IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 1 Petition of Katherine R. :
Carpenter, Andrea G. Cauble, and :
Jessica M. Neff for a Recount of the :
Election of Uwchlan 1 Pursuant to the :
Election Code 25 P.S. 3261, 25 P.S. :
3031.18(1) and 25 P.S. 3263 :
:
Appeal of: Katherine R. Carpenter, :
Andrea G. Cauble, and Jessica M. Neff : No. 1381 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 3 Petition of Carrie D. Gross, :
Sanda Oyola, and Marsha :
Brofka-Berends for a Recount of the :
Election of Uwchlan 3 Pursuant to the :
Election Code 25 P.S. 3261, 25 P.S. :
3031.18(1) and 25 P.S. 3263 : No. 1382 C.D. 2021
:
Appeal of: Carrie D. Gross, Sandra :
Oyola, and Marsha Brofka-Berends :
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 4 Petition of Marisa Norma :
Pereyra, Katherine J. Farnum, and :
Michael A. Farnum for a Recount of the :
Election of Uwchlan 4 Pursuant to the :
Election Code 25 P.S. 3261, :
25 P.S. 3031.18(1) and 25 P.S. 3263 :
:
Appeal of: Marisa Norma Pereyra, :
Katherine J. Farnum :
and Michael A. Farnum : No. 1383 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 5 Petition of Margaret L. :
Quinn, Barbara L. Phillips, and Hugh N. :
O'Donnell for a Recount of the Election :
of Uwchlan 5 Pursuant to the Election :
Code 25 P.S. 3261, 25 P.S. 3031.18(1) :
and 25 P.S. 3263 :
:
Appeal of: Margaret L. Quinn, :
Barbara L. Phillips, and :
Hugh N. O'Donnell : No. 1384 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 9 Petition of Susan R. Morgan, :
Brandyn C. Muller Campbell and :
Diane W. O'Dwyer for a Recount of the :
Election of Uwchlan 9 Pursuant to the :
Election Code 25 P.S. 3261, 25 P.S. :
3031.18(1) and 25 P.S. 3263 :
:
Appeal of: Brandyn C. Muller Campbell :
and Diane W. O'Dwyer : No. 1385 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 1, Petitions of Katherine R. :
Carpenter, Andrea G. Cauble, and :
Jessica M. Neff for a recount Pursuant :
to the Election Code 25 P.S. §§ 3161, :
3031.18(1), and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1395 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 3 Petition of Carrie D. Gross, :
Sandra Oyola, and Marsha Brofka- :
Berends for Recount of the Election of :
Uwchlan 3 Pursuant to the Election :
Code 25 P.S. §§ 3161, 3031.18(1), :
and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1396 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 4 Petition of Marisa Norma :
Pereyra, Katherine J. Farnum and :
Michael A. Farnum for Recount of the :
Election of Uwchlan 4 Pursuant to the :
Election Code 25 P.S. §§ 3161, :
3031.18(1), and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1397 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 5 Petition of Margaret L. :
Quinn, Barbara L. Phillips, and Hugh N. :
O'Donnell for Recount of the Election :
of Uwchlan 5 Pursuant to the Election :
Code 25 P.S. §§ 3161, 3031.18(1), :
and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1398 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 9 Petition of Susan R. Morgan, :
Brandyn C. Muller Campbell, and Diane :
W. O'Dwyer for Recount of the Election :
of Uwchlan 9 Pursuant to the Election :
Code 25 P.S. §§ 3161, 3031.1 8(1), :
and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1399 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board :
Precincts Uwchlan 1, 3, 4, 5, and 9 :
:
Appeal of: Margie Miller : No. 1403 C.D. 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION STATING THE VIEW
OF SENIOR JUDGE LEADBETTER FILED: January 10, 2022
That this case is difficult is confirmed by the fact that our panel was
unable to reach a majority opinion on the entire case and thus our order reflects the
results of differing majority conclusions with respect to two of the issues. This
opinion sets out my views of the varying claims raised in these appeals.
1
This matter was assigned to the panel before January 3, 2022, when President Judge Emerita
Leavitt became a senior judge on the Court.
1
Before us for disposition are five related and consolidated appeals and
cross appeals emanating from a December 6, 2021, order of the Court of Common
Pleas of Chester County. That court granted in part and denied in part Petitioners’
request to recount and inspect six ballots in Chester County pertaining to the election
in region 4 for Downingtown School Board Precincts Uwchlan 1, 3, 4, 5, and 9, filed
pursuant to the Pennsylvania Election Code.2 The disputed ballots include: (1) three
mail-in ballots marked VS-1, VS-2, and VS-3; (2) two provisional ballots marked
VS-4 and VS-5; and (3) one undated mail-in ballot marked VS-6.
Following a hearing and argument, the trial court determined that the
recount request for the six disputed ballots was timely filed, essentially determining
that Section 1407(a) of the Election Code, 25 P.S. § 3157(a), was inapplicable. In
relevant part, that provision provides:
Any person aggrieved by any order or decision of
any county board regarding the computation or canvassing
of the returns of any primary or election, or regarding any
recount or recanvass thereof . . . may appeal therefrom
within two days after such order or decision shall have
been made, whether then reduced to writing or not, to the
court specified in this subsection, setting forth why he
feels that an injustice has been done, and praying for such
order as will give him relief.
25 P.S. § 3157(a). In support, the trial court noted that there was no evidence
presented that a dispute existed at any time during the computation of votes as to the
validity of the disputed ballots, there was no evidence presented “regarding any
2
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591. In October 2019, the
General Assembly enacted Act 77 of 2019, which amended the Election Code and authorized
“mail-in voting” for the first time in the Commonwealth. See generally Article XIII-D of the
Election Code, added by the Act of October 31, 2019, P.L. 552, No. 77, 25 P.S. §§ 3150.11-
3150.17.
2
‘decision’ by any county board with regard thereto[,]” and no witness appeared on
behalf of the Board of Elections or any other county board to demonstrate that the
request was untimely. (Trial Ct.’s Dec. 6, 2021 Op. at 2-3 n.1.)
As for the ballots, the trial court ordered:
(1) The request to inspect the six ballots is moot;
(2) The two provisional ballots marked VS-4 and VS-5
shall be counted;
(3) The three mail-in ballots marked VS-1, VS-2, and
VS-3 shall not be counted; and
(4) The undated ballot marked as VS-6 shall be counted.
(Id. at 1.)
The pertinent background is as follows. Following the initial tabulation
of the race for Downingtown School Director Region 4, candidate Rebecca Britton
had 1,184 votes and candidate (and Intervenor here) Margie Miller had 1,186 votes.
Subsequently, the trial court conducted a December 2, 2021 hearing and heard
arguments on the recount request. At the hearing, the Board of Elections presented
the testimony of Stephanie Saitis, the Assistant Director of Voter Services. She
testified as to Chester County’s process and procedures for tabulating votes and
protecting the integrity of the election process. Following her testimony, the
attorneys presented legal argument in support of their respective positions.
Ultimately, the trial court determined as follows with respect to the
disputed ballots. With respect to the three mail-in ballots that were rejected during
the initial canvassing of votes because the outer envelopes of two appeared to be cut
open and resealed with tape, and the third had a mangled/torn outer envelope, the
trial court determined that they should not be counted. In support, the trial court
3
cited the requirement in Section 1306-D(a) of the Election Code, 25 P.S. §
3150.16(a), that mail-in ballots be “securely sealed” and opined that the opened
outside envelopes implicated concerns of fraud.
With respect to the two provisional ballots (VS-4 and VS-5) that were
not placed in secrecy envelopes as required by Section 1210(a.4)(3) of the Election
Code, 25 P.S. § 3050(a.4)(3), but, instead, were placed in the outer provisional ballot
envelope after the elector voted in a privacy booth at the polling place and returned
to the judge of elections, the trial court concluded that these ballots should be
counted. In support, the trial court cited the testimony of Ms. Saitis that they did not
raise concerns of tampering or fraud.
As for the undated ballot (VS-6) that was excluded from the
computation, the trial court concluded that it should be counted. In support, the trial
court cited the testimony of Ms. Saitis that it arrived at Voter Services on October
21, 2021, well in advance of Election Day. In addition, the trial court noted that it
was dated upon receipt at Voter Services and contained no other irregularities.
For the reasons that follow, I would hold that the ballots marked VS-2
and VS-3 may be counted, so long as the envelopes contain secrecy envelopes that
are sealed and undisturbed. However, I would not allow the ballots marked VS-1,
VS-4, VS-5, and VS-6 to be counted.
With respect to the provisional ballots, the Election Code provides not
only that after casting his or her ballot, the voter shall place it in a secrecy envelope
and then into the provisional ballot envelope,3 but specifically mandates that, “A
provisional ballot shall not be counted if . . . a provisional ballot envelope does not
contain a secrecy envelope . . . .” 25 P.S. § 3050(a.4)(5)(ii)(C) (emphasis added).
3
25 P.S. § 3050(a.4)(3).
4
While we agree with the trial court that voters should not be lightly disenfranchised
where there is no real question raised that the ballot is the genuine vote of the elector,
we simply are not free to disregard the explicit directive of the statute. Accordingly,
all three judges agree that the ballots marked VS-4 and VS-5 may not be counted.
It is undisputed that the mail-in ballot marked VS-6 complied with all
requirements except that the elector had not dated the outer envelope and that the
ballot was received well in advance of Election Day. The validity of such a ballot
was before our Supreme Court in In re Canvass of Absentee and Mail-in Ballots of
November 3, 2020 General Election, 241 A.3d 1058 (Pa. 2020) (plurality). In that
case the undated ballots were allowed to be counted. Justice Donohue’s opinion
announcing the judgment of the Court stated:
Here we conclude that while failures to include a
handwritten name, address or date in the voter declaration
on the back of the outer envelope, while constituting
technical violations of the Election Code, do not warrant
the wholesale disenfranchisement of thousands of
Pennsylvania voters.
Id. at 1079. Further:
[O]nly failures to comply with mandatory obligations,
which implicate both legislative intent and “weighty
interests” in the election process, like ballot confidentiality
or fraud prevention, will require disqualification. [citing
Pa. Democratic Party v. Boockar, 238 A.3d 345, 379-80
(Pa. 2020).]
....
[W]e hold that a signed but undated declaration is
sufficient and does not implicate any weighty interest.
....
5
[W]e conclude that dating the declaration is a directory,
rather than a mandatory, instruction, and thus the
inadvertent failure to comply does not require that ballots
lacking a date be excluded from counting.
Id. at 1076-78.
Nonetheless, the opinion was joined by only two other justices, while
two additional justices joined Justice Dougherty in dissent, believing that the date
requirement was mandatory. The judgment of the Court, then, hinged upon the
concurring opinion of Justice Wecht, who opined:
[T]he Election Code should be interpreted with unstinting
fidelity to its terms, and . . . 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. . . . [D]isqualification 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.
Id. at 1089 (Wecht, J., concurring) [citing and quoting Pa. Democratic Party, 238
A.3d at 389 (emphasis omitted) (footnote omitted)].4 However, because he felt that
those circumstances were not present in the 2020 election, he opined:
[I]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. However, under the
4
In this regard, we note that the outer envelope of VS-6 in the present case stated: “YOUR
BALLOT WILL NOT BE COUNTED UNLESS: you sign and date the voter’s declaration in your
own handwriting” and at the signature line it was noted: “Voter, sign or mark here (Required).”
(Dec. 2, 2021 Hearing, Copy Ex. VS-6.) Further, Ms. Saitis testified that in 2021 for the current
election, these instructions were printed in red ink. (Id., Notes of Testimony “N.T.” at 52.)
6
circumstances in which the issue has arisen, I would apply
my interpretation only prospectively.
In re Canvass of Absentee and Mail-in Ballots of Nov. 3, 2020 Gen. Election, 241
A.3d at 1079-80.
Accordingly, there is no binding precedent that controls our decision
here. However, while I might prefer the result reached by the plurality opinion, I
must conclude that the prevailing view of our Supreme Court is that of Justice
Wecht, i.e., that the requirement that the outer envelope be dated by the voter is
mandatory and must be strictly enforced in elections held after that of 2020. See
also Ritter v. Lehigh Cnty. Bd. of Elections (Pa. Cmwlth., No. 1322 C.D. 2021, filed
January 3, 2022) (special election panel) (Majority relied on In re Canvass of
Absentee and Mail-in Ballots of November 3, 2020 General Election, and held that
mail-in ballots without a date must be set aside and not counted). Therefore, I would
not allow the ballot marked VS-6 to be counted. Judge Leavitt concurs in this view.
With respect to ballots VS-1, VS-2, and VS-3, there is no allegation or
evidence of fraud; rather the issue here is whether they must be rejected for failure
to comply with the requirement that a mail-in ballot must be enclosed in an outer
envelope that is “securely sealed” before mailing. 25 P.S. § 3150.16(a). The secrecy
envelope must also be securely sealed and placed inside the outer envelope, but that
provision is not in issue here. At the hearing, the trial court and all counsel were
able to view the original envelopes marked VS-1, VS-2, and VS-3, but these were
returned to Voter Services and photocopies were substituted in the original record.
Unfortunately, these photocopies are of such poor quality that we can discern
nothing from them concerning the envelopes’ conditions, so the only record
evidence is the descriptions in the testimony and the trial court’s findings. With
respect to VS-1, Ms. Saitis testified that “the outer envelope is fairly destroyed. It
7
is completely open.” (Dec. 2, 2021 Hearing, Notes of Testimony “N.T.” at 19.) The
trial court similarly characterized it as “mangled and torn open.” (Trial Ct.’s Op. at
5.) As to VS-2, Ms. Saitis stated that “the back of the envelope had been opened
and then taped shut.” (N.T. at 21.) She further testified that envelope VS-3 “had
been sliced open at the top and then taped shut.” Id. The trial court found both VS-
2 and VS-3 “appear to have been cut open and resealed, in part, with tape.” (Trial
Ct.’s Op. at 5.) Ms. Saitis also testified that it was not uncommon to receive mail-
in ballots where the outer envelope had been opened and resealed and that such
ballots were accepted if there was a notation on the envelope, ostensibly from the
voter, stating that he or she had opened and resealed it. (N.T. at 64-65.)
Unlike the other statutory provisions discussed above, I believe the
legislative mandate at issue here to be ambiguous. The Election Code does not have
any definition of the term “securely sealed.” Obviously, VS-1, described as mangled
and “completely open” was not sealed at all, and so our panel agrees that this ballot
cannot be counted. However, VS-2 and VS-3 arrived at Voter Services with their
taped closure intact. In addition, the statute does not prohibit voters from opening
and re-sealing the outer envelope if they had, for instance, forgotten to seal the
secrecy envelope or neglected to put the ballot in the secrecy envelope at all, let
alone provide that such action will invalidate the ballot. Given the lack of clear
statutory directive, I believe that, absent some evidence of tampering by a third party,
this issue should weigh in favor of allowing the vote to be counted, particularly if
the secrecy envelope remains undisturbed and unopened inside the resealed outer
envelope. Thus, with that proviso, I would allow VS-2 and VS-3 to be counted. As
neither Judge Covey nor Judge Leavitt agrees with this analysis, we will order those
ballots to remain uncounted.
8
Aside from the ballots, which all parties agree is “the heart of the issue,”
two allegations of error remain. First, Petitioners argue that the trial court erred in
failing to act on their request for a second full recount of Precinct 653. We disagree.
First, the relevant provision, inter alia, provides: “Any petition to open a ballot box
or recanvass . . . shall be filed no later than five days after the completion of the
computational canvassing of all returns of the county by the county board.” Section
1703(a)(1) of the Election Code, 25 P.S. § 3263(a)(1) (emphasis added). In this case,
aside from any timeliness issues, there was no petition nor was any such request
filed. Rather, counsel made an oral request during the hearing concerning the six
ballots. Moreover, there had already been one hand recount of the precinct and no
irregularity was alleged, but only that the recount had changed the results by a single
vote. Our panel agrees that the trial court did not abuse its discretion in refusing to
act on this oral request.
Finally, in her cross-appeal, Intervenor argues that the petition
challenging ballots marked VS-1 through VS-6 was untimely pursuant to Section
1407(a) of the Election Code, 25 P.S. § 3157(a), providing in pertinent part that,
“Any person aggrieved by any order or decision of any county board regarding the
computation or canvassing of the returns of any primary or election may appeal
therefrom within two days after such order or decision shall have been made . . . .”5
On November 24, 2021, Petitioners filed their petition seeking permission to recount
5
In Candidate Miller’s preliminary objections and petition to quash the document entitled
“Seeking Permission to Recount and Inspect Six Ballots by the Petitioners” and in her brief to this
Court, Ms. Miller claims that Petitioners ignored the Election Code’s additional deadlines for
challenging provisional ballots found in 25 P.S. § 3050(a.4)(4) because they did not challenge the
six ballots during the initial count when they were first disqualified, essentially making a claim of
waiver. The trial court did not address 25 P.S. § 3050(a.4)(4) in its December 6, 2021 order and
opinion. Given the fact that we have held the provisional ballots to be invalid, we will not address
this statutory provision further.
9
and inspect the six ballots. This was the date on which the hand recount was
completed, and it appears that Petitioners discovered issues with the six disqualified
ballots at that time. Arguably, the Board’s completion of the hand recount again
implicated the rejection of the six ballots at issue such that the petition was timely.
In addition, the trial court found that neither the Board nor Intervenor presented any
evidence as to when the Board acted to disqualify the six ballots. While the relevant
dates may not be reasonably subject to dispute, neither party asked the trial court to
take judicial notice of any such date, nor did either make any particular argument to
the trial court as to what event should be considered the triggering action of the
Board. All parties proceeded to the merits of the validity of the six ballots without
objection. The trial court concluded, “Therefore, being guided by the principle to
construe the [Election Code] liberally to allow voting but strictly to prevent fraud,
we will liberally construe the Election Code to allow this challenge to move
forward.” (Trial Ct.’s Op. at 3.) Here, also, we all agree there was no abuse of
discretion.
For the reasons set forth here and in the opinions of my colleagues, we
will order that none of the contested ballots may be counted.
_____________________________________
BONNIE BRIGANCE LEADBETTER,
President Judge Emerita
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 1 Petition of Katherine R. :
Carpenter, Andrea G. Cauble, and :
Jessica M. Neff for a Recount of the :
Election of Uwchlan 1 Pursuant to the :
Election Code 25 P.S. 3261, 25 P.S. :
3031.18(1) and 25 P.S. 3263 :
:
Appeal of: Katherine R. Carpenter, :
Andrea G. Cauble, and Jessica M. Neff : No. 1381 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 3 Petition of Carrie D. Gross, :
Sanda Oyola, and Marsha :
Brofka-Berends for a Recount of the :
Election of Uwchlan 3 Pursuant to the :
Election Code 25 P.S. 3261, 25 P.S. :
3031.18(1) and 25 P.S. 3263 : No. 1382 C.D. 2021
:
Appeal of: Carrie D. Gross, Sandra :
Oyola, and Marsha Brofka-Berends :
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 4 Petition of Marisa Norma :
Pereyra, Katherine J. Farnum, and :
Michael A. Farnum for a Recount of the :
Election of Uwchlan 4 Pursuant to the :
Election Code 25 P.S. 3261, :
25 P.S. 3031.18(1) and 25 P.S. 3263 :
:
Appeal of: Marisa Norma Pereyra, :
Katherine J. Farnum :
and Michael A. Farnum : No. 1383 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 5 Petition of Margaret L. :
Quinn, Barbara L. Phillips, and Hugh N. :
O'Donnell for a Recount of the Election :
of Uwchlan 5 Pursuant to the Election :
Code 25 P.S. 3261, 25 P.S. 3031.18(1) :
and 25 P.S. 3263 :
:
Appeal of: Margaret L. Quinn, :
Barbara L. Phillips, and :
Hugh N. O'Donnell : No. 1384 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 9 Petition of Susan R. Morgan, :
Brandyn C. Muller Campbell and :
Diane W. O'Dwyer for a Recount of the :
Election of Uwchlan 9 Pursuant to the :
Election Code 25 P.S. 3261, 25 P.S. :
3031.18(1) and 25 P.S. 3263 :
:
Appeal of: Brandyn C. Muller Campbell :
and Diane W. O'Dwyer : No. 1385 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 1, Petitions of Katherine R. :
Carpenter, Andrea G. Cauble, and :
Jessica M. Neff for a recount Pursuant :
to the Election Code 25 P.S. §§ 3161, :
3031.18(1), and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1395 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 3 Petition of Carrie D. Gross, :
Sandra Oyola, and Marsha Brofka- :
Berends for Recount of the Election of :
Uwchlan 3 Pursuant to the Election :
Code 25 P.S. §§ 3161, 3031.18(1), :
and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1396 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 4 Petition of Marisa Norma :
Pereyra, Katherine J. Farnum and :
Michael A. Farnum for Recount of the :
Election of Uwchlan 4 Pursuant to the :
Election Code 25 P.S. §§ 3161, :
3031.18(1), and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1397 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 5 Petition of Margaret L. :
Quinn, Barbara L. Phillips, and Hugh N. :
O'Donnell for Recount of the Election :
of Uwchlan 5 Pursuant to the Election :
Code 25 P.S. §§ 3161, 3031.18(1), :
and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1398 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 9 Petition of Susan R. Morgan, :
Brandyn C. Muller Campbell, and Diane :
W. O'Dwyer for Recount of the Election :
of Uwchlan 9 Pursuant to the Election :
Code 25 P.S. §§ 3161, 3031.1 8(1), :
and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1399 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board :
Precincts Uwchlan 1, 3, 4, 5, and 9 :
:
Appeal of: Margie Miller : No. 1403 C.D. 2021
ORDER
PER CURIAM
AND NOW, this 10th day of January, 2022, the order of the Court of
Common Pleas of Chester County is hereby AFFIRMED in part and REVERSED
in part. The ballots at issue marked VS-1, VS-2, VS-3, VS-4, VS-5, and VS-6 may
NOT be counted.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 1 Petition of Katherine R. :
Carpenter, Andrea G. Cauble, and :
Jessica M. Neff for a Recount of the :
Election of Uwchlan 1 Pursuant to the :
Election Code 25 P.S. 3261, 25 P.S. :
3031.18(1) and 25 P.S. 3263 :
:
Appeal of: Katherine R. Carpenter, :
Andrea G. Cauble, and Jessica M. Neff : No. 1381 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 3 Petition of Carrie D. Gross , :
Sandra Oyola, and Marsha :
Brofka-Berends for a Recount of the :
Election of Uwchlan 3 Pursuant to the :
Election Code 25 P.S. 3261, 25 P.S. :
3031.18(1) and 25 P.S. 3263 :
:
Appeal of: Carrie D. Gross, Sandra :
Oyola, and Marsha Brofka-Berends : No. 1382 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 4 Petition of Marisa Norma :
Pereyra, Katherine J. Farnum, and :
Michael A. Farnum for a Recount of the :
Election of Uwchlan 4 Pursuant to the :
Election Code 25 P.S. 3261, :
25 P.S. 3031.18(1) and 25 P.S. 3263 :
:
Appeal of: Marisa Norma Pereyra, :
Katherine J. Farnum :
and Michael A. Farnum : No. 1383 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 5 Petition of Margaret L. :
Quinn, Barbara L. Phillips, and Hugh N. :
O’Donnell for a Recount of the Election :
of Uwchlan 5 Pursuant to the Election :
Code 25 P.S. 3261, 25 P.S. 3031.18(1) :
and 25 P.S. 3263 :
:
Appeal of: Margaret L. Quinn, :
Barbara L. Phillips, and :
Hugh N. O’Donnell : No. 1384 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 9 Petition of Susan R. Morgan, :
Brandyn C. Muller Campbell and :
Diane W. O’Dwyer for a Recount of the :
Election of Uwchlan 9 Pursuant to the :
Election Code 25 P.S. 3261, 25 P.S. :
3031.18(1) and 25 P.S. 3263 :
:
Appeal of: Brandyn C. Muller Campbell :
and Diane W. O’Dwyer : No. 1385 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 1, Petitions of Katherine R. :
Carpenter, Andrea G. Cauble, and :
Jessica M. Neff for a recount Pursuant :
to the Election Code 25 P.S. §§ 3161, :
3031.18(1), and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1395 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
2
Uwchlan 3 Petition of Carrie D. Gross, :
Sandra Oyola, and Marsha Brofka- :
Berends for Recount of the Election of :
Uwchlan 3 Pursuant to the Election :
Code 25 P.S. §§ 3161, 3031.18(1), :
and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1396 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 4 Petition of Marisa Norma :
Pereyra, Katherine J. Farnum and :
Michael A. Farnum for Recount of the :
Election of Uwchlan 4 Pursuant to the :
Election Code 25 P.S. §§ 3161, :
3031.18(1), and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1397 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 5 Petition of Margaret L. :
Quinn, Barbara L. Phillips, and Hugh N. :
O’Donnell for Recount of the Election :
of Uwchlan 5 Pursuant to the Election :
Code 25 P.S. §§ 3161, 3031.18(1), :
and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1398 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 9 Petition of Susan R. Morgan, :
Brandyn C. Muller Campbell, and Diane :
W. O’Dwyer for Recount of the Election :
3
of Uwchlan 9 Pursuant to the Election :
Code 25 P.S. §§ 3161, 303 l.1 8(1), :
and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1399 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board :
Precincts Uwchlan 1, 3, 4, 5, and 9 :
: No. 1403 C.D. 2021
Appeal of: Margie Miller : Submitted: December 21, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION STATING THE VIEW
OF JUDGE COVEY FILED: January 10, 2022
Katherine R. Carpenter, Andrea G. Cauble, Jessica M. Neff, Carrie D.
Gross, Sandra Oyola, Marsha Brofka-Berends, Marisa Norma Pereyra, Katherine J.
Farnum, Michael A. Farnum, Margaret L. Quinn, Barbara L. Phillips, Hugh N.
O’Donnell, Brandyn C. Muller Campbell, and Diane W. O’Dwyer (collectively,
Appellants),2 the Board of Elections of the County of Chester (Chester Board of
Elections), and Margie Miller (Miller)3 (collectively, Cross-Appellants) appeal from
the Chester County Common Pleas Court’s (trial court) December 6, 2021 order
granting in part and denying in part Appellants’ request that the Chester Board of
1
This matter was assigned to the panel before January 3, 2022, when President Judge
Emerita Leavitt became a senior judge on the Court.
2
Appellants are registered voters in the five precincts that make up Downingtown School
Board Region 4.
3
Miller is the Republican Candidate for Downingtown School Board Director.
4
Elections recount and inspect six ballots (Petition). Appellants and Cross-
Appellants present six issues for this Court’s review: (1) whether the trial court
properly determined that the mail-in ballots marked VS-1, VS-2, and VS-3 shall not
be counted; (2) whether the trial court properly determined that the undated mail-in
ballot marked VS-6 shall be counted; (3) whether the trial court properly determined
that the provisional ballots marked VS-4 and VS-5 shall be counted; (4) whether the
trial court properly denied the Republican Party’s (Intervenor) motion to dismiss
based on timeliness; and (6) whether the trial court properly denied Appellants’ oral
request for a second recount of Precinct 653. After review, this Court affirms in part
and reverses in part.
On November 2, 2021, the Chester Board of Elections held a General
Municipal Election for Downingtown Region 4 School Board Director. The pre-
canvass of mail-in and absentee ballots began on November 2, 2021, and continued
through November 3, 2021. The election results were posted on the Chester County
website on the evening of November 15, 2021. At that time, the initial tabulation of
the Downingtown School Board Director Region 4 race reflected that candidate
Rebecca Britton (Britton) had 1,184 votes and Miller had 1,186 votes.
On November 18, 2021, Appellants filed petitions seeking a recount of
all of the precincts in which votes were cast for the Downingtown School Board
Director Region 4 race. On November 22, 2021, Appellants and the Chester County
Department of Voter Services (Voter Services) entered into a stipulation, wherein
the parties agreed to a recount, by hand, of all ballots included in the tabulation and
computation of the November 2, 2021 General Municipal Election in Chester
County, which was concluded on November 15, 2021, for the Uwchlan Precinct 1,
Region 4 Downingtown School Board Director Race (Stipulation). The parties
further agreed that each ballot would be examined and tabulated by hand. The trial
court reduced the Stipulation to an order which directed the recount to take place on
5
November 23, 2021. The recount began on November 23, 2021, and concluded on
November 24, 2021. At the conclusion of the hand recount, Britton had 1,183 votes
and Miller had 1,187 votes. Although the number of votes tabulated did not change,
Britton lost one vote and Miller gained one vote.
On November 24, 2021, Appellants filed the Petition seeking to recount
and inspect six ballots. The six ballots at issue were not counted in either the original
computation of the November 2, 2021 General Municipal Election, or in the
November 23-24, 2021 hand recount. On December 6, 2021, the trial court granted
the Petition in part and denied it in part, as follows:
1. [Appellants’] request to inspect six (6) ballots is
MOOT;
2. The two (2) provisional ballots marked VS-4 and VS-5
shall be counted;
3. The three (3) mail-in ballots marked VS-1, VS-2 and
VS-3 shall not be counted; and
4. The undated ballot marked as VS-6 shall be counted.
Trial Ct. Order at 1. Appellants and Cross-Appellants appealed to this Court.
Appellants first argue that the trial court erred by holding that the mail-
in ballots marked VS-1, VS-2, and VS-3 shall not be counted. I disagree.
Section 1306-D(a) of the Election Code4 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
4
Act of June 3, 1937, P.L. 1333, added by Section 8 of the Act of Oct. 31, 2019, P.L. 552,
as amended, 25 P.S. § 3150.16(a).
6
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. § 3150.16(a) (emphasis added).
The Pennsylvania Supreme Court in In re Canvass of Absentee and
Mail-in Ballots of November 3, 2020 General Election, 241 A.3d 1058 (Pa. 2020),
cert. denied sub nom. Donald J. Trump for President, Inc. v. Degraffinreid, ___ U.S.
___, 141 S.Ct. 1451, 209 L.Ed.2d 172 (2021), explained:
We . . . recogniz[e] . . . that it is the “longstanding and
overriding policy in this Commonwealth to protect the
elective franchise.” Shambach v. Bickhart, . . . 845 A.2d
793, 798 ([Pa.] 2004). “The Election Code must be
liberally construed so as not to deprive . . . the voters of
their right to elect a candidate of their choice.” Ross
Nomination Petition, . . . 190 A.2d 719, 719 ([Pa.] 1963).
It is therefore a well-settled principle of Pennsylvania
election law that “[e]very rationalization within the realm
of common sense should aim at saving the ballot rather
than voiding it.” Appeal of Norwood, . . . 116 A.2d 552,
554-55 ([Pa.] 1955). It is likewise settled that imbedded
in the Election Code is the General Assembly’s intent
to protect voter privacy in her candidate choice based
on Article VII, Section 4 of the Pennsylvania
Constitution and to prevent fraud and to otherwise
ensure the integrity of the voting process.
In re Canvass, 241 A.3d at 1071 (bold and underline emphasis added).
Here, the trial court opined:
[T]he opened mail-in ballots implicate concerns of fraud
that should not be overlooked. In the case of torn and
sliced-opened ballots, two of which were then taped
without explanation, there simply can be no assurance
as to the integrity of the voting process. The Election
7
Code requires strict adherence to the requirement that a
ballot be securely sealed. It does so, ostensibly to provide
assurances that the inner ballot has not been tampered with
and there is no fraud.
As directed in Shambach . . . , election laws must be
strictly construed to prevent fraud. Here with no
explanation as to why the ballots were open; why they
were then resealed; by whom they were opened; by whom
they were resealed; when they were opened; when they
were resealed; whether votes were altered or changed in
that process, we must recognize a concern that fraud
exists. As directed, we will look to the Election Code
which states[:] “Such envelope shall then be securely-
sealed and the elector shall send same by mail.” 25 P.S. §
3150.16(a) [(emphasis added)]. These three ballots were
not securely sealed. The [Chester] Board of Elections thus
acted reasonably and in accordance with the law in
excluding these ballots due to possible issues with the
security of the ballot.
Trial Ct. Order at 6 n.3 (bold emphasis added). Because I discerns no error in the
trial court’s analysis regarding the mail-in ballots marked VS-1, VS-2, and VS-3, I
would affirm this portion of the trial court’s order.
Appellants next argue that the trial court properly held that the undated
mail-in ballot marked VS-6 shall be counted. I agree.
As quoted above, Section 1306-D(a) of the Election Code requires,
inter alia, that when using a mail-in ballot: “The elector shall [] fill out, date and
sign the declaration printed on such envelope.” 25 P.S. § 3150.16(a). In In re
Canvass, our Supreme Court permitted undated ballots to be counted, declaring:
[The petitioners] argue that the requirement to state the
date on which [the] declaration was signed is a mandatory
obligation requiring disenfranchisement for lack of
compliance. We disagree, as we conclude that dating the
declaration is a directory, rather than a mandatory[]
instruction, and thus the inadvertent failure to comply does
not require that ballots lacking a date be excluded from
counting. As reviewed hereinabove, in our recent decision
in Pa. Democratic Party [v. Boockvar, 238 A.3d 345, 356
8
(Pa.2020),] we reiterated that the distinction between
directory and mandatory instructions applies with respect
to a voter’s obligations under the Election Code, and that
only failures to comply with mandatory obligations, which
implicate both legislative intent and “weighty interests” in
the election process, like ballot confidentiality or fraud
prevention, will require disqualification. Pa. Democratic
Party, 238 A.3d at 379-80. The Commonwealth Court and
[the petitioner] relied upon the Election Code’s use of the
[] “shall . . . date” language in construing the date
obligation as mandatory. In Re: 2,349 Ballots in the 2020
Gen[.] Election, Appeal of: Nicole Ziccarelli, 241 A.3d
694 . . . (Pa. [Cmwlth.]. 2020). 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 directive in nature. That distinction turns on
whether the obligation carries “weighty interests.” The
date that the declaration is signed is irrelevant to a board
of elections’ comparison of the voter declaration to the
applicable voter list, and a board can reasonably
determine that a voter’s declaration is sufficient even
without the date of signature. Every one of the 8,329
ballots challenged in Philadelphia County, as well as all of
the 2,349 ballots at issue in Allegheny County, were
received by the boards of elections by 8:00 p.m. on
Election Day, so there is no danger that any of these ballots
was untimely or fraudulently back-dated. Moreover, in all
cases, the receipt date of the ballots is verifiable, as upon
receipt of the ballot, the county board stamps the date of
receipt on the ballot-return and records the date the ballot
is received in the [Statewide Uniform Registry of Electors
(]SURE[)] system. The date stamp and the SURE system
provide a clear and objective indicator of timeliness,
making any handwritten date unnecessary and, indeed,
superfl[u]ous.
In re Canvass, 241 A.3d at 1076-78 (italic emphasis added); see also Ritter v. Lehigh
Cnty. Bd. of Elections (Pa. Cmwlth. No. 1322 C.D. 2021, filed Jan. 3, 2022) (special
election panel) (Wojcik, J., dissenting) (Ritter dissent).
9
The Ritter dissent concluded that the 261 undated ballots therein should
be counted, stating:
There is no dispute that the voters who cast the questioned
261 ballots were qualified, registered electors. Moreover,
there is no allegation that any of the 261 voters in question
had voted more than once. Importantly, there is no
allegation that the subject 261 ballots were not received by
the [b]oard prior to the deadline for receipt on Municipal
Election Day. In fact, it is beyond dispute that each
challenged ballot was received by the [b]oard by 8:00 p.m.
on Municipal Election Day. The only sin that would lead
these votes to be discarded is that the qualified, registered
voters failed to either enter a date, or properly enter a date,
on the declaration portion of the ballot’s outer envelope. I
would agree that an entirely blank declaration properly
would be discarded, as there would be no confirmation
that the ballot is genuinely that of the registered elector.
This result would ameliorate purported voter fraud, which
is not at issue here.
I view the requirement of a voter-inserted date on the
declaration as similar to the issue of the color of ink that is
used to fill in the ballot. As outlined above, Section 1306-
D(a) of the Election Code plainly states that the voter
“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.” 25 P.S. §3150.16(a)
(emphasis added). Our Supreme Court approved the
marking of absentee ballots with green or red pen to be
appropriate despite the General Assembly’s use of the
word “shall” when describing the method of marking the
ballots. See In re Luzerne C[nty.] Return B[d.], 290 A.2d
108, 109 (Pa. 1972). There, our Supreme Court construed
the Election Code liberally so as to not disenfranchise
Pennsylvania voters over a technicality. In light of the
foregoing criteria, I would do so here as well, and I would
not blithely disenfranchise those 261 voters who merely
neglected to properly enter a date on the declaration of an
otherwise properly executed and timely-submitted ballot.
Ritter dissent, slip op. at 4-5.
10
Here, the trial court determined that the undated ballot marked VS-6
shall be counted, explaining:
[Assistant Director of Voter Services Stephanie] Saitis
testified at the hearing that the undated ballot at issue: 1.
[A]rrived at Voter Services on October 21, 2021, well in
advance of election[;] and 2. Contained no other
irregularities that would preclude it from being counted.
Unlike the provisional, and mail-in ballots, this “failure”
does not implicate the weighty interests that might
otherwise nullify the voter’s actions. If we are to liberally
construe the Election Code to allow votes, but strictly
construe in cases of possible fraud, this irregularity should
not result in the vote being stricken.
We must assume the “date” requirement is to ensure that
the ballot is completed and received by the deadline of
election day. The Legislature and the electorate clearly
have an interest in making sure that no “late votes” are
affecting the computation. Here, the ballot while not dated
by the elector was dated upon receipt at Voter[] Services.
We know this ballot, conforming in all other aspects,
arrived on October 21, 2021. It is a timely, conforming
ballot. It should be counted.
Trial Ct. Order at 6 n.4.
Because I agree with the In re Canvass plurality, the Ritter dissent, and
the trial court’s order that the undated mail-in ballot marked VS-6 should be counted,
I would affirm this portion of the trial court’s order.
Relative to the remaining issues, I agree with the Honorable Judge
Leadbetter’s View in ruling that: the trial court erred by determining that the
provisional ballots marked VS-4 and VS-5 shall be counted; the trial court properly
denied Intervenor’s motion to dismiss; and the trial court properly denied
Appellants’ oral request for a second recount of Precinct 653, and affirms and
reverses those portions of the trial court’s order accordingly.
11
Conclusion
For all of the above reasons, I would affirm the portions of the trial
court’s order holding: the mail-in ballots marked VS-1, VS-2, and VS-3 shall not be
counted; the undated mail-in ballot marked as VS-6 shall be counted; denying the
Intervenor’s motion to dismiss; and denying Appellants’ oral request for a second
recount of Precinct 653.
_________________________________
ANNE E. COVEY, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 1 Petition of Katherine R. :
Carpenter, Andrea G. Cauble, and :
Jessica M. Neff for a Recount of the :
Election of Uwchlan 1 Pursuant to the :
Election Code 25 P.S. 3261, 25 P.S. :
3031.18(1) and 25 P.S. 3263 :
:
Appeal of: Katherine R. Carpenter, :
Andrea G. Cauble, and Jessica M. Neff : No. 1381 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 3 Petition of Carrie D. Gross , :
Sandra Oyola, and Marsha :
Brofka-Berends for a Recount of the :
Election of Uwchlan 3 Pursuant to the :
Election Code 25 P.S. 3261, 25 P.S. :
3031.18(1) and 25 P.S. 3263 :
:
Appeal of: Carrie D. Gross, Sandra :
Oyola, and Marsha Brofka-Berends : No. 1382 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 4 Petition of Marisa Norma :
Pereyra, Katherine J. Farnum, and :
Michael A. Farnum for a Recount of the :
Election of Uwchlan 4 Pursuant to the :
Election Code 25 P.S. 3261, :
25 P.S. 3031.18(1) and 25 P.S. 3263 :
:
Appeal of: Marisa Norma Pereyra, :
Katherine J. Farnum :
and Michael A. Farnum : No. 1383 C.D. 2021
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 5 Petition of Margaret L. :
Quinn, Barbara L. Phillips, and Hugh N. :
O’Donnell for a Recount of the Election :
of Uwchlan 5 Pursuant to the Election :
Code 25 P.S. 3261, 25 P.S. 3031.18(1) :
and 25 P.S. 3263 :
:
Appeal of: Margaret L. Quinn, :
Barbara L. Phillips, and :
Hugh N. O’Donnell : No. 1384 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 9 Petition of Susan R. Morgan, :
Brandyn C. Muller Campbell and :
Diane W. O’Dwyer for a Recount of the :
Election of Uwchlan 9 Pursuant to the :
Election Code 25 P.S. 3261, 25 P.S. :
3031.18(1) and 25 P.S. 3263 :
:
Appeal of: Brandyn C. Muller Campbell :
and Diane W. O’Dwyer : No. 1385 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 1, Petitions of Katherine R. :
Carpenter, Andrea G. Cauble, and :
Jessica M. Neff for a recount Pursuant :
to the Election Code 25 P.S. §§ 3161, :
3031.18(1), and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1395 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 3 Petition of Carrie D. Gross, :
Sandra Oyola, and Marsha Brofka- :
Berends for Recount of the Election of :
Uwchlan 3 Pursuant to the Election :
Code 25 P.S. §§ 3161, 3031.18(1), :
and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1396 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 4 Petition of Marisa Norma :
Pereyra, Katherine J. Farnum and :
Michael A. Farnum for Recount of the :
Election of Uwchlan 4 Pursuant to the :
Election Code 25 P.S. §§ 3161, :
3031.18(1), and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1397 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 5 Petition of Margaret L. :
Quinn, Barbara L. Phillips, and Hugh N. :
O’Donnell for Recount of the Election :
of Uwchlan 5 Pursuant to the Election :
Code 25 P.S. §§ 3161, 3031.18(1), :
and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1398 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board Precinct :
Uwchlan 9 Petition of Susan R. Morgan, :
Brandyn C. Muller Campbell, and Diane :
W. O’Dwyer for Recount of the Election :
of Uwchlan 9 Pursuant to the Election :
Code 25 P.S. §§ 3161, 303 l.1 8(1), :
and 3263 :
:
Appeal of: Board of Elections of the :
County of Chester : No. 1399 C.D. 2021
:
:
In Re: Election in Region 4 for :
Downingtown School Board :
Precincts Uwchlan 1, 3, 4, 5, and 9 :
: No. 1403 C.D. 2021
Appeal of: Margie Miller : Submitted: December 21, 2021
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge1
HONORABLE ANNE E. COVEY, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION STATING THE VIEW
OF JUDGE LEAVITT FILED: January 10, 2022
I agree with Senior Judge Leadbetter that the provisional ballots marked
VS-4 and VS-5 may not be counted. I also concur with her conclusion that the mail-
in ballot marked VS-6 may not be counted. With respect to the mail-in ballots
marked VS-1, VS-2 and VS-3, I agree with Senior Judge Leadbetter that VS-1
cannot be counted. I disagree with her view that VS-2 and VS-3 may be counted
absent some evidence of tampering by a third party. I would affirm the trial court’s
decision not to count VS-2 and VS-3.
More specifically, I disagree with the conclusion of Senior Judge
Leadbetter that the Election Code is ambiguous because it does not define “securely
1
This matter was assigned to the panel before January 3, 2022, when President Judge Emerita
Leavitt became a senior judge on the Court.
sealed.” In Re: Election in Region 4 for Downingtown School Board Precinct
Uwchlan 1 (Pa. Cmwlth., No. 1381 C.D. 2021, filed January 10, 2022),
Memorandum Opinion Stating the View of Senior Judge Leadbetter at 8. “‘When
statutory words or phrases are undefined by the statute, the Court construes the
words according to their plain meaning and common usage.’ A statute must be given
its plain and obvious meaning.” Harmer v. Pennsylvania Board of Probation and
Parole, 83 A.3d 293, 299 (Pa. Cmwlth. 2014) (quoting Osprey Portfolio LLC v. Izett,
67 A.3d 749, 755 (Pa. 2013)). It is not difficult to give a plain and ordinary meaning
to “securely sealed” as used in Section 1306-D(a) of the Pennsylvania Election
Code, 25 P.S. §3150.16(a).2
Secure sealing is done by the elector. The requirement was imposed to
prevent tampering. Here, there is evidence of tampering because the outer envelope
was opened and resealed. The vote should be discarded. It is of no moment that the
inner envelope shows no sign of tampering; it could be a ballot other than the one
placed into the outer envelope by the voter.
2
Act of June 3, 1937, P.L. 1333, added by the act of October 31, 2019, P.L. 552, as amended, 25
P.S. §3150.16(a). It states:
(a) General rule.--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.
Id. (emphasis added).
2
Further, the requirement of secure sealing applies with equal force to
both envelopes. There is no basis to allow resealing of the outer envelope but not
the inner envelope.
I agree with the trial court’s decision that because VS-2 and VS-3 were
not securely sealed, they must be discarded. This is necessary to protect the integrity
of the voting process, as reasoned by the trial court and by Judge Covey.
_____________________________________________
MARY HANNAH LEAVITT, President Judge Emerita
3