[J-96-2020] [MO: Baer, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
PENNSYLVANIA DEMOCRATIC PARTY, : No. 133 MM 2020
NILOFER NINA AHMAD, DANILO :
BURGOS, AUSTIN DAVIS, DWIGHT :
EVANS, ISABELLA FITZGERALD, :
EDWARD GAINEY, MANUEL M. GUZMAN, :
JR., JORDAN A. HARRIS, ARTHUR : SUBMITTED: September 8, 2020
HAYWOOD, MALCOLM KENYATTA, :
PATTY H. KIM, STEPHEN KINSEY, PETER
:
SCHWEYER, SHARIF STREET, AND :
ANTHONY H. WILLIAMS :
:
:
v. :
:
:
KATHY BOOCKVAR, IN HER CAPACITY :
AS SECRETARY OF THE :
COMMONWEALTH OF PENNSYLVANIA; :
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 :
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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 :
:
:
PETITION OF: KATHY BOOCKVAR, IN :
HER CAPACITY AS SECRETARY OF THE :
COMMONWEALTH OF PENNSYLVANIA :
CONCURRING AND DISSENTING OPINION
JUSTICE DONOHUE DECIDED: September 17, 2020
I.
I join the Majority’s opinion as to Parts I, II, and III(A), III(C), III(D) and III(E).
II.
With respect to Part III(B), I agree that Petitioners are entitled to relief, but I
distance myself from the Majority’s analysis to reach this conclusion as well as the specific
relief granted. Petitioners base their request for relief on the infringement of the rights
afforded by Article 1, Section 5 of the Pennsylvania Constitution, our Free and Equal
Elections Clause.1 In my mind, the issue must be framed as an as-applied challenge,
1 Article I, Section 5 of the Pennsylvania Constitution provides as follows:
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during the duration of the COVID-19 public health crisis and current USPS service
standards, to the constitutionality of Sections 3150.12a(a) and 3150.16(c) of Act 77, which
respectively set the last date on which voters may request mail-in ballots and the deadline
for when ballots must be received by county boards of elections. With deference to my
learned colleagues, I believe that this issue should have been decided in a case in this
Court’s original jurisdiction under Act 77, Michael Crossey et al, v. Kathy Bookckvar, et
al., No. 108 MM 2020, where the claims likewise were based on the Free and Equal
Elections clause and in which this Court ordered the creation of a complete evidentiary
record to determine whether the petitioners there had met their high burden to prove the
existence of a constitutional injury entitling them to relief.
Despite invoking an as-applied constitutional challenge in the present case,
Petitioners and the Secretary (as in Crossey) seek equitable relief in the form of an order
permitting non-compliance with the received-by provision in Act 77 (Section 3150.16(c))
during the COVID-19 pandemic. I am not as comfortable as the Majority with the ability
of this Court to exercise equitable powers in election matters.2 Because they are
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.
Pa. Const., art. 1, § 5.
2 Section 3046 of the Election Code provides courts of common pleas with authority, with
some latitude, to make rulings on Election Day to secure compliance with the election
laws. 25 P.S. § 6046. Specifically, a judge or judges from each county will remain in
session on Election Day to “act as a committing magistrate for any violation of the election
laws; shall settle summarily controversies that may arise with respect to the conduct of
the election; shall issue process, if necessary, to enforce and secure compliance with the
election laws; and shall decide such other matters pertaining to the election as may be
necessary to carry out the intent of this act.” Id. The Commonwealth Court relied on
Section 3046 in deciding In re General Election-1985, 531 A.2d 836 (Pa. Commw. 1987)
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inherently political, elections are appropriately regulated by the political branch. In re
Guzzardi, 99 A.3d 381, 385 (Pa. 2014). As such, out of respect for legislatures and for
the sake of regularity and orderliness in the election process, the supreme courts of our
sister states have routinely held that courts cannot exercise equitable powers to mitigate
harsh results in derogation of legislative requirements for strict compliance with election-
related deadlines. Butts v. Bysiewicz, 5 A.3d 932, 947 (Conn. 2010) (“Equity only applies
in the absence of a specific statutory mandate.”); see also Martin v. Secretary of State,
755 N.W.2d 153, 154 (Mich. 2008); Smith v. Kiffmeyer, 721 N.W.2d 912, 914–15 (Minn.
2006); Andrews v. Secretary of State, 200 A.2d 650, 651 (Md. 1964). Following the leads
of these courts, in 2014, this Court denied equitable relief to a litigant in an election case,
holding as follows:
[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. At least 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.
Guzzardi, 99 A.3d at 385. The Court recently reaffirmed our decision in Guzzardi.
Reuther v. Delaware Cty. Bureau of Elections, 205 A.3d 302, 308-09 (Pa. 2019).
(in light of a flood occurring on election day, the court of common pleas had the authority
to suspend voting in certain districts until the emergency was over), appeal denied, 544
A.2d 963 (Pa. 1988).
The Majority relies on In re General Election-1985 to support our broad equitable powers
to act in this case despite the limitations in Section 3046.
[J-96-2020] [MO: Baer, J.] - 5
Without the availability of equitable relief, it is my view that Petitioners are entitled
to relief only in the context of an as-applied constitutional challenge. Specifically,
Petitioners must prove that in light of the existing circumstances, the short seven-day
timeframe established by Sections 3150.12a(a) and 3150.16(c) of Act 77 provides
insufficient time for a voter to request a mail-in ballot (by October 27, 2020) and return it
to a county board of elections by the statutorily set received-by date (8:00 p.m. on Election
Day, November 3, 2020), so that the vote is counted. Such a constitutional challenge
requires a plain showing of injury. “There is a presumption that lawfully enacted
legislation is constitutional. Should the constitutionality of legislation be challenged, the
challenger must meet the burden of rebutting the presumption of constitutionality by a
clear, palpable and plain demonstration that the statute violates a constitutional
provision.” Yocum v. Commw. of Pennsylvania Gaming Control Bd., 161 A.3d 228, 238
(Pa. 2017).
In Crossey, the petitioners produced sufficient evidence to meet this high “clear,
palpable and plain” burden of proof. Given the deadlines set for the request of and
subsequent return of ballots, considered in light of the pandemic and current lagging
USPS service standards (which are highly unlikely to improve significantly before Election
Day), the evidence in Crossey established that there is a strong likelihood that voters who
wait until the last day to apply for a mail-in or absentee ballot will be disenfranchised, as
their mail-in ballots will not be delivered by Election Day and thus will not be counted.
Thus, the short seven-day window set forth in Sections 3150.12a(a) and 3150.16(c) of
Act 77 constitutes an interference with the free exercise of the right to vote as guaranteed
by our Free and Equal Elections Clause. The evidentiary linchpin for establishing the
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unconstitutionality of the seven-day time frame was correspondence from Thomas J.
Marshall, General Counsel and Executive Vice President for the USPS, to Secretary
Boockvar dated July 29, 2020 advising that the current service standards for delivery of
First Class Mail is two to five days, and cautioning that Pennsylvania’s application and
return deadlines for mail-in ballots are such that despite prompt actions by voters, the
ballots may “not be returned in time to be counted.” The letter was accepted into evidence
in Crossey and was further supported by the testimony of the Deputy Postmaster at the
time the correspondence was crafted.
The existence of the constitutional injury suffered by virtue of adherence to the
statutory deadlines for request and return of ballots is illustrated in the following chart,
which incorporates the fact of receipt by the board of elections of an application on the
statutory deadline of October 27, 2020. It also assumes that the application is
immediately processed and a ballot mailed to the voter within forty-eight hours of receipt
of the application.3 I further take into account that mail is processed by USPS but not
delivered on Sundays. All computations are based on the use of First-Class Mail:
DATE DATE BALLOT
DATE
BALLOT DELIVERY BALLOT IS DELIVERY DATE BALLOT IS RECEIVED
BALLOT IS
MAILED TIME (in MAILED TIME (in RECEIVED BY IN TIME TO
RECEIVED
BY days) BACK BY days) BOARD BE
BY VOTER
BOARD VOTER COUNTED?
2 Monday, 11/2/2020 YES
Thursday, Saturday,
2
10/29/2020 10/31/2020
3 Tuesday, 11/3/2020 YES
3 In this regard, we note that 25 P.S. § 3150.15 provides that county boards of elections
must deliver the ballots to the voters within forty-eight hours after approval of the
application. See 25 P.S. § 3150.15 (“As additional applications are received and
approved, the board shall deliver or mail official mail-in ballots to the additional electors
within 48 hours.”).
[J-96-2020] [MO: Baer, J.] - 7
Saturday, Wednesday,
4 NO
10/31/2020 11/4/2020
5 Thursday, 11/5/2020 NO
Wednesday,
2 NO
11/4/2020
Saturday, Monday, 3 Thursday, 11/5/2020 NO
10/31/2020 11/2/2020
4 Friday, 11/6/2020 NO
5 Saturday, 11/7/2020 NO
Monday, Wednesday,
2 NO
11/2/2020 11/4/2020
Monday, 3 Thursday, 11/5/2020 NO
11/2/2020
3-4 Monday,
4 Friday, 11/6/2020 NO
11/2/2020
5 Saturday 11/7/2020 NO
Monday,
2-5 (After Election Day) NO
11/2/2020 Tuesday,
11/3/2020
2-5 (After Election Day) NO
Tuesday,
5
11/3/2020 Wednesday,
2-5 (After Election Day) NO
11/4/2020
The only way the current statutory framework works is if the ballot is delivered by USPS
in two days, the voter immediately returns the ballot, and it is received by the board of
elections within three days. All other voters who comply with the statutory framework are
disenfranchised, even though they complied with the statute.
The role of the judiciary when a meritorious constitutional challenge is brought
“includes the obligation to vindicate” the constitutional rights at issue, and in doing so
courts have wide latitude to craft an appropriate remedy.” Robinson Twp. v.
Commonwealth, 83 A.3d 901, 953 (Pa. 2013); see also League of Women Voters of Pa.
v. Commonwealth, 178 A.3d 737, 793 (Pa. 2018) (“The Court possesses broad authority
to craft meaningful remedies [for constitutional violations] when required.”). Where, as
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here, “a legislatively unforeseen constitutional problem requires modification of a statutory
provision as applied,” the United States Supreme Court has admonished courts to look
to legislative intent when devising a remedy. See United States v. Booker, 543 U.S. 220,
246-47 (2005) (after ruling that federal sentencing statute that made guidelines
mandatory was unconstitutional, the Court made an effort to determine what “‘Congress
would have intended’ in light of the Court’s constitutional holding.” Id. at 246-47.
In Crossey (and in the present case), Petitioners recommend that the “received
by” date be moved from Election Day to seven days after Election Day, so long as the
mailing is postmarked by Election Day. In Crossey (and here), Secretary Boockvar
believes that moving the received-by day forward by three days is sufficient, and that
Petitioners’ longer time period would in fact interfere with other important functions that
must take place after Election Day. In crafting a remedy for an as-applied constitutional
violation, a court’s duty is to effectuate the intent of the General Assembly to the extent
possible and to otherwise not disrupt the statutory scheme. In light of these principles, I
do not believe that either of the parties’ recommended remedies provide the appropriate
solution.
There is no reasonable reading of the statute that would lead to the conclusion that
the Tuesday before Election Day was of any institutional importance. Instead, the clear
legislative intent was that all ballots were to be cast by 8:00 p.m. on Election Day, the
termination of the balloting process. It cannot be viewed as a coincidence that the closing
of the polls terminating in-person voting and the receipt of mail-in ballots were designated
by the statute to be the same. The last date on which applications for ballots would be
accepted was tied to an assumption that a timely vote could be cast before the only
[J-96-2020] [MO: Baer, J.] - 9
meaningful milestone, Election Day. As a result, the remedy to best effectuate the
legislative intent before the intervening circumstances is to move back, i.e., make earlier,
the final date on which applications for mail-in ballots may be submitted to the county
boards of elections. I would accept Secretary Boockvar’s opinion that three additional
days will substantially correct the problem. However, moving back by three days the
deadline for the receipt of applications by the boards of elections would result in that
deadline falling on Saturday. Instead, to reflect normal business days, the deadline for
receipt of the application by the boards of election should be moved to Friday, October
23, 2020. The received-by date for the ballot by the boards of elections, Election Day by
8:00 p.m., should remain unchanged.
For comparison, the following chart illustrates the new deadlines interfaced with
current USPS delivery standards:
DATE DATE DATE BALLOT
DELIVERY DELIVERY DATE BALLOT
BALLOT BALLOT BALLOT RECEIVED IN
TIME (in TIME (in RECEIVED BY
MAILED BY RECEIVED MAILED BY TIME TO BE
days) days) BOARD
BOARD BY VOTER VOTER COUNTED?
2 Friday, 10/30/2020 YES
Wednesday, Wednesday, 3 Saturday, 10/31/2020 YES
10/28/2020 10/28/2020 4 Monday 11/2/2020 YES
5 Monday 11/2/2020 YES
2
2 Saturday, 10/31/2020 YES
Wednesday,
10/28/2020
3 Monday, 11/2/2020 YES
Monday,
Thursday,
10/26/2020
10/29/2020
4 Monday, 11/2/2020 YES
Thursday,
10/29/2020
3 5 Tuesday, 11/3/2020 YES
Thursday, Friday,
2 Monday, 11/2/2020 YES
10/29/2020 10/30/2020
[J-96-2020] [MO: Baer, J.] - 10
3 Monday, 11/2/2020 YES
4 Tuesday, 11/3/2020 YES
Friday,
10/30/2020
5 Wednesday, 11/4/2020 NO
4
2 Monday, 11/2/2020 YES
Friday,
10/30/2020
3 Tuesday, 11/3/2020 YES
Saturday,
10/31/2020
4 Wednesday, 11/4/2020 NO
Saturday,
10/31/2020
5 5 Thursday, 11/5/2020 NO
Saturday, Monday,
2-5 (After Election Day) NO
10/31/2020 11/2/2020
As with the previous illustration, I assume that county boards of elections will process and
send out the ballots within forty-eight hours of receipt. Whether this is possible, likely or
impossible is apparently immaterial, since Secretary Boockvar, with knowledge of the
capacities of the county boards of elections, recommended a three-day extension, so I
assume that it accounted for this factor.
As required when remedying an as-applied constitutional defect, this remedy is the
least disruptive to the enacted statutory scheme. The problem to be remedied here is
that the seven-day period to complete the mail-in vote process has been rendered
unworkable by the current extraordinary circumstances. I have no doubt that the statute
was intended to accommodate the realities as they existed when Act 77 was enacted. It
is unconstitutional as applied to the November 2020 general election because of current
realities.
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For these reasons, in connection with the November 2020 general election only,
the deadline for requesting a ballot should be moved to Friday, October 23, 2020.4 The
legislative choice of Election Day at 8:00 p.m. should remain intact.
In summary, I agree with the Majority that the received-by date for ballot
applications in light of the deadline for submission of ballots to the county boards of
election is unworkable under current circumstances. I dissent from the invocation of
equitable powers to craft a remedy. In my view, this issue should have been decided on
the evidentiary record developed in Crossey based on the analytical framework for an as-
applied challenge to the constitutionality of the statutory provisions as violative of Article
1, Section 5 of our Constitution, with the remedy crafted based upon the legislative intent
in enacting the circumstantially defective statutes.
Chief Justice Saylor and Justice Mundy join Part II of this concurring and dissenting
opinion.
4 To the extent that the non-severability clause in Section 11 of Act 77, 1 Pa.C.S. § 1925
is enforceable, I do not view the election specific remedies at issue here as-applied
constitutional violation as triggering the draconian consequence. In the context of the
COVID-19 pandemic, applying the non-severability provision to void Act 77 in its entirety
would itself be unconstitutional, as it would disenfranchise a massive number of
Pennsylvanians from the right to vote in the upcoming election.
More broadly, in Stilp v. Commonwealth, 905 A.2d 918, 978 (Pa. 2006), this Court
declined to apply an identically worded non-severability provision, id. at 973, refusing to
allow the General Assembly to “dictate the effect of a judicial finding that a provision in an
act is ‘invalid.’” Id. at 976. Here, as in Stilp, Act 77’s boilerplate non-severability provision
“sets forth no standard for measuring non-severability, but instead simply purports to
dictate to the courts how they must decide severability.” Id. at 973.
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