[J-116-2020][M.O. - Todd, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
IN RE: CANVASSING OBSERVATION : No. 30 EAP 2020
:
APPEAL OF: CITY OF PHILADELPHIA : Appeal from the November 5, 2020,
BOARD OF ELECTIONS : Single-Judge Order of the Honorable
: Christine Fizzano Cannon of the
: Commonwealth Court at No. 1094 CD
: 2020, reversing the November 3, 2020
: Order of the Honorable Stella Tsai of
: the Court of Common Pleas of
: Philadelphia County at November Term
: 2020, No. 07003
:
: SUBMITTED: November 13, 2020
DISSENTING OPINION
CHIEF JUSTICE SAYLOR DECIDED: November 17, 2020
The Commonwealth Court reasonably directed election officials in Philadelphia to
move restrictive barriers in the Convention Center closer to the ballot-canvassing
operations, which had been staged up to thirty-five yards from the areas to which the
statutorily-authorized candidate representatives were confined. Under the
Commonwealth Court’s order, these representatives could then observe whether ballots
were being counted lawfully to the best of their ability, consistent with health and safety
restrictions. The record -- as well as publicly-available video recordings from the
Convention Center -- amply demonstrate that this simply wasn’t the case previously.
The canvassing has now proceeded to near conclusion under an ensuing
agreement among the parties associated with federal litigation. In my judgment, the
matter is therefore moot -- or at least moot enough -- so that this Court’s discretionary
intervention was and is not required. Moreover, the Legislature already is signaling that
there will be an intense after-action review of the no-excuse mail-in voting regime, which
is in its infancy in Pennsylvania. Accordingly, I doubt that the Court’s present ruling,
relative to governance that is quite likely to be substantially refined, will be of any
importance in the future.
I also note that, given the enormous scale of canvassing activities and the
historical balkanization associated with the administration of the election franchise at the
county-and-district levels across the Commonwealth, there have been, and will always
be, some localized irregularities. This is why courts are open throughout the election
cycle, as here, to remedy these just as quickly as possible. It is also one of the reasons
why we have a Commonwealth Court, with expertise in election matters, and organized
to act expeditiously via single-judge consideration.
Finally, short of demonstrated fraud, the notion that presumptively valid ballots
cast by the Pennsylvania electorate would be disregarded based on isolated procedural
irregularities that have been redressed -- thus disenfranchising potentially thousands of
voters -- is misguided. Accordingly, to the degree that there is a concern with protecting
or legitimizing the will of the Philadelphians who cast their votes while candidate
representatives were unnecessarily restrained at the Convention Center, I fail to see
that there is any real issue.
Justice Mundy joins this dissenting opinion.
[J-116-2020][M.O. – Todd, J.] - 2