In Re: Canvass of Absentee and Mail-In Ballots

[J-118A-F-2020] [OAJC: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA

IN RE: CANVASS OF ABSENTEE AND : No. 31 EAP 2020
MAIL-IN BALLOTS OF NOVEMBER 3, :
2020 GENERAL ELECTION :
: SUBMITTED: November 18, 2020
APPEAL OF: DONALD J. TRUMP FOR :
PRESIDENT, INC. :
:
:
IN RE: CANVASS OF ABSENTEE AND : No. 32 EAP 2020
MAIL-IN BALLOTS OF NOVEMBER 3, :
2020 GENERAL ELECTION :
: SUBMITTED: November 18, 2020
APPEAL OF: DONALD J. TRUMP FOR :
PRESIDENT, INC. :
:
:
IN RE: CANVASS OF ABSENTEE AND : No. 33 EAP 2020
MAIL-IN BALLOTS OF NOVEMBER 3, :
2020 GENERAL ELECTION :
: SUBMITTED: November 18, 2020
APPEAL OF: DONALD J. TRUMP FOR :
PRESIDENT, INC. :
:
:
IN RE: CANVASS OF ABSENTEE AND : No. 34 EAP 2020
MAIL-IN BALLOTS OF NOVEMBER 3, :
2020 GENERAL ELECTION :
: SUBMITTED: November 18, 2020
APPEAL OF: DONALD J. TRUMP FOR :
PRESIDENT, INC. :
:
:
IN RE: CANVASS OF ABSENTEE AND : No. 35 EAP 2020
MAIL-IN BALLOTS OF NOVEMBER 3, :
2020 GENERAL ELECTION :
: SUBMITTED: November 18, 2020
APPEAL OF: DONALD J. TRUMP FOR :
PRESIDENT, INC. :
:
:
IN RE: 2,349 BALLOTS IN THE 2020 : No. 29 WAP 2020
GENERAL ELECTION :
:
 APPEAL OF: ALLEGHENY COUNTY : Appeal from the Order of the
BOARD OF ELECTIONS : Commonwealth Court entered
: November 19, 2020 at No. 1162 CD
: 2020, reversing the Order of the
: Court of Common Pleas of
: Allegheny County entered November
: 18, 2020 at No. GD 20-011654 and
: remanding
:
:
SUBMITTED: November 20, 2020

CONCURRING AND DISSENTING OPINION

JUSTICE WECHT DECIDED: November 23, 2020

I agree with the conclusion that no mail-in or absentee ballot should be set aside

solely because the voter failed to hand print his or her name and/or address on the

declaration form on the ballot mailing envelope. These items are prescribed not by statute

but by the Secretary of the Commonwealth under legislatively delegated authority.

Absent evidence of legislative intent that what in context amounts to redundant

information must be furnished to validate a mail ballot, their omission alone should not

deny an elector his or her vote. But I part ways with the conclusion reflected in the Opinion

Announcing the Judgment of the Court (“OAJC”) that a voter’s failure to comply with the

statutory requirement that voters date the voter declaration should be overlooked as a

“minor irregularity.” This requirement is stated in unambiguously mandatory terms, and

nothing in the Election Code1 suggests that the legislature intended that courts should

1 Act of June 3, 1937, P.L. 1333, art. I, § 101, codified as amended at 25 P.S.
§§ 2601, et seq.

[J-118A-F-2020] [OAJC: Donohue, J.] - 2
construe its mandatory language as directory. Thus, in future elections, I would treat the

date and sign requirement as mandatory in both particulars, with the omission of either

item sufficient without more to invalidate the ballot in question.2 However, under the

circumstances in which the issue has arisen, I would apply my interpretation only

prospectively. So despite my reservations about the OAJC’s analysis, I concur in its

disposition of these consolidated cases.

Concurring in this Court’s recent decision in Pennsylvania Democratic Party v.

Boockvar, I expressed my increasing discomfort with this Court’s willingness to peer

behind the curtain of mandatory statutory language in search of some unspoken directory

intent.

[If this Court is] to maintain a principled approach to statutory interpretation
that comports with the mandate of our Statutory Construction Act,[3] if we
are to maximize the likelihood that we interpret statutes faithfully to the
drafters’ intended effect, we must read mandatory language as it appears,
and we must recognize that a mandate without consequence is no mandate
at all.4

There, I wrote separately in support of this Court’s ruling requiring the invalidation of mail-

in ballots that were returned to boards of elections not sealed in their secrecy envelopes

as required by statutory language. The secrecy envelope requirement at issue in that

case was no less ambiguous than the “fill out, date and sign” mandate at issue in this

2 None of the parties or courts involved in these consolidated cases dispute that a
voter’s failure to sign a mail-in or absentee ballot’s declaration requires invalidation.
3 Act of Dec. 6, 1972, No. 290, § 3, codified as amended at 1 Pa.C.S. §§ 1501, et
seq.
4 238 A.3d 345, 391 (Pa. 2020) (Wecht, J., concurring) (hereinafter “PDP”).

[J-118A-F-2020] [OAJC: Donohue, J.] - 3
case.5 Nonetheless, departing from that holding for reasons that do not bear close

scrutiny, the OAJC concludes that invalidation should not follow for failure to comply with

the Election Code provisions requiring that “the elector shall . . . fill out, date and sign the

declaration printed on” the ballot mailing envelope, even though this requirement appears

in precisely the same statutory provisions as were at issue in PDP.

Section 3150.16 of the Election Code, governing “[v]oting by mail-in electors”—

and its counterpart for absentee ballots, which employs the same operative language6—

provides:

At any time after receiving an official mail-in ballot, but on or before eight
o’clock P.M. the day of the primary or election, the mail-in elector shall, in
secret, proceed to mark the ballot only in black lead pencil, indelible pencil
or blue, black or blue-black ink, in fountain pen or ball point pen, and then
fold the ballot, enclose and securely seal the same in the envelope on which
is printed, stamped or endorsed “Official Election Ballot.” 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.7

5 Specifically, 25 P.S. § 3150.16(a) provides that the mail-in ballot elector “shall, in
secret, proceed to mark the ballot only in black lead pencil, indelible pencil or blue, black
or blue-black ink, in fountain pen or ball point pen, and then fold the ballot, enclose and
securely seal the same in the envelope on which is printed, stamped or endorsed ‘Official
Election Ballot.’”
6 Compare 25 P.S. § 3150.16(a) (“Voting by mail-in electors”) with 25 P.S.
§ 3146.6(a) (“Voting by absentee electors”). Each provision governing the form of mail-
in ballots and the voter’s obligations in preparing and transmitting them has its verbatim
equivalent for absentee ballots, and the issue presented applies equally to both.
Hereinafter, for simplicity’s sake, I refer exclusively to mail-in ballots and cite and quote
only the provisions that apply to mail-in ballots, but my analysis applies identically to both.
The OAJC reproduces the relevant sections at length. See OAJC at 5-7.
7 25 P.S. § 3150.16(a) (emphasis added).

[J-118A-F-2020] [OAJC: Donohue, J.] - 4
While this Court has not reviewed every constituent step this provision prescribes, we

have addressed several of the requirements, taking it upon ourselves to weigh in each

instance whether to interpret the mandatory statutory language as being mandatory in

fact. The law those cases now comprise is so muddled as to defy consistent application,

an inevitable consequence of well-meaning judicial efforts to embody a given view of what

is faithful to the spirit of the law, with the unfortunate consequence that it is no longer

clear what “shall” even means.

Nearly fifty years ago, this Court considered whether a ballot completed in red or

green ink should be counted given that the statute provided by its terms only for the

canvassing of ballots completed in blue/black ink.8 Then-applicable Section 3063 of the

Election Code provided that “[a]ny ballot that is marked in blue, black or blue-black ink, in

fountain pen or ball point pen, or black lead pencil or indelible pencil, shall be valid and

counted.”9 The Court determined that the Code did not require the invalidation of ballots

completed in other colors, holding that the mandatory language was merely directory in

effect:

[T]he power to throw out a ballot for minor irregularities should be sparingly
used. It should be done only for very compelling reasons. Marking a ballot
in voting is a matter not of precision engineering but of an unmistakable
registration of the voter’s will in substantial conformity to statutory
requirements. In construing election laws[,] while we must strictly enforce
all provisions to prevent fraud over overriding concern at all times must be
to be flexible in order to favor the right to vote. Our goal must be to
enfranchise and not to disenfranchise. This section of the code merely
assures the validity of ballots marked in blue, black or blue-black ink. It
does not . . . specify that any other type of marking will necessarily be void.
We have noted in other cases that the dominant theme of this section is to
prevent ballots from being identifiable. A ballot should not be invalidated

8 Appeal of Weiskerger, 290 A.2d 108 (Pa. 1972).
9 25 P.S. § 3063 (applicable through October 30, 2019).

[J-118A-F-2020] [OAJC: Donohue, J.] - 5
 under [25 P.S. § 3063] unless the voter purposely makes a mark thereon or
commits some other act in connection with this ballot to distinguish and
identify it. The proper interpretation of this portion of the statute considering
the occasion for its enactment, the mischief to be remedied, and the policy
to liberally construe voting laws in the absence of fraud, is that the ballot is
valid unless there is a clear showing that the ink used was for the purpose
of making the ballot identifiable.10

As this Court later stressed in Appeal of Pierce, Weiskerger “was decided before

the enactment of the Statutory Construction Act [(“SCA”)], which dictates that legislative

intent is to be considered only when a statute is ambiguous.”11 Thus, while Pierce focused

on distinguishing Weiskerger, it nonetheless implicitly called into question the Weiskerger

Court’s casual dismissal of the language of the statute there at issue because the various

factors the Weiskerger Court cited as relevant to its decision not to give “shall” mandatory

effect are relevant under the SCA only when the statute is susceptible of two or more

reasonable interpretations.12

In insisting that a court’s goal should be to “enfranchise and not to disenfranchise”

and to be “flexible” in furtherance of that goal, the Weiskerger Court found itself awash in

10 Weiskerger, 290 A.2d at 109 (cleaned up).
11 Appeal of Pierce, 843 A.2d 1223, 1231 (Pa. 2004); see 1 Pa.C.S. 1921(b) (“When
the words of a statute are clear and free from all ambiguity, the letter of it is not to be
disregarded under the pretext of pursuing its spirit.”); see also Oberneder v. Link
Computer Corp., 696 A.2d 148, 150 n.2 (Pa. 1997) (rejecting a party’s reliance upon a
1965 case because it was at odds with the ambiguity-first, reliance-upon-rules-of-
construction-later approach to statutory construction required by the SCA).
12 Without suggesting that the ink color language at issue in that case was ambiguous
on its face, the Weiskerger Court suggested that interpreting the language required it to
consider, inter alia, “the occasion for its enactment” and “the mischief to be remedied.”
Weiskerger, 290 A.2d at 109. Section 1921 of the SCA similarly provides that courts may
consider “[t]he occasion and necessity for the statute” and “[t]he mischief to be
remedied”—but only “[w]hen the words of the statute are not explicit.” 1 Pa.C.S.
§ 1921(c).

[J-118A-F-2020] [OAJC: Donohue, J.] - 6
language so slippery as to defy consistent application. The Court posited the existence

of “minor irregularities,” a term we repeat often but have yet to define with suitable rigor,13

and posited that ballots should be invalidated only for “very compelling reasons.”14 It also

blessed “substantial conformity,” and directed courts to “be flexible in order to favor the

right to vote”—evidently even when doing so runs counter to statutory directives stated in

mandatory terms.15

Perhaps most troublingly, the Court posited that its “goal must be to enfranchise

and not to disenfranchise.”16 A court’s only “goal” should be to remain faithful to the terms

of the statute that the General Assembly enacted, employing only one juridical

presumption when faced with unambiguous language: that the legislature meant what it

said. And even where the legislature’s goal, however objectionable, is to impose a

requirement that appears to have a disenfranchising effect, it may do so to any extent

that steers clear of constitutional protections. In any event, even if the Weiskerger Court

13 See, e.g., Appeal of Norwood, 116 A.2d 552, 555 (Pa. 1955); Appeal of Gallagher,
41 A.2d 630, 632 (Pa. 1945).
14 Weiskerger, 290 A.2d at 109 (quoting In re Petitions to Open Ballot Boxes, 188
A.2d 254, 256 (Pa. 1963)).
15 In contrast to Weiskerger’s capacious understanding of this principle, the Court
adopted a more measured tone in Appeal of Urbano, 190 A.2d 719 (Pa. 1963). There,
citing the presumption in favor of counting votes, it allowed for relief from the apparent
consequences of failing to satisfy mandatory statutory language, but did so specifically
because the common-law presumption was in keeping with additional statutory language
expressly granting the court discretion to permit amendments to cure even “material
errors or defects.” Id.
16 Weiskerger, 290 A.2d at 109 (emphasis added).

[J-118A-F-2020] [OAJC: Donohue, J.] - 7
faithfully applied the common-law principles it cited, it did so inconsistently with the SCA’s

contrary guidance, which issued later the same year and binds us today.17

But the advent of the SCA did not prevent this Court from repeating the same

mistake even decades later. In Shambach v. Bickhart,18 a voter wrote in a candidate for

office despite the fact that the candidate appeared on the official ballot for that office. This

facially violated the Election Code, which provided that the voter shall, in the designated

area, “write the identification of the office in question and the name of any person not

already printed on the ballot for that office, and such mark and written insertion shall count

as a vote for that person for such office.”19 Echoing Weiskerger, the Shambach Court

observed that, “although election laws must be strictly construed to prevent fraud, they

17 To be clear, Weiskerger was by no means our original sin in this area. In one
earlier example cited by the OAJC, this Court discerned reason to disregard the
mandatory connotation of “shall” in Appeal of James, 105 A.2d 64 (Pa. 1954). Indeed,
one can detect aspects of the same open-ended analysis in, e.g., our 1922 decision in In
re Fish’s Election, 117 A. 85, 87 (Pa. 1922) (quoting Knight v. Borough of Coudersport,
92 A. 299, 300 (Pa. 1914)) (“If the law declares a specified irregularity to be fatal, the
court will follow that command, irrespective of their views of the importance of the
requirement. In the absence of such declaration the judiciary endeavor, as best they
may, to discern whether the deviation from the prescribed forms of law had or had not so
vital an influence on the proceedings as probably prevented a full and free expression of
the popular will. . . . [If not], it is considered immaterial.”). Our willingness to substitute
our judgment for that of the legislature perhaps reached its nadir in Norwood, where we
held that “[e]very rationalization within the realm of common sense should aim at saving
[a] ballot rather than void it,” 116 A.2d at 554-55, an expression that the OAJC embraces
as a “well-settled principle of Pennsylvania election law.” OAJC at 19. Perhaps no
passage better illustrates the liberties this Court has taken when probing for reasons to
treat mandatory language as anything but mandatory.
18 845 A.2d 793 (Pa. 2004).
19 25 P.S. § 3031.12(b)(3) (emphasis added). The language in question has been
amended in the intervening years.

[J-118A-F-2020] [OAJC: Donohue, J.] - 8
ordinarily will be construed liberally in favor of the right to vote.”20 Thus, the Court “[has]

held that ballots containing mere irregularities should only be stricken for compelling

reasons.”21 In support of this particular proposition, though, the Court cited only decisions

that predated the SCA.22 Much as in Weiskerger, the Court held that the absence of

statutory language requiring the invalidation of a ballot completed in violation of the

mandatory language of Section 3031.12(b)(3), combined with the amorphous principles

it drew from the Court’s prior cases, precluded the invalidation of a nonconforming ballot,

effectively writing unambiguous language out of the Election Code entirely.

We restored a greater degree of rigor in Pierce. In that case, we considered

whether absentee ballots delivered by third persons on behalf of non-disabled voters were

invalid under the Election Code, which provided that “the elector shall send [the absentee

ballot] by mail, postage prepaid, except where franked, or deliver it in person to said

county board of election.”23 There, in a step the Shambach Court tacitly bypassed, the

Court underscored the SCA’s direction that a court’s sole objective in construing a statute

is to “ascertain and effectuate the intention of the General Assembly,” and that,

“[g]enerally speaking, the best indication of legislative intent is the plain language of a

20 Shambach, 845 A.2d at 798 (quoting James, 105 A.2d at 65).
21 Id. at 798.
22 See Appeal of Mellody, 296 A.2d 782, 784 (Pa. 1972); Reading Defense
Committee, 188 A.2d at 256; Gallagher, 41 A.2d at 632. The OAJC similarly relies
substantially for these principles on pre-SCA case law. See, e.g., OAJC at 3 (quoting
James, 105 A.2d at 65-66 (Pa. 1954)); id. at 19 (quoting Urbano, 190 A.2d at 719, and
Norwood, 116 A.2d at 554).
23 25 P.S. § 3146.6(a) (emphasis added); see Pierce, 843 A.2d at 1231.

[J-118A-F-2020] [OAJC: Donohue, J.] - 9
statute.”24 “[I]t is only when the words of a statute ‘are not explicit’ that a court may resort

to other considerations, such as the statute’s perceived ‘purpose,’ in order to ascertain

legislative intent.”25 In this light, the Court turned to the legislature’s use of the word

“shall.” “Although some contexts may leave the precise meaning of the word ‘shall’ in

doubt,” the Court opined, “this Court has repeatedly recognized the unambiguous

meaning of the word in most contexts.”26 As noted supra, this Court in Pierce declined to

treat Weiskerger as controlling in part because it was decided before the enactment of

the SCA. While we did not assert Weiskerger’s abrogation, we certainly cast doubt upon

its probity, as well, by extension, as all similarly permissive Election Code case law relying

upon the presumption to count votes that violated the Code’s unambiguous directives.

In In re Scroggin,27 too, we applied the relevant statutory language strictly in

conformity with its terms, despite colorable arguments that doing so would deny ballot

access to a candidate who had “substantially complied” with the statutory requirements.

And at issue in that case was not merely the votes of a small percentage of otherwise

qualified voters, but whether a political body’s Presidential candidate would appear on the

ballot at all in the wake of a placeholder nominee’s failure to satisfy the Code’s mandatory

affidavit requirement. “[T]he provisions of the election laws relating to the form of

nominating petitions and the accompanying affidavits are not mere technicalities,” we

24 Pierce, 843 A.2d at 1230 (citations omitted).
25 Id.
26 Id. at 1231-32 (citing, inter alia, BRYAN GARNER, DICTIONARY OF MODERN LEGAL
USAGE 939 (2d ed. 1995)).
27 237 A.3d 1006 (Pa. 2020).

[J-118A-F-2020] [OAJC: Donohue, J.] - 10
explained, “but are necessary measures to prevent fraud and to preserve the integrity of

the election process. . . . Thus, the policy of the liberal reading of the Election Code

cannot be distorted to emasculate those requirements necessary to assure the probity of

the process.”28

Finally, in PDP, we held that the failure strictly to comply with the Election Code’s

mandatory requirement that mail-in ballots be sealed in the provided “Official Election

Ballot” envelope required invalidation. Again, we specifically rejected the appellants’

reliance upon Weiskerger and Shambach, relying instead upon Pierce. As in Pierce, we

found that to interpret “shall” as directory rather than mandatory would render the Code’s

requirements “meaningless and, ultimately, absurd,” notwithstanding the absence of an

express, statutorily-prescribed sanction for non-compliance.29 While we did not go out of

our way to express a jaundiced a view of our cases holding that “minor irregularities”

might be overlooked, the gravamen of our decision in that case, as in Pierce, was clear:

shall means shall.30

Although I joined the Majority in that case, I wrote separately to underscore the

difficulties endemic to judicial efforts to discern ulterior meanings ostensibly obscured by

the legislature’s use of mandatory language. I observed that relying upon such

unbounded investigations invited courts “to bend unclear texts toward whatever ends that

28 Id. at 1019 (quoting Appeal of Cubbage, 359 A.2d 383, 384 (Pa. 1976)).
29 PDP, 238 A.3d at 379 (quoting Pierce, 843 A.2d at 1232).
30 Id. at 380 (“[Pierce] leads to the inescapable conclusion that a mail-in ballot that is
not enclosed in the statutorily-mandated secrecy envelope must be disqualified. . . .
Accordingly, we hold that the secrecy [envelope] language in Section 3150.16(a) is
mandatory and the mail-in elector’s failure to comply . . . renders the ballot invalid.”).

[J-118A-F-2020] [OAJC: Donohue, J.] - 11
they believe to be consonant with legislative intent, but with little or no contemporaneous

insight into whether they have done so successfully.”31 Acknowledging that legislation is

sometimes less than a model of clarity, and that this Court consequently will continue to

face invitations to treat mandatory language as something less, I wrote: “[I]f we are to

maintain a principled approach to statutory interpretation that comports with the mandate

of [the SCA], if we are to maximize the likelihood that we interpret statutes faithfully to the

drafters’ intended effect, we must read mandatory language as it appears, and we must

recognize that a mandate without consequence is no mandate at all.”32

It is against this case law, and particularly the views I expressed in PDP, that I

review the question now before us, briefly addressing the Secretary-imposed name and

address requirement first, before proceeding to consider the statutory requirement that

the voter date and sign the voter declaration.

As to the former question, I agree with the OAJC’s conclusion, although I subscribe

to the narrower approach briefly set forth by Justice Dougherty in his Concurring and

Dissenting Opinion and developed variously in the OAJC’s analysis. But while the OAJC

acknowledges the reasons that Justice Dougherty cites as militating against invalidation,

it supplements them with the minor-irregularity analysis familiar from Weiskerger and

Shambach, which is neither necessary nor advisable. Justice Dougherty’s approach

requires no reliance upon cases that Pierce and PDP rightly have called into question.

Rather, the fact that the name and address requirement does not stem from mandatory

31 Id. at 391 (Wecht, J., concurring).
32 Id.

[J-118A-F-2020] [OAJC: Donohue, J.] - 12
statutory language,33 as well as questions about the Secretary’s authority to compel

county boards of elections to conform with whatever guidance the Secretary offers,34

combined with our presumption in favor of treating qualified voters’ ballots as valid absent

clear legal mandates to the contrary where statutory language is less than clear,35

collectively recommend against invalidating ballots for this omission alone.36 That is

enough for me.

The same cannot be said about the date and sign requirement, which derives from

an unmistakable statutory directive. Drawing upon our less rigorous case law, and relying

heavily upon the interpretive latitude this Court has arrogated to itself sporadically for

generations, the OAJC assumes that our mission is to determine whether the apparent

mandate is in fact directory, hanging the entire inquiry upon the question of mandatory

versus directory effect. That reading, in turn, must rely upon the “minor

33 See Conc. & Diss. Op. at 2 (Dougherty, J.).
34 See OAJC at 32-33 n.6.
35 See PDP, 238 A.3d at 356 (“[T]he Election Code should be liberally construed so
as not to deprive, inter alia, electors of their right to elect a candidate of their choice.”).
Notably, the OAJC cites PDP for the same proposition, correctly qualifying the principle
by noting that liberal construction comes into play only “[w]here an election statute is
ambiguous.” OAJC at 25 n.4 (emphasis added).
36 I also find cause for concern in the absence of clear instruction on the ballot
materials indicating that a ballot lacking a name or address will be disqualified, a concern
that informs my preference for prospective application of the statutory date requirement.
Cf. Reading, 188 A.2d at 256 (declining to invalidate ballots upon which voters did not
signal their intended votes strictly with the X or check mark mandated by statute for
various reasons—including a “minor irregularity” approach I reject—especially where the
printed instruction on the ballot did not specify that only those two methods of signaling
one’s vote would be recognized).

[J-118A-F-2020] [OAJC: Donohue, J.] - 13
irregularity” / “weighty interest” dichotomy underlying the cases that Pierce and PDP have

called into question.

To determine whether the Election Code’s directive that the voter handwrite
their names, address, and the date of signing the voter declaration on the
back of the outer envelope is a mandatory or directory instruction requires
us to determine whether the intent of the General Assembly was clear and
whether the failure to handwrite the information constitutes “minor
irregularities” or instead represent[s] “weighty interests” . . . that the General
Assembly considered to be critical to the integrity of the election.37

To be clear, the OAJC offers a commendably thorough analysis, but its length and

involution is necessary only because of the open-ended inquiry it embarks upon. And it

is no surprise that, like the cases upon which it relies, the OAJC involves protean

characterizations of voting requirements as “technicalities,”38 “minor irregularities,”39 and

37 OAJC at 23.
38 See id. at 3 (quoting James, 105 A.2d at 66 (“Technicalities should not be used to
make the right of the voter insecure.”)). James’s tendentious resort to the word
“technicalities,” which seldom is used constructively when invoked in connection with the
law, is contradicted at least in tenor by subsequent pronouncements. See Pierce, 843
A.2d at 1234 (“[S]o-called technicalities of the Election Code are necessary for the
preservation of secrecy and the sanctity of the ballot and must therefore be
observed . . . .”); Appeal of Weber, 159 A.2d 901, 905 (Pa. 1960) (“The technicalities of
the Election Law (and they are many) are necessary for the preservation of the secrecy
and purity of the ballot and must, therefore, be meticulously observed.”).
39 See OAJC at 22-23 (counterposing “minor irregularities” and “weighty interests” as
the framework for decision). Notably, the question as to which we granted review quite
confused the meaning of “irregularity.” We proposed to answer the question whether “the
Election Code require[s] county boards of elections to disqualify mail-in or absentee
ballots submitted by qualified electors who signed their ballot’s outer envelopes but did
not handwrite their name, their address, and/or a date, where no fraud or irregularity has
been alleged?” Id. at 15. But this formulation is irreconcilable with the question whether
failing to date a ballot declaration is, itself, a “minor irregularity” and, as such, not subject
to the sanction of ballot invalidation—the very crux of the case, as the OAJC defines it. I
raise this discrepancy because it illustrates how these constructs lend themselves to
confusion, complicating what should be simple questions by engrafting unenumerated
considerations upon plainly worded statutes.

[J-118A-F-2020] [OAJC: Donohue, J.] - 14
even “superfluous.”40 As illustrated in my review of earlier case law, the OAJC does not

conjure this terminology from the ether—all but the last of these terms have been central

to this Court’s decisional law going back decades. But properly understood, all of these

terms signal (and implicitly bless) the substitution of judicial appraisals for legislative

judgments.

The OAJC approach ultimately requires that in any case requiring interpretation of

the Election Code to determine the validity of votes nonconforming with facially mandatory

requirements, the Court must assess the effect of that language de novo before deciding

whether the legislature intended for it to be interpreted as mandatory or merely directory.41

Thus, while a court embracing that test might take it as obvious, e.g., that the signature

requirement should be construed as mandatory, it could not merely have taken its

mandatory effect as a given by virtue of the statutory language alone. If the

mandatory/directory inquiry is ever appropriately applied to mandatory language, then the

Court can only conclude that mandatory language must be applied as such after applying

its balancing test, with cases that seem obvious merely reflecting that the Court deemed

the “interest” to be protected so “weighty” that its omission clearly cannot be viewed as a

“minor irregularity.”

40 See id. at 30 (“The date stamp and the SURE system provide a clear and objective
indicator of timeliness, making any handwritten date unnecessary and, indeed,
superfluous.”); cf. id. at 23 (characterizing the handwritten name and address requirement
as, “at best, a ‘minor irregularity’ and, at worst, entirely immaterial”).
41 See id. at 30 (“Although unlike the handwritten name and address, which are not
mentioned in the statute, the inclusion of the word ‘date’ in the statute does not change
the analysis because the word ‘shall’ is not determinative as to whether the obligation is
mandatory or direct[ory] in nature.” (emphasis added)).

[J-118A-F-2020] [OAJC: Donohue, J.] - 15
 The only practical and principled alternative is to read “shall” as mandatory. Only

by doing so may we restore to the legislature the onus for making policy judgments about

what requirements are necessary to ensure the security of our elections against fraud

and avoid inconsistent application of the law, especially given the certainty of disparate

views of what constitute “minor irregularities” and countervailing “weighty interests.”

I do not dispute that colorable arguments may be mounted to challenge the

necessity of the date requirement, and the OAJC recites just such arguments.42 But

colorable arguments also suggest its importance, as detailed in Judge Brobson’s opinion

as well as Justice Dougherty’s Concurring and Dissenting Opinion.43 And even to indulge

these arguments requires the court to referee a tug of war in which unambiguous statutory

language serves as the rope. That reasonable arguments may be mounted for and

against a mandatory reading only illustrates precisely why we have no business doing so.

Ultimately, I agree with Judge Brobson’s description of the greatest risk that arises

from questioning the intended effect of mandatory language on a case-by-case basis:

While we realize that our decision in this case means that some votes will
not be counted, the decision is grounded in law. It ensures that the votes
will not be counted because the votes are invalid as a matter of law. Such
adherence to the law ensures equal elections throughout the
Commonwealth, on terms set by the General Assembly. The danger to our
democracy is not that electors who failed to follow the law in casting their
ballots will have their ballots set aside due to their own error; rather, the real
danger is leaving it to each county board of election to decide what laws
must be followed (mandatory) and what laws are optional (directory),
providing a patchwork of unwritten and arbitrary rules that will have some
defective ballots counted and others discarded, depending on the county in
which a voter resides. Such a patchwork system does not guarantee voters

42 See id. at 30-32.
43 See In re 2,349 Ballots in the 2020 General Election, 1162 C.D. 2020, slip op. at 12
(Pa. Cmwlth. Nov. 19., 2020) (memorandum); Conc. & Diss. Op. at 3 (Dougherty, J.).

[J-118A-F-2020] [OAJC: Donohue, J.] - 16
 an “equal” election, particularly where the election involves inter-county and
statewide offices. We do not enfranchise voters by absolving them of their
responsibility to execute their ballots in accordance with law. 44

We must prefer the sometimes-unsatisfying clarity of interpreting mandatory language as

such over the burden of seeking The Good in its subtext. Substantive perfection is the

ever-elusive concern of the legislature. Ours must be consistency of interpretive method

without fear or favor, a goal that recedes each time a court takes liberties with statutory

language in furtherance of salutary abstractions. Because the OAJC favors a more

intrusive and ambitious inquiry, I respectfully dissent.

But just because I disagree with the OAJC’s interpretation of the date and sign

requirement does not inexorably lead me to the conclusion that the votes at issue in this

case must be disqualified. While it is axiomatic that ignorantia legis neminem excusat

(ignorance of the law excuses no one), this Court may elect to apply only prospectively a

ruling that overturns pre-existing law or issues a ruling of first impression not

foreshadowed by existing law. Indeed, we have done so in at least one case under the

Election Code. In Appeal of Zentner,45 we confronted a statute governing candidates’

obligation to submit statements of financial interests by a time certain that had been

revised specifically to correct our previously fluid interpretations of the predecessor

statute. We were forced to consider whether our newly strict construal of the revised

statute should result in the invalidation of entire ballots already cast because they

included one or more candidates who had failed to satisfy the statutory disclosures. We

44 In re 2,349 Ballots, slip op. at 12-13.
45 626 A.2d 146 (Pa. 1993)

[J-118A-F-2020] [OAJC: Donohue, J.] - 17
held, as the legislature clearly intended, that a candidate’s “failure to file the requisite

financial interests statement within the prescribed time shall be fatal to a candidacy.”46

But we also concluded that to “void the results of an election where all candidates were

submitted to the voters, with late but nonetheless filed financial statements which left

adequate time for study by the electorate, would be an unnecessary

disenfranchisement.”47 Thus we determined that our holding should apply prospectively

but not to the election at issue.48

It goes without saying that 2020 has been an historically tumultuous year. In

October of 2019, the legislature enacted Act 77,49 introducing no-excuse mail-in voting

with no inkling that a looming pandemic would motivate millions of people to avail

themselves of the opportunity to cast their ballots from home in the very first year that the

law applied. Soon thereafter, Act 12,50 introduced and enacted with unprecedented

46 Id. at 149.
47 Id.
48 Cf. Andino v. Middleton, No. 20A55, ___ U.S. ___, 2020 WL 5887393, *1 (Oct. 5,
2020) (staying the district court’s injunction of an absentee ballot witness requirement,
“except to the extent that any ballots cast before this stay issues and received within two
days of this order may not be rejected for failing to comply with the witness requirement”
in light of the fact that voters cast nonconforming absentee ballots in reliance upon the
guidance of state elections officials during the pendency of the injunction); In re Beyer,
115 A.3d 835, 843-44 (Pa. 2015) (Baer, J., dissenting) (finding it “reasonable for this
Court to rule prospectively that a candidate may only designate his occupation or
profession as ‘lawyer’ on nomination papers after he or she has graduated from law
school, passed the bar exam, and is in good standing as an active member of the
Pennsylvania Bar,” but dissenting because, “at the time Candidate Beyer filed his
nomination papers, neither a majority of this Court nor the Commonwealth Court had ever
made such an express declaration”).
49 See Act of Oct. 31, 2019, P.L. 552, No. 77.
50 See Act of March 27, 2020, P.L. 41, No. 12.

[J-118A-F-2020] [OAJC: Donohue, J.] - 18
alacrity in response to the pandemic, further amended the Election Code to address

emergent concerns prompted by the looming public health crisis. While aspects of the

new provisions that are relevant to this case were not wholly novel to the Code, as such—

for example, the provisions that authorized no-excuse mail-in voting by and large just

expanded the pool of voters to whom the rules that long had governed absentee balloting

applied—the massive expansion of mail-in voting nonetheless presented tremendous

challenges to everyone involved in the administration of elections, from local poll workers

to the Secretary of the Commonwealth. Importantly, it transformed the incentives of

probing the mail-in balloting provisions for vulnerabilities in furtherance of invalidating

votes. For the first time, a successful challenge arising from a given technical violation of

statutory requirements might result in the invalidation of many thousands of no-excuse

mail-in ballots rather than scores or hundreds of absentee ballots.

In advance of the 2020 election, neither this Court nor the Commonwealth Court

had occasion to issue a precedential ruling directly implicating the fill out, date and sign

requirement. Moreover, as the OAJC highlights in multiple connections, the Secretary

issued confusing, even contradictory guidance on the subject.51 Thus, local election

officials and voters alike lacked clear information regarding the consequence of, e.g.,

failing to handwrite one’s address on an envelope that already contained preprinted text

with that exact address or record the date beside the voter’s declaration signature.

I have returned throughout this opinion to our decision in PDP, and I do so once

more. I maintained in that case that the Election Code should be interpreted with

51 See OAJC at 24 n.3, 32-33 n.6; see also id. at 8-10 (reproducing all relevant
aspects of the guidance documents pertaining to the issues presented).

[J-118A-F-2020] [OAJC: Donohue, J.] - 19
unstinting fidelity to its terms, and that election officials should disqualify ballots that do

not comply with unambiguous statutory requirements, when determining noncompliance

requires no exercise of subjective judgment by election officials.52 The date requirement

here presents such a case. But I also emphasized that disqualification is appropriate “[s]o

long as the Secretary and county boards of elections provide electors with adequate

instructions for completing the declaration of the elector—including conspicuous warnings

regarding the consequences for failing strictly to adhere” to those requirements.53 I

cannot say with any confidence that even diligent electors were adequately informed as

to what was required to avoid the consequence of disqualification in this case. As in

Zentner, it would be unfair to punish voters for the incidents of systemic growing pains.

In case after case involving the Election Code, especially this year, we have been

reminded how important it is that the General Assembly provide unambiguous guidance

for the administration of the election process. But it is imperative that we recognize when

the legislature has done precisely that, and resolve not to question the legislature’s

chosen language when it has done so. And perhaps it is a silver lining that many of the

problems that we have encountered this year, in which a substantially overhauled

electoral system has been forced to make its maiden run in stormy seas, are now clear

enough that the legislature and Department of State have notice of what statutory

refinements are most needful. It is my sincere hope that the General Assembly sees fit

to refine and clarify the Election Code scrupulously in the light of lived experience. In

particular, because this is the second time this Court has been called upon to address the

52 See PDP, 238 A.3d at 389 (Wecht, J., concurring).
53 See id. (emphasis added).

[J-118A-F-2020] [OAJC: Donohue, J.] - 20
declaration requirement, it seems clear that the General Assembly might clarify and

streamline the form and function of the declaration, perhaps prescribing its form to

advance clarity and uniformity across the Commonwealth.54

54 In this regard, the OAJC observes that the Democratic National Committee
“argues, with some persuasive force, that the Campaign’s requested interpretation of
Pennsylvania’s Election Code could lead to a violation of [the federal Voting Rights Act]
by asking the state to deny the right to vote for immaterial reasons.” OAJC at 26 n.5; see
52 U.S.C. § 10101(a)(2) (No person acting under color of law shall . . . (B) deny the right
of any individual to vote in any election because of an error or omission on any record or
paper relating to any application, registration, or other act requisite to voting, if such error
or omission is not material in determining whether such individual is qualified under State
law to vote in such election . . . .”). The OAJC does not pursue this argument, except to
acknowledge a handful of cases that might be read to suggest that the name and address,
and perhaps even the date requirement could qualify as “not material in determining
whether such individual is qualified under State law to vote.” Given the complexity of the
question, I would not reach it without the benefit of thorough advocacy. But I certainly
would expect the General Assembly to bear that binding provision in mind when it reviews
our Election Code. It is inconsistent with protecting the right to vote to insert more
impediments to its exercise than considerations of fraud, election security, and voter
qualifications require.

[J-118A-F-2020] [OAJC: Donohue, J.] - 21