Opinion
No. 149 MM 2020
10-14-2020
IN RE: NOVEMBER 3, 2020 GENERAL ELECTION Petition of: Kathy Boockvar, Secretary of the Commonwealth of Pennsylvania
ORDER
PER CURIAM
AND NOW , this 14th day of October, 2020, the Application for King's Bench relief is GRANTED , limited to the following issue:
Whether the Election Code authorizes or requires county election boards to reject voted absentee or mail-in ballots during pre-canvassing and canvassing based on signature analysis where there are alleged or perceived signature variances?
The Court will decide this issue based on the current filings; however, supplemental filings are permitted to be submitted by Friday, October 16, 2020, at 5 p.m. No other filings will be permitted thereafter.
Further, the motions to intervene filed by the following entities are GRANTED : Donald J. Trump for President, Inc., Republican Party of Pennsylvania, Republican National Committee, and National Republican Congressional Committee. The motions to intervene filed by the following individuals are DENIED : Elizabeth Radcliffe, a qualified elector, Bryan Cutler, Speaker of the Pennsylvania House of Representatives, Kerry Benninghoff, Majority Leader of the Pennsylvania House of Representatives, Joseph B. Scarnati III, Pennsylvania Senate President Pro Tempore, and Jake Corman, Senate Majority Leader. See Pa.R.C.P. 2329(2). However, those individuals denied intervenor status are granted leave of court to file briefs as amicus curiae , pursuant to Pa.R.A.P. 531.
The motion for leave to file an amicus brief filed by the Brennan Center for Justice is GRANTED .
Any filings submitted by the Court's deadline by a non-party or non-intervenor will be accepted as an amicus brief.
Justice Dougherty files a concurring statement
Justice Baer files a dissenting statement.
Chief Justice Saylor and Justice Mundy dissent.
JUSTICE DOUGHERTY, concurring
I reluctantly agree that our exercise of King's Bench jurisdiction is warranted in this unique and time-sensitive case of substantial importance. See, e.g., Friends of Danny DeVito v. Wolf , ––– Pa. ––––, 227 A.3d 872, 884 (2020) (granting review of matter of "public importance that requires timely intervention by the court of last resort to avoid the deleterious effects arising from delays incident to the ordinary process of law"). My hesitation largely tracks Justice Baer's concern over the arguable lack of a clear case or controversy before us. See Dissenting Statement at 318 (Baer, J.). However, I respectfully believe the proper course is not to elevate form over substance, and I ultimately depart from Justice Baer's assessment that the present legal question was resolved in Donald J. Trump for President, Inc. v. Kathy Boockvar , 493 F.Supp.3d 331 (W.D. Pa. 2020).
Although Judge Ranjan opined our Election Code does not impose a signature-comparison requirement for absentee and mail-in ballots and applications, and Secretary Boockvar's directive to all Pennsylvania county boards of elections on this precise issue is consistent with that holding, see id. , slip op. at 95-106, 493 F.Supp.3d at 398–405, Secretary Boockvar observes "the district court's decision, while timely and persuasive, is not authoritative." See Petitioner's Post-Submission Communication, dated October 11, 2020, at 2. In any event, the district court decision is surely subject to appeal. Secretary Boockvar thus continues to seek from this Court "an authoritative ruling of state law binding on all state election officials and courts." Id. Accordingly, although I note my disapproval of the precise manner in which the case was presented for our review, I am persuaded by the Secretary's assertion that "[o]nly this Court can render the ultimate determination concerning Pennsylvania law." Id. I reiterate that parties pursuing an exercise of this Court's jurisdiction under our extraordinary King's Bench powers should present a clear case or controversy and seek more than a purely advisory opinion. As I believe these conditions are met here, I join the Court's decision to grant the application to consider the merits of the important and unresolved legal question presented.
JUSTICE BAER, dissenting
I dissent from the Court's order granting the Secretary of the Commonwealth, Kathy Boockvar's ("Secretary") application for King's Bench review to resolve the issue of whether, pursuant to the Election Code of Pennsylvania (Code), 25 P.S. §§ 2600 - 3591, signature comparison is warranted by county boards of elections in relation to absentee and mail-in ballots. In my view, there is no case or controversy for this Court to address and the legal question presented has been resolved in a federal lawsuit, see infra , thus, our exercise of jurisdiction would provide nothing more than an advisory opinion.
As indicated, no action has ever been filed in a lower court and the Secretary's application names no respondents. In substance, the Secretary's request to this Court is essentially a letter asking us to interpret a provision of the Code. While I recognize that in theory this Court may accept a King's Bench petition with no pending action and no opposing parties, the operative question is whether it should. In my respectful view, under the circumstances of this matter, the answer is a resounding no.
The Secretary's primary concern in seeking this Court's review emanated from a lawsuit argued that the Code authorizes and requires county boards of elections to set aside and challenge returned absentee and mail-in ballots that contain signatures that do not match a voter's signature in their permanent voter registration records. Because the Secretary took the contrary view of the Code, she had promulgated guidance indicating that "[t]he Pennsylvania Election Code does not authorize the county board of elections to set aside returned absentee or mail-in ballots based solely on signature analysis by the county board of elections." Department of State's September 11, 2020 Guidance Concerning Examination of Absentee and Mail-in Ballot Return Envelopes at 3. In seeking our King's Bench review, the Secretary indicates that she fears that without a resolution of this issue, certain county boards of elections might not follow her guidance and large numbers of ballots could be rejected on Election Day based on signature comparison, which could lead to disenfranchisement on an arbitrary and wholly subjective basis without advance warning to a voter or notice and an opportunity to be heard.
After the Secretary filed her application, the federal court resolved the pending lawsuit in the Secretary's favor and conclusively determined that the Code does not allow for signature comparison of absentee and mail-in ballots. Donald J. Trump for President, Inc. , supra , op. at 493 F.Supp.3d at 398–405. All of the county boards of elections were joined in that case and the federal court specifically indicated that the boards were obligated to follow the Secretary's guidance as the court's decision concluded that the Election Code does not warrant signature comparison with regard to absentee and mail-in ballots. Id. at 493 F.Supp.3d at 407–08 ("[T]o the extent there was uncertainty before, this decision informs the counties of the current state of the law as it relates to signature comparison. If any county still imposes a signature-comparison requirement in order to disallow ballots, it does so without support from the Secretary's guidance or the Election Code").
In my view, given that the Secretary did not provide the Court initially with a case regarding the question she asks us to address and that the federal court has resolved the controversy over interpretation of the Code in her favor, I see no basis for this Court to entertain further the Secretary's request for review. Accordingly, I would deny the application for King's Bench review.