Code language.
The question not addressed by the Supreme Court in the In re Canvass and In re 223 cases is whether Sections 1306 and 1308 of the Election Code, as they appear in Act 77, and the prior Election Code amendments, all in light of the 1968 Election Code amendment enacted after In re Canvass and In re 223, violate the constitutional amendments voted on by the people of this Commonwealth. This is a critical matter which I believe deserves a fresh look. For these reasons I concur in the result only. As it remains within the purview of the Supreme Court to assess its precedent, I need not say more.