IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE: NOVEMBER 3, 2020 GENERAL : No. 149 MM 2020
ELECTION :
:
:
PETITION OF: KATHY BOOCKVAR, :
SECRETARY OF THE COMMONWEALTH :
OF PENNSYLVANIA :
DISSENTING STATEMENT
JUSTICE BAER FILED: October 14, 2020
I dissent from the Court’s order granting the Secretary of the Commonwealth,
Kathy Boockvar’s (“Secretary”) application for King’s Bench review to resolve the issue
of whether, pursuant to the Election Code of Pennsylvania (Code), 25 P.S. §§ 2600-3591,
signature comparison is warranted by county boards of elections in relation to absentee
and mail-in ballots. In my view, there is no case or controversy for this Court to address
and the legal question presented has been resolved in a federal lawsuit, see infra, thus,
our exercise of jurisdiction would provide nothing more than an advisory opinion.
As indicated, no action has ever been filed in a lower court and the Secretary’s
application names no respondents. In substance, the Secretary’s request to this Court is
essentially a letter asking us to interpret a provision of the Code. While I recognize that
in theory this Court may accept a King’s Bench petition with no pending action and no
opposing parties, the operative question is whether it should. In my respectful view, under
the circumstances of this matter, the answer is a resounding no.
The Secretary’s primary concern in seeking this Court’s review emanated from a
lawsuit argued that the Code authorizes and requires county boards of elections to set
aside and challenge returned absentee and mail-in ballots that contain signatures that do
not match a voter’s signature in their permanent voter registration records. Because the
Secretary took the contrary view of the Code, she had promulgated guidance indicating
that “[t]he Pennsylvania Election Code does not authorize the county board of elections
to set aside returned absentee or mail-in ballots based solely on signature analysis by the
county board of elections.” Department of State’s September 11, 2020 Guidance
Concerning Examination of Absentee and Mail-in Ballot Return Envelopes at 3. In
seeking our King’s Bench review, the Secretary indicates that she fears that without a
resolution of this issue, certain county boards of elections might not follow her guidance
and large numbers of ballots could be rejected on Election Day based on signature
comparison, which could lead to disenfranchisement on an arbitrary and wholly subjective
basis without advance warning to a voter or notice and an opportunity to be heard.
After the Secretary filed her application, the federal court resolved the pending
lawsuit in the Secretary’s favor and conclusively determined that the Code does not allow
for signature comparison of absentee and mail-in ballots. Donald J. Trump for President,
Inc., supra, slip op. at 95-106. All of the county boards of elections were joined in that
case and the federal court specifically indicated that the boards were obligated to follow
the Secretary’s guidance as the court’s decision concluded that the Election Code does
not warrant signature comparison with regard to absentee and mail-in ballots. Id. at 110-
111 (“[T]o the extent there was uncertainty before, this decision informs the counties of
the current state of the law as it relates to signature comparison. If any county still
imposes a signature-comparison requirement in order to disallow ballots, it does so
without support from the Secretary’s guidance or the Election Code”).
[149 MM 2020] - 2
In my view, given that the Secretary did not provide the Court initially with a case
regarding the question she asks us to address and that the federal court has resolved the
controversy over interpretation of the Code in her favor, I see no basis for this Court to
entertain further the Secretary’s request for review. Accordingly, I would deny the
application for King’s Bench review.
[149 MM 2020] - 3
In Re: Nov 3, 2020 General Election Pet of PA Sec
Combined Opinion