Thursday, December 31, 2020

Election 2020: Parties v. The People

President Gerald Ford's Inauguration on August 9th, 1974

Here's what's I think is going on with Election 2020, so far, in my opinion.

It has boiled now down to the American People v. the Democratic and Republican Parties, who sadly appear to be in cahoots to impose an unelected President on the American people for the first time since Gerald Ford in 1974.

Like Joe Biden, Gerald Ford was well liked in Congress and by Big Business. He likewise promised to heal the country after the trauma of Watergate.

I lived through that period--and it was a disaster. The US lost the Vietnam War, our economy collapsed, and inflation rose to over 12 percent.   

Ford was followed by Jimmy Carter, as American decline continued with more inflation and the loss of Iran to Islamic fundamentalists.

Compared to President Trump's track record the choice is obvious--President Trump has done an extremely good job with both the American economy and in foreign affairs. America is strong, relatively prosperous despite the COVID pandemic, and at peace.

If President Trump is forced out, look for renewed international decline--possibly a Chinese invasion of Taiwan for a start, a return of inflation, and new wars.

A very dangerous prospect. 

The safe choice, therefore, is to stick with President Trump.

The dangerous choice would be to install Joe Biden against the wishes of the American people by force and fraud.

Some context:

Neither Democrats nor Republicans currently enjoy majority support from the American people, according to pollsters. 

Pew Research reported

Overall, 34% of registered voters identify as independents, 33% as Democrats and 29% as Republicans. The share of voters identifying as Republicans is now the same as it was in 2016, after having ticked down in 2017; Democratic identification is unchanged. Slightly fewer voters identify as independents than in 2017 (34% vs. 37%). See detailed tables.

What happened in this election was that the Democratic and Republican parties united to suppress pro-Trump Republicans and  Independents--who are actually a plurality if not a majority of the American electorate.

Thus, the two major parties are putting their interests above the choice of American People, donors above voters--and in so doing blatantly violating constitutional rights of American Citizens no differently from Democratic politicians in the Jim Crow South...or the Congress which put Gerald Ford in the White House.

If Congress doesn't reject fraudulent electors resulting from the unfair and unfree state elections in 2020, it will lead to a Joe Biden presiding over a dramatic American decline -- instead of President Trump Making America Great Again.


Arizona Identifies Up To 400,000 Fake Ballots

As we noted earlier, a group of patriots in Arizona held a presentation this evening outside the capitol in Arizona.

Press Conference at AZ State Capitol – Citizen Investigation Uncovers Thousands of Illegal Votes in Arizona at 6 PM — LIVE-STREAM RSBN VIDEO

 Details here: https://populist.press/breaking-arizona-patriots-identify-between-160000-to-400000-phantom-ballots-in-their-state-2020-election-results/

Trump Car Caravans Forming For January 6th Washington Rally

The Epoch Times has a very informative story about the car caravans organizing in the eastern half of the United States to descend on the Capitol to protest the Election Steal.

At the request of President Trump they will join hundreds of thousands who will arrive by bus, train, or plane in what I’m guessing may be the largest rally for any President ever.

Details here: https://fraudscrookscriminals.com/2020/12/31/across-america-car-caravans-forming-will-arrive-in-washington-on-january-6th/

Georgia Senate Approves Ballot Audit

The Georgia State Senate Judiciary Subcommittee unanimously passed a motion on Wednesday to audit the absentee ballots in Fulton County.

Fulton County is the county seat of Atlanta and Georgia’s most populous county with a population of just over 1 million.

With so many absentee ballots in question, an audit here can be a game-changer in Georgia. 

Read story here: https://conservativebrief.com/senate-judiciary-subcommittee-31854

Wednesday, December 30, 2020

An Anonymous Comment Worth Noting From Diplomad2.0

 I've seen the Principals are working their asses off!

plus the War-Room guys need to eat and keep the lights on -- HEROIC effort overthere too! I'm debating whether I should send myself on Liberty Call to DC on the 6th? Although, I am concerned that I may have to adjust rough-stuff attitudes/actions directed at women, kids, or even Men, if the're older than me! Mostly tho, the CinC has earned my loyalty, has showed courage under fire, and keeps counter-punchin, no matter how hot it gets! I could go on, but most here I believe know what I'm getting at! I think this Fight has to go the distance now -- no guarantee's that 2024 will allow another chance to rescue the USA and our Freedoms, from the ChiComs here and abroad!

Read it all here: https://thediplomad.blogspot.com/2020/12/random-reminisces-on-boxing-day.html?showComment=1609344047717#c8835078073620589408

John Lott's Voter Fraud Statistical Analysis On SSRN

 This study provides measures of vote fraud in the 2020 presidential election. It first compares Fulton county’s precincts that are adjacent to similar precincts in neighboring counties that had no allegations of fraud to isolate the impact of Fulton county’s vote-counting process (including potential fraud). In measuring the difference in President Trump’s vote share of the absentee ballots for these adjacent precincts, we account for the difference in his vote share of the in-person voting and the difference in registered voters’ demographics. The best estimate shows an unusual 7.81% drop in Trump’s percentage of the absentee ballots for Fulton County alone of 11,350 votes, or over 80% of Biden’s vote lead in Georgia. The same approach is applied to Allegheny County in Pennsylvania for both absentee and provisional ballots. The estimated number of fraudulent votes from those two sources is about 55,270 votes.

Second, vote fraud can increase voter turnout rate. Increased fraud can take many forms: higher rates of filling out absentee ballots for people who hadn’t voted, dead people voting, ineligible people voting, or even payments to legally registered people for their votes. However, the increase might not be as large as the fraud if votes for opposing candidates are either lost, destroyed, or replaced with ballots filled out for the other candidate. The estimates here indicate that there were 70,000 to 79,000 “excess” votes in Georgia and Pennsylvania. Adding Arizona, Michigan, Nevada, and Wisconsin, the total increases to up to 289,000 excess votes.

Read here: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3756988

Conservative Treehouse: Mitch McConnell's M.O. Explained...

Why does McConnell prefer the minority position?

The answer is where you have had to actually follow Mitch McConnell closely to see how he works. When the Majority has around 52 to 55 seats, they need McConnell to give them 8 to 9 votes to overcome the three-fifths (60 vote) threshold for their legislative needs. It is in the process of trade and payment for those 8 to 9 votes where McConnell makes more money, and holds more power, than as a sitting Majority Leader.

The 60 vote threshold, and McConnell’s incredible skillset in the minority, is where he shines. Each of the needed votes to achieve sixty is worth buckets of indulgence to the minority leader and those on K-Street who need the Senate to support their legislative constructs.  The votes to get to sixty are worth a lot of money.

Read it all here:  https://theconservativetreehouse.com/2020/12/29/a-familiar-play-mitch-mcconnell-blocks-attempt-to-pass-2000-covid-relief-bill-deflects-accountability-to-potus/

Daniel Greenfield: Media Censors Stalin's Election Fraud Quote

 Now treating "Uncle Joe" Stalin like Joe Biden, apparently...

As Republicans began pushing back against the rigged election, a quote about voting from Joseph Stalin began circulating on social media. "The people who cast the votes decide nothing. The people who count the votes decide everything," is how variations of it went.

As soon as the quote went viral, the media’s fact checkers tried to suppress it.

USA Today's fact checker rated it as false, claiming that Stalin had never said it based on speaking with two history professors at Vanderbilt University who vowed that they never heard of it. One of the professors, who serves as the Director of Undergraduate Russian and East European Studies, ranted that it was, "an example of American right-wing paranoia, active manipulation of public opinion, or outright and fascism". Truly a quote worthy of Stalin.

But had the ‘fact checker’ and the professors just checked Oxford's Essential Quotations, they would have found it. You don’t need a PhD or a fact checker title: just a modicum of integrity.

Read it here: https://www.frontpagemag.com/fpm/2020/12/what-stalin-quote-about-rigging-elections-reveals-daniel-greenfield/

Sidney Powell: "Federal law requires transparency in our electoral process and our elections."

 “The very night of the election many people saw something that they had never seen before in the history of our elections. They saw votes being changed on the screen in front of them, going from President Donald Trump to Joe Biden. On top of that, the morning after the election, even that night, the voting stopped. They stopped counting in multiple districts at the same time before the vote got to 270 electors for President Trump. That’s never happened before. The only time votes have ever stopped being counted in this country on election night was when the Broward County problem developed over Hanging Chad’s in one county in FL. So for FIVE states to stop counting on election night is absolutely UNPRECEDENTED. And they did it because the vote count for the electoral college was about to hit [+ go over] 270 for President Donald Trump, because of the massive outpouring of votes for him that night. By the next morning, multiple mathematicians had contacted me and told me they knew the algorithm that had been run to change the votes. It was that obvious to people with mathematical expertise. It is a mathematical impossibility for 100’s of thousands of votes to show up for VP Biden alone and to have been injected into the system the way that they were. We have eye-witness testimony of countless people who saw votes coming in, in unsecured containers and improper means and looking different the night of the election. These people have come forward at great personal risk to themselves & their families to provide thousands of affidavits of voting abnormalities and actual crimes that they witnessed happen on election night. The very fact that the other side is working so hard to hide all of this. Federal law requires transparency in our electoral process and our elections.”

There is a federal statute that requires all the documents pertaining to the election to be maintained for 22 months following an election, for the very reason that it has to be completely auditable. A Federal Judge in October [in ATL] found all kinds of problems w/ the Dominion system that GA bought and crammed down for everybody across the state to use. That’s where the most problems have been, is in GA. Witnesses have come forward, there was supposedly a water leak that they shut down voting for. That was an abject lie. We have video of witnesses pulling suspect ballots out from under a table after they ran off all the observers. Somebody told me that one of the people that did that has told gov’t officials how it happened and what happened. But has that information been provided to the public? No. There is rampant voter fraud of all kinds. Federal violations of 5 years + more across the country by virtue of all the misconduct on election night. The flipping of votes by Dominion is even advertised, on their ability to do that, to run a fraction, to make a Biden vote count 1.26% and a Trump vote to only count 0.74%. They’ve done it before. They’ve done it in Venezuela. They done it in other foreign countries. They’ve done it in THIS country. We have evidence even that it was done in 2016 in CA to benefit Hillary or Bernie Sanders, and it’s been done in other local elections and smaller elections in different places. This is the only time it’s been this widespread, and the reason it didn’t work this time, they’ve been able to shave these votes for a long time, but the reason it didn’t work completely this time and they had to shut down in so many places was because so many Trump supporters poured out on the day of the election to vote for President Donald Trump in what was a LANDSLIDE victory, a historic victory, is because it BROKE the algorithm. That’s why they had to stop counting that night. That’s why they had to bring in ballots and try to back-fill. And it still doesn’t work, because there are still 100’s of thousands of more votes than there were voters to vote them. The math simply doesn’t add up. And if they had nothing to hide, why aren’t they providing transparency into the voting systems of the United States of America, the country that is founded upon the Rule of Law and is supposed to be above all this? It is absolutely the most appalling criminal operation in the history of our country.”

Read the whole story here: https://populist.press/sidney-powell-goes-off-in-latest-interview-absolutely-unprecedented/ 

Nathan Lewin: Washington Post's Election Fraud Deniers Lipstadt & Eisen Abuse Holocaust

Does contesting a presidential election in a democratic society by resorting to the courts, to elected legislators, to the media and to the public amount to a crime against humanity on the scale of the Holocaust? As one who fled from Poland (as a 3-year-old carried by my parents) and who lost three grandparents in the Holocaust, I would not have believed that any rational human being—much less a collaboration of two distinguished Jews, one of whom has exploited her study of the Holocaust to gain international renown—could stoop so low. By publishing this rant with a blatant political bias, two otherwise distinguished American Jews have engaged in shameful Holocaust denial.

Read all about it here: https://www.israelnationalnews.com/News/News.aspx/293890

Stanley Kurtz: New Civics Requirements Will Be Leftist

 New state-level history and civics standards are not the solution to our civic doldrums. The best way to battle educational decline is a return to local control, which should never have been abandoned in the first place. Relying on our current education establishment to carry out reform is a fool’s errand. They are what got us into trouble to begin with. The real hope for improvement lies with parents. A grassroots movement to take back the curriculum from woke education bureaucrats could shift the composition of local school boards across the country. That is the level at which curricula recommended by places like Hillsdale College, ConSource, and 1776 Unites should be adopted. The newly announced group, American Achievement Testing (AAT), plans to take this strategy to another level by combining a comprehensive American history curriculum built around Wilfred McClay’s Land of Hope with the capacity for testing. Nowadays, influence over the curriculum requires the capacity to devise tests.

Read all about it here: https://www.nationalreview.com/corner/beware-new-civics-mandates-will-be-woke/

Monday, December 28, 2020

Glenn Greenwald: Real Threat Of Authoritarianism In USA

 

The Threat of Authoritarianism in the U.S. is Very Real, and Has Nothing To Do With Trump


The COVID-driven centralization of economic power and information control in the hands of a few corporate monopolies poses enduring threats to political freedom.

Read here: https://greenwald.substack.com/p/the-threat-of-authoritarianism-in 

Saturday, December 26, 2020

Rave Review of THE AMERICAN WAY OF EMPIRE: How America Won a World--But Lost Her Way, by James Kurth

By Charles W. Sharpe, Jr. in CHRONICLES: A Magazine of American Culture, in the December 2020 issue

 "Kurth’s provocative and passionate prose, accompanied by his brilliant analysis, make for lively reading. Indeed, his discussion of the American imperial idea constitutes but one of the book’s many originalities. Divided into four sections, each following distinct thematic trajectories, The American Way of Empire investigates the rise and apparent decline of the American Empire from 1776 to the present. Eccentric, but replete with wisdom, the book draws on several fields: history, comparative politics, international relations, and political economy among others. Sometimes Kurth’s prognoses and conclusions alarm, but he also suggests possible methods for the nation to extract itself from its present quagmire...The American Way of Empire is an entirely original and interpretive exploration of the American imperial project from its origins in the 19th century up to the present." (

 Read it all at: https://www.chroniclesmagazine.org/the-adolescent-empire/

Thursday, December 24, 2020

Wayne Allyn Root's Christmas Message to President Trump

 So, my Christmas message is simple. Your time to win is now. You have to overturn a stolen election between now and January 20 th . But that’s okay. You’ve got this. I’ve studied your “TRUMP RULES” for 41 years. You are Houdini. You are a man of miracles. Only you can pull this off. You were born to do this. You have the rules and tools to make the impossible, possible. I wrote the book. I believe in you.

But it has to be now. You’ve got only a few days left. After that, your window closes forever.

And, so does the future of America.

Read all about it: https://www.thegatewaypundit.com/2020/12/wayne-root-christmas-message-president-trump-must-win-now-cant-win-2024/

VP Pence Could Save Pres Trump on Dec 23rd

Memo says he could reject fraudulent electors. I sure hope he does. 

In my opinion, if he saves President Trump, he's going to be President in 2024.

If he doesn't, he's finished among Trump voters.

Read all about it at: https://nationalfile.com/exclusive-white-house-memo-details-how-pence-card-can-save-trumps-presidency-on-dec-23/

Epoch Times: Trump Urges Americans to ‘Stop the Theft of the Presidential Election’

President Donald Trump in a message to the nation late Tuesday sought to explain why he is determined to pursue all legal and constitutional avenues to “stop the theft of the presidential election,” and called on the American people to “raise their voices” and demand to correct the injustice.

“Americans must be able to have complete faith in the confidence of their elections. The fate of our democracy depends upon it,” he said in a videostatement. “Now is the time for the American people to raise their voices and demand that this injustice be immediately corrected. Our elections must be fair, they must be honest, they must be transparent, and they must be 100 percent free of fraud.

“We won this election by a magnificent landslide, and the people of the United States know it. All over, they’re demonstrating, they’re angry, they’re fearful. We cannot allow a completely fraudulent election to stand.”

Trump said that one of his most solemn duties as president is to protect the integrity of Americans’ “sacred right to vote.”

He accused Democratic officials in key swing states of having used the CCP (Chinese Communist Party) virus, which causes the disease COVID-19, as a pretext to allegedly illegally violate state laws to “to enable, encourage, and facilitate fraud” on an unprecedented scale in the country.

Trump has previously alleged that there was widespread voting irregularity and fraud across the nation, however this is the first time he has made a lengthy address about the election urging Americans to be vocal about the situation.

Watch here: https://www.facebook.com/DonaldTrump/videos/436515744393744

Read all about it here: https://www.theepochtimes.com/trump-urges-americans-to-stop-the-theft-of-the-presidential-election_3629965.html

Are Senator McConnell's Ex-Wife & Children Leftists?

 A very disturbing post: https://blog.wataugawatch.net/2020/04/when-your-own-children-cant-stand-your.html

All three daughters declined to comment, as did their mother, Sherrill Redmon, whom McConnell divorced in 1980. After the marriage ended, Redmon, who holds a Ph.D. in philosophy, left Kentucky and took over a women’s-history archive at Smith College, in Massachusetts, where she collaborated with Gloria Steinem on the Voices of Feminism Oral History Project. In an e-mail, Steinem told me that Redmon rarely spoke about McConnell, and noted, “Despite Sherrill’s devotion to recording all of women’s lives, she didn’t talk about the earlier part of her own.” 

Hice to Newsmax TV: McConnell Should Tell Senators to 'Get on Board' With Election Challenge

 Rep. Jody Hice, R-Ga., who has said he plans to lead the challenge of his state's electors when Congress meets in joint session on Jan. 6, tells Newsmax TV he disagrees with Senate Majority Leader Mitch McConnell's directive to Republicans not to join the effort, saying the party needs to fight for free and fair elections.

"I think it's totally inappropriate for Mitch McConnell trying to walk away from this," Hice said Tuesday on "Spicer & Co." "If we lose that integrity of the ballot box, we will ultimately lose our country, so he needs to be in the battle with us. He needs to be encouraging senators to get on board with this."

Read all about it here: https://www.newsmax.com/newsmax-tv/jody-hice-mcconnell/2020/12/22/id/1002803/ 

Frauds, Crooks & Criminals: Trump Calls Massive Spending Bill a “Disgrace,” Says He Won’t Sign It

By the way, only six brave Republican Senators voted against the 5,000 plus page bill that NO one has read:

Sens. Rand Paul, R-Ky., Ted Cruz, R-Texas, Rick Scott, R-Fla., Ron Johnson, R-Wis., Mike Lee, R-Utah, and Marsha Blackburn, R-Tenn.*** 

The President has nothing to lose now if he vetoes the monster that will put the US in even greater debt (to China?) for generations to come.  It will reaffirm his strong leadership that will be needed for the years ahead.

Yeah, they can override his veto, but then we will all know who puts Americans First and who puts us last. After all, the midterm elections are not far off.

Read all about it here:  https://fraudscrookscriminals.com/2020/12/23/trump-calls-massive-spending-bill-a-disgrace-says-he-wont-sign-it/

Tuesday, December 22, 2020

Patrick Byrne Says White House Counsel Pat Cippolone Sabotaging President Trump

Byrne said White House Counsel Pat Cippolone and senior White House staff are sabotaging President Trump, in an interview with Tracy Beanz

I believe it. The GOP obviously wants Biden.

They're strategy is to tire out the President and run out the clock.

I don't understand why President Trump doesn't make Gen. Flynn White House Chief of Staff, Sidney Powell Special Counsel, and Rudy Giuliani Acting Attorney General--right now.

As Tracy Beanz said in the interview, he has nothing to lose at this point.

Listen here:  https://uncoverdc.com/2020/12/21/dark-to-light-a-meeting-with-the-president/

To Save President Trump, Senators Must Hold Covid Relief Bill Until After Second-Term Inauguration

I posted this on Gab and Parler today, after I saw news about  the atrocity of a "COVID Relief Bill" passed by Congress:

PLEASE PUT A HOLD ON THE COVID BILL UNTIL AFTER PRESIDENT TRUMP HAS BEEN INAUGURATED FOR HIS SECOND TERM! @tedcruz  

@marshablackburn  
@senmikelee  
@randpaul  
@ronjohnsonwi  
@ Sen. Rick Scott.

 

My guess is at least some of the trillions in pork and corruption in this bill is a disguised payoff to Republicans currently betraying President Trump

At this point, I think Trump supporters could use this bill to gain leverage in the situation, simply by delaying this corrupt payment -- in order to make it contingent upon Biden's defeat and the inauguration of President Trump for a second term.

It is a matter of a 30-day "pause," over the Christmas and New Year's Holiday--nothing happens anyway during that time.

So, there is literally no downside for any Senator holding up the bill--except the ire of Biden supporters wanting payment in advance for their perfidy in shilling for a corrupt candidate in a corrupt election.

It isn't hard to do.

Under the rules of the US Senate, any senator is permitted to place an indefinite "Hold" on any bill for any reason. Six senators could therefore hold this up indefinitely--or until after the Inauguration.

If Biden is inaugurated, he won't have to pay off Republicans anymore, so such a delay might punish GOP Senators who are sabotaging President Trump...because their share of the loot could be reduced.

However, if President Trump is inaugurated, he could negotiate a better deal for his supporters and American taxpayers--and also use this very bill to punish Biden's supporters on both sides of the aisle.

I was personally involved with a similar situation in the 1990s regarding appropriations for the Corporation for Public Broadcasting following their publicizing false charges against Justice Clarence Thomas. At that time, Senator Bob Dole held up the CPB appropriation for six months to force changes.

So, a one-month hold by six senators should be six times easier, in my opinion.

Such a move could change the trajectory of the Biden putsch, by depriving his co-conspirators of money and sending a signal that pro-Trump senators are willing to fight to the bitter end. 

Monday, December 21, 2020

Cliff Kincaid: Bill Barr Still Covers For CIA

Using the Wall Street Journal columnist Strassel as a mouthpiece, Bill Barr says the CIA stayed in its lane. If true, that’s frightening. It means they’re trying to bring to power a pawn of the Communist Chinese.
Trump must resist by any means necessary. 

David Prentice: President Donald Trump Is America's Lion

 The first time I heard the chant of “We love you” at one of his rallies, I just nodded my head in agreement. It’s true. The man is beloved, and rightfully so. We know what he has done for the country. We know he brought genuine hope and excitement to so many. We know he helped us bring about the greatest economy in history. We know he made America great again economically and in foreign affairs, bringing peace to the Middle East for the first time, bringing great hope to the world. We know the vaccine and the win over Covid is his. We know he deserves another term and that he earned it through all his achievements.

And we know he won the election in the biggest landslide since Reagan...

Read all about it here: https://uncoverdc.com/2020/12/17/americas-lion/

Facebook Subsidized Democratic Party Ballot Boxes

A report released by the Amistad Project, a non-partisan election watchdog organization, indicated that absentee ballot boxes highly favoured the Biden campaign due to their locations.

Read all about it here: https://thepostmillennial.com/bombshell-report-alleges-facebook-paid-for-increased-ballot-boxes-in-democrat-areas

Matthew Crawford: How Race Demagoguery Liberated Elites

 For the new Left, then, it was not capitalism but the democratic social order altogether that was the source of oppression — not just of black people, or of workers, but of us, the college bourgeoisie. The civil rights movement of black Americans became the template for subsequent claims by women, gays and transgender persons, each based on a further discovery of moral failing buried deep in the heart of America. Hence a further license, indeed mandate, granted to individual conscience, as against the claims of the nation.

But the black experience retains a special role as the template that must be preserved. The black man is specially tuned by history to pick up the force field of oppression, which may be hard to discern in the more derivative cases that are built by analogy with his. Therefore, his condition serves a wider diagnostic and justificatory function. If it were to improve, denunciation of “society” would be awkward to maintain and, crucially, my own conscience would lose its self-certifying independence from the community. My wish to be free of the demands of society would look like mere selfishness.

The white bourgeoisie became invested in a political drama in which their own moral standing depends on black people remaining permanently aggrieved. Unless their special status as ur-victim is maintained, African-Americans cannot serve as patrons for the wider project of liberation. If you question this victimisation, you are questioning the rottenness of America. And if you do that, you are threatening the social order, strangely enough. For it is now an order governed by the freelance moralists of the cosmopolitan consensus. Somehow these free agents, ostensibly guided by individual conscience, have coalesced into something resembling a tribe, one that is greatly angered by rejection of its moral expertise.

Read all about it at UnHerd.com: https://unherd.com/2020/12/how-race-politics-liberated-the-elites/

J.R. Dunn: President Trump Must Fight To The Finish

 "The fight is not over. As Donald Trump so clearly showed, the path ahead requires backbone, savvy, and guts."


Read more: https://www.americanthinker.com/articles/2020/12/fighting_on.html#ixzz6hHO5NLWq 


Sunday, December 20, 2020

Complete Text: Trump v Boockvar Supreme Court Petition (via The National Pulse)

                                           No. 20-


                                           In the

               Supreme Court of the United States



                DONALD J. TRUMP FOR PRESIDENT, INC.,



                                                                                Petitioner,



                                               v.



         Kathy Boockvar, Secretary of the Commonwealth

                      of Pennsylvania, et al.,



                                                                              Respondents.




 On Petition for Writs of Certiorari to the Supreme Court of Pennsylvania



             PETITION FOR A WRIT OF CERTIORARI





Bruce S. Marks, Esq.                                John C. Eastman, Esq.

Marks & Sokolov, LLC                                  Counsel of Record

1835 Market Street, Suite 1717                      174 West Lincoln Avenue, Suite 620

Philadelphia, PA 19103                              Anaheim, CA 92805

(215) 569-8901                                      (909) 257-3869

                                                    jeastman562@gmail.com

                             Counsel for Petitioners




300748


                                        A

                                 (800) 274-3321 • (800) 359-6859

                           QUESTIONS PRESENTED


      Article II of the Constitution provides that “Each State shall appoint [electors


for President and Vice President] in such Manner as the Legislature thereof may


direct.” U.S. Const. art. II, § 1, cl. 2 (emphasis added). That power is “plenary,” and


the statutory provisions enacted by the legislature in the furtherance of that


constitutionally-assigned duty may not be ignored by state election officials or


changed by state courts. Bush v. Gore (“Bush II”), 531 U.S. 98, 104-05 (2000).


      Yet, during the 2020 presidential election, that is what the Pennsylvania


Supreme Court did in four cases – three at issue in this Petition, and one already


before the Court.    Statutory requirements were eliminated regarding signature


verification, the right of campaigns to challenge invalid mail ballots, mandates that


mail voters fill in, date, and sign mail ballot declarations, and even the right of


campaigns to observe the mail ballot canvassing process in a meaningful way.


      Collectively, these three decisions resulted in counting approximately 2.6


million mail ballots in violation of the law as enacted by the Pennsylvania


Legislature. According to public reports, without these protections, the resulting


disqualification rate of invalid ballots was anemic—meaning over 110,000 invalid


ballots were illegally counted—more than enough to have affected the outcome of the


election, where the margin between the two principal candidates for President


currently stands at 80,558. The questions presented are therefore:


   1. Whether the Pennsylvania Supreme Court’s alteration or suspension of state



                                           i

 election law through its three decisions before and after the November 2020


  general election usurped the Pennsylvania Legislature’s plenary authority to


  “direct [the] Manner” for appointing electors for President and Vice-President,


  in violation of Article II, Section 1, Clause 2 of the U.S. Constitution?


2. Whether the Pennsylvania Supreme Court’s three decisions usurping the


  Pennsylvania Legislature’s plenary authority to “direct [the] Manner” for


  appointing presidential electors, by changing the law, including eviscerating


  protections against mail ballot fraud, violated the Due Process Clause of the


  Constitution, and whether Pennsylvania applying the new rules promulgated


  by the Court during the election in only select counties where mail ballots


  heavily favored one candidate over the other violated the Equal Protection


  Clause of the Constitution?


3. Whether this Court has the power to provide a meaningful remedy to


  Petitioner in advance of the January 6, 2021 Joint Session of Congress, at


  which electoral votes will be opened and counted, or before the January 20,


  2021 inauguration date specified by the Constitution?





                                      ii

                     PARTIES TO THE PROCEEDINGS


I.     Pennsylvania Supreme Court: In re Canvass of Absentee & Mail-

       In Ballots of Nov. 3, 2020 Gen. Election, Nos. 31 EAP 2020, 32 EAP

       2020, 33 EAP 2020, 34 EAP 2020, 35 EAP 2020, 29 WAP 2020

       (November 23, 2020), reported at 2020 Pa. LEXIS 5989, 2020 WL

       6875017


Petitioner: Donald J. Trump for President, Inc., Appellant



Respondents:

Elizabeth J. Elkin, Philadelphia County Board of Elections; Democratic National

Committee; Philadelphia County Board of Elections; Omar Sabir; Al Schmidt; Lisa

Deely; Bureau of Commissions, Elections and Legislation; DNC Services Corp./

Democratic National Committee; Democratic Party; and James Brewster, Appellees.



II.    Pennsylvania Supreme Court: In re Canvassing Observation, No.

       30 EAP 2020 (November 17, 2020), reported at 2020 Pa. LEXIS

       5879, 2020 WL 6737895


Petitioner: Donald J. Trump for President, Inc., Appellee



Respondents:

Philadelphia County Board of Elections, Appellant

Pennsylvania Democratic Party, Appellee



III.   Pennsylvania Supreme Court: In re November 3, 2020 Gen. Election,

       No. 149 MM 2020 (October 23, 2020), reported at 240 A.3d 591


Petitioner: Donald J. Trump for President, Inc., Appellee


Respondents:

National Republican Congressional Committee, Appellee

Republican National Committee, Appellee

Republican Party of Pennsylvania, Appellee


Kathy Boockvar, Secretary of the Commonwealth of Pennsylvania, Petitioner


Bucks County Board of Elections, Chester County Board of Elections, Montgomery

                                        iii

County Board of Elections, Philadelphia County Board of Elections, Luzerne County

Board of Elections, Clearfield County Board of Elections, Northampton County Board

of Elections, Crawford County Board of Elections, Lehigh County Board of Elections,

Armstrong County Board of Elections, Bradford County Board of Elections, Clarion

County Board of Elections, Tioga County Board of Elections, Clarion County Board

of Elections, Susquehanna County Board of Elections, Greene County Board of

Elections, Delaware County Board of Elections, Lancaster County Board of Elections,

Cumberland County Board of Elections, Allegheny County Board of Elections,

Franklin County Board of Elections, Perry County Board of Elections, Sullivan

County Board of Elections, Wyoming County Board of Elections, Adams County

Board of Elections, Westmoreland County Board of Elections, Warren County Board

of Elections, Potter County Board of Elections, Lackawanna County Board of

Elections, Centre County Board of Elections, Columbia County Board of Elections,

Blair County Board of Elections, Bedford County Board of Elections, Dauphin County

Board of Elections, Fayette County Board of Elections, Huntingdon County Board of

Elections, Indiana County Board of Elections, Lawrence County Board of Elections,

Lebanon County Board of Elections, Montour County Board of Elections,

Northumberland County Board of Elections, Venango County Board of Elections,

York County Board of Elections, Armstrong County Board of Elections, Berks County

Board of Elections, Elk County Board of Elections, Butler County Board of Elections,

Respondents

Pennsylvania State Democratic Party, Dwight Evans, Respondent Pennsylvania

Alliance for Retired Americans, Respondent League of Women Voters of

Pennsylvania, NAACP Pennsylvania State Conference, Common Cause

Pennsylvania, Respondents.





                                         iv

                           RULE 29.6 STATEMENT


      Petitioner, Donald J. Trump for President, Inc., is the official campaign


committee for Donald J. Trump, President of the United States and candidate for re-


election to the office of President. Petitioner has no parent corporation, and no


publicly held company owns 10% or more of its stock.


                               RELATED CASES


   A. In re: Canvass of Absentee and Mail-in Ballots of November 3, 2020 General

      Election, Nos. 31 EAP 2020, 32 EAP 2020, 33 EAP 2020, 34 EAP 2020, 35

      EAP 2020, 29 WAP 2020, Supreme Court of Pennsylvania. Judgment

      entered November 23, 2020.


         1. In re: 2,349 Ballots in the 2020 General Election, No. 1162 CD 2020,

            Commonwealth Court of Pennsylvania. Judgment entered November

            19, 2020.


                 a. Ziccarelli v. Allegheny County Board of Elections, No. GD 20-

                    011654, Court of Common Pleas of Allegheny County.

                    Judgment entered November 18, 2020.


         2. In re: Canvass of Absentee and Mail-In Ballots of November 3, 2020

            General Election, 1136 CD 2020, Commonwealth Court of

            Pennsylvania. Judgment not entered: on November 18, 2020 the

            Supreme Court of Pennsylvania exercised extraordinary jurisdiction

            over the case.


                 a. In re: Canvass of Absentee and Mail-In Ballots of November 3,

                    2020 General Election, No. 201100878, Court of Common Pleas

                    of Philadelphia. Judgment entered November 13, 2020.


         3. In re: Canvass of Absentee and Mail-In Ballots of November 3, 2020

            General Election, 1137 CD 2020, Commonwealth Court of

            Pennsylvania. Judgment not entered: on November 18, 2020 the

            Supreme Court of Pennsylvania exercised extraordinary jurisdiction

            over the case.





                                        v

            a. In re: Canvass of Absentee and Mail-In Ballots of November 3,

                2020 General Election, No. 201100877, Court of Common Pleas

                of Philadelphia. Judgment entered November 13, 2020.


      4. In re: Canvass of Absentee and Mail-In Ballots of November 3, 2020

         General Election, 1138 CD 2020, Commonwealth Court of

         Pennsylvania. Judgment not entered: on November 18, 2020 the

         Supreme Court of Pennsylvania exercised extraordinary jurisdiction

         over the case.


             a. In re: Canvass of Absentee and Mail-In Ballots of November 3,

                2020 General Election, No. 201100876, Court of Common Pleas

                of Philadelphia. Judgment entered November 13, 2020.


      5. In re: Canvass of Absentee and Mail-In Ballots of November 3, 2020

         General Election, 1139 CD 2020, Commonwealth Court of

         Pennsylvania. Judgment not entered: on November 18, 2020 the

         Supreme Court of Pennsylvania exercised extraordinary jurisdiction

         over the case.


             a. In re: Canvass of Absentee and Mail-In Ballots of November 3,

                2020 General Election, No. 201100875, Court of Common Pleas

                of Philadelphia. Judgment entered November 13, 2020.


      6. In re: Canvass of Absentee and Mail-In Ballots of November 3, 2020

         General Election, 1140 CD 2020, Commonwealth Court of

         Pennsylvania. Judgment not entered: on November 18, 2020 the

         Supreme Court of Pennsylvania exercised extraordinary jurisdiction

         over the case.


             a. In re: Canvass of Absentee and Mail-In Ballots of November 3,

                2020 General Election, No. 201100874, Court of Common Pleas

                of Philadelphia. Judgment entered November 13, 2020.


B. In re: Canvassing Observation, No. 30 EAP 2020, Supreme Court of

   Pennsylvania. Judgment entered November 17, 2020.


      1. In re: Canvassing Observation, No. 1094 CD 2020, Commonwealth

         Court of Pennsylvania. Judgment entered November 5, 2020.


             a. In re: Canvassing Observation, Appeal of Donald J. Trump for

                President, Inc., No. 201107003, Court of Common Pleas of

                Philadelphia. Judgment Entered November 4, 2020.



                                    vi

C. In re: November 3, 2020 General Election, No. 149 MM 2020, Supreme Court

   of Pennsylvania. Judgment entered October 23, 2020.





                                   vii

                                          TABLE OF CONTENTS


                                                                                                                         Page



QUESTIONS PRESENTED ........................................................................................... i

PARTIES TO THE PROCEEDINGS ........................................................................... iii

         I.       Pennsylvania Supreme Court: In re Canvass of Absentee &

                  Mail-In Ballots of Nov. 3, 2020 Gen. Election, Nos. 31 EAP

                  2020, 32 EAP 2020, 33 EAP 2020, 34 EAP 2020, 35 EAP 2020,

                  29 WAP 2020 (November 23, 2020), reported at 2020 Pa.

                  LEXIS 5989, 2020 WL 6875017 .............................................................. iii

         II.      Pennsylvania Supreme Court: In re Canvassing Observation,

                  No. 30 EAP 2020 (November 17, 2020), reported at 2020 Pa.

                  LEXIS 5879, 2020 WL 6737895 .............................................................. iii

         III.     Pennsylvania Supreme Court: In re November 3, 2020 Gen.

                  Election, No. 149 MM 2020 (October 23, 2020), reported at 240

                  A.3d 591 ................................................................................................... iii

RULE 29.6 STATEMENT ............................................................................................. v

RELATED CASES ........................................................................................................ vi

TABLE OF CONTENTS ............................................................................................. viii

TABLE OF APPENDICES ........................................................................................... xi

TABLE OF CITED AUTHORITIES .......................................................................... xiii

OPINIONS BELOW ...................................................................................................... 1

STATEMENT OF JURISDICTION .............................................................................. 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ....................... 2

STATEMENT OF THE CASE ....................................................................................... 3

         I.       Mail Voting and the Importance of Anti-Fraud Provisions .................... 4

         II.      Pennsylvania Election Officials and Courts Weakened or

                  Entirely Disregarded Key Anti-Fraud Provisions of

                  Pennsylvania Election Law...................................................................... 6





                                                             viii

              A.       November 3, 2020 Gen. Election Ratified the Secretary

                        of the Commonwealth’s Dispensing with Statutory

                        Signature Verification Requirements for Mail Ballots,

                        and Sua Sponte Eliminated the Statutory Right to

                        Challenge Them During Canvassing on Election Day ................. 6

               B.       Canvassing Observation Eviscerated the Campaigns’

                        Statutory Right to Meaningfully Observe Canvassing of

                        Mail Ballots .................................................................................. 10

               C.       Canvass of Absentee and Mail-In Ballots Eviscerated

                        the Requirement that Mail Voters “Fill Out” the

                        Declaration, Which Has Long Included the Voter’s

                        Current Address and Date .......................................................... 11

               D.       Other Article II Violations .......................................................... 14

       III.    The 2020 Pennsylvania Election Results .............................................. 15

REASONS FOR GRANTING THE WRIT .................................................................. 16

       I.      By Eviscerating Election Law Enacted By the Pennsylvania

               Legislature Pursuant to Authority Derived from Article II of

               the Federal Constitution, the Pennsylvania Supreme Court

               Has Decided an Important Federal Question in a Way that

               Conflicts with Decisions of this Court ................................................... 16

               A.       The Three Decisions Violated Article II By Changing

                        the Law During the Election ....................................................... 17

               B.       This Court Should Independently Examine

                        Pennsylvania’s Election Laws, Which The Pennsylvania

                        Supreme Court Erroneously and Dramatically Changed

                        During the Presidential Election ................................................ 18

       II.     This Court Should Re-Affirm That Federal Courts Have The

               Power To Remedy Violations of Article II ............................................. 22

       III.    The Pennsylvania Court Decisions Create a Mail Ballot

               Statutory Scheme That Is So Porous That It Gave Rise To Due

               Process and Equal Protection Violations That Should Be

               Reviewed by this Court .......................................................................... 24

               A.       Due Process Was Violated By The Three Pennsylvania

                        Supreme Court Decisions ............................................................ 24

               B.       The Equal Protection Clause Was Violated By Different

                        Voting Standards Being Used In Different Counties................. 25



                                                        ix

        IV.      The Court’s Intercession Is Necessary To Uphold The Rule of

                  Law And To Put the Country at Ease, To The Extent Possible

                  in these Tumultuous Times ................................................................... 26

         V.       The Issues Addressed by this Petition Are Not Moot ........................... 29

CONCLUSION............................................................................................................. 32





                                                            x

                   TABLE OF APPENDICES


APPENDIX A – OPINION OF THE SUPREME COURT OF

    PENNSYLVANIA, DATED NOVEMBER 23, 2020

APPENDIX B – OPINION OF THE SUPREME COURT OF

    PENNSYLVANIA, EASTERN DISTRICT, DATED

    NOVEMBER 17, 2020

APPENDIX C – OPINION OF THE SUPREME COURT OF

    PENNSYLVANIA, MIDDLE DISTRICT, DATED

    OCTOBER 23, 2020

APPENDIX D – MEMORANDUM OPINION OF THE COMMONWEALTH

    COURT OF PENNSYLVANIA, DATED NOVEMBER 25, 2020

APPENDIX E – OPINION OF THE COMMONWEALTH COURT OF

    PENNSYLVANIA, DATED NOVEMBER 19, 2020

APPENDIX F – MEMORANDUM AND ORDER OF THE COURT OF

    COMMON PLEAS OF ALLEGHENY COUNTY, PENNSYLVANIA

    CIVIL DIVISION, DATED NOVEMBER 18, 2020

APPENDIX G – ORDER OF THE COMMONWEALTH COURT OF

    PENNSYLVANIA, DATED NOVEMBER 5, 2020

APPENDIX H – OPINION OF THE COURT OF COMMON PLEAS OF

    PHILADELPHIA COUNTY, FIRST JUDICIAL DISTRICT, TRIAL

    DIVISION, CIVIL SECTION, DATED NOVEMBER 4, 2020

APPENDIX I – ORDER OF THE COURT OF COMMON PLEAS OF

    PHILADELPHIA COUNTY, FIRST JUDICIAL DISTRICT, DATED

    NOVEMBER 3, 2020

APPENDIX J – ORDER OF THE SUPREME COURT OF

    PENNSYLVANIA, DATED OCTOBER 14, 2020

APPENDIX K – RELEVANT STATUTORY PROVISIONS

APPENDIX L – ORDER OF THE SUPREME COURT OF

    PENNSYLVANIA, MIDDLE DISTRICT, DATED

    DECEMBER 8, 2020

APPENDIX M – MEMORANDUM AND ORDER OF THE COURT OF

    COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA, CIVIL

    DIVISION, DATED NOVEMBER 19, 2020





                              xi

APPENDIX N – MEMORANDUM AND ORDER OF THE COURT OF

    COMMON PLEAS OF MONTGOMERY COUNTY,

    PENNSYLVANIA, CIVIL ACTION, DATED NOVEMBER 13, 2020





                              xii

                                 TABLE OF CITED AUTHORITIES


                                                                                                                  Page(s)

Cases:

Armstrong v. Manzo,

     380 U.S. 545 (1965) ........................................................................................... 24

Bouie v. City of Columbia,

      378 U.S. 347 (1964) ........................................................................................... 20

Bush v. Gore,

      531 U.S. 98 (2000) ......................................................................................passim

Bush v. Palm Beach Cty. Canvassing Bd.,

      531 U.S. 70 (2000) ................................................................................... 9, 17, 19

Case of Electoral Coll.,

      8 F. Cas. 427 (C.C.D.S.C. 1876) ............................................................ 11, 14, 19

Crawford v. Marion County Election Bd.,

     553 U.S. 181 (2008) ........................................................................................... 26

Donald J. Trump for President, Inc. v. Montgomery Cnty. Bd. of Elections,

     No. 2020-18680 (Nov. 13, 2020) ........................................................................ 13

FEC v. Wisconsin Right to Life, Inc.,

     551 U.S. 449 (2007) ........................................................................................... 31

Griffin v. Burns,

       570 F.2d 1065 (1st Cir. 1978) ........................................................................... 24

Harper v. Virginia Bd. of Elections,

     383 U.S. 663 (1966) ........................................................................................... 25

In re Canvass of Absentee and/or Mail-in Ballots of Nov. 3

       General Election,

       No. 1191 C.D. 2020 (Commw. Ct. Nov. 25, 2020) ............................................ 15

In re Canvass of Absentee and/or Mail-in Ballots of Nov. 3, 2020 Gen.

       Election, Petition of Donald J. Trump for President, Inc.,

       No. 2020-05786-35 (Bucks Cty. Ct. Com. Pl. Nov. 19, 2020) ........................... 13

In re Canvass of Absentee Ballots of Nov. 4, 2003 Gen. Election,

       843 A.2d 1223 (Pa. 2004) .................................................................................... 5

Kelly v. Commonwealth of Penn.,

       No. 20-810............................................................................................................ 6



                                                             xiii

Lachance v. Erickson,

     522 U.S. 262 (1998) ........................................................................................... 24

Leser v. Garnett,

       258 U.S. 130 (1922) ........................................................................................... 17

Marks v. Stinson,

     1994 U.S. Dist. LEXIS 5273 (E.D. Pa. April 26, 1994) ................................ 5, 26

Matthews v. Eldridge,

     424 U.S. 319 (1975) ........................................................................................... 24

McPherson v. Blacker,

     146 U.S. 1 (1892) ................................................................................. 5, 9, 16, 23

Mullaney v. Wilbur,

     421 U.S. 684 (1975) ........................................................................................... 20

NAACP v. Alabama ex rel. Patterson,

    357 U.S. 449 (1958) ........................................................................................... 20

Norman v. Reed,

     502 U.S. 279 (1992) ........................................................................................... 31

Pennsylvania Democratic Party v. Boockvar,

     238 A.3d 345 (Pa. Sep. 17, 2020) ........................................................................ 4

Public Interest Legal Found. v. Boockvar,

      No. 1:20-cv-1905, 2020 U.S. Dist. LEXIS 193577

      (M.D. Pa. Oct. 20, 2020) .................................................................................... 12

Purcell v. Gonzalez,

      549 U.S. 1 (2006) ......................................................................................... 12, 26

Republican Party v. Boockvar,

     208 L. Ed. 2d 266, 2020 U.S. LEXIS 5188, 2020 WL 6304626 (2020) .............. 3

Reynolds v. Sims,

      377 U.S. 533 (1964) ........................................................................................... 25

Roe v. Alabama,

       43 F.3d 574 (11th Cir. 1995) ............................................................................. 24

State of Tex. v. Commonwealth of Pa., et al.,

       No. 22O155 (S. Ct., filed Dec. 8, 2020) ............................................................... 3

Warf v. Bd. of Elections,

      619 F.3d 553 (6th Cir. 2010) ............................................................................. 22





                                                          xiv

Wilkes-Barre Election Appeals,

      1967 Pa. Dist. & Cnty. Dec. LEXIS 9

      (Pa.Com.Pl. Luz. Cnty. Dec. 27, 1967) ........................................................ 22-23



Statutes & Other Authorities:

U.S. Const., amend. XIV, § 1 ......................................................................................... 2

U.S. Const. art. I, § 4, cl. 1............................................................................................. 9

U.S. Const. art. II, § 1, cl. 2 ..................................................................................passim

3 U.S.C. § 2............................................................................................................... 2, 23

3 U.S.C. § 5............................................................................................................... 3, 31

3 U.S.C. § 7................................................................................................................... 29

3 U.S.C. § 11 ................................................................................................................. 29

3 U.S.C. § 15 ............................................................................................................. 3, 31

28 U.S.C. § 1257(a) .................................................................................................... 2, 3

PA. Const. Art VII § 14 .............................................................................................. 3, 5

25 P.C.S. § 1323 ........................................................................................................... 12

25 P.C.S. § 1328 ........................................................................................................... 12

25 P.C.S. § 1901 ........................................................................................................... 12

25 P.C.S. § 1902 ........................................................................................................... 12

25 P.S. § 1302.2 .............................................................................................................. 6

25 P.S. § 1306 ................................................................................................................. 6

25 P.S. § 1308 ................................................................................................................. 6

25 P.S. § 2650 ................................................................................................................. 3

25 P.S. § 3146.1 .......................................................................................................... 3, 5

25 P.S. § 3146.2 .......................................................................................................... 3, 5

25 P.S. § 3146.2b ............................................................................................................ 5

25 P.S. § 3146.6 .............................................................................................................. 3

25 P.S. § 3146.6(a) ................................................................................................... 4, 11

25 P.S. § 3146.6(a)(3) ................................................................................................... 12


                                                               xv

25 P.S. § 3146.8 ...................................................................................................... 3, 4, 5

25 P.S. § 3146.8(b) ................................................................................................. 10, 21

25 P.S. § 3146.8(f) .................................................................................................... 8, 20

25 P.S. § 3146.8(g)(1.1) .......................................................................................... 10, 21

25 P.S. § 3146.8(g)(3) ........................................................................................... 7, 8, 20

25 P.S. § 3146.8(g)(5) ..................................................................................................... 8

25 P.S. § 3150.11 ............................................................................................................ 3

25 P.S. § 3150.11(b) ....................................................................................................... 5

25 P.S. § 3150.16 ............................................................................................................ 3

25 P.S. § 3150.16(a) ................................................................................................. 4, 11

25 P.S. § 3150.16(a.1) .................................................................................................. 12

25 P.S. § 3159 ............................................................................................................... 31

25 P.S. § 3166 ............................................................................................................... 31

25 P.S. § 3456 ............................................................................................................... 31

2019 Pa. Legis. Serv. Act 2019-77 ................................................................................. 6

BUILDING CONFIDENCE IN U.S. ELECTIONS: REPORT OF THE COMMISSION ON

      FEDERAL ELECTION REFORM (Sept. 2005) ..................................................... 4, 32

Caitlin Huey-Burns & Adam Brewster, “Why some mail-in ballots are

       rejected and how to make sure your vote counts,” CBS News

       (Aug. 4, 2020) ...................................................................................................... 6

Canvass of Absentee & Mail-In Ballots, Petitioner’s Brief of Nov. 18, 2020

     (Case No. 1136 C.D. 2020) .......................................................................... 13, 14

Canvassing Observation, Brief of proposed-Intervenor Appellees Bryan

     Cutler, Speaker of the Pennsylvania House of Representatives, and

     House Majority Leader Kerry Benninghoff, filed Nov. 13, 2020..................... 21

Canvassing Observation, Initial Brief of Appellee Donald J. Trump for

     President, Inc., filed Nov. 13, 2020 .................................................................. 11

Complaint, League of Women Voters v. Boockvar,

     No. 2:20-cv-03850-PBT (E.D. Pa. Aug. 7, 2020) ............................................. 6, 7

DECLARATION OF PRINCIPLES FOR INTERNATIONAL ELECTION

    OBSERVATION, Principal 14 (Oct. 27, 2005) ................................................. 28



                                                              xvi

Guidance Concerning Civilian Absentee and Mail-in Ballot Procedures,

     9/28/2020 ............................................................................................................. 7

Guidance Concerning Examination of Absentee and Mail-in Ballot Return

     Envelopes, 9/11/2020 ........................................................................................... 7

Ivan Pentchoukov, “Electors in 7 States Cast Dueling Votes for Trump,”

      The Epoch Times (Dec. 15, 2020) ............................................................... 29, 30

Jack M. Balkin, BUSH V. GORE AND THE BOUNDARY BETWEEN LAW AND

      POLITICS, 110 Yale L.J. 1407 (2001) ................................................................. 30

Michael Pompeo, “Press Statement: Presidential Elections in Belarus”

     (Aug. 10, 2020) .................................................................................................. 28

November 3, 2020 Gen. Election, Brief of proposed-Intervenors, Joseph B.

     Scarnati III, Pennsylvania Senate President Pro Tempore, and Jake

     Corman, Senate Majority Leader, filed Oct. 7, 2020 ....................................... 21

November 3, 2020 Gen. Election, Secretary’s Application for Invocation of

     King’s Bench filed Oct. 4, 2020 ......................................................................... 19

Order of December 8, 2020 (Case No. 676 MAL 2020) ............................................... 15

Order of Nov. 18, 2020 (Case No. 93 EM 2020) .......................................................... 14

Senate Rep. 1st Sess. 43d Cong. No. 395 .................................................................... 23

“The Immaculate Deception: Six Key Dimensions of Election Irregularities”

      (Dec. 17, 2020) ..................................................................................................... 4

U.S. Department of Justice Press Release dated July 23, 2020, “Former

      Congressman Charged with Ballot Stuffing, Bribery, and

      Obstruction” ........................................................................................................ 5

William H. Rehnquist, Centennial Crisis: The Disputed Election of 1786

      (Vintage 2005) ................................................................................................... 30





                                                            xvii

     Petitioner Donald J. Trump for President, Inc., respectfully petitions for a writ


of certiorari to review the judgments of the Pennsylvania Supreme Court.


                                OPINIONS BELOW


      The opinion of the Supreme Court of Pennsylvania in In re Canvass of Absentee


& Mail-In Ballots of Nov. 3, 2020 Gen. Election, Nos. 31 EAP 2020, 32 EAP 2020, 33


EAP 2020, 34 EAP 2020, 35 EAP 2020, 29 WAP 2020, dated November 23, 2020, is


reported at 2020 Pa. LEXIS 5989, 2020 WL 6875017, and reprinted in Petitioner’s


Appendix (“Pet. App.”) A.


      The opinion of the Supreme Court of Pennsylvania in In re Canvassing


Observation, No. 30 EAP 2020, dated November 17, 2020, is reported at 2020 Pa.


LEXIS 5879, 2020 WL 6737895, and reprinted in Pet. App. B.


      The opinion of the Supreme Court of Pennsylvania in In re November 3, 2020


Gen. Election, No. 149 MM 2020, dated October 23, 2020, is reported at 240 A.3d 591,


and reprinted in Pet. App. C.


                          STATEMENT OF JURISDICTION


      The decision of the Supreme Court of Pennsylvania in In re Canvass of


Absentee & Mail-In Ballots of Nov. 3, 2020 Gen. Election was entered on November


23, 2020 (Pet. App. A).


      The decision of the Supreme Court of Pennsylvania in In re Canvassing


Observation was entered on November 17, 2020 (Pet. App. B).


      The decision of the Supreme Court of Pennsylvania in In re November 3, 2020

                                          1

Gen. Election was entered on October 23, 2020 (Pet. App. C).


      This Court has jurisdiction pursuant to 28 U.S.C. § 1257(a). All three decisions


are final judgments by the highest court of the Commonwealth of Pennsylvania and,


as demonstrated infra, Petitioner raised the federal questions presented in this case


in the Court below, either expressly or by challenging the alteration of election


statutes enacted by the Pennsylvania legislature in the exercise of its power to


determine the “manner” of choosing presidential electors, which “presents a federal


constitutional question.” Bush II, 531 U.S. at 113.


      CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED


      Article II, Section 1, Clause 2 of the United States Constitution provides: “Each


State shall appoint, in such Manner as the Legislature thereof may direct, a Number


of Electors, equal to the whole Number of Senators and Representatives to which the


State may be entitled in the Congress.”


      The Fourteenth Amendment of the Constitution, Section 1 provides, in


relevant part: “nor shall any State deprive any person of life, liberty, or property,


without due process of law; nor deny to any person within its jurisdiction the equal


protection of the laws.”


      The relevant provisions of the United States Code and Title 25 of the


Pennsylvania Statutes and Consolidated Pennsylvania Statutes, as set forth in the


attached Appendix (Pet. App. K), are:


      1.     3 USC § 2


                                          2

       2.      3 USC § 5


        3.      3 USC § 15


        4.      28 U.S.C. § 1257(a)


        5.      PA. Const. Art VII §14


        6.      25 P.S. § 2650


        7.      25 P.S. § 3146.1


        8.      25 P.S. § 3146.2


        9.      25 P.S. § 3146.6


        10.     25 P.S. § 3146.8


        11.     25 P.S. § 3150.11


        12.     25 P.S. § 3150.16


                                STATEMENT OF THE CASE


        In key jurisdictions across the country, state and local election officials and


courts altered or ignored state election laws,1 in violation of the federal Constitution’s


Article II assignment to State Legislatures of the plenary authority over the “manner”


of choosing electors, including in a related case from Pennsylvania currently before


the Court. See, e.g., Republican Party v. Boockvar, 208 L.Ed.2d 266, 267, 2020 U.S.


LEXIS 5188, 2020 WL 6304626 (2020) (Statement of Alito, J., joined by Thomas and


Gorsuch, JJ.) (“[T]he constitutionality of the [Pennsylvania] Supreme Court’s




1 See State of Tex. v. Commonwealth of Pa., et. al, No. 22O155 (S.Ct., filed Dec. 8, 2020), in which the

State of Texas identified numerous provisions of state law that were altered or ignored in four key

states—the Commonwealth of Pennsylvania and the States of Georgia, Michigan, and Wisconsin. This

Court denied Texas’s Motion for Leave to File an Original Action for lack of standing. Id. (Dec. 11,

2020). The standing of Petitioner is not in question in this case.


                                                   3

decision [in Pennsylvania Democratic Party v. Boockvar, 238 A.3d 345 (Pa. Sep. 17,


2020)] … has national importance, and there is a strong likelihood that the State


Supreme Court decision violates the Federal Constitution.”).2 This case presents in


stark relief several of the violations that occurred in Pennsylvania. Together, those


violations alone affected more ballots than the current margin of difference between


the two principal candidates for President in Pennsylvania.


I.       Mail Voting and the Importance of Anti-Fraud Provisions3


         After the presidential election controversy in Florida in 2000, a bipartisan


commission, headed by former Democrat President Jimmy Carter and former


Republican Secretary of State James Baker, found that mail ballots are “the largest


source of potential voter fraud.” BUILDING CONFIDENCE IN U.S. ELECTIONS: REPORT OF


THE    COMMISSION      ON   FEDERAL ELECTION REFORM, at 46 (Sept. 2005) (hereinafter,


“Carter-Baker Report”).4 Pennsylvania’s Legislature, which has the “plenary” power





2A summary of disputes arising out of six key swing states was recently published by Peter Navarro,

Director of the Office of Trade and Manufacturing Policy, in his personal capacity. See “The

Immaculate Deception: Six Key Dimensions of Election Irregularities” (Dec. 17, 2020), available at:

https://www.scribd.com/document/488534556/The-Immaculate-Deception-12-15-20-1#from_embed.

3 In Pennsylvania, voters return mail ballots in envelopes which contain a declaration for signing,

addressing, and dating on the back. The ballot itself is contained in an inner “secrecy” envelope. If

the mail ballot is approved during canvassing beginning on Election Day, the outside envelope is

opened. If the ballot is not contained in a sealed inner envelope, i.e. a “naked” ballot, or the inner

envelope has markings indicating the identity of the voter, it is rejected. Otherwise, the inner envelope

is mixed with other inner envelopes which are then opened and counted. This procedure protects the

secrecy of the vote. See 25 P.S. §§ 3146.6(a), 3146.8, 3150.16(a). At the same time, if the mail ballots

cannot be challenged until after the outside envelope is opened, and inner envelope mixed, opened,

and counted, a post-election challenge cannot match the mail ballot with its vote.

4   At: https://www.legislationline.org/download/id/1472/file/3b50795b2d0374cbef5c29766256.pdf.


                                                   4

under Article II of the U.S. Constitution to determine the manner for choosing


Pennsylvania’s presidential electors, see Art. II, § 1, cl. 2; McPherson v. Blecker, 146


U.S. at 25; Bush II, 531 U.S. at 98, as well as the Pennsylvania Constitution itself,


has long limited mail voting. Until this year, only voters who could establish cause


were eligible to apply for mail (absentee) ballots, Pa. Const. Art. 7, § 14; 25 P.S. §


3146.1,5 and they were subject to strict signature verification and voter identification


requirements, as well as requirements that political parties and candidates be able


to observe the entire process for validation and canvassing of absentee ballots and,


where necessary, challenge their validity. See, e.g., 25 P.S. §§ 3146.2 (2012), 3146.2b


(2012), 3146.8 (2012); see also In re Canvass of Absentee Ballots of Nov. 4, 2003 Gen.


Election, 843 A.2d 1223, 1234 (Pa. 2004) (“so-called technicalities of the Election Code


are necessary for the preservation of secrecy and the sanctity of the ballot and must


therefore be observed – particularly where … they are designed to reduce fraud.”).6


         In October 2019, the Legislature decided to allow no-excuse mail balloting by


any eligible voter in the state,7 25 P.S. § 3150.11(b), but it retained the strict




5 Pennsylvania’s Election Code now permits voters to vote absentee as “[q]ualified absentee electors”

(25 P.S. § 3146.1), or by mail as “[q]ualified mail-in electors” (id. § 3150.11).

6The Pennsylvania Legislature’s concerns about election fraud are well founded based on a history of

misconduct in Philadelphia, both in mail voting and voting at the polls. See, e.g., Marks v. Stinson,

1994 U.S. Dist. LEXIS 5273 (E.D. Pa. April 26, 1994) (certifying state Senate candidate as the winner

and removing his opponent from office based on massive absentee ballot and other election fraud by

Democratic candidate and election officials which changed the result of the election); indictment of

Michael (Ozzie) Myers, U.S. Department of Justice Press Release dated July 23, 2020, “Former

Congressman Charged with Ballot Stuffing, Bribery, and Obstruction,” available at:

https://www.justice.gov/opa/pr/former-congressman-charged-ballot-stuffing-bribery-and-obstruction.

7   Whether the Legislature had the authority to allow no-excuse mail ballots under the State


                                                 5

signature verification,         voter identification,        and observation          and challenge


requirements. See, e.g., Sections 1302.2, 1306, 1308, “Act 77,” 2019 Pa. Legis. Serv.


Act 2019-77 2019 Pa. ALS 77; 2019 Pa. Laws 77; 2019 Pa. SB 421 (approved Oct. 31,


2019). Those requirements were in place, and complied with, in the delayed June


2020 primary election.8 But each of them was dispensed with for the general election,


not by the Legislature (as required by Article II), but by state and local elections


officials, either unilaterally or in conjunction with the state’s elected Supreme Court.


II.     Pennsylvania Election Officials and Courts Weakened or Entirely

        Disregarded Key Anti-Fraud Provisions of Pennsylvania Election

        Law


        A.      November 3, 2020 Gen. Election Ratified the Secretary of

                the Commonwealth’s Dispensing with Statutory Signature

                Verification Requirements for Mail Ballots, and Sua

                Sponte Eliminated the Statutory Right to Challenge Them

                During Canvassing on Election Day


        In early August 2020, the League of Women Voters filed suit against the


Secretary of the Commonwealth, Kathy Boockvar, alleging that in implementing the


signature verification requirements contained in state law, the Secretary had failed


to develop a plan for providing notice and an opportunity to cure for mail voters whose





Constitution is the subject of another case pending before this Court. See Kelly v. Commonwealth of

Penn. (No. 20-810).

8 In the June 2020 primary election, where there were no significantly contested races, and thus, no

mail ballots challenged on election day, signature defects alone resulted in “over 26,500 absentee and

mail-in ballots [being] rejected in Pennsylvania,” or “1.8% of the total absentee and mail-in ballots cast

statewide.” Complaint (Docket No. 1), ¶¶ 2, 54, League of Women Voters v. Boockvar, No. 2:20-cv-

03850-PBT (E.D. Pa. Aug. 7, 2020) (citing Caitlin Huey-Burns & Adam Brewster, “Why some mail-in

ballots are rejected and how to make sure your vote counts,” CBS News (Aug. 4, 2020),

https://www.cbsnews.com/news/why-mail-in-ballot-rejected-voting-counts/).


                                                    6

ballots were disqualified because the signature did not match the registration


signature on file, which the League contended violated federal constitutional


guarantees of due process and equal protection. See Complaint (Docket No. 1), ¶¶ 60-


68, 78-82, League of Women Voters v. Boockvar, No. 2:20-cv-03850-PBT (E.D. Pa. Aug.


7, 2020). The League did not contend that Pennsylvania state law did not allow for


signature verification. Instead of responding to the notice and cure allegations,


however, Secretary Boockvar took it upon herself to inform county registrars that


state law did not require, and did not even permit, mail ballots to be rejected when


the signature did not match the registration signature on file.9 The League then


voluntarily dismissed its suit. Id. (Docket Nos. 39, 40).


       Apparently recognizing that her actions contravened the long-standing


recognition and practice that state law allowed signature verification of mail ballots


during canvassing beginning on Election Day, the Secretary then asked the


Pennsylvania Supreme Court to ratify her decision to dispense with the signature


verification requirements, via an extraordinary petition for “King’s Bench


jurisdiction.” The partisan-elected Supreme Court obliged, holding on October 23,


2020—just 11 days before the November 3, 2020 general election—that signature


verification was not permitted under 25 P.S. §3146.8(g)(3) despite its language that



9 See Guidance Concerning Examination of Absentee and Mail-in Ballot Return Envelopes, 9/11/2020

(“Boockvar 9/11/20 Guidance”), https://www.dos.pa.gov/VotingElections/OtherServicesEvents/

Documents/Examination%20of%20Absentee%20and%20MailIn%20Ballot%20Return%20Envelopes.p

df; Guidance Concerning Civilian Absentee and Mail-in Ballot Procedures, 9/28/2020 (“Boockvar

9/28/20 Guidance”), https://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/

DOS%20Guidance%20Civilian%20Absentee%20and%20Mail-In%20Ballot%20Procedures.pdf.


                                               7

the signature on the declarations on the outside envelopes of mail ballots be


“sufficient.” The leaders in the Pennsylvania Legislature—both House and Senate—


vehemently disagreed, see Legislators’ Br., fn. 16, infra. But the Court denied their


motion to intervene and only allowed them to submit amicus briefs.


      Although the Secretary had not even alleged in her petition for “King’s Bench


jurisdiction” that statutory provisions allowing for the challenge of non-conforming


absentee ballots were somehow void, the Pennsylvania Supreme Court nonetheless


declared sua sponte that those provisions were also of no effect. Pet. App. C, at 29 fn.


25 (citing 25 P.S. §§ 3146.8(f), (g)(5)). This, despite the Court’s acknowledgement that


state law continued to provide for challenges to the mail ballots themselves during


canvassing by posting a $10 per ballot bond, and referenced procedures for resolving


such challenges, including mail-in ballots which had only been authorized in 2019:


      (f) Any person challenging an application for an absentee ballot, an

      absentee ballot, an application for a mail-in ballot or a mail-in ballot for

      any of the reasons provided in this act shall deposit the sum of ten dollars

      ($10.00) in cash with the county board, which sum shall only be refunded

      if the challenge is sustained or if the challenge is withdrawn within five

      (5) days after the primary or election. If the challenge is dismissed by

      any lawful order then the deposit shall be forfeited. The county board

      shall deposit all deposit money in the general fund of the county.


25 P.S. §§ 3146.8(f) (emphasis added). Instead of recognizing that these statutory


provisions undermined its odd interpretation of § 3146.8(g)(3), which plainly allows


consideration of the authenticity of signatures on mail ballots, the Court dispensed


with the unambiguous language in the statutes as “overlooked remnants of a prior,


now eliminated, process.” Pet. App. C, at 29 n. 24. As a result, mail ballots are



                                           8

opened, mixed, and counted beginning on Election Day without any right to challenge


the authenticity of the signatures.


      Petitioner raised these issues of federal constitutional law in the court below.


Petitioner argued that Secretary Boockvar’s alteration of statutory requirements


adopted by the Legislature for use in federal elections “creates a federal constitutional


question under the Elections and Electors Clauses.”         Petitioner and Republican


Intervenors’ Supp. Br., p. 4 (citing Ans. at 23-24). It also argued that adopting the


Secretary’s position would “fail to consider ‘the extent to which the [Pennsylvania]


Constitution could, consistent with [the Elections Clause], ‘circumscribe the


legislative power.’” Id. at 17 (quoting Bush v. Palm Beach Cty. Canvassing Bd., 531


U.S. 70, 77 (2000) (“Bush I”) (per curiam)). As it fully set out in its answer to the


Secretary’s Petition:


      [T]he U.S. Constitution also places crucial and inviolate prohibitions on

      judicial rewriting of the Election Code. The Elections Clause directs that

      “[t]he Times, Places, and Manner of holding Elections for Senators and

      Representatives, shall be prescribed by the Legislature thereof,” subject

      to directives of Congress. U.S. CONST. art. I, § 4, cl. 1 (emphasis added).

      Likewise, the Electors Clause directs that “[e]ach State shall appoint, in

      such Manner as the Legislature thereof may direct,” electors for

      President and Vice President. U.S. CONST. art. II, § 1, cl. 2.


      The Electors Clause in particular “convey[s] the broadest power of

      determination” and “leaves it to the legislature exclusively to define the

      method” of appointment of electors. McPherson v. Blacker, 146 U.S. 1,

      27 (1892). “Thus, the text of the election law itself, and not just its

      interpretation by the courts of the States, takes on independent

      significance.” Bush v. Gore, 531 U.S. at 112–13 (Rehnquist, J.,

      concurring). “A significant departure from the legislative scheme for

      appointing Presidential electors presents a federal constitutional

      question,” including when such departure is carried out by the state

      judiciary. Id. at 113. “[W]ith respect to a Presidential election,” state


                                           9

     courts must be “mindful of the legislature’s role under Article II in

      choosing the manner of appointing electors.” Id. at 114. For this reason

      as well, the Court may not deviate from Act 77’s plain text or rewrite the

      Election Code.


Ans. at 23-24.

      Petitioner also argued that the Secretary’s novel construction of state election


law, which would invalidate in-person votes due to signature mismatch but not mail


votes, “would raise significant constitutional issues” under the Equal Protection and


Due Process Clauses. Id. at 13 (citing Bush II, 531 U.S. at 104-05 (per curiam); see


also Ans. at 3, 30 (elaborating on the Due Process and Equal Protection violations


that would occur if the Secretary’s construction were adopted).


      B.     Canvassing Observation Eviscerated the Campaigns’ Statutory

             Right to Meaningfully Observe Canvassing of Mail Ballots


      Building on its holding that state law did not permit signature verification or


permit challenges of mail ballots during the canvassing process beginning on Election


Day, the Pennsylvania Supreme Court held in the second case at issue that the


requirements of state law mandating that campaign representatives be allowed “to


be present” and “to remain in the room” during the canvassing process – 25 P.S. §§


3146.8(b), 3146.8(g)(1.1) – did not actually require “meaningful” observation.


Canvassing Observation, Pet. App. B, at 17-19.       Overruling the Commonwealth


Court, the Supreme Court held that mere presence at one end of a “room” as large as


the Philadelphia Convention Center was sufficient, even when that resulted in the


statutorily-authorized observers being as far as 100 feet away from some of the


canvassing tables.   Petitioner challenged the interpretation of these statutory



                                         10

provisions before the Pennsylvania Supreme Court. See Canvassing Observation,


Initial Brief of Appellee Donald J. Trump for President, Inc., filed Nov. 13, 2020, at


18-20. Petitioner’s challenge to the interpretation of these state laws constitutes a


federal question when presidential elections are at issue. See Bush II, 531 U.S. at


113 (“A significant departure from the legislative scheme for appointing Presidential


electors presents a federal constitutional question”) (Rehnquist, C.J., concurring); see


also Case of Electoral Coll., 8 F. Cas. 427, 432–33 (C.C.D.S.C. 1876) (“When the


legislature of a state, in obedience to [Article II, § 1], has by law directed the manner


of appointment of the electors, that law has its authority solely from the Constitution


of the United States. It is a law passed in pursuance of the Constitution.”).


      C.     Canvass of Absentee and Mail-In Ballots Eviscerated the

             Requirement that Mail Voters “Fill Out” the Declaration,

             Which Has Long Included the Voter’s Current Address and

             Date


      Concluding its trifecta of altering existing requirements for casting mail


ballots, the Pennsylvania Supreme Court then determined that the statutory


requirement that mail voters “shall then fill out, date, and sign” the declaration on


the outer envelope, 25 P.S. §§ 3146.6(a), 3150.16(a) (emphasis added), was not


mandatory. Canvass of Absentee and Mail-In Ballots (Pet. App. A), at 19-20, 34.


Although the declaration had long included a place for mail voters to date, sign, and


confirm their address—an important requirement to ensure continued eligibility to


vote—the Court held that the phrase, “fill out,” was ambiguous and therefore could





                                           11

not apply to the address requirement.10 Id., at 14-25.11 Similarly, the Court held that


the requirement that mail voters “shall … date” the declaration was not mandatory


because, in the Court’s view, it served no purpose. The notion that absentee ballots


dated before they were even sent to the voter would provide evidence that the ballot


had been fraudulently cast apparently escaped the Court’s attention. In addition,


given the Pennsylvania Supreme Court’s decision in November 3, 2020 Gen. Election


extending the date by which mail ballots may be received to 5 p.m. on the Friday


following the election, the date requirement ensures that the ballot was not filled out


after Election Day.


        Ironically, in the guidance issued on September 11, 2020, Secretary Boockvar


recognized and directed that “the county board of elections shall examine the Voter’s


Declaration on the outer envelope of each returned ballot and compare the


information on the outer envelope, i.e., the voter’s name and address, with information




10 Under Pennsylvania law, a voter may vote in an election after moving by completing a form. See,

e.g., 25 P.C.S. §§ 1323, 1328, 1901, 1902; see also Public Interest Legal Found. v. Boockvar, No. 1:20-

cv-1905, 2020 U.S. Dist. LEXIS 193577, at *3 n.2 (M.D. Pa. Oct. 20, 2020) (when voters fail to confirm

their continued residence and are deemed inactive, they “can still vote on Election Day, but they must

sign an affirmation that they still live at the address currently on file with the board of elections.”).

The address requirement allows election officials to determine whether the voter still resides at the

address to which the mail ballot is issued. In addition, requiring the person filling out the ballot to

hand-write the address is an impediment to fraud.

11 The Court also dispensed with the “address” requirement by noting it had been added to the

Declaration by the Secretary pursuant to authority delegated from the Legislature, not by the

Legislature itself. Canvass of Absentee & Mail-In Ballots (Pet. App. A), at 23-27 (citing In re Nov. 3,

2020 Gen. Election, (Pet. App. C), at 27; 25 P.S. §§ 3146.6(a)(3), 3150.16(a.1)). It had been a part of

the absentee ballot declaration for a very long time, however, so the post-election change to this long-

standing election requirement is itself problematic, quite apart from any Article II violation. See

Purcell v. Gonzalez, 549 U.S. 1, 5 (2006).


                                                  12

contained in” the above-referenced voter files. Boockvar 9/11/20 Guidance, at 3.


Then, a few weeks later, she issued an additional guidance, specifically directing that


“A ballot-return envelope with a declaration that is not filled out, dated, and signed


is not sufficient and must be set aside, declared void and may not be counted.”


Boockvar 9/28/20 Guidance, at 5. Because most Pennsylvania counties completed


their canvassing of mail ballots in accord with the statutory requirements, as


confirmed by Secretary Boockvar’s guidances, the Pennsylvania Supreme Court’s


post-election alteration of those statutory requirements, which affected two large (and


heavily Democrat) counties still canvassing their mail ballots, namely, Philadelphia


and Allegheny, was therefore not just an Article II violation, but an Equal Protection


violation as well.12


       In its brief on appeal in the Commonwealth Court of Appeals, Petitioner


challenged the erroneous interpretation given by the Philadelphia County Board of


Elections and the Court of Common Pleas to Pennsylvania’s statutory requirement


that a mail voter “fill out, date, and sign” the Declaration. See Canvass of Absentee


& Mail-In Ballots, Petitioner’s Brief of Nov. 18, 2020 (Case No. 1136 C.D. 2020), at


26-32. Petitioner also argued in that brief that the courts “cannot ignore the clear


mandates of the election code.” Id. at 32 (the Article II issue). It argued at length



12Two other Democrat-controlled counties – Bucks and Montgomery – also “did not follow” Secretary

Boockvar’s guidance and counted mail ballots that were not filled out in full. See Canvass of Absentee

& Mail-in Ballots (Pet. App. A), at 33, n.6 (citing In re Canvass of Absentee and/or Mail-in Ballots of

Nov. 3, 2020 Gen. Election, Petition of Donald J. Trump for President, Inc., No. 2020-05786-35 (Bucks

Cty. Ct. Com. Pl. Nov. 19, 2020)); Donald J. Trump for President, Inc. v. Montgomery Cnty. Bd. of

Elections, No. 2020-18680 (Nov. 13, 2020)).


                                                  13

that treating the “shall” in the statutory “fill out, date and sign” provision as directory


rather than mandatory “raises serious equal protection concerns.” Id. at 29-30. That


brief was then brought forward to the Pennsylvania Supreme Court when that Court


accepted review. See Order of Nov. 18, 2020 (Case No. 93 EM 2020). In addition to


the Equal Protection issue raised in the brief, Petitioner’s challenge to the erroneous


interpretation of these state laws constitutes a federal question when presidential


elections are at issue. See Bush II, 531 U.S. at 113 (“A significant departure from the


legislative scheme for appointing Presidential electors presents a federal


constitutional question.”) (Rehnquist, C.J., concurring); see also Case of Electoral


Coll., 8 F. Cas. 427, 432–33 (C.C.D.S.C. 1876) (“When the legislature of a state, in


obedience to [Article II, § 1], has by law directed the manner of appointment of the


electors, that law has its authority solely from the constitution of the United States.


It is a law passed in pursuance of the Constitution.”).


      D.     Other Article II Violations


      Petitioners do not mean to suggest that these were the only actions taken in


Pennsylvania which violated Article II.          In addition to the three Pennsylvania


Supreme Court cases at issue, as well as the Boockvar case already pending before


this Court, other Pennsylvania courts have changed the rules of the 2020


presidential, contrary to the dictates of the Legislature. By way of example, the


Pennsylvania Commonwealth Court conceded that Pennsylvania’s “directive [to


securely seal the ballot secrecy envelope] is mandatory such that an elector’s


noncompliance results in a ballot that is not valid is supported by the statutory


                                            14

language and [the Pennsylvania Supreme Court’s decision in] Boockvar,” but chose


to “give prospective application” to a “strict interpretation” of the law Election Code


due to the “tremendous challenges presented by the massive expansion of mail-in


voting” for the 2020 election. In re Canvass of Absentee and/or Mail-in Ballots of


Nov. 3 General Election, No. 1191 C.D. 2020 (Commw. Ct. Nov. 25, 2020), at 13-14.


Unlike the multiple cases where it granted extraordinary review to Secretary


Boockvar, the Pennsylvania Supreme Court denied Petitioner’s application for review


in this case. See Order of December 8, 2020 (Case No. 676 MAL 2020).


III.      The 2020 Pennsylvania Election Results


          According to the 2020 election returns, President Trump received 2,731,230


votes on election day, 595,538 votes by mail ballots and 50,874 votes by provisional


ballot, for a total of 3,377,642 votes. Former Vice President Biden received 1,409,341


votes on election day, 1,995,691 votes by mail ballot and 53,168 votes by provisional


ballot, for a total of 3,458,200 votes. The difference is 80,558 votes.13


          In the 2018 General Election, when election officials were permitted to review,


and candidates and parties were permitted to challenge absentee ballots, an average


of 4.5% of the ballots were disallowed across Pennsylvania, with an even higher


percentage, generally between 4.3 and 8.0 percent, in larger Democrat controlled


counties (such as Montgomery and Philadelphia).14 In contrast, in the 2020 general




13See https://www.electionreturns.pa.gov/#. The total votes listed on that site do not precisely match

the sum of the three vote categories.

14   See https://dig.abclocal.go.com/ccg/interactives/mail-ballots-rejected-map/index.html.


                                                    15

election with over 2.6 million persons voting by mail – almost all for the first time –


when neither election officials or candidates were permitted to review or contest the


signatures, address, and date during the canvassing of mail ballots for the first time


in Pennsylvania’s history, less than 0.28% percent were disqualified according to


public sources, 1/16th the rate from the 2018 election.15 That disparity alone involves


more ballots than the current margin of votes between the two candidates.


                           REASONS FOR GRANTING THE WRIT


I.        By Eviscerating Election Law Enacted By the Pennsylvania

          Legislature Pursuant to Authority Derived from Article II of the

          Federal Constitution, the Pennsylvania Supreme Court Has

          Decided an Important Federal Question in a Way that Conflicts

          with Decisions of this Court


          This Court has long held that Article II of the Constitution gives to the


Legislatures of the States the exclusive power to determine the manner of choosing


presidential electors. McPherson v. Blacker, 146 U.S. 1, 27 (1892). That power is


“plenary.” Bush II, 531 U.S. at 104; McPherson, 146 U.S. at 25.


          During the early part of our nation’s history (and, in one instance, all the way


up through the election of 1860), most state legislatures simply chose electors


themselves. See McPherson , 146 U.S. at 29-32. Florida’s Legislature assigned itself


the power of choosing electors in 1868, and Colorado’s Constitution did the same in


1876 upon that State’s admission to statehood. Id. at 33. Although all 50 state


legislatures have now chosen popular vote as the “manner” of choosing electors, see




15   See https://ballotpedia.org/Election_results,_2020:_Analysis_of_rejected_ballots.


                                                    16

Bush II, 531 U.S. at 104 (“History has now favored the voter”), that popular vote must


be conducted “as the legislature has prescribed.” Id.


      State legislatures do not act “solely under the authority given [them] by the


people of the State, but by virtue of a direct grant of authority made under Art. II, §


1, cl. 2, of the United States Constitution.” Bush I, 531 U.S. at 76. The function of


state legislature in carrying out a federal function derived from the U.S. Constitution


“transcends any limitations sought to be imposed by the people of a State.” Leser v.


Garnett, 258 U.S. 130, 137 (1922). “The appointment of … electors is … placed


absolutely and wholly with the legislatures of the several States.” McPherson, 146


U.S. at 34-35; see also Bush II, 531 U.S. at 113 (Rehnquist, C.J., concurring).


      A.       The Three Decisions Violated Article II By Changing the Law

               During the Election.


      The exercise of the fundamental right to vote for presidential electors in the


2020 general election in Pennsylvania did not occur “as the legislature ha[d]


prescribed.”    As described above, non-legislative officials, oftentimes at the


instigation of partisan third parties, ignored or significantly altered and thereby


violated state election law, including, most troublingly, laws enacted to minimize the


risk of fraud in mail voting and thereby protect the integrity of the election process.


The decisions of the Pennsylvania Supreme Court, an elected body, also raised serious


concerns whether these were partisan attempts to assist the Democratic candidate


whose campaign strategy of utilizing mail ballots was well publicized, in comparison


to President’s Trump’s well-known strategy to encourage in-person voting.



                                          17

     First, November 3, 2020 Gen. Election (Pet. App. C) changed the law to prohibit


signature verification on mail-ballot declarations and eliminated the statutory right


for parties and campaigns to challenge mail ballots during canvassing beginning on


Election Day.


      Second, Canvassing Observation (Pet. App. B) eliminated the campaigns’


statutory right to meaningfully observe canvassing of mail ballots beginning on


Election Day.


      Third, Canvass of Absentee & Mail-In Ballots (Pet. App. A) eliminated or


modified statutory requirements for signing, addressing, and dating mail ballot


declarations.


      In sum, the three Pennsylvania Supreme Court decisions at issue are contrary


to established precedent of this Court. Moreover, the enormity of potential election


consequences necessitates this Court granting the petition for writ of certiorari.


      B.        This Court Should Independently Examine Pennsylvania’s

                Election Laws, Which The Pennsylvania Supreme Court

                Erroneously and Dramatically Changed During the

                Presidential Election


      Pennsylvania is apparently of the view that the manner for choosing electors


established by the state legislature is conditional, subject to alteration by


“interpretation” by election officials in the executive branch or by the judiciary. The


Secretary erroneously noted in her Application that “[t]he U.S. Constitution assigns


to the states primary responsibility for determining the manner of selecting


Presidential electors … and [the Pennsylvania Supreme Court] is the ultimate


                                          18

expositor of state law.” November 3, 2020 Gen. Election, Secretary’s Application for


Invocation of King’s Bench filed Oct. 4, 2020, at 14.


       Contrary to the Secretary’s claim, the Constitution does not assign the power


to “the states,” of course, but rather to the “Legislature” of the State. U.S. Const. Art.


II, § 1, cl. 2. And because an election law enacted for the choosing of presidential


electors “has its sole authority from the constitution of the United States,” Case of


Electoral Coll., 8 F. Cas. at 432, neither is it true that the state’s Supreme Court is


the ultimate expositor of that law. By relying on the erroneous interpretations of


state law in the judgments at issue here, Pennsylvania thus advanced the position


that non-legislative officials—executive (both statewide and local) and judicial—had


the authority to alter the state’s election law, and conceded that they had in fact done


so. That, too, is contrary to this Court’s precedents.


       To be sure, “[a]s a general rule, this Court defers to a state court’s


interpretation of a state statute.” Bush v. Palm Beach County Canvassing Bd., 531


U.S. 70, 76 (2000) (“Bush I”); see also Bush v. Gore [Bush II], 531 U.S. at 113


(Rehnquist, C.J., concurring). “In most cases, comity and respect for federalism


compel us to defer to the decisions of state courts on issues of state law.” Bush II,


supra, at 112. “But in the case of a law enacted by a state legislature applicable …


to the election of Presidential electors, the legislature is not acting solely under the


authority given it by the people of the State, but by virtue of a direct grant of authority


made under Art. II, § 1, cl. 2, of the United States Constitution.” Bush I, 531 U.S. at


76. As Chief Justice Rehnquist noted, selecting the manner of choosing presidential


                                            19

electors is an “exceptional cas[e] in which the Constitution imposes a duty or confers


a power on a particular branch of a State’s government,” namely, the Legislature of


the State. Bush II, 531 U.S. at 113 (Rehnquist, C.J., concurring). In such a case, “the


text of the election law itself, and not just its interpretation by the courts of the States,


takes on independent significance.” Id.


       Thus, “[i[n order to determine whether a state court has infringed upon the


legislature’s authority, [this Court] necessarily must examine the law of the State as


it existed prior to the action of the court.” Id. at 114. This is therefore one of the


“areas in which the Constitution requires this Court to undertake an independent, if


still deferential, analysis of state law.” Id. (citing Mullaney v. Wilbur, 421 U.S. 684


(1975), NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), and Bouie v. City


of Columbia, 378 U.S. 347 (1964)).


       Each decision at issue in this petition involved a substantial departure from


prior caselaw and the mandates of unambiguous statutes adopted by the Legislature


of the State. November 3, 2020 Gen. Election eviscerated statutory language that


county election boards “shall examine the declaration on the [outer] envelope of each


[mail] ballot … and shall compare the information thereon”—which includes the


voter’s signature—to the relevant mail voter files in order to determine whether the


declaration is “sufficient.” 25 P.S. § 3146.8(g)(3) (emphasis added). It also eliminated


the statutory right provided by 25 P.S. § 3146.8(f) for campaigns to challenge mail


ballots beginning on Election Day. Canvassing Observation inexplicably held that


statutory requirements allowing campaign representatives and watchers to the


                                             20

“present” and “to remain in the room” during the canvassing process, 25 P.S. §§


3146.8(b), 3146.8(g)(1.1), in order to be able to verify that the process was being


conducted according to law did not actually require “meaningful” observation. And


Canvass of Absentee and Mail-In Ballots strangely held that “shall” means “may” and


eliminated long-standing requirements that mail ballots be signed with addresses


and dates. Two of the three decisions were subject to cogent dissents. The leaders of


both the Pennsylvania House of Representatives and the Senate, vehemently


disagreed with the Pennsylvania Supreme Court’s “interpretation” of state law.16


       Because these statutes were enacted by the Legislature for use in federal


elections, review by this Court to ensure a proper interpretation of the law would “not


imply a disrespect for state courts but rather a respect for the constitutionally


prescribed role of state legislatures.” Bush II, 531 U.S. at 113 (Rehnquist, C.J.,


concurring). “To attach definitive weight to the pronouncement of a state court, when


the very question at issue is whether the court has actually departed from the


statutory meaning, would be to abdicate [the Court’s] responsibility to enforce the





16 See, e.g., November 3, 2020 Gen. Election, Brief of proposed-Intervenors, Joseph B. Scarnati III,

Pennsylvania Senate President Pro Tempore, and Jake Corman, Senate Majority Leader, filed Oct. 7,

2020, at 3-6 (Secretary Boockvar “seeks to disrupt Pennsylvania's clear and unambiguously crafted

procedures for determining and challenging the validity of an absentee or mail-in ballot and/or

application” and “asks th[e] Court to rewrite existing law …”); Canvassing Observation, Brief of

proposed-Intervenor Appellees Bryan Cutler, Speaker of the Pennsylvania House of Representatives,

and House Majority Leader Kerry Benninghoff, filed Nov. 13, 2020, at 4, 8-10 (“The General Assembly

plainly did not craft detailed watcher and candidate access provisions only for those representatives

to be shuttled so far away from the operations of the canvassing process that they have no meaningful

opportunity to observe the process” as “[s]uch an absurd result would be in clear violation of the

Election Code and the Pennsylvania Rules of Statutory Construction.”).


                                                 21

explicit requirements of Article II.” Id. at 115. This Court should therefore grant the


writ in order to fulfill its responsibility to enforce Article II.


II.    This Court Should Re-Affirm That Federal Courts Have The Power

       To Remedy Violations of Article II.


       This Court adjudicates cases arising under the Constitution and laws of the


United States, of course. It does not decide elections. That is the role of voters who


cast lawful ballots. But the Constitution does contain rules that are obligatory on all


agents of government—including those who conduct elections. Under Article II, the


“manner” set out by the Legislature via the statutes it has adopted are part of those


constitutional rules.


       It is therefore well within this Court’s authority to re-affirm by declaratory and


injunctive relief that only the state legislature has the power to adopt a statutory


scheme for choosing presidential electors; that alterations to that scheme by non-


legislative officials in the state are both illegal and unconstitutional; and that election


results affected in a way greater than the margin between candidates cannot be


validly certified. At that point, a couple of avenues for resolution present themselves.


       First, applying long-standing burden-shifting doctrine, state election officials


or federal district courts could recertify the existing results if, and only if, they can


establish the validity of a sufficient number of the mail ballots to sustain the existing


certification. See, e.g., Warf v. Bd. of Elections, 619 F.3d 553, 561-62 (6th Cir. 2010)


(“once the contestant has made a showing of irregularity, … contestee must then come


forward with evidence of substantial compliance with balloting procedures”); Wilkes-



                                             22

Barre Election Appeals, 1967 Pa. Dist. & Cnty. Dec. LEXIS 9, *16 (Pa.Com.Pl. Luz.


Cnty. Dec. 27, 1967) (concluding that where “challenger has presented a prima facie


case to substantiate his challenge [to absentee ballot,] … the burden of proof shifted


to the voter to establish her position.”).


       Second, alternatively, the matter can be remanded to allow the State


Legislature to consider whether the violations of its state law yielded a significant


enough number of illegally-cast votes to have altered the results of the election. If


they did, the Legislature has it within its power under Article II to certify the slate


of electors that obtained the majority of lawfully cast ballots and submit that


certification to the President of the Senate prior to January 6, 2021, the date set by


statute for the meeting of the Joint Session of Congress to count electoral votes. See


McPherson, 146 U.S. at 25 (“Whatever provisions may be made by statute, or by the


state constitution, to choose electors by the people, there is no doubt of the right of the


legislature to resume the power at any time, for it can neither be taken away nor


abdicated”) (emphasis added, quoting with approval Senate Rep. 1st Sess. 43d Cong.


No. 395).    This power is also recognized by federal law, which provides that


“[w]henever any State has held an election for the purpose of choosing electors, and


has failed to make a choice on the day prescribed by law, the electors may be


appointed on a subsequent day in such a manner as the legislature of such State may


direct.” 3 U.S.C. § 2.


       Only by pursing such a course will the public’s faith in the election process be


restored, and only then will voters on either side of the intensely partisan divide be


                                             23

able to find solace in a result that was obtained after a fair electoral fight, where


every legal vote was counted but where those votes were not diluted or negated by


the casting and counting of illegal votes.


III.   The Pennsylvania Court Decisions Create a Mail Ballot Statutory

       Scheme That Is So Porous That It Gave Rise To Due Process and

       Equal Protection Violations That Should Be Reviewed by this Court.


       A.    Due Process Was Violated By The Three Pennsylvania

             Supreme Court Decisions


       When election practices reach “the point of patent and fundamental


unfairness,” the integrity of the election itself violates substantive due process.


Griffin v. Burns, 570 F.2d 1065, 1077 (1st Cir. 1978). See also Roe v. Alabama, 43


F.3d 574, 580-81 (11th Cir. 1995) (“retroactive change in the election that [would]


effectively ‘stuff the ballot box,’ implicat[es] fundamental fairness”).   Further, a


“fundamental requirement of due process is the opportunity to be heard ‘at a


meaningful time and in a meaningful manner.’” Matthews v. Eldridge, 424 U.S. 319,


333 (1975) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). See also Lachance


v. Erickson, 522 U.S. 262, 266 (1998) (“The core of due process is the right to notice


and a meaningful opportunity to be heard.”). The absence of meaningful safeguards


in an election violates the Due Process Clause.


       Specifically, the three Pennsylvania Supreme Court decisions taken together


(a) prohibit signature verification by the boards of elections, (b) remove the


requirement that voters address and date mail ballots, and (c) deny candidates the


statutory rights to challenge whether signatures on mail ballots are genuine,



                                             24

meaningfully observe the canvassing by which mail are processed, and enforce the


requirements that mail ballot declarations are properly signed, addressed, and dated


before they are opened, mixed, and counted. In short, the three decisions eliminated


all “meaningful safeguards” designed to protect against fraud in the mail ballot process.


Once the mail ballots are opened, mixed, and counted, no post-election challenge can


match a defective ballot to its vote. The toothpaste is forever out of the tube. Changing


longstanding rules in the middle and after a presidential election violates due process.


      B.     The Equal Protection Clause Was Violated By Different Voting

             Standards Being Used In Different Counties


      The Equal Protection Clause of the United States Constitution prohibits the


use of different standards in the treatment and tabulation of ballots within a state.


“Having once granted the right to vote on equal terms, the State may not, by later


arbitrary and disparate treatment, value one person’s vote over that of another.”


Bush II, 531 U.S. at 104-05 (citing Harper v. Virginia Bd. of Elections, 383 U.S. 663,


665 (1966). “It must be remembered that ‘the right of suffrage can be denied by a


debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly


prohibiting the free exercise of the franchise.’” Bush II, 531 U.S. at 105 (quoting


Reynolds v. Sims, 377 U.S. 533, 555 (1964).


      As set forth above, state and local officials and the judiciary applied different


voting standards in different counties in Pennsylvania in the general election of


November 3, 2020 in violation of the Equal Protection Clause. Specifically, while


many counties (controlled by Republicans and supportive of President Trump)



                                           25

enforced the standards promulgated by Secretary Boockvar before the election and


carefully reviewed mail ballot declarations, key Democratic counties – Philadelphia


and Allegheny – at issue in Canvassing of Absentee and Mail-in Ballots did not. This


resulted in mail ballot voters being treated differently depending on the county in


which they resided, and mail ballots for President Trump and his opponent being


treated differently depending on the counties in which they were canvassed, violating


Equal Protection in two ways. See Marks v. Stinson, supra. (election officials favoring


one candidate over the other violated equal protection.)


IV.   The Court’s Intercession Is Necessary To Uphold The Rule of Law

      And To Put the Country at Ease, To The Extent Possible in these

      Tumultuous Times


      “Confidence in the integrity of our electoral processes is essential to the


functioning of our participatory democracy. Voter fraud drives honest citizens out of


the democratic process and breeds distrust of our government. Even the appearance of


fraud in a close election is poisonous to democratic principles: “Voters who fear their


legitimate votes will be outweighed by fraudulent ones will feel disenfranchised.”


Purcell v. Gonzalez, 549 U.S. 1, 4 (2006); see also Crawford v. Marion County Election


Bd., 553 U.S. 181, 189 (2008) (States have an interest in preventing voter fraud and


ensuring voter confidence). Few things contribute more to the appearance of fraud


than partisan election officials altering statutory requirements designed to protect


against fraud.   Equally concerning is the appearance that Pennsylvania’s elected


Supreme Court may have engaged in partisan decision-making designed to favor the


Democratic presidential candidate over the Republican.


                                          26

     Our country is deeply divided in ways that it arguably has not been seen since


the election of 1860. There is a high level of distrust between the opposing sides,


compounded by the fact that, in the election just held, election officials in key swing


states, for apparently partisan advantage, failed to conduct their state elections in


compliance with state election law. Indeed, a poll taken shortly after the election by


the reputable Rasmussen polling firm indicated that 47% of all Americans (including


75% of Republicans and 30% of Democrats), believed that it was “likely” or “very


likely” the election was stolen from the current incumbent President.


      The fact that nearly half of the country believes the election was stolen should


come as no surprise. President Trump prevailed on nearly every historical indicator


of success in presidential elections. For example, he won both Florida and Ohio; only


one candidate in history—Republican or Democrat—has ever lost the election after


winning both States. And he won these traditional swing states by large margins—


Ohio by 8 percentage points and 475,660 votes; Florida by 3.4 percentage points and


371,686 votes.   He won 18 of the country’s 19 so-called “bellwether” counties—


counties whose vote, historically, almost always goes for the candidate who wins the


election. Initial analysis indicates that he won 26 percent of non-white voters, the


highest percentage for any Republican candidate since 1960. A large percentage of


the American people know or at least strongly believe that something is deeply amiss.


      When election officials conduct elections in a manner that violates state


election law and thereby contravenes the Constitution of the United States, grave


harm is done not just to the candidates on the ballot but to the citizenry’s faith in the


                                           27

election process itself. Partisan judicial decisions add to this harm. Compliance with


state election law is no mere procedural requirement. For without compliance with


the rule of law, elections are subject to the very real prospect that fraud could occur


in the election. Altering or suspending state laws designed to minimize the risk of


fraud in the casting of mail ballots, as occurred in this case, only exacerbates that


concern.


        The decision by Pennsylvania election officials, ratified by the Pennsylvania


Supreme Court, to prevent meaningful access by election observers, is equally


troubling, not only domestically, but internationally as well. Indeed, meaningful


access by observers is one of the factors relied on by both the United Nations17 and


our own State Department18 in determining whether foreign elections are conducted


in a free and fair manner. By failing to follow the rule of law, Pennsylvania’s election


officials and its Supreme Court put our nation’s belief in elected self-government at


risk, and undercut our credibility on the world stage.





17The United Nations Declaration of Principles for International Election Observation (endorsed by,

among others, the Organization of American States, of which the United States is a member)

acknowledges the importance of “political contestants” being “allowed to monitor all processes related

to elections and observe procedures, including among other things the functioning of electronic and

other electoral technologies inside polling stations, counting centers and other electoral facilities, as

well as the transport of ballots and other sensitive materials.” DECLARATION OF PRINCIPLES

FOR INTERNATIONAL ELECTION OBSERVATION, Principal 14, p. 5 (Oct. 27, 2005). Available at:

https://www.ndi.org/sites/default/files/1923_declaration_102705_0.pdf.

18The United States State Department has also found that “prohibition of local independent observers

at polling stations” is one of the factors demonstrating that elections are “not free and fair.” Michael

Pompeo, “Press Statement: Presidential Elections in Belarus” (Aug. 10, 2020). Available at:

https://www.state.gov/presidential-elections-in-belarus/.


                                                  28

     Our constitutional republic has endured for nearly two and a half centuries


based on the consent of the governed. That consent is grounded in the confidence of


our people in the legitimacy of our institutions of government. But that legitimacy


can only be sustained if the elections through which the sovereign people determine


the direction of their government are free and fair. Fortunately, the Framers of our


Constitution built a remedy for such concerns into the system, namely, an


independent federal judiciary, free of the passions of politics, which can review


dispassionately even intense controversies such as those swirling around this


election. It is therefore the most solemn duty of this Court to objectively review the


facts and legal issues presented by the Petitioner in this historic case, render


judgment upon the unconstitutional actions that occurred in Pennsylvania, and


restore the confidence of all Americans that the rule of law will be upheld today and


that our elections in the future will be secure.


V.    The Issues Addressed by this Petition Are Not Moot


      Respondents may contend that these cases are moot because Pennsylvania’s


certified electors already met on December 14, 2020, cast their votes for President,


and transmitted those votes to the President of the Senate, as specified by federal


law. See 3 U.S.C. §§ 7, 11. But in Pennsylvania (as well as in six other states), two


different slates of electors met, cast votes, and transmitted those votes to the


President of the Senate. See Ivan Pentchoukov, “Electors in 7 States Cast Dueling





                                           29

Votes for Trump,” The Epoch Times (Dec. 15, 2020).19


       Though rare, such a thing has happened twice before in our nation’s history


when election challenges such as this were still underway on the date Congress had


designated for electors to meet and vote. In 1960, Hawaii’s Governor had certified


Vice President Richard Nixon as the winner of that state’s electors. Those electors


met on the designated day and cast their votes. But because challenges to the results


of the election were still pending, the electors pledged to Senator John Kennedy also


met and cast their votes.         When it was subsequently determined that Senator


Kennedy had won the election, those electoral votes were the ones counted during the


joint session of Congress in January 1961.20


       The election of 1876 likewise yielded multiple slates of electors from several


states, namely, Florida, Louisiana, Oregon, and South Carolina. The legal challenges


that swirled around that election dispute were only deemed moot once a commission


established by Congress determined that Rutherford B. Hayes had prevailed, and


then only after he was inaugurated on March 4, 1877.21 This case will therefore not


be moot at least until January 20, 2021—the day the Constitution now sets as


inauguration day.




19 Available at: https://www.theepochtimes.com/mkt_app/electors-in-7-states-cast-dueling-votes-for-

trump_3620059.html.

20Jack M. Balkin, BUSH V. GORE AND THE BOUNDARY BETWEEN LAW AND POLITICS, 110 Yale L.J. 1407,

1421 n. 55 (2001).

21See generally, William H. Rehnquist, Centennial Crisis: The Disputed Election of 1786 (Vintage

2005).


                                                30

       None of the other election dates, such as the so-called December 8, 2020 “safe


harbor” date established by 3 U.S.C. § 5 or even the January 6, 2021 date for the joint


session of Congress established by 3 U.S.C. § 15, are constitutionally required.22


Indeed, if this Court vacated a State’s appointment of presidential electors has having


been illegally certified because of illegal and unconstitutional conduct by election


officials, those electoral votes would not be counted in the joint session of Congress


on January 6, 2021.


        Even the swearing in of the next President on January 20, 2021, will not moot


this case because review could outlast the selection of the next President under “the


‘capable of repetition, yet evading review’ doctrine,” which applies “in the context of


election cases … when there are ‘as applied’ challenges as well as in the more typical


case involving only facial attacks.” FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449,


463 (2007) (internal quotations omitted); accord Norman v. Reed, 502 U.S. 279, 287-


88 (1992). The legal issues presented by this petition, namely, whether the alteration


of state election laws by non-legislative officials in the states is unconstitutional, will


likely recur in future elections—including in the presidential election in 2024, in


which Petitioner is constitutionally eligible to run. Mootness is therefore not, and





22Specifically, nothing in Pennsylvania law suggests that the Legislature had adopted a scheme

designed to comport with 3 U.S.C. § 5 “safe harbor” provision. Section 3456 provides no deadline for

concluding an election contest challenging a presidential election. 25 P.S. § 3456. Section 3159

provides no deadline for the Secretary of the Commonwealth to “certify and file” election returns. 25

P.S. § 3159. Further, Section 3166, which governs “Presidential electors,” provides no deadline for the

Secretary to “receiv[e] and comput[e] the returns of the election of presidential electors,” and “lay them

before the Governor.” 25 P.S. § 3166.


                                                   31

will not become, an issue.


                                   CONCLUSION


      In October 2019, the Legislature of the Commonwealth of Pennsylvania


allowed for no-excuse mail voting for every eligible voter in the state, but it kept in


place long-standing validation and observer requirements to protect against fraud in


the casting and canvassing of mail ballots, which are “the largest source of potential


voter fraud.”   Carter-Baker Report, supra.        Pennsylvania election officials, in


conjunction with the Pennsylvania Supreme Court, altered or dispensed with those


significant “meaningful safeguards” in the recent General Election. Because that


election included the choice of presidential electors, the alterations to statutory


requirements contravened Article II, Section 1 of the Constitution, which assesses


plenary power to the Legislature to determine the manner of choosing electors.


      The effect of these illegal and unconstitutional changes to state election law


affected enough ballots to alter the results of the election. Certiorari is warranted so


that this Court can reaffirm its prior Article II holdings that only the Legislature of a


state can alter election laws utilized in the choice of presidential electors, and to


provide redress for the breaches of that constitutional requirement that occurred in


these cases.





                                           32

                                      Respectfully submitted,

Bruce S. Marks                         John C. Eastman

Marks & Sokolov, LLC                      Counsel of Record

1835 Market St., #1717                 174 W. Lincoln Ave, #620

Philadelphia, PA 19103                 Anaheim, CA 92805

(215) 569-8901                         (909) 257-3869

Marks@mslegal.com                      Jeastman562@gmail.com


                         Counsel for Petitioner





                                  33

APPENDIX A

[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-

                                   2020]

                IN THE SUPREME COURT OF PENNSYLVANIA



 SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.



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 from the Order of the

                                                  :   Commonwealth Court entered

 APPEAL OF: ALLEGHENY COUNTY                      :   November 19, 2020 at No. 1162 CD

 BOARD OF ELECTIONS                               :   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

                                                  :


                 Justice Donohue announces the judgment of the Court,

                  joined by Justices Baer, Todd and Wecht, and files an

                        opinion joined by Justices Baer and Todd



              OPINION ANNOUNCING THE JUDGMENT OF THE COURT



JUSTICE DONOHUE                                           DECIDED: November 23, 2020


       These appeals present the question of whether the Election Code requires a


county board of elections to disqualify mail-in or absentee ballots submitted by qualified


electors who signed the declaration on their ballot’s outer envelope but did not handwrite


their name, their address, and/or a date, where no fraud or irregularity has been alleged.


Pursuant to our longstanding jurisprudence, central to the disposition of these appeals is


whether the information is made mandatory by the Election Code or whether the inclusion


of the information is directory, i.e., a directive from the Legislature that should be followed


but the failure to provide the information does not result in invalidation of the ballot.


       We are guided by well-established interpretive principles including that where the


language of a statute is unambiguous, the language shall be controlling. 1 Pa.C.S. §



  [J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-

                                    2020] - 2

1921(b). In the case of ambiguity, we look to ascertain the legislative intent, and in


election cases, we adhere to the overarching principle that the Election Code should be


liberally construed so as to not deprive, inter alia, electors of their right to elect a candidate


of their choice. Pa. Democratic Party v. Boockvar, 238 A.3d 345, 356 (Pa. 2020). Stated


more fully:


       Election laws will be strictly enforced to prevent fraud, but ordinarily will be

       construed liberally in favor of the right to vote. All statutes tending to limit

       the citizen in his exercise of the right of suffrage should be liberally

       construed in his favor. Where the elective franchise is regulated by statute,

       the regulation should, when and where possible, be so construed as to

       insure rather than defeat the exercise of the right of suffrage. Technicalities

       should not be used to make the right of the voter insecure. No construction

       of a statute should be indulged that would disfranchise any voter if the law

       is reasonably susceptible of any other meaning.


Appeal of James, 105 A.2d 64, 65-66 (Pa. 1954).


       Guided by these principles and for the reasons discussed at length in this opinion,


we conclude that the Election Code does not require boards of elections to disqualify


mail-in or absentee ballots submitted by qualified electors who signed the declaration on


their ballot’s outer envelope but did not handwrite their name, their address, and/or date,


where no fraud or irregularity has been alleged.


                                              ***


       In connection with five of these consolidated appeals, Petitioner Donald J. Trump


for President, Inc. (the “Campaign”) challenges the decision of the Philadelphia County


Board of Elections (the “Philadelphia Board”) to count 8,329 absentee and mail-in ballots.


The Campaign does not contest that these ballots were all timely received by the


Philadelphia Board prior to 8:00 p.m. on November 3, 2020 (election day); that they were


cast and signed by qualified electors; and that there is no evidence of fraud associated



  [J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-

                                    2020] - 3

with their casting. The Campaign instead contends that these votes should not be


counted because the voters who submitted them failed to handwrite their name, street


address or the date (or some combination of the three) on the ballot-return outer


envelope. The Philadelphia County Court of Common Pleas, per the Honorable James


Crumlish, upheld the Philadelphia Board’s decision to count the ballots, ruling that the


Election Code does not mandate the disqualification of ballots for a failure to include the


challenged information, stressing that the inclusion or exclusion of this information does


not prevent or promote fraud. The Campaign pursued an appeal to the Commonwealth


Court.     This Court granted the Philadelphia Board’s application to exercise our


extraordinary jurisdiction, 42 Pa. C.S. § 726, over these cases then pending in the


Commonwealth Court.


         At or around the same time that the matters were being litigated in Philadelphia,


across the state in Allegheny County, Nicole Ziccarelli, a candidate for the Pennsylvania


Senate in the 45th Senatorial District (Allegheny-Westmoreland counties) challenged the


November 10, 2020 decision of the Allegheny County Board of Elections (the “Allegheny


County Board”) to canvass 2,349 mail-in ballots that contained a signed – but undated –


declaration. Again, all of the outer envelopes were signed, they are conceded to be timely


and there are no allegations of fraud or illegality. On November 18, 2020, the Court of


Common Pleas of Allegheny County, per the Honorable Joseph James, upheld the


decision of the Allegheny County Board to count the ballots. Ziccarelli v. Allegheny


County Board of Elections, No. GD-20-011654 (Allegheny Cty. Ct. Com. Pl.). Ziccarelli


filed an appeal to the Commonwealth Court and an application in this Court requesting


that we exercise extraordinary jurisdiction over her appeal. During the pendency of the



  [J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-

                                    2020] - 4

request to this Court, on November 19, 2020, a three-judge panel of the Commonwealth


Court, with one judge dissenting, reversed the common pleas court decision.


      On November 20, 2020, the Allegheny County Board filed an emergency petition


for allowance of appeal, which we granted, limited to whether the ballots contained in


undated outer envelopes should be invalidated.             We stayed the order of the


Commonwealth Court pending the outcome of this appeal and consolidated it with the


Philadelphia Board cases.


      In these appeals, we are called upon to interpret several provisions of the Election


Code. We set them forth at the outset since they guide the resolution of these appeals.


      Section 3146.6(a) provides as follows with respect to absentee ballots:


             (a) Except as provided in paragraphs (2) and (3), at any time

             after receiving an official absentee ballot, but on or before

             eight o'clock P.M. the day of the primary or election, the

             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.


25 P.S. § 3146.6(a) (emphasis added).

      Section 3150.16(a) sets forth the procedure for the submission of a mail-in ballot:

             (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



  [J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-

                                    2020] - 5

             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.


25 P.S. § 3150.16(a) (emphasis added).

       Sections 3146.4 and 3150.14(b) delegate to the Secretary of the Commonwealth


the responsibility to prescribe the form of the elector’s declaration on the outer envelope


used to mail the absentee and mail-in ballots:


              § 3146.4. Envelopes for official absentee ballots


              The county boards of election shall provide two additional

              envelopes for each official absentee ballot of such size and

              shape as shall be prescribed by the Secretary of the

              Commonwealth, in order to permit the placing of one within

              the other and both within the mailing envelope. On the

              smaller of the two envelopes to be enclosed in the mailing

              envelope shall be printed, stamped or endorsed the words

              “Official Election Ballot,” and nothing else. On the larger of

              the two envelopes, to be enclosed within the mailing

              envelope, shall be printed the form of the declaration of

              the elector, and the name and address of the county

              board of election of the proper county. The larger

              envelope shall also contain information indicating the local

              election district of the absentee voter. Said form of

              declaration and envelope shall be as prescribed by the

              Secretary of the Commonwealth and shall contain

              among other things a statement of the electors

              qualifications, together with a statement that such

              elector has not already voted in such primary or election.

              The mailing envelope addressed to the elector shall contain

              the two envelopes, the official absentee ballot, lists of

              candidates, when authorized by section 1303 subsection (b)

              of this act, the uniform instructions in form and substance as



  [J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-

                                    2020] - 6

            prescribed by the Secretary of the Commonwealth and

             nothing else.


25 P.S. § 3146.4 (emphasis added).


             § 3150.14. Envelopes for official mail-in ballots


                                  *      *      *


             (b) Form of declaration and envelope.--The form of

             declaration and envelope shall be as prescribed by the

             Secretary of the Commonwealth and shall contain,

             among other things, a statement of the elector's

             qualifications, together with a statement that the elector

             has not already voted in the primary or election.


25 P.S. § 3150.14(b) (emphasis added).


      The pre-canvassing or canvassing of absentee and mail-in ballots proceed in


accordance with the dictates of 25 P.S. § 3146.8(g)(3), as follows:


             § 3146.8. Canvassing of official absentee ballots and mail-in ballots


             When the county board meets to pre-canvass or canvass

             absentee ballots and mail-in ballots under paragraphs (1),

             (1.1) and (2), the board shall examine the declaration on

             the envelope of each ballot not set aside under

             subsection (d) [a voter who dies before the election] and

             shall compare the information thereon with that

             contained in the "Registered Absentee and Mail-in Voters

             File," the absentee voters' list and/or the "Military

             Veterans and Emergency Civilians Absentee Voters File,"

             whichever is applicable. If the county board has verified

             the proof of identification as required under this act and

             is satisfied that the declaration is sufficient and the

             information contained in the "Registered Absentee and

             Mail-in Voters File," the absentee voters' list and/or the

             "Military Veterans and Emergency Civilians Absentee

             Voters File" verifies his right to vote, the county board shall

             provide a list of the names of electors whose absentee ballots

             or mail-in ballots are to be pre-canvassed or canvassed.


25 P.S. § 3146.8(g)(3) (emphasis added).





  [J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-

                                    2020] - 7

     Pursuant to the authority granted in § 3150.14(b), the Secretary of the


Commonwealth developed the following declaration used in connection with the 2020


General Election:


             I hereby declare that I am qualified to vote from the below

             stated address at this election; that I have not already voted

             in this election; and I further declare that I marked my ballot in

             secret. I am qualified to vote the enclosed ballot. I understand

             I am no longer eligible to vote at my polling place after I return

             my voted ballot. However, if my ballot is not received by the

             county, I understand I may only vote by provisional ballot at

             my polling place, unless I surrender my balloting materials, to

             be voided, to the judge of elections at my polling place.


             [BAR CODE]


             Voter, sign or mark here/Votante firme o margue aqui


             X___________________________________



             ____________________________________

             Date of signing (MM/DD/YYYY)/Fechade firme (MM/DD/YYYY)


             _____________________________________

             Voter, print name/Votante, nombre en letra de impreta


             ______________________________________

             Voter, address (street)/Votante, dirreccion (calle)


             [LABEL – Voters’ name and address]



      In addition, the Secretary issued guidance to the county boards of elections with


respect to the examination of ballot return envelopes. First, on September 11, 2020, she


issued the following guidance:


             3. EXAMINATION OF DECLARATION ON BALLOT RETURN

             ENVELOPES:


             The county board of elections is responsible for approving

             ballots to be counted during pre-canvassing.


  [J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-

                                    2020] - 8

            To promote consistency across the 67 counties, the county

             boards of elections should follow the following steps when

             processing returned absentee and mail-in ballots.


             After setting aside ballots of elector’s who died prior to the

             opening of the polls, the county board of elections shall

             examine the Voter’s Declaration on the outer envelope of

             each returned ballot and compare the information on the

             outer envelope, i.e., the voter’s name and address, with the

             information contained in the “Registered Absentee and Mail-

             in Voters File, the absentee voter’s list and/or the Military

             Veterans’ and Emergency Civilians Absentee Voters File.”


             If the Voter’s Declaration on the return envelope is blank,

             that ballot return envelope must be set aside and not

             counted. If the board determines that a ballot should not be

             counted, the final ballot disposition should be noted in

             SURE. The ballot return status (Resp Type) should be noted

             using the appropriate drop-down selection.


             If the Voter’s Declaration on the return envelope is signed and

             the county board is satisfied that the declaration is sufficient,

             the mail-in or absentee ballot should be approved for

             canvassing unless challenged in accordance with the

             Pennsylvania Election Code.


Guidance Concerning Examination of Absentee and Mail-in Ballot Return Envelopes,


9/11/2020, at 3. On September 28, 2020, the Secretary offered additional guidance on


the treatment of ballot return envelopes:


             With regard to the outer ballot‐return envelope:


             A ballot‐return envelope with a declaration that is filled out,

             dated, and signed by an elector who was approved to receive

             an absentee or mail‐in ballot is sufficient and counties should

             continue to pre‐canvass and canvass these ballots.


             A ballot‐return envelope with a declaration that is not filled out,

             dated, and signed is not sufficient and must be set aside,

             declared void and may not be counted. Ballot‐return

             envelopes must be opened in such a manner as not to destroy

             the declarations executed thereon.



  [J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-

                                    2020] - 9

         All ballot‐return envelopes containing executed declarations

          must be retained for a period of two years in accordance with

          the Election Code.


                                          ***


          Pre‐canvass and Canvass Procedures


          At the pre‐canvass or canvass, as the case may be, the

          county board of elections should:


                Segregate the unopened ballots of voters whose

                 applications were challenged by the challenge

                 deadline (5:00 PM on the Friday before the election).

                   o These ballots must be placed in a secure,

                       sealed container until the board of

                       elections holds a formal hearing on the

                       challenged ballots.

                   o Ballot applications can only be challenged

                       on the basis that the applicant is not

                       qualified to vote.

                Set aside the ballot of any voter who was deceased

                 before election day.

                Set aside any ballots without a filled out, dated and

                 signed declaration envelope.

                Set aside any ballots without the secrecy envelope

                 and any ballots in a secrecy envelope that include

                 text, mark, or symbol which reveals the identity of

                 the voter, the voter’s political affiliation (party), or the

                 voter’s candidate preference.


          The Election Code does not permit county election officials to

          reject applications or voted ballots based solely on signature

          analysis.


          No challenges may be made to mail‐in or absentee ballot

          applications after 5:00 pm on the Friday before the election.


          No challenges may be made to mail‐in and absentee ballots

          at any time based on signature analysis.


          NOTE: For more information about the examination of return

          envelopes, please refer to the Department’s September 11,

          2020 Guidance Concerning Examination of Absentee and

          Mail‐in Ballot Return Envelopes.



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Guidance Concerning Civilian Absentee and Mail-in Ballot Procedures, 9/28/2020, at 5,

8-9.


I. FACTUAL AND PROCEDURAL BACKGROUND


       Pursuant to the General Assembly’s passage of Act 77 of 2019, voters in


Pennsylvania may cast their ballots in elections by absentee or no-excuse mail-in ballots.


To do so, they must submit applications to county boards of elections, and in connection


therewith must provide the address at which they are registered to vote. They must also


sign a declaration affirming, among other things, that they are “eligible to vote by mail-in


[or absentee] ballot at the forthcoming primary or election,” and that “all of the information”


supplied in the mail-in or absentee ballot application is “true and correct.” 25 P.S. §§


3150.12, 3146.2. Upon receipt of the application, the county board of elections must


confirm the elector’s qualifications and verify that the elector’s address on the application


matches the elector’s registration. Upon the county board of elections’ approval of the


application, the elector is provided with a ballot, an inner “secrecy envelope” into which


the ballot is to be placed, and an outer envelope into which the secrecy envelope is to be


placed and returned to the board. The outer envelope has pre-printed on it (1) a voter’s


declaration, (2) a label containing the voter’s name and address, and (3) a unique nine-


digit bar code that links the outer envelope to the voter’s registration file contained in the


Statewide Uniform Registry of Electors (“SURE”) system.            After receiving the outer


envelope, the board of elections stamps the date of receipt on it and then scans the


unique nine-digit bar code, which links the voter’s ballot to his or her registration file.


       The pre-canvassing or canvassing of absentee and mail-in ballots then proceeds


in accordance with the dictates of 25 P.S. § 3146.8(g)(3):



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            When the county board meets to pre-canvass or canvass

             absentee ballots and mail-in ballots under paragraphs (1),

             (1.1) and (2), the board shall examine the declaration on the

             envelope of each ballot not set aside under subsection (d) [a

             voter who dies before the election] and shall compare the

             information thereon with that contained in the "Registered

             Absentee and Mail-in Voters File," the absentee voters' list

             and/or the "Military Veterans and Emergency Civilians

             Absentee Voters File," whichever is applicable. If the county

             board has verified the proof of identification as required under

             this act and is satisfied that the declaration is sufficient and

             the information contained in the "Registered Absentee and

             Mail-in Voters File," the absentee voters' list and/or the

             "Military Veterans and Emergency Civilians Absentee Voters

             File" verifies his right to vote, the county board shall provide a

             list of the names of electors whose absentee ballots or mail-

             in ballots are to be pre-canvassed or canvassed.


25 P.S. § 3146.8(g)(3).


      Pursuant to this section, on November 9, 2020, the Philadelphia Board met to


determine whether ballots separated into nine categories were “sufficient” to be pre-


canvassed or canvassed. It concluded that four categories were not sufficient to be pre-


canvassed or canvassed: (1) 472 ballots where the outer envelope lacked a signature


and any other handwritten information; (2) 225 ballots where the outer envelope was not


signed by the voter; (3) 112 ballots where the individual who completed the declaration


appeared to be different from the individual who had been assigned the ballot; and (4)


4,027 ballots that were not submitted in a secrecy envelope.


      In contrast, the Philadelphia Board approved as sufficient to be pre-canvassed or


canvassed the ballots in five categories: (1) 1,211 ballots that lacked a handwritten date,


address, and printed name on the back of the outer envelope (but were signed); (2) 1,259


ballots that lacked only a handwritten date on the back of the outer envelope (but were


signed and contained a handwritten name and address); (3) 533 ballots that lack only a



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handwritten name on the back of the outer envelope (but were signed and dated and


contained a handwritten address); (4) 860 ballots that lack only a handwritten address on


the back of the outer envelope (but were signed and dated and contained a handwritten


name); (5) 4,466 ballots that lack only a handwritten name and address on the back of


the outer envelope (but were signed and dated).


      On November 10, 2020, the Campaign filed five pleadings entitled “Notice of


Appeal via Petition for Review of Decision by the Philadelphia County Board of Elections,”


one for each of the five categories referenced above that the Philadelphia Board approved


as sufficient to be pre-canvassed or canvassed. In each petition for review, the Campaign


alleged that this Court, in Pa. Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020),


declared that absentee and mail-in ballots cast in violation of the Election Code’s


mandatory requirements are void and cannot be counted.              Petition for Review,


11/10/2020, ¶ 14. The Campaign further alleged that failures to include hand-written


names, addresses and dates constituted violations of mandatory obligations under


Sections 3146.6(a) and/or 3150.16(a) of the Election Code. Id. at 15-16. Accordingly,


the Campaign alleged that the Board’s decisions with respect to the absentee and mail-


in ballots in the above-referenced five categories were based on a clear error of law and


must be reversed. Id. at 32.


      On November 13, 2020, Judge Crumlish held oral argument on the issues raised


in the Petition for Review. In response to questions from Judge Crumlish, counsel for the


Campaign agreed that the Petition for Review was “not proceeding based on allegations


of fraud or misconduct.” Transcript, 11/13/2020, at 13-14. She further agreed that the


Campaign was not challenging the eligibility of the 8,329 voters in question and did not



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contest either that all of the ballots at issue were signed by the voters or that they had


been timely received by the Board. Id. at 30-31, 37. Instead, she indicated that the


Campaign was “alleging that the ballots were not filled out correctly.” Id. at 14. Counsel


for the DNC1 argued that the failures to handwrite names, addresses and dates “are, at


most, minor technical irregularities that the Supreme Court of Pennsylvania has


repeatedly said do not warrant disenfranchisement.”             Id. at 14.     Counsel for the


Philadelphia Board added that the Election Code includes no provision requiring “absolute


technical perfection” when filling out the declaration on the outer envelope containing an


absentee or mail-in ballot. Id. at 38.


        Later that same day, Judge Crumlish entered five orders affirming the Philadelphia


Board’s decision to count the contested ballots. In his orders, Judge Crumlish noted that


while the declaration contained a specific directive to the voter to sign the declaration, it


made no mention of filling out the date or other information.              Trial Court Orders,


11/13/2020, ¶ 2. He further found that while the Election Code provides that while the


voter shall “fill out” and date the declaration, the term “‘fill out’ is not a defined term and is


ambiguous.” Id. at ¶ 4. He indicated that the outer envelope already contains a pre-


printed statement of the voter’s name and address, and that “[n]either a date nor the


elector’s filling out of the printed name or of the address are requirements necessary to


prevent fraud.” Id. at ¶ 5-6. Concluding that “[t]he Election Code directs the Court of


Common Pleas in considering appeals from the County Board of Elections to make such





1 DNA Services Corp./Democratic National Committee (hereinafter “DNC”) intervened in

the proceedings before the trial court.



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decree as right and justice may require[,]” id. at ¶ 8 (quoting 25 P.S. § 3157), Judge


Crumlish upheld the decision of the Philadelphia Board.


       The Campaign filed appeals from Judge Crumlish’s orders in the Commonwealth


Court on November 14, 2020, and the next day the Commonwealth Court issued an order


consolidating the five appeals and setting an expedited briefing schedule. On November


17, 2020, the Philadelphia Board filed an application with this Court to exercise its


extraordinary jurisdiction, 42 Pa.C.S. § 726, over the consolidated appeals, which we


granted by order dated November 18, 2020.


       In our order granting the Philadelphia Board’s application for the exercise of


extraordinary jurisdiction, we stated the issue to be decided as follows:


              Does the Election Code require 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?


       On November 10, 2020, the Allegheny County Board decided to canvass 2,349


mail-in ballots that contained a signed but undated declaration. Ziccarelli challenged the


decision in an appeal to the court of common pleas ultimately heard and decided by the


Honorable Joseph James. It was not disputed that all 2,349 voters signed and printed


their name and address on the outer envelopes and returned the ballots to the Allegheny


County Board on time. Each of the ballots was processed in the Statewide Uniform


Registry of Electors (“SURE”) system and was time-stamped when it was delivered to the


Allegheny County Board on or before November 3, 2020. At a hearing, via Microsoft


Teams, on November 17, 2020, the Democratic Party and James Brewster (Ziccarelli’s


opponent in the 45th Senatorial District race) moved to intervene, which motion was




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granted. At the hearing, Ziccarelli stated that she was not claiming voter fraud regarding


the challenged ballots.


       In an opinion and order dated November 18, 2020, Judge James affirmed the


Allegheny County Board’s decision to count the ballots. He concluded that the date


provision in Section 3150.16(a) is directory, not mandatory, and that “ballots containing


mere minor irregularities should only be stricken for compelling reasons,” citing


Shambach v. Shambach, 845 A.2d 793, 798 (Pa. 2004). Noting that the ballots were


processed in the SURE system and time-stamped when delivered to the Allegheny


County Board, he found that the technical omission of the handwritten date on a ballot


was a minor technical defect and did not render the ballot deficient.


       Ziccarelli immediately appealed Judge James’ decision to the Commonwealth


Court and contemporaneously filed an application to this Court requesting our exercise


of extraordinary jurisdiction, noting that the issue presented was accepted by this Court


as part of the Philadelphia Board appeals. While the application was pending, the


Commonwealth Court ordered expedited briefing and on November 19, 2020, issued an


opinion and order reversing the Court of Common Pleas of Allegheny County and


remanded. In Re: 2,349 Ballots in the 2020 General Election; Appeal of: Nicole Ziccarelli,


__ A.3d __, 1162 C.D. 2020 (Commw. Ct. 2020). Ziccarelli then withdrew her application


for extraordinary jurisdiction.


       On November 20, 2020, this Court granted the Allegheny County Board’s Petition


for Allowance of Appeal limited to the question of whether the ballots contained in undated


but signed outer envelopes should be invalidated. The opinion of the Commonwealth





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Court will be discussed, as necessary, in the analysis that follows. The order was stayed


pending our disposition of these consolidated cases.


       The pertinent scope and standard of review follow: the Court of Common Pleas’


decision is reviewed on appeal “to determine whether the findings are supported by


competent evidence and to correct any conclusions of law erroneously made.” In re


Reading Sch. Bd. of Election, 634 A.2d 170, 171–72 (Pa. 1993). The Court of Common


Pleas, in turn, could reverse the Philadelphia Board’s decision only for an abuse of


discretion or error of law. See Appeal of McCracken, 88 A.2d 787, 788 (Pa. 1952). As


the issue involves the proper interpretation of the Election Code, it presents a question of


law and our standard of review is de novo and our scope of review is plenary. See, e.g.,


Banfield v. Cortés, 110 A.3d 155, 166 (Pa. 2015).


II. ARGUMENTS OF THE PARTIES


       Although more fully developed in our analysis set forth later in this opinion, we here


briefly summarize the arguments of the parties and intervenors.


       The Campaign argues that the General Assembly set forth in the Election Code


the requirements for how a qualified elector can cast a valid absentee or mail-in ballot.


Campaign’s Brief at 22. One of those requirements is for each elector to “fill out, date,


and sign” the declaration on the Outside Envelope. Id. (citing 25 P.S. §§ 3146.6(a) and


3150.16(a)).   According to the Campaign, this Court has repeatedly ruled that the


requirements of the sections of Election Code relevant here impose mandatory


obligations, and that ballots cast in contravention of the these requirements are void and


cannot be counted. Id. at 23. As a result, the Campaign insists that the trial court erred





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in affirming the Board’s decision to count the 8,329 non-conforming absentee and mail-in


ballots. Id.


       The Philadelphia Board, conversely, contends that the Election Code does not


require the Philadelphia Board to set aside timely-filed ballots by qualified electors that


are merely missing handwritten names, street addresses, and/or dates on the signed


voter declaration.   Philadelphia Board’s Brief at 12.      Contrary to the Campaign’s


contention that the provisions of the Election Code at issue here impose exclusively


mandatory requirements, the Philadelphia Board argues that Pennsylvania courts have


long held that minor errors or omissions should not result in disenfranchisement,


particularly in cases where the errors or omissions do not implicate the board’s ability to


ascertain the voter’s right to vote or the secrecy or sanctity of the ballot. Id. Here, the


Philadelphia Board notes that the Campaign does not allege that the voters at issue here


were not qualified to vote and have not asserted that any fraud or other impropriety has


occurred. Id. As such, it concludes that it acted properly and within its discretion in


determining that these omissions were not a basis for setting aside those ballots. Id.


       The DNC largely concurs with the Philadelphia Board’s arguments, indicating that


there is no statutory requirement that voters print their full name or address on the outer


envelopes and that adding a date to the envelope serves no compelling purpose. DNC’s


Brief at 9-10.


       Ziccarelli argues further that, in regard to outer envelopes not containing a voter-


supplied date, this Court’s opinion in In Re: Nov. 3, 2020 General Election, No. 149 MM


2020, 2020 WL 6252803 (Pa. Oct. 23, 2020) definitively speaks to the mandatory nature


of the date requirement and, without much extrapolation, requires that such ballots not be



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counted. The Allegheny County Board agrees with its Philadelphia counterpart. It


counters Ziccarelli’s reliance on In Re Nov. 3, 2020 General Election by noting that


Ziccarelli’s challenge to the ballots for lack of a date is based on the premise that the date


is essential to the validity of the signature. Allegheny County Board points out this is the


precise type of challenge that was disavowed in the case upon which Ziccarelli relies.


III. ANALYSIS


       We begin by recognizing from the outset that it is the “longstanding and overriding


policy in this Commonwealth to protect the elective franchise.” Shambach v. Birkhart,


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.


       We agree with the Campaign’s observation that in Sections 3146.6(a) and


3150.16(a), the General Assembly set forth the requirements for how a qualified elector


may cast a valid absentee or mail-in ballot. Campaign’s Brief at 22. We further agree


that these sections of the Election Code specifically provide that each voter “shall fill out,


date, and sign” the declaration on the outside envelope. Id. We do not agree with the


Campaign’s contention, however, that because the General Assembly used the word



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“shall” in this context, it is of necessity that the directive is a mandatory one, such that a


failure to comply with any part of it requires a board of elections to declare the ballot void


and that it cannot be counted.       It has long been part of the jurisprudence of this


Commonwealth that the use of “shall” in a statute is not always indicative of a mandatory


directive; in some instances, it is to be interpreted as merely directory.         See, e.g.,


Commonwealth v. Baker, 690 A.2d 164, 167 (Pa. 1997) (citing Fishkin v. Hi–Acres, Inc.,


341 A.2d 95 (Pa. 1975)); see also Commonwealth ex rel. Bell v. Powell, 94 A. 746, 748


(Pa. 1915) (quoting Bladen v. Philadelphia, 60 Pa. 464, 466 (1869) (“It would not perhaps


be easy to lay down any general rule as to when the provisions of a statute are merely


directory, and when mandatory and imperative.”)). The Campaign’s reliance on this


Court’s recent decision in Pa. Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020) for


the proposition it asserts is misplaced.


       In Pa. Democratic Party, we held that the requirement in Section 3150.16(a) that


a mail-in voter place his or her ballot in the inner secrecy envelope was a mandatory


requirement and thus a voter’s failure to comply rendered the ballot void. Pa. Democratic


Party, 238 A.3d at 380. In concluding that the use of the secrecy envelope was a


mandatory, rather than a discretionary directive, we reviewed our prior decisions on the


distinction between mandatory and discretionary provisions in the Election Code,


including Shambach v. Bickhart, 845 A.2d 793 (Pa. 2004), In re Luzerne County Return


Board, Appeal of Elmer B. Weiskerger, 290 A.2d 108 (Pa. 1972), and In re Canvass of


Absentee Ballots of Nov. 4, 2003 Gen. Election, Appeal of John Pierce, 843 A.2d 1223


(Pa. 2004).





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      In Shambach, the Court declined to invalidate a write-in vote cast for a candidate


who was named on the ballot, in direct violation of the Election Code’s instruction that a


voter could only write in a person’s name if the name of said individual was “not already


printed on the ballot for that office.” Shambach, 845 A.2d at 795. In reaching that


conclusion, the Court observed that “[m]arking a ballot is an imprecise process, the focus


of which is upon the unmistakable registration of the voter's will in substantial conformity


to the statutory requirements.” Id. at 799 (quoting Appeal of Gallagher, 41 A.2d 630, 632


(Pa 1945)).


       In Weiskerger, this Court refused to invalidate a ballot based upon the “minor


irregularity” that it was completed in the wrong color of ink. The provision of the Election


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


... shall be valid and counted.” Weiskerger, 290 A.2d at 109 (citing 25 P.S. § 3063). In


providing that ballots completed in the right color must be counted, we noted that the


General Assembly “neither stated nor implied that ballots completed in a different color


must not be counted.” Id. We thus treated the instruction to use blue, black or blue-black


ink as merely directory.


       In Pa. Democratic Party, we compared these cases to our decision in In re


Canvass of Absentee Ballots of Nov. 4, 2003 Gen. Election, Appeal of John Pierce, 843


A.2d 1223 (Pa. 2004), where we held that the Election Code's “in-person” ballot delivery


requirement, see 25 P.S. § 3146.6, was mandatory, and that votes delivered by third


persons must not be counted. Appeal of Pierce, 843 A.2d at 1231. There, we recognized


that the in-person requirement served important purposes in the Election Code, including


“limit[ing] the number of third persons who unnecessarily come in contact with the ballot[,]



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... provid[ing] some safeguard that the ballot was filled out by the actual voter, ... and that


once the ballot has been marked by the actual voter in secret, no other person has the


opportunity to tamper with it.” Id. at 1232. We thus explained in Pa. Democratic Party


that “the clear thrust of Appeal of Pierce, … is that, even absent an express sanction,


where legislative intent is clear and supported by a weighty interest like fraud prevention,


it would be unreasonable to render such a concrete provision ineffective for want of


deterrent or enforcement mechanism.” Pa. Democratic Party, 238 A.3d at 380 (citing


Appeal of Pierce, 843 A.2d at 1232).


       Based upon this comparison between Shambach, Weiskerger and Appeal of


Pierce, in Pa. Democratic Party we determined that the decision in Appeal of Pierce


provided the appropriate guidance for the analysis of the secrecy envelope requirement.


We held that “[i]t is clear that the Legislature believed that an orderly canvass of mail-in


ballots required the completion of two discrete steps before critical identifying information


on the ballot could be revealed. The omission of a secrecy envelope defeats this


intention.” Pa. Democratic Party, 238 A.3d at 380. Unlike in Shambach and Weiskerger


which involved “minor irregularities,” the use of a secrecy envelope implicated a “weighty


interest,” namely secrecy in voting protected expressly by Article VII, Section 4 of our


state charter. Id. As such, we recognized the use of a secrecy envelope as a mandatory


requirement and that failures to comply with the requirement required that the ballot must


be disqualified.” Id.; see also id. at 378 (quoting JPay, Inc. v. Dep’t of Corr. & Governor’s


Office of Admin., 89 A.3d 756, 763 (Pa. Commw. 2014) (“While both mandatory and


directory provisions of the Legislature are meant to be followed, the difference between


a mandatory and directory provision is the consequence for non-compliance: a failure to



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strictly adhere to the requirements of a directory statute will not nullify the validity of the


action involved.”)).


       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 “weighty interests,” like


fraud prevention or ballot secrecy that the General Assembly considered to be critical to


the integrity of the election.


       (1) Failures to include handwritten names and addresses


       Beginning with the Campaign’s contention that ballots may not be counted if a


voter fails to handwrite their name and/or address under the full paragraph of the


declaration on the back of the outer envelope, we conclude that given the factual record


in this case and the mechanics of the pre-canvassing and canvassing procedures


including the incorporation of reliance on the SURE system, this “requirement” is, at best,


a “minor irregularity” and, at worst, entirely immaterial. More to the point, the direction to


the voter to provide a handwritten name and/or address is not only not mandatory, it is


not a directive expressed in the Election Code. Thus, these directions do not meet the


first prong of the test used in Pa. Democratic Party: the clear intent of the General


Assembly.


       The Election Code does not require that the outer envelope declaration include a


handwritten name or address at all. Instead, Sections 3146.4 (absentee) and 3150.14(b)


(mail-in) provide only that the declaration must include “a statement of the elector's



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qualifications, together with a statement that the elector has not already voted in the


primary or election.” 25 P.S. §§ 3146.4, 3150.14(b). Aside from this information (none


of which is relevant to the present issue), the General Assembly delegated to the


Secretary of the Commonwealth the obligation to prescribe the form of declaration and


envelope for absentee and mail-in ballots, presumably to allow the inclusion of information


that would be helpful for administrative or processing purposes. Id.2 As such, the


decision to include spaces in the declaration for handwritten names and addresses was


made solely by the Secretary of the Commonwealth, not the General Assembly. It would


be a stretch to divine that the General Assembly was advancing any weighty interest for


the inclusion of handwritten names and addresses in the declaration such that a voter’s


failure to include them should result in the ballot not being counted. Moreover, the


Campaign does not argue that the Secretary’s request for handwritten names and


addresses implicated any “weighty interests” that would compel a finding that the request


to provide them constituted a mandatory requirement.3




2 None of the parties have challenged whether these provisions constituted improper

delegations of legislative authority. Protz v. Workers’ Compensation Appeal Board (Derry

Area School District), 161 A.3d 827 (Pa. 2017).

3   Conversely, the Philadelphia Board and the DNC have both selectively relied upon

guidance provided by the Secretary to the county boards of election that indicated that a

voter’s failure to handwrite his/her name and address was not a ground to set the ballot

aside. Philadelphia Board’s Brief at 19; DNC’s Brief at 15. They have directed the Court

to the Guidance published on September 11, 2020, in which the Secretary advised that

“[i]f the Voter’s Declaration on the return envelope is signed and the county board is

satisfied that the declaration is sufficient, the mail-in or absentee ballot should be

approved for canvassing.” Guidance, 9/11/2020, at 3. As discussed infra at n.6, however,

on September 28, 2020 the Secretary issued arguably contrary guidance stating that “[a]

ballot‐return envelope with a declaration that is not filled out, dated, and signed is not

sufficient and must be set aside, declared void and may not be counted.” Guidance,



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       The Campaign argues that we should read the “handprinted name and address”


requirement into the directives in Section 3146.6(a) and 3150.16(a) that the voter “fill out”


the declaration. Campaign’s Brief at 30. Citing to dictionary definitions, the Campaign


contends that “fill out” means “to write or type information in spaces that are provided for


it.” Id. at 32. Because 8,349 voters did not “fill out” one or more spaces provided on the


outer envelope provided in the declaration (including the voter’s name and/or address),


the Campaign argues that those ballots were non-conforming and could not be counted.


Id. at 29. The directive to “fill out” does not give any legislative definition to the specific


information to be placed in the blank spaces. It is the weight of the information that must


be tested in the analysis. As stated, since the General Assembly did not choose the


information to be provided, its omission is merely a technical defect and does not


invalidate the ballot.


        Further, as Judge Crumlish observed, the term “fill out” is ambiguous.4 Trial Court


Opinion, 11/13/2020, ¶ 4. As Judge Crumlish recognized, the term “fill out” is not a


defined term under the Election Code. Id. Moreover, and contrary to the Campaign’s


contention that no alternative understanding of the term “fill out” has been proffered, the


Campaign has failed to recognize, the voter’s name and address are already on the


back of the outer envelope on a pre-printed label affixed no more than one inch





9/28/20, at 9. Confusingly, she also incorporated by reference the September 11, 2020

Guidance. Both sets of Guidance are set forth on pages 8-10 supra.

4 Where an election statute is ambiguous, courts apply the interpretative principle that

that “election laws ... ordinarily will be construed liberally in favor of the right to vote.” Pa.

Democratic Party, 238 A.3d at 360–61.




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from the declaration itself. A voter could reasonably have concluded that the blanks


requesting his or her name and address needed to be “filled out” only if the name and/or


address on the label was incorrect or incomplete, as it was unnecessary to provide


information that was already on the back of the outer envelope.5 To add further confusion,


the declaration itself can be read to refer to the label: “I hereby declare that I am qualified


to vote from the below stated address” can be read to mean the address as already stated


on the label.


        The text of the Election Code provides additional evidence of the directory nature


of the provisions at issue. With regard to individuals who are not able to sign their name


due to illness or physical disability, the General Assembly imposed a requirement that the


declarant provide his or her “complete address.” 25 P.S. § 3146.6(a)(3); 25 P.S. §




5   The DNC argues, with some persuasive force, that the Campaign’s requested

interpretation of Pennsylvania’s Election Code could lead to a violation of federal law by

asking the state to deny the right to vote for immaterial reasons. Nobody acting under

color of state law may deny anyone the right 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.” 52 U.S.C. §

10101(a)(2)(B).

Under this section, the so-called “materiality provision” of the Voting Rights Act, federal

courts have barred the enforcement of similar administrative requirements to disqualify

electors. See, e.g., Schwier v. Cox, 340 F.3d 1284 (11th Cir. 2003) (disclosure of voter’s

social security number is not “material” in determining whether a person is qualified to

vote under Georgia law for purposes of the Voting Rights Act); Washington Ass'n of

Churches v. Reed, 492 F.Supp.2d 1264 (W.D. Wash. 2006) (enjoining enforcement of

“matching” statute, requiring state to match potential voter's name to Social Security

Administration or Department of Licensing database, because failure to match applicant's

information was not material to determining qualification to vote); Martin v. Crittenden,

347 F.Supp.3d 1302 (N.D. Ga. 2018), reconsideration denied, 1:18-CV-4776-LMM, 2018

WL 9943564 (N.D. Ga. Nov. 15, 2018) (voter’s ability to correctly recite his or her year of

birth on absentee ballot envelope was not material to determining said voter's

qualifications).



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3150.16(a.1). These provisions demonstrate that the General Assembly clearly knew


how to impose such a requirement when it wishes to do so. In re Nov. 3, 2020 Gen.


Election, __ A.3d __, 2020 WL 6252803, at *14 (Pa. 2020) (stating that the General


Assembly’s prior inclusion of a signature comparison requirement demonstrated that “it


understands how to craft language requiring signature comparisons at canvassing when


it chooses to do so”). Moreover, Sections 3146.6(a)(3) and 3150.16(a.1) contain a


precise form of declaration, crafted by the General Assembly, pertaining to voters with


disabilities evidencing the General Assembly’s understanding of how to mandate a


precise declaration without resort to delegating non-essential information to the


Secretary.


       Finally, the text of the Election Code further demonstrates the lack of any need for


handwritten names and addresses. Section 3146.8(g)(3), which relates to the canvassing


of official absentee ballots and mail-in ballots, provides, in relevant part:


              When the county board meets to pre-canvass or canvass

              absentee ballots and mail-in ballots under paragraphs (1),

              (1.1) and (2), the board shall examine the declaration on the

              envelope of each ballot not set aside under subsection (d) [a

              voter who dies before the election] and shall compare the

              information thereon with that contained in the "Registered

              Absentee and Mail-in Voters File," the absentee voters' list

              and/or the "Military Veterans and Emergency Civilians

              Absentee Voters File," whichever is applicable.


25 P.S. § 3146.8(g)(3). The county board of elections’ duty to keep a “Military Veterans


and Emergency Civilians Absentee Voters File," which is not relevant to the current


dispute, is governed by 25 P.S. § 3146.2c(b). Section 3146.2c(a) previously housed the


board’s duty to keep a "Registered Absentee and Mail-in Voters File." However, the


General Assembly recently eliminated this directive. See 2020, March 27, P.L. 41, No.


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12, § 8, imd. effective (deleting subsection (a), which required county board of elections


to maintain at its office “a file containing the duplicate absentee voter's temporary


registration cards of every registered elector to whom an absentee ballot has been sent”).


By virtue of this amendment, the General Assembly eliminated one of the reference points


that still appear in Section 3146.8(g)(3). The current Section 3146.2c(c) directs the


county board to maintain the “the absentee voters' list” referenced in Section 3146.8(g)(3).


The General Assembly also amended Section 3146.2c(c), which previously only directed


the chief clerk to “prepare a list for each election district showing the names and post


office addresses of all voting residents thereof to whom official absentee ballots shall have


been issued,” to include such voting residents who were issued mail-in ballots. See 2019,


Oct. 31, P.L. 552, No. 77, § 5.1, imd. effective (inserting “or mail-in” twice in subsection


(c)).


        As such, as relevant for our purposes, Section 3146.8(g)(3) directs that “the board


shall examine the declaration on the envelope of each ballot not set aside under


subsection (d) [a voter who dies before the election] and shall compare the information


thereon with that contained in the … the absentee voters’ list,” which, pursuant to Section


3146.2c(c), now also contains voters who received mail-in ballots. A close reading of the


language chosen by the General Assembly here is telling. Section 3146.8(g)(3) directs


the board to “examine the declaration on the envelope” and “compare the information


thereon” to the absentee (and mail-in) voters’ list. 25 P.S. § 3146.8(g)(3) (emphasis


added). Reading these phrases together, it is clear that the General Assembly intended


that the information to be compared to the absentee (and mail-in) voters’ list is the


information on the outer envelope which includes the pre-printed name and address. If



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the General Assembly intended for the information written by the voter to be compared to


the absentee voters’ list, it would have used the term “therein,” thus directing the board


to compare the information contained “within” the declaration (the handwritten name and


address).


       The following sentence in this section further suggests that the General Assembly


intended such bifurcation. Section 3146.8(g)(3) next states:


              If the county board has verified the proof of identification as

              required under this act and is satisfied that the declaration is

              sufficient and the information contained in the … the absentee

              voters' list … verifies his right to vote, the county board shall

              provide a list of the names of electors whose absentee ballots

              or mail-in ballots are to be pre-canvassed or canvassed.


25 P.S. § 3146.8(g)(3). Here, the board is directed to consider whether the declaration


is sufficient (i.e., the examination contained in the previous sentence) and also ensure


that the absentee voters' list confirms the voter’s right to vote (i.e., the comparison of the


printed information to the relevant list from the prior sentence).


       (2) Failures to include dates


       Both the Campaign and Ziccarelli argue that the requirement to state the date on


which 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, 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




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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 Ziccarelli relied upon the Election Code’s use of


the of “shall … date” language in construing the date obligation as mandatory. In Re:


2,349 Ballots in the 2020 General Election, Appeal of: Nicole Ziccarelli, __ A.3d __, 1162


C.D. 2020, 10 (Pa. Comm. 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 SURE


system. The date stamp and the SURE system provide a clear and objective indicator of


timeliness, making any handwritten date unnecessary and, indeed, superflous.


       Ziccarelli offers two alternative “weighty interests” for our consideration. She first


contends that the date on which the declaration was signed may reflect whether the



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person is a “qualified elector” entitled to vote in a particular election. Pursuant to Section


3150.12b (entitled “Approval of application for mail-in ballot”), a board of elections may


have determined that the person was a qualified elector and thus entitled to receive a


mail-in ballot. Pursuant to Section 2811, however, to be a qualified elector, “[h]e or she


shall have resided in the election district where he or she shall offer to vote at least thirty


days immediately preceding the election, except that if qualified to vote in an election


district prior to removal of residence, he or she may, if a resident of Pennsylvania, vote in


the election district from which he or she removed his or her residence within thirty days


preceding the election.” 25 P.S. § 2811. As a result, Ziccarelli contends that the person


may have been qualified to vote in a particular voting district at the time of applying for a


mail-in ballot, but no longer a qualified elector in that voting district on Election Day.


Ziccarelli’s Brief at 16.


       This unlikely hypothetical scenario is not evidence of a “weighty interest” in the


date on the document for assuring the integrity of Pennsylvania’s system for administering


mail-in voting. Among other things, the canvassing statute, 25 P.S. § 3146.8(g)(3), directs


the board to examine the declaration on the envelope of each ballot and compare the


information thereon with that contained in the now defunct "Registered Absentee and


Mail-in Voters File." See discussion supra pp. 27-29. The date of signing the declaration


will not be of any benefit in performing this task, as the name of the voter at issue will be


on this list (as a result of his or her approval to receive a mail-in ballot), and the date of


signing will provide no information with respect to whether or not he or she has left the


voting district in the interim. Most critically, our current statutory framework includes no


requirement that a county board of elections investigate whether an individual who had



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been confirmed as a qualified elector at the time of approval to receive a mail-in ballot


remains as a qualified elector on Election Day. If the General Assembly had so intended,


it would certainly have expressly stated it, as opposed to nebulously tucking such an


unprecedented requirement into the instructions to the Secretary for designing the


declaration.


        Second, Ziccarelli argues that the date of signature of the declaration will serve to


prevent double voting, as “whether an elector has already voted in the election for which


the ballot is issued, by its very nature, depends on the date on which the declaration was


signed.” Ziccarelli’s Brief at 16. Boards of elections do not use signatures or any


handwritten information to prevent double voting. Duplicate voting is detected by the use


of bar codes through the SURE system, and the board identifies the earlier cast vote by


referencing the date it received the ballot, not the date on which the declaration was


signed.


        Ziccarelli and the Commonwealth Court insist that this Court “has already held that


mail-in ballots with undated declarations are not ‘sufficient’ and, thus, must be set aside.”


Ziccarelli’s Brief at 9; In Re: 2,349 Ballots in the 2020 General Election, 1162 C.D. 2020,


at 10. In support of this contention, they reference an observation in our recent decision


in In re November 3, 2020 General Election, __ A.3d __, 2020 WL 6252803 (Pa. 2020),


that when assessing the sufficiency of a voter’s declaration, “the county board is required


to ascertain whether the return envelope has been filled out, dated, and signed – and if it


fails to do so then the ballot cannot be designated as “sufficient” and must be set aside.6



6 In her brief, Ziccarelli cites to the Guidance distributed by the Secretary of the

Commonwealth on September 28, 2020 to the county boards of elections, advising that



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Id. at *12-13. This statement is being taken out of context. Our statement in 2020 General


Election was in reference to the limitations on what an election board is directed by the


statute to do when assessing the sufficiency of a voter’s declaration for the express


purpose of indicating what they were not to do, i.e., signature comparisons. The question


in In Re: Nov. 3, 2020 General Election was a narrow one. We did not address (as it was


not at issue) whether a county board of elections could find a declaration as sufficient


even though it was undated. That question requires an entirely different analysis that



“[a] ballot‐return envelope with a declaration that is not filled out, dated, and signed is not

sufficient and must be set aside, declared void and may not be counted.” As noted in

footnote 3 supra, however, the Secretary also issued Guidance on September 11, 2020,

which was cited with approval by the Philadelphia Board and the DNC. No party

referenced both sets of Guidance, however, even though the September 28 Guidance

incorporated the September 11 Guidance. See Guidance, 9/28/2020, at 9 (“For more

information about the examination of return envelopes, please refer to the Department’s

September 11, 2020 Guidance Concerning Examination of Absentee and Mail‐in Ballot

Return Envelopes.”).

In any event, we will not consider this Guidance in making our decision. Neither of the

parties explain how the potentially contradictory directives are to be understood. More

importantly, the Secretary has no authority to definitively interpret the provisions of the

Election Code, as that is the function, ultimately, of this Court. The Secretary also clearly

has no authority to declare ballots null and void. “[I]t is the Election Code's express terms

that control, not the written guidance provided by the Department and as this Court

repeatedly has cautioned, even erroneous guidance from the Department or county

boards of elections cannot nullify the express provisions of the Election Code.” In re

Scroggin, 237 A.3d 1006, 1021 (Pa. 2020). Moreover, the Secretary has no authority to

order the sixty-seven county boards of election to take any particular actions with respect

to the receipt of ballots. 25 P.S. § 2621(f.2).

Finally, with respect to the September 28 Guidance indicating that undated ballots must

be set aside, we note that in addition to the Philadelphia and Allegheny County Boards,

at least two other boards of elections also did not follow it. Donald J. Trump for President

Inc. v. Bucks Cnty. Bd. of Elections, No. 2020-05786 (Bucks Cty. Ct. Com. Pl.); Donald

J. Trump for President, Inc., et al. v. Montgomery Cnty. Bd. of Elections, No. 2020-18680

(Nov. 13, 2020). Both the Bucks County and Montgomery County Courts of Common

Pleas affirmed the counting of the ballots even though the declarations had not been filled

out in full. Each of the courts of common pleas appropriately applied this Court’s

precedent in doing so.



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depends in significant part on whether dating was a mandatory, as opposed to a directive,


requirement. We have conducted that analysis here and we hold that a signed but


undated declaration is sufficient and does not implicate any weighty interest. Hence, the


lack of a handwritten date cannot result in vote disqualification.


IV. CONCLUSION


       As we recognized in Pa. Democratic Party, “while both mandatory and directory


provisions of the Legislature are meant to be followed, the difference between a


mandatory and directory provision is the consequence for non-compliance: a failure to


strictly adhere to the requirements of a directory statute will not nullify the validity of the


action involved.” Pa. Democratic Party, 238 A.3d at 378. 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.


As we acknowledged in Shambach, “ballots containing mere minor irregularities should


only be stricken for compelling reasons.” Shambach, 845 A.2d at 799; see also Appeal


of Gallagher, 41 A.2d 630, 632 (Pa. 1945) (“[T]he power to throw out a ballot for minor


irregularities ... must be exercised very sparingly and with the idea in mind that either an


individual voter or a group of voters are not to be disfranchised at an election except for


compelling reasons.”). Having found no compelling reasons to do so, we decline to


intercede in the counting of the votes at issue in these appeals.


       The decision of the Philadelphia Court of Common Pleas is hereby affirmed. The


decision of the Commonwealth Court is hereby reversed and the decision of the


Allegheny County Court of Common Pleas is reinstated.



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     Justices Baer and Todd join the opinion.


      Justice Wecht concurs in the result and files a concurring and dissenting opinion.


      Justice Dougherty files a concurring and dissenting opinion in which Chief Justice


Saylor and Justice Mundy join.





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APPENDIX B

                                [J-116-2020]

                   IN THE SUPREME COURT OF PENNSYLVANIA

                              EASTERN DISTRICT


   SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.



 IN RE: CANVASSING OBSERVATION                 :   No. 30 EAP 2020

                                               :

                                               :   Appeal from the November 5, 2020,

 APPEAL OF: CITY OF PHILADELPHIA               :   Single-Judge Order of the Honorable

 BOARD OF ELECTIONS                            :   Christine Fizzano Cannon of the

                                               :   Commonwealth Court at No. 1094

                                               :   CD 2020, reversing the November 3,

                                               :   2020 Order of the Honorable Stella

                                               :   Tsai of the Court of Common Pleas

                                               :   of Philadelphia County at November

                                               :   Term 2020, No. 07003

                                               :

                                               :   SUBMITTED: November 13, 2020



                                       OPINION



JUSTICE TODD                                          DECIDED: November 17, 2020

      This appeal arises out of the processing of mail-in and absentee ballots received


from voters in Philadelphia County in the November 3, 2020 General Election.


Specifically, Appellee Donald J. Trump, Inc. (the “Campaign”) orally moved for the


Philadelphia County Court of Common Pleas to give its representative more proximate


access to the canvassing activities being carried out by Appellant, the Philadelphia


County Board of Elections (the “Board”). The trial court denied relief, the Commonwealth


Court reversed, and the Board now appeals that order. For the following reasons, we


vacate the order of the Commonwealth Court, and reinstate the trial court’s order denying


the Campaign relief.


                                    I. Background

      This dispute concerns the Board’s pre-canvassing and canvassing of mail-in and


absentee ballots at the Philadelphia Convention Center. According to the Board, in


advance of the election, it arranged the workspace of its employees at this facility in a


manner that it considered best suitable for the processing and maintenance of the security


of the estimated 350,000 absentee and mail-in ballots it anticipated receiving, while


ensuring that the social distancing protocols for COVID-19 promulgated by the federal


Centers for Disease Control were maintained and the voter’s privacy in his or her ballot


was protected, and providing a candidate or campaign representative with the ability to


observe the entirety of the pre-canvassing and canvassing process.         N.T. Hearing,


11/3/20, at 10-11.1


       Under the Board’s authority, a designated area of the Convention Center was


divided into discrete sections, each devoted to various aspects of the pre-canvassing and


canvassing process. Id. at 22. Each section contained three rows of fifteen folding tables


with each table separated by 5-6 feet. Id. at 24. In the first section, workers examined


the back of the ballot return envelopes and then, based on that examination, sorted the


envelopes into different trays. Id. at 27. In the next section, ballots in their secrecy


envelopes were first extracted from the ballot return envelope by machine, and then, while


encased in their secrecy envelopes, were sent on to another machine which sliced open


the secrecy envelope and removed the ballot from within. Id. at 28. During this phase,


ballots without secrecy envelopes – so-called “naked” ballots – were segregated and


placed into a separate tray.2 Id. at 30.


1Except as otherwise noted, such citations are to the notes of testimony of the hearing

before the trial court.

2Ballots not placed into the provided secrecy envelopes are invalid.        Pennsylvania

Democratic Party v. Boockvar, 238 A.3d 345, 380 (Pa. 2020).



                                     [J-116-2020] - 2

      Pursuant to the Election Code, designated observers for campaigns or candidates


were permitted to physically enter the Convention Center hall and observe the entirety of


this process; however, the Board erected a waist-high security fence to separate the


observers from the above-described workspace of Board employees. The fence, behind


which observers could freely move, was separated from the first row of employees’ desks


in each section by a distance of approximately 15-18 feet. Id. at 23. Board employees


used this “buffer” area between the security fence and their workspace to enter or leave


their work areas for their shifts, or to take scheduled breaks. Id. at 30-31.


       On the morning of November 3, 2020 – Election Day – the Campaign sent a


designated representative, Attorney Jeremy Mercer, to observe the pre-canvassing and


canvassing process. Attorney Mercer entered the Convention Center at 7:00 a.m. and


remained there throughout the entire day. He testified that he was able to move freely


along the length of the security fence and observe the employees engaged in their pre-


canvassing and canvassing activities from various vantage points. Id. at 21. He related


that, while he could see the Board employees in the first section of the workspace


examining the back of the ballot return envelopes, from his position, he could not read the


actual declarations on the ballot envelopes. Id. at 27. Regarding the ballot extraction


activities in the next section, Attorney Mercer testified that he could see employees


removing the ballots contained in secrecy envelopes from the return envelopes, and that,


when “watching closely,” he could discern if any return envelopes contained naked


ballots. Id. at 30. However, he stated that he could not see whether there were any


markings on the security envelopes themselves.3 Id. at 38.




3 The Election Code prohibits the security envelope from containing any “text, mark or

symbol which reveals the identity of the elector, the elector's political affiliation or the

elector's candidate preference.” 25 P.S. § 3146.8(g)(4)(ii).



                                     [J-116-2020] - 3

      At 7:45 a.m. on Election Day, the Campaign filed a suit in the Philadelphia Court


of Common Pleas challenging the location where observers such as Attorney Mercer


could watch the process. The Campaign subsequently withdrew that action, without


prejudice, but then refiled it at 9:45 p.m. that night. The trial court subsequently conducted


an evidentiary hearing that same night utilizing the “Zoom” videoconference tool, which


enabled Attorney Mercer to testify remotely.


       After hearing Attorney Mercer’s testimony and argument from the Campaign and


the Board, the trial court rejected the Campaign’s primary argument, raised orally during


the hearing, that Section 3146.8(b) of the Election Code – which allows designated


watchers or observers of a candidate “to be present when the envelopes containing


official absentee ballots and mail-in ballots are opened and when such ballots are counted


and recorded,” 25 P.S. § 3146.8(b) – requires that the observers have the opportunity to


“meaningfully . . . see the process.” N.T. Hearing, 11/3/20, at 49. In rejecting the


argument, the trial court noted that Section 3146.8 contained no language mandating


“meaningful observation”; rather, the court interpreted the section as requiring only that


the observer be allowed to be “present” at the opening, counting, and recording of the


absentee or mail-in ballots. Trial Court Opinion, 11/4/20, at 3-4.


       The court observed that Attorney Mercer’s testimony that he could not see


individual markings on the secrecy envelopes, or determine whether the signature on all


the ballot envelopes was properly completed, did not establish a violation of Section


3416.8, inasmuch as that statute “provides for no further specific activities for the


watchers to observe, and no activities for the watchers to do other than simply ‘be


present’.” Id. at 4. The court opined that, under this section, “[w]atchers are not directed


to audit ballots or to verify signatures, to verify voter address[es], or to do anything else


that would require a watcher to see the writing or markings on the outside of either





                                      [J-116-2020] - 4

envelope, including challenging the ballots or ballot signatures.” Id. Consequently, that


same day, the trial court denied the Campaign’s request that the Board modify the work


area to allow for closer observation of the ongoing ballot canvassing. The court indicated,


however, that it was not discouraging the Board from providing an additional corridor for


observers along the side of the tables to watch the proceedings, provided COVID-19


protocols and voter information secrecy protections were maintained.4 Trial Court Order,


11/3/20.


      The Campaign immediately appealed to the Commonwealth Court, and the matter


was assigned to the Honorable Christine Fizzano Cannon.5 Judge Fizzano Cannon held


a status conference on the night of November 4, 2020, and issued an order on the


morning of November 5, 2020, which reversed the trial court. She directed the trial court


to enter an order by 10:30 a.m. to require “all candidates, watchers, or candidate


representatives be permitted to be present for the canvassing process pursuant to 25


P.S. § 2650 and/or 25 P.S. § 3146.8 and to be permitted to observe all aspects of the


canvassing process within 6 feet, while adhering to all COVID-19 protocols.”


Commonwealth Court Order, 11/5/20.


      In her opinion, filed later that day, Judge Fizzano Cannon focused her analysis on


what she considered to be the relevant governing provisions of the Election Code, Section


3146.8(b) and Section 3146.8(g)(1.1). Section 3146.8(b) provides:


             Watchers shall be permitted to be present when the

             envelopes containing official absentee ballots and mail-in

             ballots are opened and when such ballots are counted and

             recorded.



4 It should be noted that the pre-canvassing and canvassing activities were also broadcast

live on YouTube.

5 The Pennsylvania Democratic Party (“Intervenor”) was granted leave to intervene in

these proceedings by the Commonwealth Court.



                                     [J-116-2020] - 5

25 P.S. § 3146.8(b) (emphasis added). Section 3146.8(g)(1.1) states, in relevant part:


              The county board of elections shall meet no earlier than seven

              o'clock A.M. on election day to pre-canvass all ballots

              received prior to the meeting . . . One authorized

              representative of each candidate in an election and one

              representative from each political party shall be permitted to

              remain in the room in which the absentee ballots and mail-in

              ballots are pre-canvassed.


25 P.S. § 3146.8(g)(1.1) (emphasis added).

       Judge Fizzano Cannon noted that the parties offered competing interpretations of


the phrases “present,” and “to remain in the room,” with the Board arguing that these


terms require only that the observer be physically present in the room where the ballot


counting occurs; whereas the Campaign contended that these phrases required the


observer to be able to observe “meaningfully,” in addition to being physically present.


Judge Fizzano Cannon deemed each of these interpretations to be reasonable, and,


hence, concluded the statutory language was ambiguous.


       Because these provisions of the Election Code had as their purpose “maintaining


the integrity of the elective process in the Commonwealth,” the judge determined that the


language in question “imports upon . . . candidates’ representatives at least a modicum


of observational leeway to ascertain sufficient details of the canvassing process for the


purpose of intelligently assessing and/or reporting to the candidate represented the


details of the canvassing process.” Commonwealth Court Opinion, 11/5/20, at 5. In her


view, in order for representatives to fulfill their reporting duty to their candidate, they are


required to “have the opportunity to observe the processes upon which they are to report,”


id., and so mere physical presence of the observers was insufficient to guarantee this


“meaningful observation,” id. at 6.


       Judge Fizzano Cannon then found that, based on Attorney Mercer’s testimony


that, while he was physically present in the room where the pre-canvassing and




                                      [J-116-2020] - 6

canvassing processes were occurring, the distance from which he was observing those


processes, as well as the physical barriers in the room, prevented him from observing the


ballots being processed, the ballot envelopes, the secrecy envelopes, and any markings


on the secrecy envelopes, depriving him of the ability to actually observe those processes


“in any meaningful way.” Id. at 8. Consequently, the judge concluded that the trial court


erred as a matter of law in determining that the Board had complied with the Election


Code. The Board filed an emergency petition for allowance of appeal with our Court on


the morning of November 5, 2020.


       While this petition was pending, that same day, the Campaign filed a one-page


“Complaint and Motion for Emergency Injunction” in the United States District Court for


the Eastern District of Pennsylvania alleging, inter alia, that, in the aftermath of the


Commonwealth Court’s order in the instant case, the Board was violating the Election


Code by “refusing to allow any representatives and poll watchers for President Trump


and the Republican Party” to observe the counting of the ballots, and that the “counting


continues with no Republicans present.” See Complaint and Motion for Emergency


Injunction in Donald J. Trump For President, Inc. v. Philadelphia County Board of


Elections, No. 20-5533 (E.D. Pa. filed Nov. 5 2020) (hereinafter “Trump”) (attached as


Exhibit 2 to Board’s Brief), at ¶¶ 4 & 5.


       That case was assigned to District Court Judge Paul S. Diamond, who held a


hearing on the request for an emergency injunction at 5:30 p.m. on November 5, 2020.


During the hearing, counsel for the Campaign stated that the Campaign had “a nonzero


number of people in the room.” N.T. Hearing in Trump, 11/5/20 at 10. Judge Diamond,


seeking clarification of the meaning of the term “nonzero”, asked counsel for the


Campaign directly: “as a member of the bar of this Court, are people representing the





                                      [J-116-2020] - 7

Donald J. Trump for President [campaign], representing the plaintiff in that room?” Id. at


11. Counsel replied “yes.” Id.


       Because the District Court recognized that the petition for allowance of appeal filed


by the Board was pending before our Court, and that a decision from our Court on the


proper interpretation of the governing provisions of the Election Code would obviate the


need for it to rule on a question of state law, the District Court encouraged the parties to


reach an interim accommodation. Thus, the Board and the Campaign reached an


agreement, which was entered on the record in open court before Judge Diamond, under


which the crowd control barrier, which the Board had moved to within six feet of the first


row of tables in its employees’ work area as the result of the Commonwealth Court


decision, would remain in that position, and that all campaign observers would have equal


access to positions behind that barrier to watch the canvassing process. Id. at 38-40.


Judge Diamond deferred action on the merits of the underlying claims in the lawsuit, which


remains pending.


       Subsequently, on November 9, 2020, the Campaign filed yet another federal


lawsuit, in the United States District Court of the Middle District of Pennsylvania, seeking


to enjoin Pennsylvania from certifying the results of the November 3, 2020 General


Election or, alternatively, to exclude from the certified results “the tabulation of absentee


and mail-in and ballots for which [its] watchers were prevented from observing during the


pre-canvass and canvass in the County Election Boards.” Complaint for Declaratory and


Injunctive Relief in Donald J. Trump, Inc., et.al. v. Boockvar, No. 20-CV-02078 (M.D. Pa.


filed Nov. 9, 2020) (Exhibit 1 to Board’s Brief), at 84. This matter was assigned to District


Court Judge Matthew Brann who promptly issued an order setting an expedited schedule


for the Campaign to file motions for injunctive relief, and for the Board to file a responsive


motion thereto as well as a motion to dismiss. Notably, however, on November 15, 2020,





                                      [J-116-2020] - 8

the Campaign filed an amended complaint, removing all counts which were based on


canvassing access.      See First Amended Complaint Verified Complaint for Declaratory


and Injunctive Relief in Donald J. Trump, Inc., et.al. v. Boockvar, No. 20-CV-02078 (M.D.


Pa. filed Nov. 15, 2020).


       During the interim, on November 9, 2020, our Court granted the Board’s


emergency petition for allowance of appeal on the following issues:


                     1. Whether, as a matter of statutory construction

              pursuant to Pennsylvania law, the Commonwealth Court

              erred in reversing the trial court, which concluded that

              Petitioner City of Philadelphia Board of Elections’ regulations

              regarding observer and representative access complied with

              applicable Election Code requirements.


                    2. Whether the issue raised in Petitioner’s petition for

              allowance of appeal is moot.


                     3. If the issue raised in Petitioner’s petition for

              allowance of appeal is moot, does there remain a substantial

              question that is capable of repetition yet likely to evade review,

              and, thus, fall within an exception to the mootness doctrine.


In our order, we directed the Prothonotary to establish an expedited briefing schedule; we


also indicated that our grant order was not a stay of the Board’s canvassing process, which


is ongoing as of this writing.6


                                        II. Mootness





6Bryan Cutler, Speaker of the Pennsylvania House of Representatives, and Kerry

Benninghoff, Majority Leader of the Pennsylvania House of Representatives, have filed a

motion to intervene in this matter before our Court, as well as an accompanying brief.

While we deny this motion, we, nevertheless, accept the accompanying brief as an

amicus brief.





                                      [J-116-2020] - 9

      We begin by addressing whether the central legal issue in this matter – involving


an interpretation of the provisions of the Election Code establishing campaign access


requirements to ballot canvassing activities – is moot. See Stuckley v. Zoning Hearing


Board of Newtown Township, 79 A.3d 510, 516 (Pa. 2013) (we will generally not address


matters where there is no actual case or controversy between the parties). Both parties


and Intervenor argue that this case is not moot because the Board continues to count


ballots, and the Campaign continues to want its representatives to have maximal access


to the canvassing process.


       We conclude that, because ballots are still being canvassed by the Board at the


time of this writing, the legal question before us is not moot.7 In this regard, we note that


the interim agreement between the parties entered in the federal litigation being overseen


by Judge Diamond did not purport to resolve this question, and, indeed, Judge Diamond


expressly refrained from addressing it as he viewed it as purely a question of


Pennsylvania law which could be definitively resolved only by our Court. We will,


therefore, proceed to address the merits of the issue before us.


                           III. Access under the Election Code


                               A. Arguments of the Parties


        The Board argues that the Election Code granted to it the express statutory


authority “[t]o make and issue such rules, regulations and instructions, not inconsistent



7 Even were the ballot counting process to conclude prior to our final disposition of this

matter, we regard this issue before us as one which is capable of repetition but likely to

evade review, and therefore subject to our review under this exception to the mootness

doctrine. See Reuther v. Delaware County Bureau of Elections, 205 A.3d 302, 306 n.6

(Pa. 2019) (“Given the abbreviated time frame applicable to elections and the amount of

time that it takes for litigation to reach this Court, this exception is particularly applicable

when the question presented relates to an election dispute.”).



                                      [J-116-2020] - 10

with law, as they may deem necessary for the guidance of . . . elections officers and


electors.” Board Brief at 32 (quoting 25 P.S. § 2642(f)). Thus, it reasons that the access


rules it established for ballot processing in Philadelphia County – which were based on


its perceived need for protecting its workers’ safety from COVID-19 and physical assault


from those individuals who have contact with its workers; ensuring security of the ballots;


efficiently processing large numbers of ballots; protecting the privacy of voters; and


ensuring campaign access to the canvassing proceedings – are a valid exercise of its


authority. The Board maintains that these rules can be invalidated by a court only if they


are inconsistent with the Election Code.


         In determining whether its access rules are consistent with the Election Code, the


Board contends that only two provisions of the Code are relevant:              25 P.S. §


3146.8(g)(1.1) (specifying that “[o]ne authorized representative of each candidate in an


election and one representative from each political party shall be permitted to remain in


the room in which the absentee ballots and mail-in ballots are pre-canvassed”), and


Section 3146.8(g)(2) (providing that “[o]ne authorized representative of each candidate in


an election and one representative from each political party shall be permitted to remain


in the room in which the absentee ballots and mail-in ballots are canvassed.”).


         The Board rejects the relevance of Section 3146.8(b), given that it sets forth the


access requirements for “watchers”.8 The Board characterizes this provision as vestigial




8   Section 3146.8(b) provides:

               Watchers shall be permitted to be present when the envelopes containing

               official absentee ballots and mail-in ballots are opened and when such

               ballots are counted and recorded.





                                     [J-116-2020] - 11

in nature, reflecting the manner in which absentee ballots were handled prior to the 2006


and 2019 amendments to the Election Code which, respectively, added Section


3146.8(g)(2) and Section 3146.8(g)(1.1). Prior to those amendments, absentee ballots


received by a board of elections were taken to the electors’ local polling places to be


canvassed, and, thus, candidates’ designated poll watchers were permitted by Section


3146.8(b) to remain in the room at the polling place while the absentee ballots were


canvassed. According to the Board, Sections 3146.8(g)(1.1) and (2) established that all


mail-in and absentee ballots would be pre-canvassed and canvassed at a central location


designated by the board of elections; hence, poll watchers are not granted access to


these proceedings. Consequently, in the Board’s view, the rights of the Campaign’s


designated representative in this matter are delineated exclusively by Sections


3146.8(g)(1.1) and (2).


      The Board contends that these statutory provisions should be construed in


accordance with the plain meaning of their terms, i.e., requiring only that a candidate’s


authorized representative be permitted to remain in the room while the ballots are pre-


canvassed or canvassed. The Board notes that the Campaign’s representative was, in


fact, permitted to be in the room at the Convention Center where the ballots were being


pre-canvassed and canvassed at all times during this process, just as these provisions


require. Relatedly, the Board contends that, even if Section 3146.8(b) of the Election


Code were deemed to be applicable herein, its requirements were met as well, given that


the Campaign’s representative was present at all times when absentee and mail-in ballots


were opened, counted, and recorded.





                                   [J-116-2020] - 12

      Moreover, the Board emphasizes that, contrary to the Commonwealth Court’s


conclusion, the evidence of record indicated that Attorney Mercer could see every portion


of the pre-canvassing and canvassing process and, as a result, could confirm that the


only ballots which were scanned and tabulated were those which had been removed from


secrecy envelopes, and that the outer ballot envelope had been inspected for sufficiency


and then sorted.


       The Board points out that Attorney Mercer’s complaints about being unable to read


the actual declarations on the ballot envelopes, or his inability to see whether the secrecy


envelopes contained improper markings, were relevant only to his desire to determine if


the ballots met the requirements of the Election Code. However, the Board stresses that


our Court very recently, in In re: November 3, 2020 General Election, ___ A.3d.____,


2020 WL 6252803 (Pa. Oct. 23, 2020), interpreted the Election Code as precluding time-


of-canvassing challenges by campaign representatives; hence, the Board maintains that


a candidate’s representative has no need for the information about which Attorney Mercer


complains, as the representative cannot lodge a challenge based on it. Most importantly,


however, from the Board’s perspective, there is nothing in the statutory language of


Sections 3146.8(g)(1.1) and (2) which grants a candidate’s representative an unqualified


right of access to that kind of information during the pre-canvassing and canvassing


process.9


       The Campaign responds that “the plain meaning and purpose of the statutes at


issue is to provide the public the opportunity to observe and vet the canvassing and



9 Intervenor’s brief endorses the Board’s contention that the Commonwealth Court erred

in its interpretation of the relevant provisions of the Election Code, but it does not develop

a separate argument to support this claim.



                                     [J-116-2020] - 13

tabulation of the vote.” Campaign Brief at 17. The Campaign reasons that, as the


Election Code gives a candidate’s representative the right to be “present” and to “remain


in the room” during the canvassing of absentee and mail-in ballots, citing 25 P.S. § 2650


(“Every candidate shall be entitled to be present in person or by attorney in fact duly


authorized, and to participate in any proceeding before any county board whenever any


matters which may affect his candidacy are being heard, including any computation and


canvassing of returns of any primary or election or recount of ballots or recanvass of


voting machines affecting his candidacy.” (emphasis added)); id. § 3146.8(b) (allowing


watchers to “be present when the envelopes containing official absentee ballots and mail-


in ballots are opened and when such ballots are counted and recorded” (emphasis


added)); id. § 3146.8(g)(2) (providing that an “authorized representative of each candidate


in an election and one representative from each political party shall be permitted to remain


in the room in which the absentee ballots and mail-in ballots are canvassed” (emphasis


added)), these terms should be broadly interpreted consistent with their overall purpose


of allowing public observation of the vote and the counting thereof. The Campaign rejects


the Board’s interpretation as “a hyper-technical focus on the words themselves,” that


disregards this purpose. Campaign Brief at 19.


       The Campaign argues that, under the Board’s interpretation, merely being in the


far end of a room like the Convention Center, which is as large as a football field, would


be sufficient to comport with these requirements. This, in the Campaign’s view, “defies


logic and reasonableness.” Id. at 20. The Campaign contends that the Board’s setup –


imposing a barrier and having some tables in the area over a hundred feet away from the


edge of the security fence – effectively deprived its representative of the ability to be truly





                                      [J-116-2020] - 14

present, and effectively eliminates the representative’s ability to perform his or her role of


ensuring openness and transparency in the electoral process.


       The Campaign denies that it was seeking the right to challenge mail-in or absentee


ballots at the time of canvassing; rather, it claims that it was merely seeking the right to


observe “in a meaningful way” the Board’s conduct of the electoral process so that it could


“challenge that process through appropriate litigation.” Campaign Brief at 22 (emphasis


omitted). The Campaign asserts its ability to do so is vital given that these canvassing


activities have a high prospect of human error.


                                         B. Analysis


       As this issue presents a question of statutory interpretation under Pennsylvania


law, our standard of review is de novo, and our scope of review is plenary. Danganan v.


Guardian Protection Services, 645 Pa. 181, 179 A.3d 9, 15 (2018). Our objective is,


therefore, to ascertain and effectuate the intent of the General Assembly. Id.; see also


1 Pa.C.S. § 1921(a). It is well established that “[t]he best indication of legislative intent is


the plain language of the statute.” Crown Castle NG East v. Pennsylvania Public Utility


Commission, 234 A.3d 665, 674 (Pa. 2020). In ascertaining the plain meaning of statutory


language, we consider it in context and give words and phrases their “common and


approved usage.” Commonwealth by Shapiro v. Golden Gate National Senior Care, 194


A.3d 1010, 1027-28 (Pa. 2017). When the words of a statute are free and clear of all


ambiguity, they are the best indicator of legislative intent; hence, in such circumstances,


“we cannot disregard the letter of the statute under the pretext of pursuing its spirit.”


Fletcher v. Pennsylvania Property & Casualty Insurance Guarantee Association, 603 Pa.


452, 985 A.2d 678, 684 (2009) (citing 1 Pa.C.S. § 1921(b)). Consistent with these





                                      [J-116-2020] - 15

principles, when interpreting a statute “we must listen attentively to what the statute says,


but also to what it does not say.”       Discovery Charter School v. School District of


Philadelphia, 166 A.3d 304, 321 (Pa. 2017). Moreover, regarding the factual findings of


the trial court, we must defer to those findings if they are supported by the evidence.


Gentex Corp. v. WCAB (Morack), 23 A.3d 528, 534 (Pa. 2011); Generette v. Donegal


Mutual Insurance Company, 957 A.2d 1180, 1189 (Pa. 2008).


       As a threshold matter, given the specific issue in this case — the degree of access


required by the Election Code for an “authorized representative” of a candidate to the pre-


canvassing and canvassing proceedings of an election board — we regard Sections


3146.8(g)(1.1) and (2) of the Code to be the governing statutory provisions, as they


directly set forth the rights of such individuals. Section 2650, offered by the Campaign,


by its plain terms is inapplicable, as we are addressing the right of access of a campaign’s


representative to canvassing proceedings, not a candidate or his “attorney in fact”.


Section 3146.8(b) is likewise not controlling, given that it applies only to the right of


“watchers” to be present while ballots are canvassed.         The Election Code contains


specific certification requirements for an individual to be appointed as a “watcher,” see 25


P.S. § 2687 (“Appointment of watchers”), and there is no evidence of record establishing


that Attorney Mercer met these requirements, and, critically, he did not identify himself as


a watcher, but rather as “one of the representatives designated by the Trump campaign .


. . to observe the pre-canvass.” N.T. Hearing, 11/3/20, at 20-21.


       As recited above, Section 3146.8(g)(1.1) requires only that an authorized


representative “be permitted to remain in the room in which the absentee ballots and mail-


in ballots are pre-canvassed,” 25 P.S. § 3146.8(g)(1.1) (emphasis added), and Section





                                     [J-116-2020] - 16

3146.8(g)(2) likewise mandates merely that an authorized representative “be permitted


to remain in the room in which the absentee ballots and mail-in ballots are canvassed.”


25 P.S. § 3146.8(g)(2) (emphasis added).          While this language contemplates an


opportunity to broadly observe the mechanics of the canvassing process, we note that


these provisions do not set a minimum distance between authorized representatives and


canvassing activities occurring while they “remain in the room.” The General Assembly,


had it so desired, could have easily established such parameters; however, it did not. It


would be improper for this Court to judicially rewrite the statute by imposing distance


requirements where the legislature has, in the exercise of its policy judgment, seen fit not


to do so. See Sivick v. State Ethics Commission, ___ A.3d ___. 2020 WL 5823822, at


*10 (Pa. filed Oct. 1, 2020) (“It is axiomatic that we may not add statutory language where


we find the extant language somehow lacking.”).


       Rather, we deem the absence of proximity parameters to reflect the legislature’s


deliberate choice to leave such matters to the informed discretion of county boards of


elections, who are empowered by Section 2642(f) of the Election Code “[t]o make and


issue such rules, regulations and instructions, not inconsistent with law, as they may


deem necessary for the guidance of . . . elections officers.” 25 P.S. § 2642(f).


       In the case at bar, the Board promulgated regulations governing the locations in


which authorized representatives were permitted to stand and move about while


observing the pre-canvassing and canvassing process. The Board’s averments that it


fashioned these rules based on its careful consideration of how it could best protect the


security and privacy of voters’ ballots, as well as safeguard its employees and others who


would be present during a pandemic for the pre-canvassing and canvassing process,





                                     [J-116-2020] - 17

while, at the same time, ensuring that the ballots would be counted in the most expeditious


manner possible, were undisputed by the Campaign. We discern no basis for the


Commonwealth Court to have invalidated these rules and impose arbitrary distance


requirements.


      Significantly, as to any opportunity to observe the mechanics of the canvassing


process, the evidence of record, provided through the Campaign’s own witness, Attorney


Mercer, whom the trial court deemed to be credible, indicates that the Board’s rules


regarding where campaign representatives could remain in the room to view the pre-


canvassing and canvassing process did not deprive Attorney Mercer of the ability “to


actually observe the . . . process in any meaningful way,” as the Commonwealth Court


concluded, Commonwealth Court Opinion, 11/5/20, at 8, and the Campaign presently


argues. According to Attorney Mercer’s candid testimony, which the trial court accepted


as credible, from his vantage point, he could view the entirety of the pre-canvassing and


canvassing process. Clearly, then, Attorney Mercer had the opportunity to observe the


mechanics of the canvassing process. Specifically, Attorney Mercer witnessed Board


employees inspecting the back of ballot envelopes containing the voter’s declaration,


before sending them on for processing; witnessed ballots being removed from their


secrecy envelopes, and naked ballots which had been delivered to the Board without a


secrecy envelope being segregated from ballots which arrived within such envelopes;


saw that the ballot processing methods utilized by the Board were not destroying the


ballot envelopes containing the voter’s declaration; and perceived that the ballot secrecy


envelopes were being preserved during their processing. See N.T. Hearing, 11/3/20, at


20-21, 27, 30, 38; Trial Court Order, 11/3/20 (“The [Campaign’s] witness provided copious





                                    [J-116-2020] - 18

testimony as to his ability to observe the opening and sorting of ballots.”). Although


Attorney Mercer related that he could not view the actual declarations on the ballot


envelopes, nor examine individual secrecy envelopes for improper markings, as the trial


court properly determined, this information would only be necessary if he were making


challenges to individual ballots during the pre-canvassing and canvassing process, which


appeared to be his primary motivation in seeking such information. See id. at 37-38; Trial


Court Order, 11/3/20 (“His concerns pertained to his inability to observe the writing on the


outside of the ballots. Given that observers are directed only to observe and not to audit


ballots, we conclude, based on the witness’s testimony, that the Board of Elections has


complied with the observation requirements under 25 P.S. [§] 3146.8.”). As discussed


above, such challenges are not permissible under the Election Code. Thus, as found by


the trial court, Attorney Mercer was able to appropriately observe that the Board’s


employees were performing their duties under the Election Code.


       In sum, we conclude the Board did not act contrary to law in fashioning its


regulations governing the positioning of candidate representatives during the pre-


canvassing and canvassing process, as the Election Code does not specify minimum


distance parameters for the location of such representatives. Critically, we find the


Board’s regulations as applied herein were reasonable in that they allowed candidate


representatives to observe the Board conducting its activities as prescribed under the


Election Code.    Accordingly, we determine the Commonwealth Court’s order was


erroneous. Thus, we vacate that order, and reinstate the trial court’s order.


       Jurisdiction relinquished.


       Justices Baer, Donohue, Dougherty and Wecht join the opinion.





                                     [J-116-2020] - 19

Chief Justice Saylor files a dissenting opinion in which Justice Mundy joins.


Justice Mundy files a dissenting opinion.





                             [J-116-2020] - 20

APPENDIX C

                                 [J-113-2020]

                    IN THE SUPREME COURT OF PENNSYLVANIA

                                MIDDLE DISTRICT


     SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.



    IN RE: NOVEMBER 3, 2020 GENERAL               : No. 149 MM 2020

    ELECTION                                      :

                                                  :

                                                  :

    PETITION OF: KATHY BOOCKVAR,                  : SUBMITTED: October 16, 2020

    SECRETARY OF THE COMMONWEALTH                 :

    OF PENNSYLVANIA                               :



                                         OPINION



JUSTICE TODD                                             DECIDED: October 23, 2020


        On October 14, 2020, our Court granted the application of the Secretary of the


Commonwealth, Kathy Boockvar (“Secretary”), to assume King’s Bench jurisdiction1 and


consider her request for declaratory relief, limited to answering the following question:


“Whether the Election Code[2] authorizes or requires county election boards to reject voted


absentee or mail-in ballots during pre-canvassing and canvassing[3] based on signature



1 As we have recently explained, our Court’s King’s Bench jurisdiction is derived from

Article V, § 2 of the Pennsylvania Constitution and 42 Pa.C.S. § 502, and “is generally

invoked to review an issue 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.” Friends of Danny DeVito v. Wolf, 227 A.3d 872, 884 (Pa. 2020).

We may exercise this power of review even where, as here, no dispute is pending in a

lower court of this Commonwealth. Id.

2 The Pennsylvania Election Code, 25 P.S. §§ 2600-3591 (“Election Code” or “Code”).

3 As defined by the Election Code, the process of “pre-canvassing” is “the inspection and


opening of all envelopes containing official absentee ballots or mail-in ballots, the removal

of such ballots from the envelopes and the counting, computing and tallying of the votes

reflected on the ballots. The term does not include the recording or publishing of the votes

reflected on the ballots.” 25 P.S. § 2602. The process of “canvassing” is “the gathering

analysis where there are alleged or perceived signature variances?” In Re: November 3,


2020 General Election, Petition of Kathy Boockvar, Secretary of the Commonwealth of


Pennsylvania, 149 MM 2020, 2020 WL 6110774 (Pa. filed Oct. 14, 2020) (order). For the


reasons that follow, we conclude that the Election Code does not authorize or require


county election boards to reject absentee or mail-in ballots during the canvassing process


based on an analysis of a voter’s signature on the “declaration”4 contained on the official


ballot return envelope for the absentee or mail-in ballot.        We, therefore, grant the


Secretary’s petition for declarative relief, and direct the county boards of elections not to


reject absentee or mail-in ballots for counting, computing, and tallying based on signature


comparisons conducted by county election officials or employees, or as the result of third-


party challenges based on such comparisons.


                             I. Facts and Procedural History


       As our Court has recently observed, “[i]n October 2019, the General Assembly of


the Commonwealth of Pennsylvania enacted Act 77 of 2019,[5] which, inter alia, created


for the first time in Pennsylvania the opportunity for all qualified electors to vote by mail,


without requiring the electors to demonstrate their absence from the voting district on





of ballots after the final pre-canvass meeting and the counting, computing and tallying of

the votes reflected on the ballots.” Id. § 2602. At times herein, we refer to these two

stages broadly as “canvassing.”

4 The voter’s declaration is a pre-printed statement required to appear on the ballot return


envelope containing a voter’s absentee or mail-in ballot declaring: that the voter is

qualified to vote the ballot enclosed in the envelope, and that the voter did not already

vote in the election for which the ballot was issued. 25 P.S. § 3146.2. The declaration

also contains lines for the voter to print his or her name and address, a space for the voter

to sign his or her name or make a mark if unable to sign, and a space for the voter to

enter the date on which he or she executed the declaration. Id. § 3146.6.

5 Act of October 31, 2019, P.L. 552, No. 77 (hereinafter, “Act 77”).





                                      [J-113-2020] - 2

Election Day.” Pennsylvania Democratic Party v. Boockvar, 2020 WL 5554644, at *1 (Pa.


Sept. 17, 2020). Subsequently, in March 2020, the legislature made further revisions to


the Election Code via the passage of Act 12 of 2020,6 which, among other things,


authorized for the June 2, 2020 primary election,7 and for all subsequent elections, the


mail-in voting procedures established by Act 77.8


      Because of the substantial nature of the recent Code amendments, as well as the


anticipated massive increase in the number of mail-in and absentee ballots which county


boards of elections would be confronted with due to the COVID-19 pandemic, in order to


ensure that the procedures set forth in the Election Code regarding pre-canvassing and


canvassing of absentee and mail-in ballots would be uniformly applied and implemented


by county boards of elections, Secretary Boockvar issued two written guidance


documents for those boards to follow when canvassing such ballots.


      In the first guidance document issued on September 11, 2020 to all county boards,


Secretary Boockvar set forth the procedure the boards were to follow upon receipt of an


absentee or mail-in ballot. This guidance directed the county boards to examine the


declaration contained on the ballot return envelope containing the absentee or mail-in


ballot. It further directed the county board to “compare the information on the outer


envelope, i.e., the voter’s name and address, with the information contained in the


‘Registered Absentee and Mail-In Voters File, the absentee voter’s list and/or the Military


Veterans’ and Emergency Civilians Absentee Voters File.’” Pennsylvania Department of


State, Guidance Concerning Examination of Absentee and Mail-In Ballot Return




6 Act of March 27, 2020, P.L. 41, No. 12 (hereinafter, “Act 12”).

7 This election was rescheduled from May 17, 2020 due to the COVID-19 pandemic.

8 We collectively refer to Act 77 and Act 12 as the “recent Code amendments.”




                                     [J-113-2020] - 3

Envelopes,             9/11/20,            at            3,           available            at


https://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/Examination


%20of%20Absentee%20and%20Mail-In%20Ballot%20Return%20Envelopes.pdf.                     The


Secretary advised that, if the declaration is signed and the county board is satisfied that


the declaration is sufficient, then the absentee or mail-in ballot should be approved for


canvassing unless it is challenged in accordance with the Election Code. The Secretary


specifically cautioned the county boards of elections in this regard 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.” Id.


       Subsequent to our Court’s decision in Boockvar, supra, the Secretary issued


supplemental guidance to all county boards concerning, inter alia, matters addressed by


our decision – i.e., the establishment by county boards of satellite offices, provision of


drop boxes for voters to return absentee and mail-in ballots, and the mandatory


requirements that such ballots be returned only by the voter and be enclosed in a secrecy


envelope. In this supplemental guidance, the Secretary also directed the county boards


to set aside ballots which were returned to them without the declaration envelope having


been “filled out, dated and signed.”      Pennsylvania Department of State, Guidance


Concerning Civilian Absentee And Mail‐In Ballot Procedures, 9/28/20, at 9, available at


https://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/DOS%20Gui


dance%20Civilian%20Absentee%20and%20Mail-In%20Ballot%20Procedures.pdf. This


guidance buttressed her earlier instruction, reiterating that “[t]he Election Code does not


permit county election officials to reject applications or voted ballots based solely on





                                      [J-113-2020] - 4

signature analysis. . . . No challenges may be made to mail‐in and absentee ballots at


any time based on signature analysis.” Id.


       Meanwhile, Intervenors in the instant matter, Donald J. Trump for President, Inc.,


and the Republican National Committee, filed suit in the United States District Court for


the Western District against the Secretary over several election issues.9 See Donald J.


Trump for President, Inc. v. Boockvar, No. 2:20-cv-966 (W.D. Pa.). In response to the


Secretary’s guidance to the county boards, on September 23, 2020, Intervenors filed an


amended complaint in that matter challenging Secretary Boockvar’s interpretation of the


Election Code as precluding county boards from rejecting absentee and mail-in ballots


based on a signature comparison.


       On October 1, 2020, Intervenors filed a motion for summary judgment in the federal


action alleging, inter alia, that the Secretary’s guidance was contrary to the Election Code


and, thus, constituted an infringement on the “fundamental right to vote and to a free and


fair election.” Plaintiff’s Memorandum of Law in Support of Motion for Summary Judgment


filed in Donald J. Trump for President, Inc. v. Boockvar, No. 2:20-cv-966 (W.D. Pa.)


(Exhibit D to Secretary’s Application for Extraordinary Relief), at 15-19, 45-50.


Intervenors sought, as relief, the entry of an injunction directing the Secretary to withdraw


her guidance, and, also, to require county boards of elections to compare signatures on




9This lawsuit challenged, as an alleged violation of the due process and equal protection

guarantees of the 14th Amendment to the United States Constitution, inter alia, the

Secretary’s allowance in the upcoming election of the use of drop boxes, satellite election

offices for the collection of absentee and mail-in ballots, and the counting of ballots which

were returned without a secrecy envelope, and the requirement in the Election Code that

poll watchers reside in the county in which they sought to serve in this capacity.





                                      [J-113-2020] - 5

applications for absentee and mail-in ballots, and the ballots themselves, with the voter’s


permanent registration record. Id.


       The Honorable J. Nicholas Ranjan denied Intervenors’ motion for summary


judgment, and granted judgment in favor of the Secretary. Donald J. Trump for President,


Inc. v. Boockvar, 2020 WL 5997680 (W.D. Pa. filed Oct. 10, 2020) (hereinafter “Trump”).


Relevant to the present dispute, in his scholarly and comprehensive supporting opinion,


Judge Ranjan concluded that “the plain language of the Election Code imposes no


requirement for signature comparison for mail-in and absentee ballots and applications.”


Trump at *53. In reaching this conclusion, Judge Ranjan analyzed the provisions of the


Election Code governing pre-canvassing and canvassing of absentee and mail-in votes


returned by the elector, set forth in Section 3146.8(g), which provides:


       § 3146.8. Canvassing of official absentee ballots and mail-in ballots


                                                 * * *

              (g)(1)(i) An absentee ballot cast by any absentee elector as

              defined in section 1301(a), (b), (c), (d), (e), (f), (g) and (h) shall

              be canvassed in accordance with this subsection if the ballot

              is cast, submitted and received in accordance with the

              provisions of 25 Pa.C.S. Ch. 35 (relating to uniform military

              and overseas voters).


                 (ii) An absentee ballot cast by any absentee elector as

                 defined in section 1301(i), (j), (k), (l), (m) and (n), an

                 absentee ballot under section 1302(a.3) or a mail-in ballot

                 cast by a mail-in elector shall be canvassed in accordance

                 with this subsection if the absentee ballot or mail-in ballot

                 is received in the office of the county board of elections no

                 later than eight o'clock P.M. on the day of the primary or

                 election.


              (1.1) The county board of elections shall meet no earlier than

              seven o'clock A.M. on election day to pre-canvass all ballots

              received prior to the meeting. A county board of elections



                                       [J-113-2020] - 6

shall provide at least forty-eight hours' notice of a pre-canvass

meeting by publicly posting a notice of a pre-canvass meeting

on its publicly accessible Internet website. One authorized

representative of each candidate in an election and one

representative from each political party shall be permitted to

remain in the room in which the absentee ballots and mail-in

ballots are pre-canvassed. No person observing, attending or

participating in a pre-canvass meeting may disclose the

results of any portion of any pre-canvass meeting prior to the

close of the polls.


(2) The county board of elections shall meet no earlier than

the close of polls on the day of the election and no later than

the third day following the election to begin canvassing

absentee ballots and mail-in ballots not included in the pre-

canvass meeting. The meeting under this paragraph shall

continue until all absentee ballots and mail-in ballots received

prior to the close of the polls have been canvassed. The

county board of elections shall not record or publish any votes

reflected on the ballots prior to the close of the polls. The

canvass process shall continue through the eighth day

following the election for valid military-overseas ballots timely

received under 25 Pa.C.S. § 3511 (relating to receipt of voted

ballot). A county board of elections shall provide at least forty-

eight hours' notice of a canvass meeting by publicly posting a

notice on its publicly accessible Internet website. One

authorized representative of each candidate in an election

and one representative from each political party shall be

permitted to remain in the room in which the absentee ballots

and mail-in ballots are canvassed.


(3) When the county board meets to pre-canvass or canvass

absentee ballots and mail-in ballots under paragraphs (1),

(1.1) and (2), the board shall examine the declaration on the

envelope of each ballot not set aside under subsection (d) and

shall compare the information thereon with that contained in

the “Registered Absentee and Mail-in Voters File,” the

absentee voters' list and/or the “Military Veterans and

Emergency Civilians Absentee Voters File,” whichever is

applicable. If the county board has verified the proof of

identification as required under this act and is satisfied that



                        [J-113-2020] - 7

the declaration is sufficient and the information contained in

the “Registered Absentee and Mail-in Voters File,” the

absentee voters' list and/or the “Military Veterans and

Emergency Civilians Absentee Voters File” verifies his right to

vote, the county board shall provide a list of the names of

electors whose absentee ballots or mail-in ballots are to be

pre-canvassed or canvassed.


(4) All absentee ballots which have not been challenged under

section 1302.2(c) and all mail-in ballots which have not been

challenged under section 1302.2-D(a)(2) and that have been

verified under paragraph (3) shall be counted and included

with the returns of the applicable election district as follows:


   (i) The county board shall open the envelope of every

   unchallenged absentee elector and mail-in elector in such

   manner as not to destroy the declaration executed

   thereon.


   (ii) If any of the envelopes on which are printed, stamped

   or endorsed the words “Official Election Ballot” contain any

   text, mark or symbol which reveals the identity of the

   elector, the elector's political affiliation or the elector's

   candidate preference, the envelopes and the ballots

   contained therein shall be set aside and declared void.


   (iii) The county board shall then break the seals of such

   envelopes, remove the ballots and count, compute and

   tally the votes.


   (iv) Following the close of the polls, the county board shall

   record and publish the votes reflected on the ballots.


(5) Ballots received whose applications have been challenged

and ballots which have been challenged shall be placed

unopened in a secure, safe and sealed container in the

custody of the county board until it shall fix a time and place

for a formal hearing of all such challenges, and notice shall be

given where possible to all absentee electors and mail-in

electors thus challenged and to every individual who made a

challenge. The time for the hearing shall not be later than

seven (7) days after the deadline for all challenges to be filed.

On the day fixed for said hearing, the county board shall



                       [J-113-2020] - 8

             proceed without delay to hear said challenges, and, in hearing

              the testimony, the county board shall not be bound by the

              Pennsylvania Rules of Evidence. The testimony presented

              shall be stenographically recorded and made part of the

              record of the hearing.


              (6) The decision of the county board in upholding or

              dismissing any challenge may be reviewed by the court of

              common pleas of the county upon a petition filed by any

              person aggrieved by the decision of the county board. The

              appeal shall be taken, within two (2) days after the decision

              was made, whether the decision was reduced to writing or not,

              to the court of common pleas setting forth the objections to

              the county board's decision and praying for an order reversing

              the decision.


              (7) Pending the final determination of all appeals, the county

              board shall suspend any action in canvassing and computing

              all challenged ballots received under this subsection

              irrespective of whether or not appeal was taken from the

              county board's decision. Upon completion of the computation

              of the returns of the county, the votes cast upon the

              challenged official absentee ballots that have been finally

              determined to be valid shall be added to the other votes cast

              within the county.


25 P.S. § 3146.8(g) (footnotes omitted).


       Judge Ranjan discerned nothing in the text of these provisions which requires


county boards of elections to “verify” the signatures on mail-in and absentee ballots – that


is, to examine the signatures to determine whether or not they were authentic, Trump at


*53, and thus rejected Intervenors’ argument that Section 3146.8(g)(3) requires county


boards of elections to engage in signature comparison and verification. In Judge Ranjan’s


view, the county board of elections is required under this statutory provision to verify only


the proof of the voter’s identification by examining the voter’s driver’s license number, the


last four digits of his or her social security number, or other specifically approved form of




                                      [J-113-2020] - 9

identification which is required by Section 2602(z.5) of the Election Code.10 Indeed,


Judge Ranjan noted that nowhere in Section 3146.8(g)(3) does the term “signature”


appear. Trump, at *55.





10   This statutory section provides:

                 The words “proof of identification” shall mean:

                 (1) In the case of an elector who has a religious objection to

                 being photographed, a valid-without-photo driver's license or

                 a valid-without-photo identification card issued by the

                 Department of Transportation.

                 (2) For an elector who appears to vote under section 1210, a

                 document that:

                     (i) shows the name of the individual to whom the document

                     was issued and the name substantially conforms to the

                     name of the individual as it appears in the district register;

                     (ii) shows a photograph of the individual to whom the

                     document was issued;

                     (iii) includes an expiration date and is not expired, except:

                           (A) for a document issued by the Department of

                           Transportation which is not more than twelve (12)

                           months past the expiration date; or

                           (B) in the case of a document from an agency of the

                           Armed forces of the United States or their reserve

                           components, including the Pennsylvania National

                           Guard, establishing that the elector is a current

                           member of or a veteran of the United States Armed

                           Forces or National Guard which does not designate a

                           specific date on which the document expires, but

                           includes a designation that the expiration date is

                           indefinite; and

                     (iv) was issued by one of the following:

                           (A) The United States Government.

                           (B) The Commonwealth of Pennsylvania.

                           (C) A municipality of this Commonwealth to an

                           employee of that municipality.

                           (D) An accredited Pennsylvania public or private

                           institution of higher learning.

                           (E) A Pennsylvania care facility.

                 (3) For a qualified absentee elector under section 1301 or a

                 qualified mail-in elector under section 1301-D:




                                        [J-113-2020] - 10

      Judge Ranjan found that, while 25 P.S. §§ 3146.6(a) and 3150.16(a) require a


voter submitting an absentee or mail-in ballot to “fill out and sign the declaration” printed


on the ballot return envelope, the county board’s duty under these sections is merely to


examine the declaration and determine if these requirements have been comported with.


Critically, in his view, this language did not require that a county board inquire into the


authenticity of the signature; rather, the county boards were required to determine only


that a voter had supplied his signature in the declaration.


       Judge Ranjan observed that, by contrast, other provisions of the Election Code


such as those governing in-person voting, see 25 P.S. § 3050(a.3)(2), allow a vote to be


challenged where a voter’s signature on the voting certificate executed at the polls is


deemed not to be authentic when compared to the signature recorded in the district


register of voters. Likewise, other sections of the Election Code allow boards of elections


to reject provisional ballots based on an election official’s conclusion that the voter’s


signature on the ballot envelope is not authentic, see 25 P.S. § 3050(a.4)(5)(i)-(ii), and


allow election officials to reject nominating petitions based on the official’s conclusion that





                (i) in the case of an elector who has been issued a current

                and valid driver's license, the elector's driver's license

                number;

                (ii) in the case of an elector who has not been issued a

                current and valid driver's license, the last four digits of the

                elector's Social Security number;

                (iii) in the case of an elector who has a religious objection

                to being photographed, a copy of a document that satisfies

                paragraph (1); or

                (iv) in the case of an elector who has not been issued a

                current and valid driver's license or Social Security

                number, a copy of a document that satisfies paragraph (2).

25 P.S. § 2602(z.5) (footnotes omitted).




                                      [J-113-2020] - 11

the signatures contained therein are not authentic, see 25 P.S. § 2936. From Judge


Ranjan’s perspective, these provisions of the Code demonstrated that the Pennsylvania


General Assembly knew how to require signature verification when they so desired, and


the fact they did not do so in Section 3146.8(g)(3) indicated that signature verification was


not a requirement for absentee or mail-in ballots.


       Judge Ranjan also considered the effect of interpreting Section 3146.8(g)(3) to


require signature comparison. In his view, doing so would create a risk that voters would


be disenfranchised, given that mail-in and absentee ballots are kept securely stored until


election day when the pre-canvassing process begins, and the Election Code contains


no requirement that voters whose ballots are deemed inadequately verified be apprised


of this fact. Thus, unlike in-person voters, mail-in or absentee voters are not provided


any opportunity to cure perceived defects in a timely manner.11


       In the instant matter, on October 4, 2020, just before Judge Ranjan issued his


decision, Secretary Boockvar filed with this Court an application seeking invocation of our


King’s Bench authority, and seeking, inter alia, a declaration that, under the Election


Code, county boards of elections are precluded from rejecting absentee or mail-in ballots


at canvassing based upon signature comparisons, in accordance with her guidance to


the county boards. Thereafter, the Secretary submitted a letter to our Court pursuant to


Pa.R.A.P. 2501 apprising us of Judge Ranjan’s decision. In this letter, the Secretary





11  Judge Ranjan additionally rejected Intervenors’ claims that a lack of signature

comparison requirements violated the guarantees of the United States Constitution to

substantive due process and equal protection. Because the present issue which we have

accepted for our King’s Bench review concerns only a pure question of state law involving

interpretation of our Commonwealth’s Election Code, we need not discuss Judge

Ranjan’s resolution of those claims.


                                     [J-113-2020] - 12

noted that Judge Ranjan’s opinion concluded that her guidance to the county boards of


elections was “uniform and non-discriminatory” and “informs the counties of the current


state of the law as it relates to signature comparison.” Secretary’s Letter to Supreme


Court Prothonotary, 10/11/20, at 2 (quoting Trump at *61). Nevertheless, recognizing


that our Court is the final word on the interpretation of Pennsylvania law, the Secretary


maintained her request for our Court to grant King’s Bench review. Id. (“[T]he district


court’s opinion, while timely and persuasive, is not authoritative. Only this Court can


render the ultimate determination concerning Pennsylvania law.”).


      As indicated above, our Court granted the Secretary’s application for invocation of


our King’s Bench authority because we determined the Secretary presented an issue of


public importance that required our immediate intervention. See supra note 1. In our


order granting review, we also granted the petitions to intervene of Donald J. Trump for


President Inc., the Republican Party of Pennsylvania, the Republican National


Committee, and the National Republican Congressional Committee (“Intervenors”). We


denied the petitions for intervention of 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.


However, these parties were granted leave to file amicus briefs.12 We additionally granted


leave for the Brennan Center for Justice, the Urban League of Pittsburgh, the Bucks,





12 After the filing deadline set in our order, Senate President Pro Tempore Scarnati and

Senate Majority Leader Corman filed an application for leave to file an amicus brief nunc

pro tunc, alleging that technical difficulties with our electronic filing system prevented

timely filing their amicus brief. We grant the application.


                                    [J-113-2020] - 13

Chester, Montgomery and Philadelphia County Boards of Elections, and the


Pennsylvania Alliance for Retired Persons to file amicus briefs.


                               II. Arguments of the Parties


       The Secretary first highlights the fact that, when a voter applies for a mail-in ballot,


Sections 3150.12(a) and (b)(1)-(2) of the Election Code require the voter to fill out an


application form listing his name, address, date of birth, voting district, and the length of


time he has resided in the voting district.13 According to the Secretary, the paper version


of that form also requires a voter to sign a declaration that he or she is eligible to vote in


the election for which he is requesting a ballot.14 Upon receipt of this application, a county


board of elections confirms whether the applicant is qualified to receive a mail-in ballot


under Section 3250.12b by verifying the proof of identification supplied with the


application, such as the voter’s drivers’ license number or the last four digits of the voter’s


social security number, and the county board compares that information with the voter’s


permanent registration card. The Secretary contends that this comparison process is all


that is required by the Election Code, and that there is no provision therein which requires


county boards of elections to compare signatures for purposes of verification, which is


why, the Secretary points out, the application can be completed and submitted


electronically through a Commonwealth website.


       Once this verification is completed, the Secretary proffers that the Code requires


the application be marked approved and a ballot issued. See 25 P.S. § 3150.12b(a)(1).




13 The Secretary argues that absentee ballot application and approval procedures set

forth in 25 P.S. §§ 3146.2 and 3146.2b are similar and, hence, for the sake of

convenience, discusses only the mail-in balloting provisions.

14 This form is available on the Secretary’s website at https://www.votespa.com/Register-


to-Vote/Documents/PADOS_MailInApplication.pdf.


                                      [J-113-2020] - 14

The Secretary emphasizes that the only permissible challenge to the ballot application


under Section 3150.12b(a)(2) is that the applicant was not a qualified elector.


       With regard to the pre-canvassing and canvassing procedures for absentee and


mail-in ballots set forth in Section 3146.8 of the Election Code,15 the Secretary notes that


the pre-canvassing process, which entails opening the ballot return envelopes, removing


the ballots, and counting, computing and tallying them, can begin no earlier than 7:00


a.m. on election day. When the return envelope is opened during that process, according


to the Secretary, the only examination which the county board may conduct under Section


3146.8(g)(3) and 3146.2c(c)16 is to compare “the ‘information’ on the envelope—i.e., the




15 Section 3146.8, by its title, “Canvassing of official absentee ballots and mail-in ballots,”

and its plain terms, governs both the pre-canvassing and canvassing of absentee and

mail-in ballots.

16 Section 3146.2c(c) provides:


               Not less than five days preceding the election, the chief clerk

               shall prepare a list for each election district showing the

               names and post office addresses of all voting residents

               thereof to whom official absentee or mail-in ballots shall have

               been issued. Each such list shall be prepared in duplicate,

               shall be headed “Persons in (give identity of election district)

               to whom absentee or mail-in ballots have been issued for the

               election of (date of election),” and shall be signed by him not

               less than four days preceding the election. He shall post the

               original of each such list in a conspicuous place in the office

               of the county election board and see that it is kept so posted

               until the close of the polls on election day. He shall cause the

               duplicate of each such list to be delivered to the judge of

               election in the election district in the same manner and at the

               same time as are provided in this act for the delivery of other

               election supplies, and it shall be the duty of such judge of

               election to post such duplicate list in a conspicuous place

               within the polling place of his district and see that it is kept so

               posted throughout the time that the polls are open. Upon

               written request, he shall furnish a copy of such list to any

               candidate or party county chairman.

25 P.S. § 3146.2c(c).




                                      [J-113-2020] - 15

voter’s name and address—with the names and addresses on the lists of approved


absentee and mail-in voters.” Secretary’s Application for Extraordinary Relief, 10/04/20,


at 19. The Secretary stresses that no other examination is permitted under the plain


terms of the Code.


       If the county board’s examination determines that the declaration is sufficient, and


the voter’s name and address appears in the lists of approved absentee and mail-in


voters, then, according to the Secretary, the Code requires the ballots to be counted. 25


P.S. § 3146.8(g)(3) and (4). The Secretary asserts that the only exception involves


challenges to a voter’s eligibility raised at the ballot application stage under Section


3150.12b(a)(2).17 The Secretary contends that such challenges must be made by 5:00


p.m. on the Friday before election day and, thus, cannot be made during the pre-


canvassing procedure (which does not begin until election day).


       The Secretary argues that there is no provision of the Election Code which allows


or requires the county boards of elections to entertain challenges “based on perceived


signature mismatches,” Secretary’s Application for Extraordinary Relief, 10/04/20, at 20,


or to reject absentee or mail-in ballots because of such an assessment. The Secretary


notes that the General Assembly knows how to draft provisions requiring signature


comparison, as it did for the in-person voting process governed by Section 3050(a.3)(2),


which directs election officials to compare the signature of the voter signing the voter


certificate at the polls with the district register, and then to make the determination of


whether the signature on the voter certificate is genuine. Moreover, unlike for in-person




17See also 25 P.S. § 3146.2b(b) and (c) (limiting challenges to approval of application for

absentee ballots to the ground that the applicant was not a “qualified absentee elector”

or a “qualified elector”).


                                    [J-113-2020] - 16

voting, there is no provision in the Code which requires a voter to be notified that his


signature has been challenged during the canvassing process; hence, a voter whose


ballot is rejected during canvassing because of a perceived signature mismatch has no


opportunity to respond to the challenge and have his ballot counted.            In sum, the


Secretary contends that requiring signature comparison during canvassing would


improperly add a requirement to the Election Code which the legislature did not see fit to


include.


       Although the Secretary views the Election Code in this regard to be clear and


unambiguous, she notes that, even if we were to find it to be ambiguous, we must still


reject a signature comparison requirement, given that there are no standards or


guidelines contained within the Code governing how an election official should perform


such a comparison. In this vacuum, the Secretary asserts individual county boards will


improvise “ad hoc” procedures, which would vary from county to county, creating a


significant risk of error and uncertainty in the review of ballots. Secretary’s Application


for Extraordinary Relief, 10/04/20, at 24. In the Secretary’s view, this would constitute a


denial of equal protection to voters whose ballots were challenged and rejected under


such varying and imprecise standards. This process would also present an “unjustified


risk of disenfranchisement,” id. at 25, given that a voter’s ballot could be rejected without


any opportunity to be heard on the issue.


       Intervenors respond that the Election Code’s use of the term “shall” in Sections


3146.6(a) and 3150.16(a) with respect to the requirement that electors sign the


declaration on the outside of the ballot return envelope, together with the Code’s


companion requirement that county boards examine the declaration and determine if it is





                                     [J-113-2020] - 17

“sufficient,” mandates that county boards conduct signature verification. Intervenors


Supplemental Brief at 6. Intervenors develop that, “because a voter’s noncompliance


with the signature mandate ‘renders the ballot invalid,’ that mandate necessarily


contemplates the ‘enforcement mechanism’ of county boards engaging in—and


invalidating ballots during the pre-canvass or canvass based upon—verification of the


voter’s signature.” Id. Intervenors maintain that the “mandate” established by these


statutory provisions “authorizes and requires signature verification and invalidation of


ballots based upon signature mismatch.” Id. Additionally, Intervenors maintain that,


because Section 3148.8(g)(3) requires a determination of whether a declaration is


“sufficient,” and establishes that a declaration will only be sufficient when signed by the


elector, this “encompasses the enforcement mechanism of signature analysis and


verification during the pre-canvass and canvass.” Id. Further, Intervenors insist that


objections can be made at canvassing to ballots revealing signature mismatches.


        Although contending that these provisions of the Election Code are clear,


Intervenors assert that principles of statutory construction also support their suggested


interpretation. Specifically, Intervenors maintain that signature comparison is necessary


to prevent fraud, and that prior decisions from lower courts of the Commonwealth have


endorsed this practice to effectuate this purpose. See id. at 7-8 (citing Appeal of Orsatti,


598 A.2d 1341 (Pa. Cmwlth. 1991); In re Canvass of Absentee Ballots of Nov. 2, 1965,


Gen. Election, 39 Pa. D. & C.2d 429 (Montg. Cty. Common Pleas 1965); Fogleman


Appeal, 36 Pa. D. & C.2d 426 (Juniata Cty. Common Pleas 1964); In re City of Wilkes-


Barre Election Appeals, 44 Pa. D. & C.2d 535 (Luzerne Cty. Common Pleas 1967)).


Intervenors also suggest the fact that, when a ballot return envelope is scanned upon





                                    [J-113-2020] - 18

receipt by a county board of elections, the voter’s registration card, which includes his or


her signature, as contained in the Commonwealth’s “SURE” (“Statewide Uniform Registry


of Electors”) system appears on the election official’s computer screen. Intervenors view


this fact as indicating that even the Secretary believes signature verification is required.


         Addressing the potential impacts of the competing interpretations, Intervenors


suggest that the Secretary’s interpretation implicates due process and equal protection


concerns, given that voters who vote in person are subject to signature verification,


whereas those who vote by mail-in or absentee ballots would not be. Intervenors contend


we should avoid an interpretation of the Code that results in such potential constitutional


violations.


         Intervenors rebuff the practical difficulties of implementing a system of signature


verification raised by the Secretary, asserting that Chester County has already


promulgated and produced such a system.18 Intervenors further dispute that voters could


be disenfranchised without their knowledge based on enforcement of a signature


comparison requirement. They point to the notice, hearing, and judicial review provisions


in Section 3146.8(g)(5)-(7) for adjudicating ballot challenges, which they contend would


allow a voter whose signature has been challenged during canvassing to have the


challenge adjudicated and thereby preserve their right to vote.


                                        III. Analysis



         As the issue on which we accepted King’s Bench review is purely one of statutory


interpretation, our standard of review is de novo, and our scope of review is


plenary.      Danganan v. Guardian Protective Services, 179 A.3d 9, 15 (Pa. 2018). In



18   Notably, Chester County filed an amicus brief supporting the Secretary’s position.


                                      [J-113-2020] - 19

matters of statutory interpretation, our objective is to ascertain and effectuate the intent


of the General Assembly. Id.; see also 1 Pa.C.S. § 1921(a). As we have so oft observed,


“[t]he best indication of legislative intent is the plain language of the statute.” Crown


Castle NG East v. Pennsylvania Public Utility Commission, 234 A.3d 665, 674 (Pa. 2020).


In ascertaining the plain meaning of statutory language, we consider it in context and give


words and phrases their “common and approved usage.” Commonwealth by Shapiro v.


Golden Gate National Senior Care, 194 A.3d 1010, 1027-28 (Pa. 2017). When the words


of a statute are free and clear of all ambiguity, they are the best indicator of legislative


intent; hence, in such circumstances, “we cannot disregard the letter of the statute under


the pretext of pursuing its spirit.” Fletcher v. Pennsylvania Property & Casualty Insurance


Guarantee Association, 985 A.2d 678, 684 (Pa. 2009) (citing 1 Pa.C.S. § 1921(b)).


       Turning to the text of the governing statutory provisions, Section 3146.8(g)(3) of


the Election Code enumerates only three duties of the county boards of elections during


the pre-canvassing and canvassing process:


          (1) to “examine the declaration on the envelope of each ballot not set

              aside under subsection (d) [requiring rejection of ballots for

              deceased voters] and shall compare the information thereon with

              that contained in the ‘Registered Absentee and Mail-in Voters File,’

              the absentee voters' list and/or the ‘Military Veterans and Emergency

              Civilians Absentee Voters File,’ whichever is applicable”;


          (2) to verify “the proof of identification as required under this act,” and

          (3) to be “satisfied that the declaration is sufficient and the information

              contained in the ‘Registered Absentee and Mail-in Voters File,’ the

              absentee voters' list and/or the ‘Military Veterans and Emergency

              Civilians Absentee Voters File’ verifies his right to vote.”


25 P.S. § 3146.8(g)(3).


       If an absentee or mail-in ballot comports with these statutory requirements, and it


has not been challenged under Section 3146.2b (providing for challenges to approval of


absentee ballot application on the ground that the applicant was not a “qualified absentee




                                     [J-113-2020] - 20

elector,” or a “qualified elector”), or Section 3150.12b (providing that the exclusive means


for challenging a mail-in ballot application is “on the grounds that the applicant was not a


qualified elector”),19 then Section 3146.8(g)(4) requires the ballot to be considered


“verified” and directs that it “shall be counted and included with the returns of the


applicable election district.” 25 P.S. § 3146.8(g)(4)(a). The only exception is set forth in


Section 3146.8(g)(4)(ii), which requires that, “[i]f any of the envelopes on which are


printed, stamped or endorsed the words ‘Official Election Ballot,’ contain any text, mark


or symbol which reveals the identity of the elector, the elector’s political affiliation or the


elector’s candidate preference, the envelopes and the ballots contained therein shall be


set aside and declared void.” Id. § 3146.8(g)(4)(ii).


       To assess the signature analysis question before us, we review in turn each of the


three canvassing duties set forth above from Section 3146.8(g)(3). First, as noted, the


county boards must examine the declaration on the ballot return envelope and then


“compare the information thereon with that contained in the ‘Registered Absentee and


Mail-in Voters File,’ the absentee voters’ list and/or the ‘Military Veterans and Emergency


Civilians Absentee Voters File.” Id. § 3146.8(g)(3).


       Initially, we note that, with respect to the “Registered Absentee and Mail-in Voters


File,” it seems this file, previously utilized, is now a virtually empty relic. Prior to the recent


Code amendments, subsection (a) of Section 3146.2c specified that this file was to





19 As the Secretary has argued, the plain text of these provisions requires challenges to

applications for mail-in ballot applications to be brought no later than 5:00 p.m. on the

Friday before the election. 25 P.S. § 3150.12b(a)(2). Likewise, challenges to absentee

ballot applications of registered voters, except for those permanently registered, must be

brought by that same deadline. Id. § 3146.2b(c). Finally, challenges which are brought

to a registered voter who is on the permanent registration list must be brought by the

deadline for receipt of absentee ballots. Id. § 3146.2b(b). Hence, none of these

challenges may be brought during the canvassing process.




                                       [J-113-2020] - 21

contain duplicate “voter's temporary registration cards.”20 See id. § 3146.2c(a) (effective


to Oct. 30, 2019). Indeed, the provision provided that these registration cards “shall


constitute” the file, indicating the file had no other content. Id. Critically, however, with


the passage of Act 12, the legislature deleted subsection (a). Act 12, § 8 (deleting 25


P.S. § 3146.2c(a)). Thus, while the canvassing provisions of 25 P.S. § 3146.8(g)(3) still


require a voter’s declaration to be compared against the file, that comparison would


appear to be a meaningless exercise. The only informational remnant in the file, if it is


still being maintained, is that set forth in Sections 3146.2(h) and 3150.12(e), requiring a


voter’s absentee and mail-in ballot application number to be entered in the file. Manifestly,


there is no present requirement that the file contain the type of signature information


necessary to perform the signature comparison Intervenors contend is mandatory.


       With respect to a comparison of the declaration against the absentee voters’ list


and the “Military Veterans and Emergency Civilians Absentee Voters File,” as highlighted


by the Secretary, see Secretary’s Application for Extraordinary Relief, 10/04/20, at 19


n.14, the only lists against which such a comparison may be conducted are those which




20This provision then provided, in full:

              The county board of elections shall maintain at its office a file

              containing the duplicate absentee voter's temporary

              registration cards of every registered elector to whom an

              absentee ballot has been sent. Such duplicate absentee

              voter's temporary registration cards shall be filed by election

              districts and within each election district in exact alphabetical

              order and indexed. The registration cards so filed shall

              constitute the Registered Absentee Voters File for the Primary

              or Election of (date of primary or election) and shall be kept

              on file for a period commencing the Tuesday prior to the day

              of the primary or election until the day following the primary or

              election or the day the county board of elections certifies the

              returns of the primary or election, whichever date is later.

              Such file shall be open to public inspection at all times subject

              to reasonable safeguards, rules and regulations.

25 P.S. § 3146.2c(a) (effective to Oct. 30, 2019).


                                     [J-113-2020] - 22

the county boards are required to keep under subsections (b) and (c) of Section 3146.2c.


Those subsections provide:


             (b) The county board of elections shall post in a conspicuous

             public place at its office a master list arranged in alphabetical

             order by election districts setting forth the name and

             residence, and at primaries, the party enrollment, of (1) every

             military elector to whom an absentee ballot is being sent, each

             such name to be prefixed with an “M”; (2) every bedridden or

             hospitalized veteran outside the county of his residence who

             is not registered and to whom an absentee ballot is being sent,

             each such name to be prefixed with a “V”; and (3) every

             registered elector who has filed his application for an

             absentee ballot too late for the extraction of his original

             registration card and to whom a ballot is being sent and every

             qualified elector who has filed his application for an absentee

             ballot and is entitled, under provisions of the Permanent

             Registration Law as now or hereinafter enacted by the

             General Assembly, to absentee registration prior to or

             concurrently with the time of voting, each such name to be

             prefixed with a “C.” This list shall be known as the Military,

             Veterans and Emergency Civilians Absentee Voters File for

             the Primary or Election of (date of primary or election) and

             shall be posted for a period commencing the Tuesday prior to

             the day of the primary or election until the day following the

             primary or election or the day on which the county board of

             elections certifies the returns of the primary or election,

             whichever date is later. Such file shall be open to public

             inspection at all times subject to reasonable safeguards, rules

             and regulations. This posted list shall not contain any military

             address or reference to any military organization. Upon

             written request, the county board shall furnish a copy of such

             list to any candidate or party county chairman.


             (c) Not less than five days preceding the election, the chief

             clerk shall prepare a list for each election district showing the

             names and post office addresses of all voting residents

             thereof to whom official absentee or mail-in ballots shall have

             been issued. Each such list shall be prepared in duplicate,

             shall be headed “Persons in (give identity of election district)

             to whom absentee or mail-in ballots have been issued for the

             election of (date of election),” and shall be signed by him not

             less than four days preceding the election. He shall post the

             original of each such list in a conspicuous place in the office

             of the county election board and see that it is kept so posted



                                    [J-113-2020] - 23

             until the close of the polls on election day. He shall cause the

              duplicate of each such list to be delivered to the judge of

              election in the election district in the same manner and at the

              same time as are provided in this act for the delivery of other

              election supplies, and it shall be the duty of such judge of

              election to post such duplicate list in a conspicuous place

              within the polling place of his district and see that it is kept so

              posted throughout the time that the polls are open. Upon

              written request, he shall furnish a copy of such list to any

              candidate or party county chairman.

25 P.S. § 3146.2c(b) and (c).


       Notably, the only information required to be kept in these lists is, as the Secretary


highlights, the names and addresses of registered voters, and, in the case of voters


serving in the military, even their addresses need not be disclosed. Consequently, in


comparing a declaration against these lists, a county board may determine only whether


the name and address information the voter has listed on the ballot envelope matches.21


There is no signature information in these lists for county election officials to compare


against a voter’s signature on his declaration; therefore, pursuant to the plain language


of the Election Code, these lists cannot facilitate the signature comparison Intervenors


maintain is required.


       Next, in canvassing the ballots under Section 3146.8(g)(3), the county boards must


verify “the proof of identification as required under this act.” As indicated above, see


supra note 9, Section 2602(z.5)(3)(i)-(iv) of the Election Code enumerates the various


types of identification which a voter may utilize in completing a ballot application.


Consequently, we conclude the county board’s duty in this regard is to check the


identification listed on the voter’s mail-in or absentee ballot to see if it is of the type


permitted by the Election Code, and to verify that it is valid. This duty does not, however,


require or authorize county boards to go further and compare the signature on the voter’s



21 This comparison process operates to eliminate ballots of voters who have provided a

different name entirely than that which appears on these lists.


                                      [J-113-2020] - 24

mail-in or absentee ballot to ensure that it is the same as that which appears on the form


of identification the voter has listed on the application. Hence, this unambiguous provision


likewise does not permit or require signature comparison.


       Finally, a county board is required to determine if the ballot declaration is


“sufficient.” 25 P.S. § 3146.8(g)(3). The requirements for a ballot declaration are set forth


in Section 3146.6(a) (absentee ballots) and Section 3150.16(a) (mail-in ballots). Both


sections require that the elector “fill out, date and sign the declaration.” Id. §§ 3146.6(a),


3150.16(a). Thus, in determining whether the declaration is “sufficient” for a mail-in or


absentee ballot at canvassing, the county board is required to ascertain whether the


declaration on the return envelope has been filled out, dated, and signed. This is the


extent of the board’s obligation in this regard. In assessing a declaration’s sufficiency,


there is nothing in this language which allows or compels a county board to compare


signatures. Accordingly, we decline to read a signature comparison requirement into the


plain and unambiguous language of the Election Code, as Intervenors urge us to do,


inasmuch as the General Assembly has chosen not to include such a requirement at


canvassing.


       Even if there were any ambiguity with respect to these provisions, we observe that


the General Assembly has been explicit whenever it has desired to require election


officials to undertake an inquiry into the authenticity of a voter’s signature. See, e.g., 25


P.S. § 3050(a.3)(2) (governing procedures for in-person voting at polling places and


requiring an “election officer” to “compare the elector's signature on his voter's certificate


with his signature in the district register,” and based “upon such comparison . . . if the


signature on the voter's certificate, as compared with the signature as recorded in the


district register, shall not be deemed authentic by any of the election officers, such elector


shall not be denied the right to vote for that reason, but shall be considered challenged





                                     [J-113-2020] - 25

as to identity,” and requiring the voter to execute an affidavit and provide proof of his


identity in order to vote (emphasis added)); id. § 3050(a.4)(5)(i) (“Except as provided in


subclause (ii), if it is determined that [an individual who attempts to cast an in-person


ballot at a polling place, but whose name did not appear on the district register of eligible


voters] was registered and entitled to vote at the election district where the ballot was


cast, the county board of elections shall compare the signature on the provisional ballot


envelope with the signature on the elector’s registration form and, if the signatures are


determined to be genuine, shall count the ballot if the county board of elections confirms


that the individual did not cast any other ballot, including an absentee ballot, in the


election.” (emphasis added)).


       In this regard, we note that, when the Election Code was first promulgated by the


General Assembly in 1937, it contained explicit signature comparison requirements for


canvassing certain absentee ballots. See Act of June 3, 1937, P.L. 1333, No. 320. Article


XIII of that law, a precursor of the current mail-in ballot procedures, provided certain


military service members the right to use mail-in ballots, referred to as “Detached Soldier’s


Ballots.” Similar to today’s mail-in ballots, the service member was required to complete


an affidavit on an outer envelope, along with the jurat of his witnessing officer, and then


place his completed ballot inside that outer envelope. Id. § 1329. In canvassing such


ballots, the county boards were instructed to “open such registered letter and after


examining the affidavit and jurat, [to] compare the signature of such absent voter with his


signature upon any register or other record in their possession. If the county board is


satisfied that the signatures correspond and that the affidavit and jurat are sufficient, they


shall announce the name of the elector and shall give any person present an opportunity


to challenge the same . . . .” Id. § 1330 (emphasis added). Absent any challenge, such





                                     [J-113-2020] - 26

ballots were counted. Notably, in 1945, this signature comparison language was removed


from the Code.22


       We draw two inferences from this early history. First, the legislature understands


how to craft language requiring signature comparisons at canvassing when it chooses to


do so, as it did in 1937. Second, in the 1937 Code, the legislature drew a clear distinction


between assessing the sufficiency of the ballot affidavit (and jurat) and a comparison of


the ballot signature. The legislature having subsequently stripped out the signature


comparison language from the Code, we ought not to construe, as Intervenors suggest,


the remaining sufficiency determination as incorporating a signature comparison.


       Our conclusion that Section 3146.8(g)(3) of the Election Code does not impose a


duty on county boards to compare signatures is also consistent with the recent evolution


of the Election Code, wherein the legislature expanded the allowances for voting by mail.


Notably, at the same time it liberalized voting by mail, the legislature first restricted, and


then eliminated, the ability of third-parties to challenge ballots at canvassing.


       Prior to the recent Code amendments, absentee ballots were the only permissible


form of voting by mail. At that time, at canvassing, after a county board was satisfied that


the declaration on an absentee ballot was sufficient, the Code provided that the board


“shall announce the name of the elector and shall give any candidate representative or


party representative present an opportunity to challenge any absentee elector” on



22 Act of March 9, 1945, P.L. 29, No. 17, §§ 9-10. Thereafter, as set forth in the 1945

amendment, the county board was required to maintain a “Military File” containing the

names and addresses of service members sent absentee ballots, id. § 10 (reenacting

Section 1305 of Act of 1937), something akin to the “Military Veterans and Emergency

Civilians Absentee Voters File” in the present Election Code. Also, like the current Code,

at canvassing, the board was required to review only the ballot affidavit (and jurat) to

determine “[i]f the board is satisfied that the affidavit and jurat are sufficient and that the

elector has qualified.” Id. § 10 (reenacting Section 1307 of Act of 1937). Thus, signature

comparison was no longer part of the county board’s canvassing obligations.




                                      [J-113-2020] - 27

specified grounds. See 25 P.S. § 3146.8(g)(3) (effective Nov. 9, 2006 to Mar. 13, 2012).23


There were three permissible grounds for challenge: that the absentee elector was not a


qualified elector; that the absentee elector, despite alleging otherwise, was present in his


municipality of residence on election day; or that the absentee elector, despite alleging


otherwise, was in fact able to appear at the polling place on election day. Id.


         However, when the legislature first allowed for no-excuse mail-in voting in 2019,


the legislature simultaneously reduced the bases on which canvassing challenges could


be made by eliminating the present-in-his-municipality objection (albeit while allowing the


remaining challenges to be asserted against mail-in ballots). See Act 77, § 7 (amending


25 P.S. § 3146.8(g)(3)). Then, in 2020, the legislature eliminated time-of-canvassing


challenges entirely from Section 3146.8(g)(3). See Act 12, § 11 (amending 25 P.S. §


3146.8(g)(3) to eliminate the challenging grounds and procedures, and amending Section


3146.8(g)(2) to eliminate the proviso that “Representatives shall be permitted to challenge


any absentee elector or mail-in elector in accordance with the provisions of paragraph


(3)”).   Accordingly, the Election Code presently provides no mechanism for time-of-


canvassing challenges by candidate or party representatives. See 25 P.S. § 3146.8(g)(4)


(“All absentee ballots which have not been challenged under section 1302.2(c) [pertaining


to absentee ballot applications] and all mail-in ballots which have not been challenged


under section 1302.2-D(a)(2) [pertaining to mail-in ballot applications] and that have been


verified under paragraph (3) shall be counted and included with the returns of the





23A similar procedure was provided to allow poll watchers to challenge ballots. 25 P.S.

§ 3146.8(e) (effective Nov. 9, 2006 to Mar. 13, 2012). However, this procedure was

deleted in its entirety in 2019. See Act 77, § 7 (deleting 25 P.S. § 3146.8(e)).




                                     [J-113-2020] - 28

applicable election district . . . .”). 24 Moreover, as is plain from the above account, at no


time did the Code provide for challenges to ballot signatures.25


       Presumably, in expanding voting by mail, the legislature sought to streamline the


process for canvassing such ballots, perhaps to avoid undermining the expansion effort


by eliminating the prospect that voters – including a potentially large number of new mail-


in voters – would be brought before the board or the courts to answer third-party


challenges. Regardless, Intervenors would have us interpret the Election Code, which


now does not provide for time-of-canvassing ballot challenges, and which never allowed


for signature challenges, as both requiring signature comparisons at canvassing, and


allowing for challenges on that basis. We reject this invitation.


       It is a well established principle of statutory interpretation that that we “may not


supply omissions in the statute when it appears that the matter may have been


intentionally omitted.” Sivick v. State Ethics Commission, 2020 WL 5823822, at *10 (Pa.


Oct. 1, 2020). It is not our role under our tripartite system of governance to engage in


judicial legislation and to rewrite a statute in order to supply terms which are not present


therein, and we will not do so in this instance.


                                      IV. Conclusion





24 Admittedly, there are some vestiges remaining in the Election Code of the prior, now

eliminated, system for time-of-canvassing ballot challenges. See, e.g., 25 P.S. §

3146.8(f) (requiring a $10 deposit for each challenge to an absentee or mail-in ballot

application or ballot); id. § 1308(g)(5) (discussing procedures for handling “[b]allots

received whose applications have been challenged and ballots which have been

challenged” (emphasis added)). Now untethered to a procedure for asserting time-of-

canvassing challenges in Section 3146.8(g)(3), however, we view the references to

ballots in these provisions to be the overlooked remnants of a prior, now eliminated,

process.

25 For this reason, we reject Intervenors’ contention that the notice, hearing, and judicial


review provisions in Section 3146.8(g)(5)-(7) pertain to adjudicating signature challenges.


                                     [J-113-2020] - 29

     For all of the aforementioned reasons, we grant the Secretary’s petition for


declarative relief, and hold that county boards of elections are prohibited from rejecting


absentee or mail-in ballots based on signature comparison conducted by county election


officials or employees, or as the result of third-party challenges based on signature


analysis and comparisons.


      Chief Justice Saylor and Justices Baer, Donohue, Dougherty and Wecht join the


opinion.


      Justice Mundy concurs in the result.





                                    [J-113-2020] - 30

APPENDIX D

            IN THE COMMONWEALTH COURT OF PENNSYLVANIA



In Re: Canvass of Absentee                     :

and/or Mail-in Ballots of                      :

November 3, 2020 General Election              :

                                               :

                      v.                       :    No. 1191 C.D. 2020

                                               :    Submitted: November 23, 2020

Appeal of: Donald J. Trump for                 :

President, Inc.                                :





BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge



OPINION NOT REPORTED



MEMORANDUM OPINION BY

JUDGE COHN JUBELIRER                               FILED: November 25, 2020



       Donald J. Trump for President, Inc. (Appellant) appeals from the Order of the

Court of Common Pleas of Bucks County (common pleas) that overruled the

Appellant’s objections to certain absentee and/or mail-in ballots, denied Appellant’s

requested relief, and dismissed Appellant’s appeal from the Bucks County Board of

Elections’ (Board) determination that the challenged ballots were valid and could be

counted in the General Election of November 3, 2020 (Election).1 Appellant argues

the Board violated the Election Code2 (Code) when it did not reject and, over

objection, accepted 2,177 ballots on the basis that they did not comply, in some way,

with Sections 3146.6 or 3150.16 of the Code, 25 P.S. §§ 3146.6 (absentee electors),


       1

          Others challenged the Board’s decision to common pleas, but only Appellant has filed a

notice of appeal from the common pleas’ Order.

        2

          Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2601-3591.

3150.16 (mail-in electors). Appellant has since withdrawn some of the challenges,

and of the remaining challenges, all but 69 ballots are resolved by a recent decision

of the Supreme Court; common pleas’ Order with regard to those ballots is,

therefore, affirmed for that reason. The remaining 69 ballots were received with

secrecy envelopes that were “unsealed.” The statute unambiguously requires that

secrecy envelopes shall be “securely seal[ed],” 25 P.S. §§ 3146.6(a), 3150.16(a), and

that the board of elections shall “break the seals” on these envelopes before counting

the ballots.     Section 3146.8(g)(4)(iii) of the Code, 25 P.S. § 3146.8(g)(iii).3

Therefore, in future elections, the sealing requirement should be treated as

mandatory and if unsealed secrecy envelopes are received, this will invalidate the

ballots contained therein. However, because of the facts and circumstances in this

case, this interpretation will be applied prospectively. Common pleas’ Order is,

therefore, affirmed with regard to those 69 ballots.

      The parties filed a joint stipulation of facts with common pleas setting forth

the following facts relevant to the Court’s resolution of this appeal. On November

3, 2020, the Board met to pre-canvass absentee and mail-in ballots as set forth in

Section 3146.8(g) of the Code. (Stip. ¶ 17.) During the course of the Board’s

canvass meeting on November 7, 2020, and with Authorized Representatives present

and given an opportunity to provide argument, the Board considered whether certain

voter declarations on the outer envelope were “sufficient” to meet the requirements

of Section 3146.8(g). (Id. ¶ 18.) The Board separated the ballots into 10 different

categories, and accepted some of the categories for canvassing and rejected others.

(Id. ¶ 19.) Of the categories accepted for canvassing, Appellant challenged six to

common pleas. Those six categories were:



      3

          This section was added by Section 11 of the Act of March 6, 1951, P.L. 3.



                                                2

     - Category 1: 1,196 ballots whose outer envelopes did not contain a

        handwritten date or contained only a partial handwritten date.


      - Category 2: 644 ballots whose outer envelopes did not include a

        handwritten name or address.


      - Category 3: 86 ballots whose outer envelopes contained a partial written

        address.


      - Category 4: 246 ballots whose outer envelopes contained mismatched

        addresses.


      - Category 5: 69 ballots with “unsealed” secrecy envelopes.


      - Category 6: 7 ballots whose secrecy envelopes had markings that did not

        identify the elector’s identity, political affiliation, or candidate preference.

(Id. ¶ 24.) During the hearing before common pleas, Appellant withdrew its

challenges to Categories 4 and 6, (Hr’g Tr. at 114-15; common pleas’ op. at 6;

common pleas’ November 23, 2020 Order Clarifying the Record.) Therefore, these

challenges will not be discussed further.

      The parties stipulated that “[w]hen received by [the Board,] each of the

challenged ballots was inside a [secrecy] envelope, and the [secrecy] envelope was

inside a sealed outer envelope with a voter’s declaration that had been signed by the

elector.” (Stip. ¶ 45.) On the outer envelope “is a checklist for the voter, asking:

“Did you . . . [p]ut your ballot inside the secrecy envelope and place it in here?” (Id.

¶ 10). With regard to Category 5 ballots, the parties stipulated that the Board “could

not determine whether the [secrecy] envelopes were initially sealed by the elector

but later became unsealed.” (Id. ¶ 46.) The electors whose ballots are being

challenged have not been notified. (Id. ¶ 47.) The stipulation clearly establishes that

Appellant does not allege, and there is no evidence of, fraud, misconduct,

impropriety, or undue influence. (Id. ¶¶ 27-30.) Further, Appellant does not allege,




                                            3

and there is no evidence, that the Board counted ballots that did not contain

signatures on the outer envelope or “‘naked ballots,’ (ballots that did not arrive in a

secrecy envelope).” (Id. ¶¶ 31-32.) Last, Appellant does not allege, and there is no

evidence, that the electors who cast these votes were ineligible to vote, that votes

were cast by or on the behalf of a deceased elector, or that votes were cast by

someone other than the elector. (Id. ¶¶ 33-35.)

      In addition to these stipulated facts, common pleas held a hearing, at which

Thomas Freitag, the Board’s Director (Director), testified. (Hr’g Tr. at 63-64.)

Director testified about the Board’s process in reviewing the ballots in general, the

challenged ballots, and the Board’s determinations to accept or reject challenged

ballots that were missing information on the outer envelopes. (Id. at 68-96.)

Relevant specifically to Category 5 challenges, Director indicated that “the privacy

of the ballots [were not] jeopardized in any manner[,]” there was no “view of the

ballots” “to his knowledge,” and that there was no “way to determine by the Board

whether or not [the secrecy envelope] had been sealed at one point and became

unsealed.” (Id. at 97-98.) He testified that the Board provided the envelopes,

including the secrecy envelopes, which were the type that had “to be either

moistened by licking or water or glue,” and agreed that people would have to rely

on the type of envelopes provided by the Board as to the quality of the seal. (Id. at

98-99.) Director agreed that the Board discussed the possibility that voters may have

concerns about licking the envelopes, given the pandemic, which appeared to be a

factor in its decisions. (Id. at 99.) He further agreed that the “ballots that were

enclosed within unsealed [secrecy] envelopes” were “enclosed within [the] outer

envelope.” (Id.) Director was subjected to limited cross-examination., but not on

this issue. The parties then provided argument on the various challenges. Following




                                          4

the hearing, common pleas issued an opinion and order rejecting the challenges and

dismissing the appeal of the Board’s decision. Appellant now appeals to this Court.4

       As to Categories 1 through 3, which challenged the ballots on the basis of a

deficiency on the outer envelopes, common pleas held that the information missing

was not mandatory under the Election Code, but directory and, therefore, its absence

would not invalidate those ballots. (Common pleas’ op. at 14-19.) Appellant

challenges these determinations before this Court. However, after the filing of the

appeal, the Supreme Court of Pennsylvania rejected these same legal challenges in

In re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 General

Election (Pa., Nos. 31-35 EAP 2020 and 29 WAP 2020, filed November 23, 2020)

(Philadelphia/Allegheny), slip op. 19-32.5             In doing so, the Supreme Court

“conclude[d] that the . . . Code does not require boards of elections to disqualify

mail-in or absentee ballots submitted by qualified electors who signed the

declaration on their ballot’s outer envelope but did not handwrite their name, their

address, and/or date, where no fraud or irregularity has been alleged.” Id., slip op.

at 3. Appellant acknowledges this holding in its brief, but points out that, per a

majority of the Supreme Court, dating the outer envelope is a mandatory

requirement, but would be applied prospectively. (Appellant’s Brief (Br.) at 27.)




       4

          Common pleas’ decision is reviewed on appeal “to determine whether the findings are

supported by competent evidence and to correct any conclusions of law erroneously made.” In re

Reading Sch. Bd. Election, 634 A.2d 170, 171-72 (Pa. 1993). Issues involving the proper

interpretation of the Code is a question of law, and the Court’s standard of review is de novo and

scope of review is plenary. Banfield v. Cortes, 110 A.3d 155, 166 (Pa. 2015.)

        5

          DNC Services Corporation/Democratic National Committee, an appellee here, filed an

application for extraordinary relief with the Supreme Court requesting the Supreme Court exercise

its extraordinary jurisdiction powers over this appeal, but this application was denied by the

Supreme Court by order dated November 24, 2020.




                                                5

This Court is bound by the Supreme Court’s decision,6 and, applying that decision,

there was no error in common pleas rejecting Appellant’s challenges to Categories

1 through 3.7

       The sole remaining issue before this Court is whether the ballots identified in

Category 5, which are those ballots that were enclosed, but did not appear to be

“sealed,” in the secrecy envelope, must be invalidated under the Code. In rejecting

Appellant’s challenge to this category, common pleas explained that the ballots at

issue were not “naked ballots,” which would have been invalid pursuant to the

Supreme Court’s decision in Pennsylvania Democratic Party v. Boockvar, 238 A.3d

345, 378-80 (Pa. 2020). Common pleas held that “[t]here is no factual evidence that

supports a conclusion that the envelopes had not been sealed by the elector prior to”

the time of canvassing. (Common pleas op. at 20.) Instead, common pleas pointed

to the parties’ stipulation that “[w]ith respect to Category 5 . . . [the Board] could

not determine whether the [secrecy] envelopes were initially sealed by the elector

but later became unsealed.” (Id. (quoting Stip. ¶ 46).) Accordingly, common pleas

found “there [was] no evidence that the electors failed to ‘securely seal [the ballot]

in the [secrecy] envelope,’ as required by the . . . Code.” (Id. (first and third

alteration added).) It explained that “[t]he elector was provided the envelope by the

government” and “[i]f the glue on the envelope failed[,] that would be the

responsibility of the government.” (Id.) Therefore, common pleas held “[t]here


       6

         Notably, the Supreme Court referenced common pleas’ decision in this matter and held

that common pleas “appropriately applied th[e Supreme] Court’s precedent” in affirming the

counting of these ballots. Philadelphia/Allegheny, slip op. at 32-33 n.6.

       7

         To the extent Appellant seeks to “incorporate” Equal Protection arguments into this case

that were raised in other cases, Appellant did not raise such claims before common pleas and,

therefore, the Court will not consider them. Pennsylvania Rule of Appellate Procedure 302(a),

Pa.R.A.P. 302(a) (“Issues not raised in the trial court are waived and cannot be raised for the first

time on appeal.”).



                                                 6

[was] insufficient evidence to determine whether the specific language of the

mandated law was violated” and “it would be an injustice to disenfranchise these

voters when it cannot be shown that the ballots in question were not ‘securely sealed’

in the [secrecy] envelope prior to the canvassing of those ballots,” particularly where

“there ha[d] been no suggestion or evidence that the absence of a sealed inner

envelope in anyway jeopardized the privacy of the ballot.” (Id.)

      Appellant, citing Boockvar, argues that the requirements of Sections

3146.6(a) and 3150.16(a) are mandatory, not directory. According to Appellant, the

Supreme Court has recognized that these requirements of the Code “are necessary

for the preservation of secrecy and the sanctity of the ballot and must therefore be

observed -- particularly where . . . they are designed to reduce fraud.” In re Canvass

of Absentee Ballots of Nov. 4, 2003 Gen. Election, 843 A.2d 1223, 1234 (Pa. 2004)

(Appeal of Pierce). Therefore, Appellant argues, “absentee or mail-in ballots cast in

contravention of the requirements of [Section 3146.6(a) and 3150.16(a) of the Code]

are ‘void’ and cannot be counted.” (Appellant’s Br. at 23 (quoting Appeal of Pierce,

843 A.2d at 1234).)

      The Board, as an appellee, argues that the deficiencies set forth in Category 5

are minor technical deficiencies related to the sealing of the secrecy envelopes and

should be treated like other minor mistakes that do not require that the ballots be

stricken. The Board maintains that there is no evidence that these 69 electors did

not comply with the statutory language or that the secrecy of the ballots was in any

way compromised. Boockvar, the Board asserts, requires that the ballots must be

enclosed in the secrecy envelopes or the ballots should be disqualified. 238 A.3d at

380. Here, there is no dispute that the ballots were fully enclosed in the secrecy

envelopes, consistent with the holding in Boockvar, and, as a factual matter, there




                                          7

could be no determination as to whether the secrecy envelopes were sealed by the

electors and later became unsealed. Given that the Court cannot tell whether the

electors made errors in casting their ballots, and the lack of any allegation of fraud,

the Board argues there is no compelling reason to disenfranchise these electors.

Appeal of James, 105 A.2d 64, 66 (Pa. 1954).

       Appellee DNC Services Corporation/Democratic National Committee (DNC)

asserts there is no statutory requirement that the voter must seal the secrecy envelope

in order for the ballot to be counted. Further, it asserts that the word “seal” is not a

term of art and is not defined by the Code, is ambiguous and, per a dictionary

definition, commonly means “to close” or “to make secure,” and there is no

allegation that the secrecy envelopes were not closed or the ballots were not secure

in the envelopes. (DNC’s Br. at 16-17.) DNC argues that noncompliance with this

requirement does not justify disenfranchisement because, unlike with “naked

ballots,” the identity of the electors was protected, which is consistent with the

statutory purpose.8

       Relevant here are Sections 3146.6(a), 3150.16(a), and 3146.8(g)(4)(ii) and

(iii) of the Code. Section 3146.6(a) states, in pertinent part:


       at any time after receiving an official absentee ballot, but on or before

       eight o’clock P.M. the day of the primary or election, the 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


       8

         DNC argues this Court does not have jurisdiction to consider this matter; however, our

Supreme Court’s order denying DNC’s request for that Court to exercise its powers of

extraordinary jurisdiction confirms this Court’s jurisdiction.



                                              8

     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. § 3146.6(a) (emphasis added). Section 3150.16(a) contains the nearly

identical statement that “the mail-in elector shall, in secret, proceed to mark the

ballot . . . and then fold the ballot, enclose and securely seal the same in the

envelope on which is printed, stamped or endorsed ‘Official Election Ballot’” and

“[t]his 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 ” 25 P.S. § 3150.16(a) (emphasis added).

      Section 3146.8(g)(4)(ii) and (iii), governing “Canvassing of official absentee

ballots and mail-in ballots,” specifies that



      (4) All absentee ballots which have not been challenged under section

      1302.2(c) and all mail-in ballots which have not been challenged under

      section 1302.2-D(a)(2) and that have been verified under paragraph (3) shall

      be counted and included with the returns of the applicable election district as

      follows:

             ....

             (ii) If any of the envelopes on which are printed, stamped or endorsed

      the words “Official Election Ballot” contain any text, mark or symbol which

      reveals the identity of the elector, the elector’s political affiliation or the

      elector’s candidate preference, the envelopes and the ballots contained therein

      shall be set aside and declared void.


           (iii) The county board shall then break the seals of such envelopes,

      remove the ballots and count, compute and tally the votes.


25 P.S. § 3146.8(g)(4)(ii), (iii) (emphasis added).





                                           9

     The parties present three legal interpretive approaches to whether these 69

ballots were properly accepted by the Board when they were enclosed, but not

sealed, in the secrecy envelope at the time of canvassing. Appellant argues this

requirement is mandatory and allows for no exception. The Board and DNC argue

that this requirement is directory and noncompliance with that requirement is a

minor defect that should be excused. The Board alternatively argues, in accordance

with common pleas’ reasoning, that as a factual matter, a violation of this

requirement by the electors has not been established, and, in the absence of

compelling reasons, such as allegations of fraud or infringement on the electors’

secrecy, the electors should not be disenfranchised.

      “[T]he polestar of statutory construction is to determine the intent of the

General Assembly.” Appeal of Pierce, 843 A.2d at 1230. Generally, “the best

indication of the legislative intent is the plain language of a statute.” Id. (citation

omitted). In construing that language, “[w]ords and phrases shall be construed

according to the rules of grammar and according to their common and approved

usage . . . .” Id. (citation omitted). The Court is mindful that, “[w]hen 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.” Id. (citation omitted). It is only when the

words of the statute “are not explicit” that the Court may then “resort to other

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

legislative intent.” Id. (citation omitted). The Court is likewise mindful that, as our

Supreme Court has explained, “all things being equal, the [Code] will be construed

liberally in favor of the right to vote but, at the same time, we cannot ignore the clear

mandates of the . . . Code.” Id. at 1231.





                                            10

     The operative provisions at issue here involve the statutory direction that “the

elector shall . . . fold the ballot, enclose and securely seal the same in the envelope

on which is printed, stamped or endorsed ‘Official Election Ballot.’” 25 P.S.

§§ 3146.6(a), 3150.16(a) (emphasis added). At canvassing, “[t]he county board

shall then break the seals of such envelopes, remove the ballots and count . . . .” 25

P.S. § 3146.8(g)(4)(iii) (emphasis added).

      The provisions that are at issue here are contained within sections that our

Supreme Court has found to contain both mandatory and directory provisions.

However, particularly applicable here, the Supreme Court in Boockvar held that “the

secrecy provision language in Section 3150.16(a) is mandatory and the mail-in

elector’s failure to comply with such requisite by enclosing the ballot in the secrecy

envelope renders the ballot invalid.” Boockvar, 238 A.3d at 380 (emphasis added).

In Boockvar, our Supreme Court considered whether county boards of election

should be required to “clothe and count naked ballots,” that is, place ballots that were

returned to the county board without the secrecy envelopes into an envelope and

count them. 238 A.3d at 374. As here, the Supreme Court was presented with

conflicting assertions that this requirement was directory or mandatory. After

examining the statutory text, the Court concluded that the legislative intent was for

the “secrecy envelope provision” to be mandatory, citing article VII, section 4 of

the Pennsylvania Constitution, providing that “secrecy in voting shall be preserved,”

PA. CONST. art. VII, § 4, and Section 3146.8(g)(4)(ii). The Supreme Court explained

that the two statutory provisions, dealing with the same subject, “must be read in

pari materia.” Boockvar, 238 A.3d at 378. Based on that statutory language, the

Supreme Court held that it was clear that the legislature intended “that, during the

collection and canvassing processes, when the outer envelope in which the ballot




                                          11

arrived is unsealed and the sealed ballot removed, it should not be readily apparent

who the elector is, with what party [the elector] affiliates, or for whom the elector

has voted.” Id. (emphasis added). Per the Court, “[t]he secrecy envelope properly

unmarked and sealed ensures that result, unless it is marked with identifying

information, in which case that goal is compromised” and that “[t]he omission of a

secrecy envelope defeats this intention.” Id. at 378, 380 (emphasis added). The

Supreme Court in Boockvar found the matter analogous to the issue in Appeal of

Pierce, where there was a challenge to absentee ballots that were delivered to the

county board of election by third persons in violation of the Code’s “in-person”

delivery requirement. Id. at 379. In Appeal of Pierce, the Supreme Court held that

the “so-called technicalities of the . . . Code,” such as the requirement that an elector

personally deliver the elector’s absentee ballot, “are necessary for the preservation

of secrecy and the sanctity of the ballot and must therefore be observed – particularly

where, as here, they are designed to reduce fraud.” 843 A.2d at 1234. Therefore,

the Court in that case, found that the in-person delivery requirement was mandatory

and the absentee ballots delivered in contravention of this mandatory provision were

void. Id.

      The Court recognizes that the unsealed envelopes here could be viewed as a

less substantial noncompliance than an elector’s failure to use the secrecy envelope,

as the ballots here were actually enclosed in the secrecy envelope and then in the

sealed outer envelope. However, the language relating to securely sealing the

secrecy envelope is encompassed within the provision directing the use of the

secrecy envelope, which the Supreme Court found mandatory in Boockvar. That the

legislature intended the secrecy envelopes to remain sealed until the ballots are

counted is further evidenced by the directive in Section 3146.8(g)(4)(iii) that “[t]he




                                           12

county board shall then break the seals of such envelopes, remove the ballots and

count . . . .” 25 P.S. § 3146.8(g)(4)(iii) (emphasis added). Such language, when

read in pari materia with Sections 3146.6(a) and 3150.16(a), reflects that the

legislature intended the secure sealing of the secrecy envelope to be mandatory.

Boockvar, 238 A.3d at 378. Accordingly, Appellant’s argument that this directive

is mandatory such that an elector’s noncompliance results in a ballot that is not valid

is supported by the statutory language and Boockvar.

      The parties stipulated that these challenged ballots were “unsealed” in the

secrecy envelopes when canvassing of the ballots was to begin. The text of the Code

unambiguously states that the elector “shall . . . enclose and securely seal the [ballot]

in the envelope . . . ,” 25 P.S. §§ 3146.6(a), 3150.16(a), and that, at canvassing, “[t]he

county board shall then break the seals of such envelopes, remove the ballots and

count,” 25 P.S. § 3146.8(g)(4)(iii). The legislature did not merely require the

envelope to be sealed, but specified that it be “securely” sealed.               25 P.S.

§§ 3146.6(a), 3150.16(a) (emphasis added). The Code unambiguously requires the

envelopes remain sealed until the county board of elections can “break the seals” of

the secrecy envelopes. 25 P.S. § 3146.8(g)(4)(iii). When the text of the statute is

clear and unambiguous, those words best reflect the legislative intent, and “the letter

of [the unambiguous language] is not to be disregarded under the pretext of pursuing

its spirit.” Appeal of Pierce, 843 A.2d at 1230 (citation omitted).

       Justice Wecht recently in Philadelphia/Allegheny highlighted that there are

times a Court should give prospective application to a ruling under the Code. Slip

op. at 17-18 (Wecht, J., concurring). Citing In Appeal of Zentner, 626 A.2d 146

(Pa.1993), as precedent, Justice Wecht concurred in the decision of the Court to

count the ballots that were undated, and would prospectively apply a more strict




                                           13

interpretation of the statute favored by three other justices. As did Justice Wecht,

this Court recognizes the tremendous challenges presented by the massive expansion

of mail-in voting, and the lack of precedential rulings on the requirement of a

“securely sealed” secrecy envelope. Moreover, the parties stipulated in this case

reveals that the instructions on the outer envelope for the elector stated only that the

ballot should be placed in the secrecy envelope and did not specify that the envelope

needed to be securely sealed or the consequences of failing to strictly adhere to that

requirement. See Philadelphia/Allegheny, slip op. at 20 (Wecht, J., concurring).

Moreover, in this case, it cannot be established that the electors did not seal the

secrecy envelope. Importantly, the Court must point out that there are absolutely no

allegations of any fraud, impropriety, misconduct, or undue influence, that anyone

voted who was not eligible to vote, or that the secrecy of the ballots cast was

jeopardized.    For these reasons, the decision of the Court will be applied

prospectively, and the 69 ballots will not be invalidated.

      Accordingly, common pleas’ Order is affirmed.




                                        _____________________________________

                                        RENÉE COHN JUBELIRER, Judge





                                          14

       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


In Re: Canvass of Absentee            :

and/or Mail-in Ballots of             :

November 3, 2020 General Election     :

                                      :

                   v.                 :   No. 1191 C.D. 2020

                                      :

Appeal of: Donald J. Trump for        :

President, Inc.                       :


                                 ORDER



      NOW, November 25, 2020, the Order of the Court of Common Pleas of Bucks

County, entered in the above-captioned matter, is AFFIRMED in accordance with

the foregoing opinion.




                                    _____________________________________

                                    RENÉE COHN JUBELIRER, Judge

APPENDIX E

                                                     No. 1162 C.D. 2020

                                             COMMONWEALTH COURT OF PENNSYLVANIA



                             In re 2,349 Ballots in 2020 General Election

                                                             Decided Nov 19, 2020




    No. 1162 C.D. 2020


    11-19-2020


    In Re: 2,349 Ballots in the 2020 General Election Appeal of: Nicole Ziccarelli


    MEMORANDUM OPINION BY JUDGE BROBSON


    Submitted: November 19, 2020 BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE

    PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge


    OPINION NOT REPORTED

    MEMORANDUM OPINION BY JUDGE BROBSON


    Nicole Ziccarelli, a Republican candidate for State Senator from the 45th Senatorial District in the General

    Election (Candidate), initiated a statutory appeal under the Pennsylvania Election Code1 (Election Code) in the

    Court of Common Pleas of Allegheny County (Common Pleas Court) from a decision by the Allegheny County

    Board of Elections (Elections Board) to canvass and count 2,349 absentee or mail-in ballots for the November

    3, 2020 General Election (General Election) notwithstanding the lack of a date of signature by the elector on

    the statutorily required elector declaration on the outside envelope of the ballots. On appeal, the Common Pleas

    Court rejected the Campaign Committee's arguments and affirmed the Elections Board's decision in a

2   November 18, 2020 Order.2 *2

         1 Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.


         2 On application by Candidate, this Court issued an Order late on November 18, 2020, enjoining the Elections Board


            from canvassing and counting the disputed ballots and directed that the Elections Board segregate those ballots pending

            further order of the Court.


    The Committee filed a timely appeal from the Common Pleas Court's order with this Court, contending that the

    disputed ballots are invalid and cannot be counted. The parties have submitted briefs in support of their

    respective arguments on the merits.


    Given the exigency,3 we dispense with an extensive summary of the parties' respective positions on appeal.

    Generally, the Candidate alleges that the absentee and mail-in ballots that are the subject of this appeal are

    defective and, therefore, cannot be counted under the Election Code. The Elections Board and DNC Services

    Corp./Democratic National Committee (DNC)4 generally contend that we must interpret and apply the Election

    Code to enfranchise, rather than disenfranchise voters. This means, according to the Elections Board and the

    DNC, that what they term "minor irregularities" in elector declarations can, and in this case should, be

    overlooked in the absence of any evidence of fraud.



                                                                                                                                      1

      In re 2,349 Ballots in 2020 General Election                  No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)


          3 "The integrity of the election process requires immediate resolution of disputes that prevent certification." In re 2003

            Election for Jackson Twp. Supervisor, 840 A.2d 1044, 1046 (Pa. Cmwlth. 2003) (Kelly, S.J.).


          4 Though not a named party originally, the Common Pleas Court granted the DNC intervenor status as a respondent.



    Each county board of election is required to provide the mail-in ballot elector with the following: (1) two

    envelopes—an inner secrecy envelope in which the executed ballot is placed and an outer mailing envelope in

    which the secrecy envelope (containing the executed ballot) is placed for mailing (or drop off); (2) a list of

    candidates, if authorized; and (3) "the uniform instructions in form and substance as prescribed by the Secretary

    of the Commonwealth and nothing else." Sections 1304 and 1304-D(c) of the Election Code, 25 P.S. §§ 3146.4,

3   3150.14(c). The outer mailing envelope must include an elector declaration and the name and *3 address of the

    proper county board of election. Sections 1304 and 1304-D(a) of the Election Code. The form of the

    declaration is left up to the Secretary of the Commonwealth (Secretary). It must, however, include "a statement

    of the elector's qualifications, together with a statement that the elector has not already voted in the primary or

    election." Sections 1304 and 1304-D(b) of the Election Code. The Secretary adopted a form declaration that

    includes the required statutory language and space for the elector to sign, date, and fill out the elector's name

    and address.


    In its recent decision in In re November 3, 2020 General Election, ___ A.3d ___ (Pa., No. 149 MM 2020, filed

    Oct. 23, 2020), the Pennsylvania Supreme Court reviewed the requirements in the Election Code with respect

    to the elector declaration on mail-in and absentee ballots. To execute a mail-in or absentee ballot, the Election

    Code requires the elector to "fill out, date and sign the declaration printed on [the outside] envelope." Sections

    1306(a) and 1306-D(a), 25 P.S. §§ 3146.6(a), 3150.16(a). During the pre-canvass or canvass of mail-in and

    absentee ballots, the board of election "is required to determine if the ballot declaration is 'sufficient.'" In re:

    November 3, 2020 Gen. Election, ___ A.3d at ___, slip op. at 25 (quoting Section 1308(g)(3) of the Election

    Code,5 25 P.S. § 3146.8(g)(3)). With respect to determining the sufficiency of the declaration, the Pennsylvania

    Supreme Court explained the boards of election's obligation: "[I]n determining whether the declaration is

    'sufficient' for a mail-in or absentee ballot at canvassing, the county board is required to ascertain whether the

    declaration on the return envelope has been filled out, dated, and signed. This is the extent of the board's

4   obligation in this regard." Id. (emphasis added). *4

          5 Added by the Act of March 6, 1951, P.L. 3.



    The concern that an elector might fail to "fill out" the declaration in full, let alone date and sign the declaration,

    in part prompted the Pennsylvania Democratic Party and Democratic elected official and candidates

    (Democratic Party) to initiate a suit in this Court's original jurisdiction against the Secretary and every

    Pennsylvania county board of election earlier this year, seeking declaratory and injunctive relief. The

    Pennsylvania Supreme Court, pursuant to Section 726 of the Judicial Code, 42 Pa. C.S. § 726, assumed

    jurisdiction over the case to address issues relating to the interpretation and implementation of Act 77 of 20196

    —the statute that amended the Election Code to authorize mail-in voting (a/k/a no-excuse absentee voting).

          6 Act of October 31, 2019, P.L. 552, No. 77 (Act 77).



    Among the issues/concerns raised by the Democratic Party was that electors may submit their mail-in or

    absentee ballots with "minor facial defects resulting from their failure to comply with the statutory

    requirements for voting by mail." Pa. Democratic Party v. Boockvar, 238 A.3d 345, 372 (Pa. 2020). The

    Democratic Party asked the Pennsylvania Supreme Court to require county boards of election to give those

    electors notice and an opportunity to cure the defective ballots. In advancing that argument, the Democratic




                                                                                                                                       2

        In re 2,349 Ballots in 2020 General Election       No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)


    Party relied on the same principles the Board relies on in this case—i.e., liberal construction of the Election

    Code requirements and the favoring of enfranchising voters, not disenfranchising them. Id. at 372-73. The

    Secretary opposed the relief requested:


         Unlike the other claims asserted herein, the Secretary opposes [p]etitioner's request for relief in this

         regard. She counters that there is no statutory or constitutional basis for requiring the [b]oards [of

         election] to contact voters when faced with a defective ballot and afford them an opportunity to cure

         defects. The Secretary further notes that, while [p]etitioner relies on the Free and Equal Elections

         Clause [of the


5   *5

         Pennsylvania Constitution], that Clause cannot create statutory language that the General Assembly

         chose not to provide.

         The Secretary submits that so long as a voter follows the requisite voting procedures, he or she "will

         have an equally effective power to select the representative of his or her choice." Emphasizing that

         [p]etitioner presents no explanation as to how the [b]oards [of election] would notify voters or how the

         voters would correct the errors, the Secretary further claims that, while it may be good policy to

         implement a procedure that entails notice of defective ballots and an opportunity to cure them, logistical

         policy decisions like the ones implicated herein are more properly addressed by the Legislature, not the

         courts.


    Pa. Democratic Party v. Boockvar, 238 A.3d at 373 (emphasis added) (citations omitted) (quoting League of

    Women Voters v. Cmwlth., 178 A.3d 737, 809 (Pa. 2018)). Apparently persuaded by the Secretary's arguments,

    the Pennsylvania Supreme Court rejected the request for a judicially mandated notice and opportunity to cure:

        Upon review, we conclude that the [b]oards [of election] are not required to implement a "notice and

        opportunity to cure" procedure for mail-in and absentee ballots that voters have filled out incompletely

        or incorrectly. Put simply, as argued by the parties in opposition to the requested relief, [p]etitioner has

        cited no constitutional or statutory basis that would countenance imposing the procedure [p]etitioner

        seeks to require (i.e., having the [b]oards [of election] contact those individuals whose ballots the

        [b]oards [of election] have reviewed and identified as including "minor" or "facial" defects—and for

        whom the [b]oards [of election] have contact information—and then afford those individuals the

        opportunity to cure defects until the [federal Uniformed and Overseas Citizens Absentee Voting Act7]

         deadline).

         While the Pennsylvania Constitution mandates that elections be "free and equal," it leaves the task of

         effectuating that mandate to the Legislature. As noted herein, although the Election Code provides the

         procedures for casting and counting a vote by mail, it does not provide for the "notice and opportunity

         to cure" procedure sought by [p]etitioner. To the extent that a voter is at risk for having his or her ballot

         rejected due to minor errors made in contravention of those requirements, we agree that the decision to

         provide a "notice and


6   *6

         opportunity to cure" procedure to alleviate that risk is one best suited for the Legislature. We express

         this agreement particularly in light of the open policy questions attendant to that decision, including

         what the precise contours of the procedure would be, how the concomitant burdens would be addressed,

         and how the procedure would impact the confidentiality and counting of ballots, all of which are best

         left to the legislative branch of Pennsylvania's government. Thus, for the reasons stated, the [p]etitioner

         is not entitled to the relief it seeks in Count III of its petition.



                                                                                                                         3

      In re 2,349 Ballots in 2020 General Election                   No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)


    Id. at 374 (emphasis added) (citation omitted).

          7 52 U.S.C. §§ 20301-20311.



    We must presume that the Elections Board was aware of the Pennsylvania Supreme Court's decision in In re:

    November 3, 2020 General Election and its earlier decision in Pennsylvania Democratic Party when the

    Elections Board began the canvass and pre-canvass process for mail-in and absentee ballots. The Elections

    Board chose, nonetheless, to ignore its obligations under the Election Code to determine the sufficiency of the

    mail-in and absentee ballots at issue, as recapitulated by the Supreme Court in In re: November 3, 2020

    General Election, and apparently took the Pennsylvania Supreme Court's decision in Pennsylvania Democratic

    Party as both a ruling against a notice and opportunity to cure remedy for defective ballots and an invitation to,

    instead, simply ignore defects when canvassing and pre-canvassing. In so doing, the Elections Board even

    acted in conflict with September 28, 2020 guidance from the Secretary: "At the pre-canvass or canvass, as the

    case may be, the county board of election[] should . . . [s]et aside any ballots without a filled out, dated and

    signed declaration envelope." Pennsylvania Dep't of State, Guidance Concerning Civilian Absentee and Mail-

    In Ballot Procedures, 9/28/2020, at 8, available at

    https://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/DOS%2

7   0Guidance%20Civilian%20Absentee%20and%20Mail-In%20Ballot%20Procedure *7 s.pdf (last visited Nov.

    20, 2020).8 Where the Elections Board tacitly derived its authority to ignore its statutory obligation to

    determine the sufficiency of ballots and to violate the will of the General Assembly reflected in Act 77,

    approved by the Governor, and the guidance of the Secretary is a mystery.

          8 We note that the Pennsylvania Supreme Court cited to this supplemental guidance from the Secretary in its opinion in


            In re: November 3, 2020 Gen. Election, ___ A.3d at ___, slip op. at 4.


    The General Assembly's authority in this regard, however, is certain. Under the United States Constitution, the

    General Assembly determines the "Times, Places and Manner of holding Elections for . . . Representatives,"

    subject to any rules that Congress may establish.9 The General Election, during which the voters of

    Pennsylvania select their representatives to the United States House of Representatives, falls within the

    provision. Even in cases involving the right to vote, the rules of statutory construction apply. See In re:

    November 3, 2020 Gen. Election, ___ A.3d at ___, slip op. at 19-20; Pa. Democratic Party, 238 A.3d at 355-

    56. The Pennsylvania Supreme Court has already determined that the above statutory language regarding the

    casting and pre-canvassing and canvassing of mail-in and absentee ballots is "plain," In re: November 3, 2020

    Gen. Election, ___ A.3d at ___, slip op. at 24, and "unambiguous," id., slip op. at 25, with respect to an

    elector's obligation to "fill out, date and sign" the declaration and the county board of election's obligation to

    determine the sufficiency of that declaration. The constitutionality of these provisions is not in question here. It

8   is not the judiciary's role, let alone the role of the Elections Board, to relax or ignore *8 requirements that the

    General Assembly, with the Governor's approval, chose to include in the Election Code.

          9 U.S. Const. art. I, § 4, cl. 1 ("Elections Clause"). The full text of the Elections Clause provides: "The Times, Places and


            Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature

            thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing

            Senators."


    In this regard, while we recognize the well-settled principle of statutory construction that the Election Code

    should be liberally construed in favor of voter enfranchisement, not disenfranchisement, like all principles of

    statutory construction this rule is only implicated where there is ambiguity in the Election Code. See In re:

    Canvassing Observation, ___ A.3d ___, (Pa., No. 30 EAP 2020, filed Nov. 13, 2020), slip op. at 15-16; Pa.



                                                                                                                                          4

          In re 2,349 Ballots in 2020 General Election        No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)


     Democratic Party, 238 A.3d at 356. In In re Canvass of Absentee Ballots of Nov. 4, 2003 General Election, 843

     A.2d 1223 (Pa. 2004), the Pennsylvania Supreme Court reversed a decision by this Court that would have

     allowed the Elections Board to count absentee ballots that were hand-delivered by a third person on behalf of

     electors who were not disabled. Then, and now, the Election Code expressly prohibits this practice. This Court's

     reason for disregarding the mandatory language of the Election Code that authorized only "in person" delivery

     as an alternative to mail was our view "that it was more important to protect the interest of the voters by not

     disenfranchising them than to adhere to the strict language of the statute under these circumstances." In re

     Canvass of Absentee Ballots of Nov. 4, 2003 General Election, 839 A.2d 451, 460 (Pa. Cmwlth.) (en banc),

     rev'd, 843 A.2d 1223 (Pa. 2004).


     In reversing this Court, the Pennsylvania Supreme Court looked to the rules of statutory construction. In re

     Canvass of Absentee Ballots of Nov. 4, 2003 General Election, 843 A.2d at 1230. Critically for purposes of this

     matter, in terms of the Election Code, the Supreme Court held: "[A]ll things being equal, the law will be

     construed liberally in favor of the right to vote but at the same time, we cannot ignore the clear mandates of the

9    Election Code." Id. at 1231 (emphasis added). *9 The relevant language in Section 1306(a) of the Election

     Code provided at the time what it provides today: "[T]he elector shall send [the absentee ballot] by mail,

     postage prepaid, except where franked, or deliver it in person to said county board of election." (Emphasis

     added.) The Supreme Court held that the General Assembly's use of the word "shall" had a clear "imperative or

     mandatory meaning." In re Canvass of Absentee Ballots of Nov. 4, 2003 General Election, 843 A.2d at 1231.

     While the appellees argued that the word should be construed liberally (as directory and not mandatory) in

     favor of the right to vote, the Supreme Court disagreed:


           In Section [1306(a)], there is nothing to suggest that an absentee voter has a choice between whether he

           mails in his ballot or delivers his ballot in person, or has a third-party deliver it for him. To construe

           Section [1306(a)] as merely directory would render its limitation meaningless and, ultimately, absurd.


     Id. at 1232.10 Alternatively, even if the statutory language were ambiguous, the Court held that "there is an

     obvious and salutary purpose—grounded in hard experience—behind the limitation upon the delivery of

     absentee ballots." Id. The court explained:

        The provision at issue limits the number of third persons who unnecessarily come in contact with the

        ballot and thus provides some safeguard that the ballot was filled out by the actual voter, and not by a

        perpetrator of fraud, and that once the ballot has been marked by the actual voter in secret, no other

        person has the opportunity to tamper


10   *10

           with it, or even to destroy it. The provision, thus, is consistent with the spirit and intent of our election

           law, which requires that a voter cast his ballot alone, and that it remain secret and inviolate.


     Id. (citation omitted). The Supreme Court concluded:

          Our precedent is clear: we cannot simply ignore substantive provisions of the Election Code. . . . [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—particularly where, as here, they are designed to reduce

          fraud.


     Id. at 1234.





                                                                                                                           5

       In re 2,349 Ballots in 2020 General Election                    No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)


          10 The dissent chooses to rely on Appeal of James, 105 A.2d 64 (Pa. 1954), a case that did not involve mail-in or absentee

             ballots, but whether actual votes cast for one candidate in particular on election day should count where the intent of

             the electors to vote for that particular candidate was clearly manifested, albeit imperfectly, on the actual ballot. Appeal

             of James does not stand for the proposition that courts can and should disregard the clear and unambiguous terms of the

             Election Code, as the Pennsylvania Supreme Court's more recent pronouncements cited above establish. This case is

             about whether electors followed the law in submitting their ballots. Accordingly, In re Canvass of Absentee Ballots of

             Nov. 4, 2003 General Election is much more on point than Appeal of James.


     Here, we agree with, and are bound by, the Pennsylvania Supreme Court's ruling in In re: November 3, 2020

     General Election that Sections 1306(a) (absentee ballots), 1306-D(a) (mail-in ballots), and 1308(g)(3) (pre-

     canvass and canvass) of the Election Code, are plain and unambiguous. The General Assembly's use of the

     word "shall" in these provisions has a clear imperative and mandatory meaning. In re Canvass of Absentee

     Ballots of Nov. 4, 2003 General Election, 843 A.2d at 1231. The elector "shall . . . fill out, date and sign the

     declaration." The board of election "shall examine the declaration on the envelope of each ballot" and be

     "satisfied that the declaration is sufficient." A sufficient declaration is one where the elector filled out, dated,

     and signed the declaration. In re: November 3, 2020 Gen. Election, ___ A.3d at ___, slip op. at 25. To remove

     the date requirement would constitute a judicial rewrite of the statute, which, as the Pennsylvania Supreme

11   Court recently held, "would be improper." In re: Canvassing Observation, ___ A.3d at ___, slip. op. at 17.11 *11

          11 See also In re Silcox, 674 A.2d 224, 225 (Pa. 1996) (holding that signatures on nomination petition without date must


             be stricken under clear and unambiguous language of statute, reasoning that "until the legislature chooses to amend [the

             statutory requirement for a date], we are constrained to find that the elector shall sign the petition as well as add . . .

             date of signing").


     As noted above, the Election Code requires the county boards of election to determine whether absentee and

     mail-in ballots are satisfactory. Under the law, a satisfactory ballot is one where the elector has filled out,

     signed, and dated the statutorily-required declaration. This was the policy choice of the General Assembly and

     the Governor in approving Act 77, and it is not the role of this Court or the Elections Board to second guess

     those policy choices. It is a myth that all ballots must be counted in the absence of proof of fraud. Ballots,

     under the law, may be set aside for "fraud or error." See Section 1407(b) of the Election Code, 25 P.S. § 3157

     (emphasis added). While there may not be an allegation of fraud in this matter, there was clear error at two

     levels. First, the electors erred in failing to date their declarations, as required by the Election Code.12 Second,

     the Elections Board erred when it failed to execute its duty during the canvass and pre-canvass process to

     determine the sufficiency of the declarations and set deficient ballots aside. Accordingly, the Common Pleas

     Court erred as a matter of law by failing to reverse the Elections Board's determinations with respect to

     counting these defective mail-in and absentee ballots.

          12 This is not a situation involving an ambiguity or question as to what an elector must do to cast a ballot and, seeking


             assistance, a confused elector relies on advice of a local election official. As noted above, the Pennsylvania Supreme

             Court has already held that there is no ambiguity in this scheme as far as what the Election Code requires of the elector

             and the boards of election in determining whether a mail-in or absentee ballot is satisfactory. Moreover, there is simply

             no evidence that the electors who signed their declarations in this case failed to date the declaration in reliance on

             advice from a public official. See In re Canvass of Absentee Ballots of Nov. 4, 2003 Gen. Election, 843 A.2d at 1234

             n.14 (rejecting reliance argument where no evidence of reliance and where alleged advice is in clear contravention of

             law).





                                                                                                                                           6

       In re 2,349 Ballots in 2020 General Election                    No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)


     Even if we were to conclude that one of the relevant provisions of the Election Code suffered from some

     ambiguity that required us to resort to statutory construction to discern the General Assembly's intent, our result

12   would be the same. *12 As was the case in In re Canvass of Absentee Ballots of Nov. 4, 2003 General Election,

     there is an obvious and salutary purpose behind the requirement that a voter date the declaration. The date

     provides a measure of security, establishing the date on which the elector actually executed the ballot in full,

     ensuring their desire to cast it in lieu of appearing in person at a polling place. The presence of the date also

     establishes a point in time against which to measure the elector's eligibility to cast the ballot, as reflected in the

     body of the declaration itself.13

          13 In this regard, it does not matter whether the ballots at issue in this case were, setting aside these defects, otherwise


             valid. Our Election Code does not contemplate a process that bogs down county boards of election or the many election

             day volunteers to track down voters who committed errors of law in casting their ballots in order to verify the

             information that the elector, through his or her own negligence, failed to provide on the elector's mail-in or absentee

             ballot. See Pa. Democratic Party, 238 A.3d at 373-34. Decisions as to whether these defective ballots must be set aside

             are to be made at the canvass or pre-canvass based on objective criteria established by the General Assembly and what

             is before the elections board—that being the ballot itself. See id. at 388-89 (Wecht, J., concurring).


     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 an

13   "equal" election,14 *13 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.

          14 "Elections shall be free and equal." Pa. Const. art. I, § 5.



     Accordingly, the Common Pleas Court's order is reversed. This matter is remanded to the Common Pleas Court

     to issue an order sustaining the Campaign Committee's challenge to the Elections Board's determination and

     directing the Elections Board to exclude the challenged 2,349 ballots from the certified returns of election for

     the County of Allegheny under Section 1404 of the Election Code, 25 P.S. § 3154.


     /s/_________


14   P. KEVIN BROBSON, Judge *14 ORDER


     AND NOW, this 19th day of November, 2020, the November 18, 2020 Order of the Court of Common Pleas of

     Allegheny is REVERSED, and this matter is REMANDED to the court of common pleas for further

     proceedings in accordance with the accompanying opinion.


     /s/_________


15   P. KEVIN BROBSON, Judge *15 BEFORE: HONORABLE P. KEVIN BROBSON, Judge HONORABLE

     PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge DISSENTING

     OPINION BY JUDGE WOJCIK





                                                                                                                                         7

          In re 2,349 Ballots in 2020 General Election               No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)


     I respectfully dissent from the majority's decision to reverse the order of the Court of Common Pleas of

     Allegheny County (trial court) in this matter.


     The Pennsylvania Supreme Court has explained:


           'The power to throw out a ballot for minor irregularities, like the power to throw out the entire poll of an

           election district for irregularities, must be exercised very sparingly and with the idea in mind that either

           an individual voter or a group of voters are not to be disfranchised at an election except for compelling

           reasons. * * * 'The purpose in holding elections is to register the actual expression of the electorate's

           will' and that 'computing judges' should endeavor 'to see what was the true result.' There should be the

           same reluctance to throw out a single ballot as there is to throw out an entire district poll, for sometimes

           an election hinges on one vote.'


           In resolving election controversies it would not be amiss to consider the following criteria:


           1. Was any specific provision of the Election Code violated?


16   *16

           2. Was any fraud involved?


           3. Was the will of the voter subverted?


           4. Is the will of the voter in doubt?


           5. Did the loser suffer an unfair disadvantage?


           6. Did the winner gain an unfair disadvantage?


     Appeal of James, 105 A.2d 64, 67 (Pa. 1954) (citation omitted). It is undisputed that only the first of the

     foregoing six criteria is at issue with respect to the contested ballots herein.


     Regarding the submission of a vote by absentee ballot, Section 1306(a) of the Pennsylvania Election Code15

     provides, in relevant part:

            15 Act of June 3, 1937, P.L. 1333, added by the Act of March 6, 1951, P.L. 3, as amended, 25 P.S. §3146.6(a).



           [A]t any time after receiving an official absentee ballot, but on or before eight o'clock P.M. the day of

           the primary or election, the 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.


     Likewise, with respect to voting by mail-in ballot, Section 1306-D(a) of the Pennsylvania Election Code16

17   states: *17




                                                                                                                            8

        In re 2,349 Ballots in 2020 General Election                   No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)


          16 Added by the Act of October 31, 2019, P.L. 552, 25 P.S. §3150.16a.



         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.


     In light of the foregoing statutory requirements, the majority seeks to disenfranchise 2,349 registered voters

     who timely returned their absentee or mail-in ballots to the Allegheny County Board of Elections (Board),

     which ballots were sealed in secrecy envelopes and inserted in sealed outer envelopes containing a declaration

     that the voters signed, but did not date, and which ballots the Board received by 8:00 p.m. on the date of the

     General Election, November 3, 2020. Unlike the majority, I do not believe that Pennsylvania Democratic Party

     v. Boockvar, 238 A.3d 345 (Pa. 2020), compels such a massive disenfranchisement as that case addressed a

     voter's ability to cure a "minor" defect on a mail-in or absentee ballot declaration page that consisted of a voter

     failing to "fill out, date and sign the declaration." In contrast, this case involves neither a voter's ability to cure a

18   defective declaration page nor an unsigned declaration page. Moreover, as *18 noted above, this case does not

     involve any claim that any of the ballots in question were in any way fraudulent.


     There is no dispute that the voters who cast the questioned 2,349 ballots were qualified, registered electors.

     Moreover, there is no allegation that any of the 2,349 voters in question had voted more than once. Importantly,

     there is no allegation that the subject 2,349 ballots were not received by the Board prior to the deadline for

     receipt on General Election Day. The only sin that would lead these votes to be discarded is that the qualified,

     registered voters failed to 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 this is the situation contemplated by

     Boockvar. I would suppose that a declaration that the voter did not sign likewise would be discarded, as there

     would be no confirmation that the ballot is genuinely that of the registered elector. Both of these results would

     ameliorate purported voter fraud, which is not at issue here.


     What then is the protection afforded by the insertion of a date in the declaration? I would posit that it is to

     ensure that the ballot was timely cast, that is, before the 8:00 p.m. deadline on General Election Day. This

     interest is protected in this case by the Board's procedures, i.e., the ballots were processed in the Statewide

     Uniform Registry of Electors and time stamped when received by the Board. Thus, I would hold that this

     process ensures that the ballots were timely cast.


     The majority posits that the voter's entry of the date onto the declaration is material in that it measures a point

     in time to establish a voter's eligibility to cast a vote. This is simply incorrect, as the date on which a voter fills

19   in a mail-in or absentee ballot is not the critical date, it is receipt on or before *19 General Election Day that is

     determinative. If a voter fills in a mail-in or absentee ballot, including the complete declaration, and dies prior

     to General Election Day, the vote is not valid regardless of when it was executed.17

          17 In this regard, I strongly disagree with the majority's reliance on case law interpreting the inapposite provisions of the


             Pennsylvania Election Code requiring the inclusion of the date of signature on nomination petitions as that requirement

             implicates a distinct consideration relating to the timeliness of the circulation of the petitions. As indicated, the




                                                                                                                                          9

       In re 2,349 Ballots in 2020 General Election                     No. 1162 C.D. 2020 (Pa. Cmmw. Ct. Nov. 19, 2020)


             timeliness of the ballots cast herein is not at issue.


     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, Sections 1306(a) and 1306-D(a) of the Pennsylvania Election

     Code plainly state 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. §§3146.6(a), 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 County Return Board, 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.18 In

20   light of the foregoing criteria, I would do so here as well, and I *20 would not blithely disenfranchise those

     2,349 voters who merely neglected to enter a date on the declaration of an otherwise properly executed and

     timely-submitted ballot.

          18 Similarly, I would revisit the so-called "naked ballot" issue where counties have been instructed to disqualify mail-in


             and absentee ballots that were returned without first being sealed in the "secrecy envelope." I believe that the "secrecy

             envelope" is an anachronism that should have been abandoned when the Pennsylvania Election Code was recently

             amended. Under the prior version, absentee ballots were delivered to the corresponding polling places and opened there

             after the polls closed on General Election Day. Typically, there were a mere handful of absentee ballots at each poll.

             Without the "secrecy envelope," there was a high probability that the poll worker would know the voters whose

             absentee ballots were opened there, which would impair those voters' right to cast a secret ballot. As a result of the

             recent amendments to the Pennsylvania Election Code, mail-in and absentee ballots are retained at a centralized

             location and opened en masse beginning on General Election Day. Under the current regime, in cases of "naked

             ballots," I would favor a voter's right to cast a vote over the right to cast a secret ballot, because I believe that it is

             extremely unlikely that the election official who opens the envelope would know the voter whose ballot is being

             processed. --------


     Accordingly, unlike the majority, I would affirm the trial court's order in this case.


     /s/_________


     MICHAEL H. WOJCIK, Judge





                                                                                                                                           10

APPENDIX F

I N T HE C OURT OF C OMMON P LEAS OF A LLEGHENY C OUNTY , P ENNSYLVANIA

                               CIVIL DIVISION




NICOLE ZICCARELLI,                      No. GD 20-011793


          Petitioner,





v.



ALLEGHENY COUNTY BOARD OF               MEMORANDUM AND ORDER OF COURT

ELECTIONS,


         Respondent,

                                        Honorable Joseph M. James

and


                                        Copies Sent To:

PENNSYLVANIA DEMOCRATIC PARTY

AND JAMES BREWSTER,                     Matthew H. Haverstick, Esquire

                                        Andrew F. Szefi, Esquire

         Intervenors.                   Allan J. Opsitnick, Esquire

                                        Michael J. Healey, Esquire

I N T HE C OURT OF C OMMON P LEAS OF A LLEGHENY C OUNTY , P ENNSYLVANIA

                               CIVIL DIVISION




NICOLE ZICCARELLI,                                No.   GD 20-011793


             Petitioner,




v.



ALLEGHENY COUNTY BOARD OF

ELECTIONS,


             Respondent




and


PENNSYLVANIA DEMOCRATIC

PARTY AND JAMES BREWSTER,


              Intervenors.





                  MEMORANDUM AND ORDER OF COURT


 James, J.                                                             November 18, 2020


      Petitioner Nicole Ziccarelli, candidate for the Senate of Pennsylvania from the 45 th


Senatorial District, filed a Petition for Review of Decision by the Respondent Allegheny


County Board of Elections (“the Board”) on November 16, 2020, seeking to set aside

approximately 300 provisional ballots cast by voters in the November 3, 2020 General


Election. Voters were required to sign on two lines and on these ballots they only signed


one. Petitioner seeks review of the Board’s decision to overrule Petitioner’s objection to


count these ballots. The Court conducted a hearing on November 17, 2020 via Microsoft


Teams. The Pennsylvania Democratic Party and James Brewster moved to intervene in


the action. Petitioner and the Board did not object and the motion was granted by the


Court. Petitioner stated that she was not claiming any voter fraud regarding the


challenged ballots. The Board argues that if an error or defect is caused by the


misrepresentation or error of the election administration, the voter should not be


penalized. Here, voters presented at their polling location and voted with a provisional


ballot. Poll workers handed them all of the materials and gave them instructions how to


fill out the outer envelope. Many people are unfamiliar with this process and rely on the


information given to them at the polling location. Pennsylvania law holds that there is a


breakdown in the administrative process when the facts demonstrate that “an


administrative board or body is negligent, acts improperly or unintentionally misleads a


party.” Union Electric Corp. v. Board of Property Assessment, 746 A.2d 581, 584 (Pa.


2000). In construing election laws, while we must strictly enforce all provisions to prevent


fraud, the 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. See, James Appeal,


105 A.2d 64 (Pa. 1954), In re Luzerne Cty. Return Bd., 290 A.2d 108, 109 (Pa. 1972).


Similarly, in the In re Nomination Petitions of Howells case, 20 A.3d 617, (Pa. Cmwlth.


2011), an incumbent candidate running for magisterial district judge was given erroneous


instructions by the Lehigh County Board of Elections about filing his statement of financial

interest. The Commonwealth Court held that given his reliance upon erroneous


information provided by the county elections department that fatal error was curable.


Finally, in In re Hall Nomination Petition, 362 A.2d 475, 477 (Pa. 1976), a candidate’s


petition was presented for filing within the deadline established by the Election Code but


was not properly filed due to an error by the Election Bureau and not by the candidate


himself. Keeping in mind that the Election Code must be liberally construed so as not to


deprive an individual of his right to run for office or the voters their right to elect a candidate


of their choice, the Court permitted the candidate to file nunc pro tunc.


       In light of the fact that there is no fraud alleged in this case, these provisional ballots


submitted by registered and eligible voters must be counted. They should not be


penalized because they were given and relied on incorrect information by the election


administration. The Petition for Review is denied and the Board’s decision is affirmed.

I N T HE C OURT OF C OMMON P LEAS OF A LLEGHENY C OUNTY , P ENNSYLVANIA

                               CIVIL DIVISION




NICOLE ZICCARELLI,                               No.   GD 20-011793


            Petitioner,




v.



ALLEGHENY COUNTY BOARD OF

ELECTIONS,


           Respondent,



and



PENNSYLVANIA DEMOCRATIC

PARTY AND JAMES BREWSTER,


             Intervenors.





                                   ORDER OF COURT



       And NOW, this 18th day of November 2020, upon consideration of the Petition For


Review In the Nature Of A Statutory Appeal filed by Nicole Ziccarelli, and any responses


thereto, it is hereby ORDERED that the Petitioner’s appeal is dismissed and the decision


of the Board of Elections is affirmed.



                                                BY THE COURT:

APPENDIX G

         IN THE COMMONWEALTH COURT OF PENNSYLVANIA



In Re: Canvassing Observation            :

                                         :

Appeal of: Donald J. Trump               :

for President, Inc.                      :         No. 1094 C.D. 2020



                                    ORDER



            AND NOW, November 5, 2020, upon review of arguments contained

in briefs submitted by Donald J. Trump for President, Inc. (Appellant), the

Philadelphia County Board of Elections, and the Pennsylvania Democratic Party, it

is hereby ORDERED that the November 4, 2020 order of the Court of Common

Pleas of Philadelphia County (trial court) denying Appellant’s oral motion to allow

closer observation of the canvassing of ballots is REVERSED. The matter is

REMANDED to the trial court to enter an ORDER no later than 10:30 a.m. today,

November 5, 2020, effective immediately, requiring that all candidates, watchers, or

candidate representatives be permitted to be present for the canvassing process

pursuant to 25 P.S. § 2650 and/or 25 P.S. § 3146.8 and be permitted to observe all

aspects of the canvassing process within 6 feet, while adhering to all COVID-19

protocols, including, wearing masks and maintaining social distancing. Opinion to

follow.




                                  s/Christine Fizzano Cannon

                                  __________________________

                                  Christine Fizzano Cannon, Judge




                                                                          Order Exit

                                                                          11/05/2020

APPENDIX H

    IN THE COUR T OF COMMON PLEAS OF PHILA DELPH IA COUNTY

                      FIRST JUDICIAL DISTRICT

                  TRIAL DIVIS ION- CIVIL SECTI ON


INRE:                                                   Electio n Matte r

CANVASSING OBSER VATIO N

                                                        NOVE MBER TERM 2020

                                                        No. 07003

                                                        (20110 7003)

APPEAL OF DONA LD J. TRUM P for

PRESI DENT , INC.                                       1094C D2020


                                         OPINI ON

Tsai, J.


     I.         Introd uction


          Donald J. Trump for President, Inc. ("Appellant") has taken an appeal from our


November 3, 2020 Order denying his oral petition to conduct closer inspection of the


ballot canvassing process at the Philadelphia Convention Center. In his oral petition,


Appellant argued that the Commissioners did not provide his designated observers


meaningful access to observe the Election Board employees who are canvassing the


absentee and mail-in ballots under 25 P.S. § 3146.8(b) so they could report back to the


Candidate as to the integrity of the canvassing process. Appellant had filed two similar


motions earlier in the day, but withdrew them both without prejudice and present ed the


instant petition to the Election Court about 15 minutes before Election Court was


scheduled to close at 10 p.m. EST. Based on the testimony of the witness presented by


Appellant in suppor t of the Petition, we found that the accommodations afforded to


campaign representatives to observe the Election Board employees complied with the


relevant provisions of the Election Code and denied the Petition.


      For the reasons that follow, we respectfully ask this Court to affirm our decision.


                                              1

     II.          Factual Finding s


            Appellant's representative, Jeremy Mercer, is a volunteer for Appellant's


campaign. He served as an observer of the canvassing process on November 3,                2020


starting at 7 a.m. through out the entire day. Mr. Mercer testified via Zoom technology.


            The observer described how the canvassing room is set up. There are 3 rows of 15


tables spaced apart and observers are asked to stand behind a metal barrier facing the


first table, which is about 15-18 feet away. Nov.     3, 2020   Tr. at   21:20-24 :23.   From that

vantage point, Mr. Mercer can see the workers prepare the forms for evaluation,


examine them, and sort the ballot into separate bins. He also described in detail the


various stages of the process that he could observe, including "extraction" from about 20


feet away, "where the ballot envelopes are being fed through machines to slice them


open so that what's inside the outer envelope can be removed, and then another set of


what appear to be the same or very similar machines so that the inner secrecy envelopes


then can be sliced open so that what's inside those can be removed." Nov. 3, 2020 Tr. At


28:14-30 .


            When asked about impedim ents to his line of sight, he identified the easels that


identify each section of the canvassing process around which he can move. Nov. 3, 2020


Tr.   23:2-11.   The observer was free to walk around the premises as he wished except


beyond the metal safety or "crowd control" barrier. He recounted the specific steps


followed by the staff to canvass a ballot. He cited concerns about the long distance


between him and the employees, not because he could not see what they were doing, but


because he could not see individual markings on the ballot or whether the signature


page was completed properly and assess whether the Election Board employee was




                                                 2

handling the ballot properly under the Election Code. He was able to use binoculars, but


he did not find them to be useful because the process is fast. Nov. 3, 2020 Tr. 36:2-14.


           The Board designed the layout of the Philadelphia Convention Center for the


canvassing process in keeping with CDC guidelines on social distancing between


individuals and safety protocols.' In creating this physical layout, the Board struck the


proper balance between the observer's ability to observe the canvassing process and the


paramou nt interest of voter privacy, as there are declaration envelopes that are being


opened, secrecy envelopes that are being opened, and ballots that are being extracted. 2


    III.         Discuss ion


           This Court ordered as it did based on our analysis of the statutory provision


invoked by the Appellant, 25 P.S. § 3146.8(b), which states: "Watchers [also referred to


herein as "observers"] shall be permitte d to be present when the envelopes containing


official absentee ballots and mail-in ballots are opened and when such ballots are


counted and recorded." Despite Appellant's argumen t that the Board of Elections was


not providing observers the opportun ity to "meaningfully observe" the canvassing of


ballots, Appellant was unable to point to any statutory language or case law using the


word "meaningful" or elaborating on what constitutes "meaningful observation."



1The Election Board allows the public to observe the canvassing process on You Tube

on their website at https:jj youtu.b ej-Zzb- 7EH-M Q

2 The observer, who has worn a mask while observing the canvassing, testified that he

saw Election Board workers who occasionally stood shoulde r to shoulder, contrary to

the CDC social distancing guidelines. The Appellant appears to contend that these

incidents undercu t the legitimacy of the social distancing guidelines which have

influenced the design ofthe layout for observers. We do not believe these occasional,

likely necessary, instance s of shoulder-to-shoulder interacti ons between fellow workers

to carry out their canvassing duties, is a legitimate reason to direct the Board to relax its

current distancing requirem ents on observers.



                                                3

Furthermore, § 3146.8(b), explicitly allows only for the watchers to "be present" for


three activities: (1) the opening of the envelopes containing the ballots, (2) the counting


of the ballots, and (3) the recording of the ballots.


       The Appellant presente d a witness, Jeremy Mercer, who provided copious


testimony as to his ability to observe the opening and sorting of ballots. He testified as


to his ability to observe the ballots being opened, placed in trays, and sorted - including


the separation of so-called "naked ballots," which do not have inner secrecy envelopes.


This satisfies the three explicit objects of the statute. The witness's concerns, however,


pertained to his inability to observe the writing on the outside of the ballots. But


observing the writing on the outside of the ballots is not necessary in order to simply be


able to "be present" to watch the openin g of the ballots or to watch the countin g and


recordi ng of the ballots. The statute provides no further specific activities for the


watchers to observe, and no activities for the watchers to do other than simply "be


present." Watchers are not directed to audit ballots or to verify signatures, to verify


voter address, or to do anything else that would require a watcher to see the writing or


markings on the outside of either envelope, including challenging the ballots or ballot


signatures.3



3 "[I]n 2020, the legislature eliminated time-of-canvassing challenges entirely

from Section 3146.8(g)(3) .... Accordingly, the Election Code presently provides no

mechanism for time-of-canvassing challenges by candidat e or party representatives ....

Moreover, as is plain from the above account, at no time did the Code provide for

challenges to ballot signatures.


Presumably, in expanding voting by mail, the legislature sought to streamline the

process for canvassing such ballots, perhaps to avoid undermi ning the expansion effort

by eliminating the prospect that voters - including a potentially large number of new

mail-in voters - would be brought before the board or the courts to answer third-pa rty

challenges. Regardless, Intervenors would have us interpre t the Election Code, which



                                              4

      Moreover, the Pennsylvania courts have clearly delineated the purpose of having


watchers observe canvassing by making "a distinction between votes which are


improperly cast and the subsequ ent mismanagement of votes by the election board,


when those votes were completed correctly by the absentee voter." In re Canvas s of


Absent ee Ballots of Gen. Electio n, 39 Pa. D. & C.2d 429, 433 (Pa. Com. Pl. 1965).


The court further elaborated that:


      In the first situation, the strict requirements must be followed to protect

      the individual's vote; in the latter case, although strict compliance is

      desired, it is not mandatory, because slight irregularities can be

      anticipated in the overall handling of absentee ballots. In the latter case,

      the principles of liberal interpre tation should apply, consistent with the

      above-quoted approach of the Perles case, supra, viz.: '"Every

      rationalization within the realm of common sense should aim at saving the

      ballot rather than voiding it ... "D'


Id. at433-34 .


      That line of reasoning ultimately led the court to hold that even when it does not


condone a short-cu tting of canvassing procedures under the act, such short-cutting does


not by itself seriously breach the legislative intent. See id. at 434.4 The court thus



now does not provide for time-of-canvassing ballot challenges, and which never allowed

for signature challenges, as both requiring signature comparisons at canvassing, and

allowing for challenges on that basis. We reject this invitation." In re Novem ber 3,

2020 Gen. Electio n, 149 MM 2020, 2020 WL 6252803 , at *14 (Pa. Oct. 23, 2020)

(footnotes, citations and quotations omitted).


4 "The Montgomery County Board of Elections, prior to the general election of

November 2, 1965, met with representatives of both the Democratic and Republican

Committees of this county for the purposes of setting up a facile procedure to expedite

the handling of absentee ballots within the county. At that meeting, on September 7,

1965, it was agreed that certain procedures required for technical compliance with the

dictates of the Absentee Voting Act would be eliminated or modified, so that, at time of

canvass, there would be less confusion and involvement. This proposal was approved by

Horace A. Davenport, Esq., the solicitor for the county board of elections, Peter P.

Stevens, chief clerk for the election board, Sheldon W. Farber, Esq., attorney for the

County Democratic Committee, and John G. Kauffman, Esq., attorney for the



                                             5

denied a "general 'blanket' challenge presented by petitioner to all the absentee ballots


on the basis of the election board's departure from the statutory directions." I d.


Likewise, we also recognized that canvassing arrangem ents may arguably be less than


what the observer may deem as optimal without rising to the level of violating the


statute, especially when the procedures need to be modified to promote safety during


the COVID-19 pandemic. We therefore noted in our order that we "would not discourage


the Board from considering the implementation of arrangem ents to allow for an


additional corridor for observation along the side of the canvassing tables if feasible -


subject to spatial distancing under COVID-19 and voting privacy requirements." In re:


Canvas sing Observ ation, Order of November 3, 2020.


       Additionally, in In re Recanv assing of the First Electio n Dist. of


Jefferso n Twp., 12 Pa. D. & C-4th 536 (Pa. Com. Pl. 1991), the court reasoned that "the


Election Code speaks only of canvassing absentee ballots, not single ones," and that the


"intent of the statute [is] to preserve and insure the secrecy and anonymity of the voter."


I d. at 538. Indeed, if watchers like the witness were permitte d to observe the canvassing


of ballots closely enough to view the names and addresses on single ballots, they would


be going beyond the purpose of the statute, which is only to provide for the canvassing


of the ballots writ large. The watchers would also threaten the secrecy and anonymity


of the voter in direct frustrati on of the statute's purpose. If the watcher intends to


observe the canvassing with the intent of voiding ballots, we must emphasize that we


"will not disenfranchise a voter for an act that may be contrary to procedure for




Republican Committee of the county." In re Canvas s ofAbsent ee Ballots ofGen.

Election , 39 Pa. D. & C.2d 429, 433 (Pa. Com. Pl. 1965)


                                              6

canvassing the vote," as ballots are not to be voided "because of some minor


irregularities or inconsistencies in the canvassing of the ballots." Id. at 538, 539.


       Overall, the watchers' purpose is not to audit the individual ballots, and


"meaningful observation" or "meaningful access" is not a legally recognized reason for a


watcher getting close enough do so. Indeed, the term "meaningful" is not even used in


the statute. We note that a similar conclusion has been reached in a similar case in


Nevada. In that case, the court explained that the statue provides that "[t]he


county... shall allow members of the general public to observe the counting of the


ballots ... ," but does not "use the modifier 'meaningful."' Kraus v. Cegavs ke, First


Judicial Dist. Of Nevada, Case No.   20   OC 00142 1B, Dept.   2,   October 29,   2020,   at p. 10.

That court also specifically noted that "Petitioners seem to request ... observation of all


information involved in the ballot counting process so they can verify the validity of the


ballot, creating in effect a second tier of ballot counters and/or concurre nt auditors of


the ballot counting election workers," adding that the "statutes created observers not


counters, validators, or auditors." Id. at 10-11.





                                               7

IV.    Conclu sion


       Appellant's witness, Jerry Mercer, provided exacting and copious testimony as to


his ability to observe the opening and sorting of ballots. Given that observers are


directed only to observe and not to audit ballots, we conclude, based on the witness's


testimony, that the Board of Elections has complied with the observation requirements


under 25 P.S. § 3146.8 and that Appellant is not entitled to the relieftha t he seeks.





                                                  BY THE COURT:





                                             8

APPENDIX I

                                                                                                                             ~.:._.,



                                  FIHST .Jl'DICI.\l. Ul ~ I lO C I OF I' E.'I\S, YJ.V,\ ,\ 1,\                      · ;. ,

                       I N TilE CO URT OF   CO~lt\ 10~  I'U~AS    FC>R t•JIILAIH.   LI'III   ,\ \ O L;'I. 'I \' '"7  ~

                                ELECTION COlJirt'- General Elcctiun : No\Cmlll.:r 3.]},]:{f a~d ,:._t?-~-f::c 1'Y t:I!:9

                                                                                      o~~ice n_ ~u~ic~ed ~&cords


In Rc:                                                                            ~.I.F:CTION M,\ Tl ~-:,~ '·~0 1T 7 ~-t_;~                       ? '-:"".; 2'm

                                                                                                                        ~     '{JF:.,.,._~o                ~

                                                                                                                              _.-..,:.--:.   ... "'·   ~


Can t'fi.Hin~ Ohsefl'ution


                                                                                 ~0.     i 003


                                                                    OIWER


          AND NOW, this 3rd d~t} orNovcmbcr, 2020. in cnnnc.:tton \\ith the tnaucrof': petition b) Donald J_ Trump

for President Inc.    10   allow closer observation of canva-;~ing of' ballots. upon con~Jdcration of the:

•    oral Petition und Argument und any responses thcrelO        D wrillcn Pctiti\HI and 1\rgulllcnt and any response~

then:to

•    tc~timony and evidence presented by the" it11es$e!' aud Arg111nl!nt; or

D

           n   IS IIEIO :BY OIWEIU J) and DECRU ~O thilt:


1 he oral mot inn to aliO\\ closer obscn-ation of the canvass111g of ballots is OLNihO fot the lollo'' ing n.:asons:


'I he Pctitiom:t's \\ 11nc~s provided copious tc:.timon) a~ to In!' abilit) to obscn e the opening and -;orting of ballots lib

concern~ flCI1amcd to his inabiltt) to obser\'c the wrtt111g on the ,,m.;idc of the ballots. Ul\'l!n that obscn·o:rs arc

directed only to ohscn·e and not 10 ;111dit ballob. we conclude. based on the'' ilncs~· s teslimon), that the Board of

 Election~ has complied "ith the observation requirements under :!5 P.S. 3146.S. We. h(II\C\ cr. \\Ould not discourage

the Board from considcrmg the implementation of .trrangcment~ to allow lor an adJittonal corridor for obscn at ion

along the ,jde or thc CUll\ aS!>IIlg tables if feasible - subject to ~pntial distancill!; under COVID-19 and \'oting pri,•ac~

 rcq111 rem ems


                                                                       UY T il E COU IH:





P:tj.!C I of_l_


                                                          IM I'O iri'ANT NOTIC E


'/'hi,· Order is ;,,,,·uctl by th e JiuiJ:t.! assigned by flw Pre.1itlcnl lutl;:c of the Court of Com111t111 Jllcus tu decide /egul

i.HIIC.I' IIJhich IIIli)' uri.\ I! i11 Ctiii iii!C:tirm with tltl! uh111'e 1:"/cc·titm. Failure to C:(IIIIJI~I' with the term:• rif tlli.1· order muy


re.wlt i11 C:llllfempt flrtl<'t:c•din~s tmtl the impositillllcifc:rimillal or ti1•i/ pe11altie:.. Any illtcrc•.11t'd par~r xlwuld CtJII\11/t

rm u/lllrtlt!J', or rulex of court. for mltlitionul information n•;:artli11;: !he imp11ct tif tlli~ order and 110111 to reqllt:\1

uppropriltft! relief


Certified copies of thh order may he obtained thmu~h the Ol'licc or Judic•al Rc..:oid .... OJB_Ci\ ilctcourts.phila.g_l"

upon the pay111cnt of the required fcc. Xotes of tc•aimony <ll the hcanng lila) be n.:quc~tcd thtt111gh the Court Rcportl'P•

Orrice.l.and I itlc Building. 100 S.l3road Street. Second rll10r.l'hil:tddphin. Pi\ b) 1:0111plcting.a Rc<1ucst fbr Transcript

f!1r111. Sec ~'S£O_t!!h phi In_. go' /dcnartmcnt:4<;rulf!reportcr:;.


I he foliO\\ ing. Partu:~ parttcipated in connection with the nlmn: matter:

APPENDIX J

    Caution

As of: December 16, 2020 9:19 PM Z



                                     In re November 3, 2020 Gen. Election

                                                 Supreme Court of Pennsylvania

                                                   October 14, 2020, Decided

                                                        No. 149 MM 2020



Reporter

2020 Pa. LEXIS 5327 *; 2020 WL 6110774

                                                                        variances?

IN RE: NOVEMBER 3, 2020 GENERAL ELECTION.                          The Court will decide this issue based on the current filings;

PETITION OF: KATHY BOOCKVAR, SECRETARY OF                          however, supplemental filings are permitted to be submitted

THE COMMONWEALTH OF PENNSYLVANIA                                   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

Subsequent History: Petition granted by In re November 3,          are GRANTED: Donald J. Trump for President, Inc.,

2020 Gen. Election, 2020 Pa. LEXIS 5560, 2020 WL 6252803           Republican Party of Pennsylvania, Republican National

(Pa., Oct. 23, 2020)                                               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

Prior History: Donald J. Trump for President v. Boockvar,          Representatives, Kerry Benninghoff, Majority Leader of the

2020 U.S. Dist. LEXIS 147232 (W.D. Pa., Aug. 13, 2020)             Pennsylvania House of Representatives, [*2] 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

Judges: [*1] Justice Dougherty files a concurring statement.       granted leave of court to file briefs as amicus curiae, pursuant

Justice Baer files a dissenting statement. Chief Justice Saylor    to Pa.R.A.P. 531.

and Justice Mundy dissent.

                                                                   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

Opinion                                                            non-intervenor will be accepted as an amicus brief.


                                                                   Justice Dougherty files a concurring statement


ORDER                                                              Justice Baer files a dissenting statement.


PER CURIAM                                                         Chief Justice Saylor and Justice Mundy dissent.


AND NOW, this 14th day of October, 2020, the Application           Concur by: DOUGHERTY

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   Concur

     during pre-canvassing and canvassing based on signature

     analysis where there are alleged or perceived signature

                                                                                                                         Page 2 of 3

                                                In re November 3, 2020 Gen. Election



CONCURRING STATEMENT                                                   DISSENTING STATEMENT


JUSTICE DOUGHERTY                                                      JUSTICE BAER


I reluctantly agree that our exercise of King's Bench                  I dissent from the Court's order granting the Secretary of the

jurisdiction is warranted in this unique and time-sensitive case       Commonwealth, Kathy Boockvar's ("Secretary") application

of substantial importance. See, e.g., Friends of Danny DeVito          for King's Bench review to resolve the issue of whether,

v Wolf, 227 A.3d 872, 884 (Pa. 2020) (granting review of               pursuant to the Election Code of Pennsylvania (Code), 25 P.S.

matter of "public importance that requires timely intervention         §§ 2600-3591, signature comparison is warranted by county

by the court of last resort to avoid the deleterious effects arising   boards of elections in relation to absentee and mail-in ballots.

from delays incident to the ordinary process of law"). My              In my view, there is no case or controversy for this Court to

hesitation largely tracks Justice Baer's concern over the              address and the legal question presented has been resolved in a

arguable lack of a clear case or controversy before us. See            federal lawsuit, see infra, thus, our exercise of jurisdiction

Dissenting Statement at 1 (Baer, J.). However, I respectfully          would provide nothing more than an advisory opinion.

believe the proper course [*3] is not to elevate form over

substance, and I ultimately depart from Justice Baer's                 As indicated, no action has ever been filed in a lower court and

assessment that the present legal question was resolved in             the Secretary's application names no respondents. In substance,

                                                                       the Secretary's request to this Court is essentially a

Donald J. Trump for President, Inc. v. Boockvar, No. 2:20-cv-

                                                                       letter [*5] asking us to interpret a provision of the Code. While

966, 2020 U.S. Dist. LEXIS 188390 (W.D. Pa. filed October

10, 2020).                                                             I recognize that in theory this Court may accept a King's Bench

                                                                       petition with no pending action and no opposing parties, the

Although Judge Ranjan opined our Election Code does not                operative question is whether it should. In my respectful view,

impose a signature-comparison requirement for absentee and             under the circumstances of this matter, the answer is a

mail-in ballots and applications, and Secretary Boockvar's             resounding no.

directive to all Pennsylvania county boards of elections on this

precise issue is consistent with that holding, see id., slip op. at    The Secretary's primary concern in seeking this Court's review

                                                                       emanated from a federal lawsuit, Donald J. Trump for

95-106, Secretary Boockvar observes "the district court's

                                                                       President, Inc. v. Boockvar, No. 2:20-cv-00966-NR, 2020 U.S.

decision, while timely and persuasive, is not authoritative." See

Petitioner's Post-Submission Communication, dated October              Dist. LEXIS 188390 (W.D. Pa. 2020). The Secretary explained

                                                                       that the plaintiffs to the lawsuit argued that the Code authorizes

11, 2020, at 2. In any event, the district court decision is surely

                                                                       and requires county boards of elections to set aside and

subject to appeal. Secretary Boockvar thus continues to seek

from this Court "an authoritative ruling of state law binding on       challenge returned absentee and mail-in ballots that contain

                                                                       signatures that do not match a voter's signature in their

all state election officials and courts." Id. Accordingly,

                                                                       permanent voter registration records. Because the Secretary

although I note my disapproval of the precise manner in which

the case was presented for our review, I am persuaded by the           took the contrary view of the Code, she had promulgated

                                                                       guidance indicating that "[t]he Pennsylvania Election Code

Secretary's assertion that "[o]nly this Court can render the

                                                                       does not authorize the county board of elections to set aside

ultimate determination concerning Pennsylvania [*4] law." Id.

I reiterate that parties pursuing an exercise of this Court's          returned absentee or mail-in ballots based solely on signature

                                                                       analysis by the county board of elections." Department of

jurisdiction under our extraordinary King's Bench powers

                                                                       State's September 11, 2020 Guidance Concerning Examination

should present a clear case or controversy and seek more than

a purely advisory opinion. As I believe these conditions are met       of Absentee and Mail-in Ballot Return Envelopes at 3. In

                                                                       seeking our King's Bench review, [*6] the Secretary indicates

here, I join the Court's decision to grant the application to

                                                                       that she fears that without a resolution of this issue, certain

consider the merits of the important and unresolved legal

question presented.                                                    county boards of elections might not follower her guidance and

                                                                       large numbers of ballots could be rejected on Election Day

Dissent by: BAER                                                       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.


Dissent                                                                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

                                                                                      Page 3 of 3

                                                In re November 3, 2020 Gen. Election


signature comparison of absentee and mail-in ballots. Donald

J. Trump for President, Inc., supra, slip op. at 95-106. All of

the county boards of elections were joined in that case and the

federal court specifically indicated that the boards were

obligated to follow the Secretary's guidance as the court's

decision concluded that the Election Code does not warrant

signature comparison with regard to absentee and mail-in

ballots. Id. at 110-111 ("[T]o the extent there was uncertainty

before, this decision informs the counties of the current state of

the law as it relates to signature comparison. If any county still

imposes a signature-comparison requirement in order to

disallow ballots, it does [*7] 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.



  End of Document

APPENDIX K

                                      3 USCS § 2


§ 2. Failure to make choice on prescribed day


     Whenever any State has held an election for the purpose of choosing electors, and has

     failed to make a choice on the day prescribed by law, the electors may be appointed on a

     subsequent day in such a manner as the legislature of such State may direct.

                                               3 USCS § 5


§ 5. Determination of controversy as to appointment of electors


      If any State shall have provided, by laws enacted prior to the day fixed for the appointment of the electors,

      for its final determination of any controversy or contest concerning the appointment of all or any of the

      electors of such State, by judicial or other methods or procedures, and such determination shall have been

      made at least six days before the time fixed for the meeting of the electors, such determination made

      pursuant to such law so existing on said day, and made at least six days prior to said time of meeting of the

      electors, shall be conclusive, and shall govern in the counting of the electoral votes as provided in the

      Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such

      State is concerned.

                                         3 USCS § 15


§ 15. Counting electoral votes in Congress


      Congress shall be in session on the sixth day of January succeeding every meeting of the

      electors. The Senate and House of Representatives shall meet in the Hall of the House of

      Representatives at the hour of 1 o’clock in the afternoon on that day, and the President of the

      Senate shall be their presiding officer. Two tellers shall be previously appointed on the part of

      the Senate and two on the part of the House of Representatives, to whom shall be handed, as

      they are opened by the President of the Senate, all the certificates and papers purporting to be

      certificates of the electoral votes, which certificates and papers shall be opened, presented,

      and acted upon in the alphabetical order of the States, beginning with the letter A; and said

      tellers, having then read the same in the presence and hearing of the two Houses, shall make a

      list of the votes as they shall appear from the said certificates; and the votes having been

      ascertained and counted according to the rules in this subchapter provided, the result of the

      same shall be delivered to the President of the Senate, who shall thereupon announce the state

      of the vote, which announcement shall be deemed a sufficient declaration of the persons, if

      any, elected President and Vice President of the United States, and, together with a list of the

      votes, be entered on the Journals of the two Houses. Upon such reading of any such certificate

      or paper, the President of the Senate shall call for objections, if any. Every objection shall be

      made in writing, and shall state clearly and concisely, and without argument, the ground

      thereof, and shall be signed by at least one Senator and one Member of the House of

      Representatives before the same shall be received. When all objections so made to any vote or

      paper from a State shall have been received and read, the Senate shall thereupon withdraw,

      and such objections shall be submitted to the Senate for its decision; and the Speaker of the

      House of Representatives shall, in like manner, submit such objections to the House of

      Representatives for its decision; and no electoral vote or votes from any State which shall

      have been regularly given by electors whose appointment has been lawfully certified to

      according to section 6 of this title [3 USCS § 6] from which but one return has been received

      shall be rejected, but the two Houses concurrently may reject the vote or votes when they

      agree that such vote or votes have not been so regularly given by electors whose appointment

      has been so certified. If more than one return or paper purporting to be a return from a State

      shall have been received by the President of the Senate, those votes, and those only, shall be

      counted which shall have been regularly given by the electors who are shown by the

      determination mentioned in section 5 [3 USCS § 5] of this title to have been appointed, if the

      determination in said section provided for shall have been made, or by such successors or

      substitutes, in case of a vacancy in the board of electors so ascertained, as have been

      appointed to fill such vacancy in the mode provided by the laws of the State; but in case there

      shall arise the question which of two or more of such State authorities determining what

                                                                                       Page 2 of 2

                                       3 USCS § 15




electors have been appointed, as mentioned in section 5 of this title [3 USCS § 5], is the

lawful tribunal of such State, the votes regularly given of those electors, and those only, of

such State shall be counted whose title as electors the two Houses, acting separately, shall

concurrently decide is supported by the decision of such State so authorized by its law; and in

such case of more than one return or paper purporting to be a return from a State, if there shall

have been no such determination of the question in the State aforesaid, then those votes, and

those only, shall be counted which the two Houses shall concurrently decide were cast by

lawful electors appointed in accordance with the laws of the State, unless the two Houses,

acting separately, shall concurrently decide such votes not to be the lawful votes of the legally

appointed electors of such State. But if the two Houses shall disagree in respect of the

counting of such votes, then, and in that case, the votes of the electors whose appointment

shall have been certified by the executive of the State, under the seal thereof, shall be counted.

When the two Houses have voted, they shall immediately again meet, and the presiding

officer shall then announce the decision of the questions submitted. No votes or papers from

any other State shall be acted upon until the objections previously made to the votes or papers

from any State shall have been finally disposed of.

                                     28 USCS § 1257



§ 1257. State courts; certiorari


      (a) Final judgments or decrees rendered by the highest court of a State in which a

      decision could be had, may be reviewed by the Supreme Court by writ of certiorari where

      the validity of a treaty or statute of the United States is drawn in question or where the

      validity of a statute of any State is drawn in question on the ground of its being repugnant

      to the Constitution, treaties, or laws of the United States, or where any title, right,

      privilege, or immunity is specially set up or claimed under the Constitution or the treaties

      or statutes of, or any commission held or authority exercised under, the United States.

      (b) For the purposes of this section, the term “highest court of a State” includes the

      District of Columbia Court of Appeals.

                               Pa. Const. Art. VII, § 14



§ 14. Absentee voting.


         (a) The Legislature shall, by general law, provide a manner in which, and the time

         and place at which, qualified electors who may, on the occurrence of any election, be

         absent from the municipality of their residence, because their duties, occupation or

         business require them to be elsewhere or who, on the occurrence of any election, are

         unable to attend at their proper polling places because of illness or physical disability

         or who will not attend a polling place because of the observance of a religious holiday

         or who cannot vote because of election day duties, in the case of a county employee,

         may vote, and for the return and canvass of their votes in the election district in which

         they respectively reside.

         (b) For purposes of this section, “municipality” means a city, borough, incorporated

         town, township or any similar general purpose unit of government which may be

         created by the General Assembly.

                                      25 P.S. § 2650

§ 2650. Watchers or attorneys at sessions of county board; candidates may be

                                   present


     (a) Any party or political body or body of citizens which now is, or hereafter may be,

     entitled to have watchers at any registration, primary or election, shall also be entitled to

     appoint watchers who are qualified electors of the county or attorneys to represent such

     party or political body or body of citizens at any public session or sessions of the county

     board of elections, and at any computation and canvassing of returns of any primary or

     election and recount of ballots or recanvass of voting machines under the provisions of

     this act. Such watchers or attorneys may exercise the same rights as watchers at

     registration and polling places, but the number who may be present at any one time may

     be limited by the county board to not more than three for each party, political body or

     body of citizens.

     (b) Every candidate shall be entitled to be present in person or by attorney in fact duly

     authorized, and to participate in any proceeding before any county board whenever any

     matters which may affect his candidacy are being heard, including any computation and

     canvassing of returns of any primary or election or recount of ballots or recanvass of

     voting machines affecting his candidacy.

     (c) Any candidate, attorney or watcher present at any recount of ballots or recanvass of

     voting machines shall be entitled to examine the ballots, or the voting machine and to

     raise any objections regarding the same, which shall be decided by the county board,

     subject to appeal, in the manner provided by this act.

                                     25 P.S. § 3146.1

§ 3146.1. Qualified absentee electors


      The following persons shall be entitled to vote by an official absentee ballot in any

      primary or election held in this Commonwealth in the manner hereinafter provided:

         (a) Any qualified elector who is or who may be in the military service of the United

         States regardless of whether at the time of voting he is present in the election district

         of his residence or is within or without this Commonwealth and regardless of whether

         he is registered or enrolled; or

         (b) Any qualified elector who is a spouse or dependent residing with or

         accompanying a person in the military service of the United States if at the time of

         voting such spouse or dependent is absent from the municipality of his residence:

         Provided, however, That the said elector has been registered or enrolled according to

         law or is entitled, under provisions of the Permanent Registration Law as now or

         hereinafter enacted by the General Assembly, to absentee registration prior to or

         concurrently with the time of voting; or

         (c) Any qualified elector who is or who may be in the service of the Merchant

         Marine of the United States if at the time of voting he is absent from the municipality

         of his residence: Provided, however, That the said elector has been registered or

         enrolled according to law or is entitled, under provisions of the Permanent

         Registration Law as now or hereinafter enacted by the General Assembly, to absentee

         registration prior to or concurrently with the time of voting; or

         (d) Any qualified elector who is a spouse or dependent residing with or

         accompanying a person who is in the service of the Merchant Marine of the United

         States if at the time of voting such spouse or dependent is absent from the

         municipality of his residence: Provided, however, That the said elector has been

         registered or enrolled according to law or is entitled, under provisions of the

         Permanent Registration Law as now or hereinafter enacted by the General Assembly,

         to absentee registration prior to or concurrently with the time of voting; or

         (e) Any qualified elector who is or who may be in a religious or welfare group

         officially attached to and serving with the armed forces if at the time of voting he is

         absent from the municipality of his residence: Provided, however, That the said

         elector has been registered or enrolled according to law or is entitled, under

         provisions of the Permanent Registration Law as now or hereinafter enacted by the

         General Assembly, to absentee registration prior to or concurrently with the time of

         voting; or

                                                                                Page 2 of 3

                               25 P.S. § 3146.1




(f) Any qualified elector who is a spouse or dependent residing with or

accompanying a person in a religious or welfare group officially attached to and

serving with the armed forces if at the time of voting such spouse or dependent is

absent from the municipality of his residence: Provided, however, That the said

elector has been registered or enrolled according to law or is entitled, under

provisions of the Permanent Registration Law as now or hereinafter enacted by the

General Assembly, to absentee registration prior to or concurrently with the time of

voting; or

(g) Any qualified elector who expects to be or is outside the territorial limits of the

several States of the United States and the District of Columbia because his duties,

occupation or business require him to be elsewhere during the entire period the polls

are open for voting on the day of any primary or election or who is or who may be a

civilian employee of the United States outside the territorial limits of the several

States of the United States and the District of Columbia, whether or not such elector

is subject to civil-service laws and the Classification Act of 1949 and whether or not

paid from funds appropriated by the Congress, if at the time of voting he is absent

from the municipality of his residence: Provided, however, That said elector has been

registered or enrolled according to law or is entitled, under provisions of the

Permanent Registration Law as now or hereinafter enacted by the General Assembly,

to absentee registration prior to or concurrently with the time of voting; or

(h) Any qualified elector who is a spouse or dependent residing with or

accompanying a person who expects to be or is outside the territorial limits of the

several States of the United States and the District of Columbia because his duties,

occupation or business require him to be elsewhere during the entire period the polls

are open for voting on the day of any primary or election or who is a spouse or

dependent residing with or accompanying a person who is a civilian employee of the

United States outside the territorial limits of the several States of the United States

and the District of Columbia, whether or not such person is subject to civil-service

laws and the Classification Act of 1949 and whether or not paid from funds

appropriated by the Congress, if at the time of voting such spouse or dependent is

absent from the municipality of his residence: Provided, however, That the said

elector has been registered or enrolled according to law or is entitled, under

provisions of the Permanent Registration Law as now or hereinafter enacted by the

General Assembly, to absentee registration prior to or concurrently with the time of

voting; or

(i) Any qualified war veteran elector who is bedridden or hospitalized due to illness

or physical disability if he is absent from the municipality of his residence and unable

to attend his polling place because of such illness or physical disability regardless of

whether he is registered and enrolled; or

(j) Any qualified registered and enrolled elector who expects to be or is absent from

the municipality of his residence because his duties, occupation or business require

                                                                                 Page 3 of 3

                               25 P.S. § 3146.1




him to be elsewhere during the entire period the polls are open for voting on the day

of any primary or election; or

(k) Any qualified registered and enrolled elector who because of illness or physical

disability is unable to attend his polling place or operate a voting machine and secure

assistance by distinct and audible statement as required in section 1218 of this act;

(l) Any qualified registered and enrolled elector who is a spouse or dependent

accompanying a person employed in the service of this Commonwealth or in the

service of the Federal Government within the territorial limits of the several States of

the United States and the District of Columbia in the event the duties, profession or

occupation of such person require him to be absent from the municipality of his

residence; or

(m) Any qualified elector who is a county employe who cannot vote due to duties on

election day relating to the conduct of the election; or

(n) Any qualified elector who will not attend a polling place because of the

observance of a religious holiday:

   Provided, however, That the words “qualified absentee elector” shall in nowise be

   construed to include persons confined in a penal institution or a mental institution

   nor shall it in anywise be construed to include a person not otherwise qualified as

   a qualified elector in accordance with the definition set forth in section 102(t) of

   this act.

                                                 25 P.S. § 3146.2

§ 3146.2. Applications for official absentee ballots


     (a) Any qualified elector defined in preceding section 1301, subsections (a) to (h), inclusive, may apply at any time

     before any primary or election for any official absentee ballot in person, on any form supplied by the Federal

     Government, or on any official county board of election form addressed to the Secretary of the Commonwealth of

     Pennsylvania or the county board of election of the county in which his voting residence is located.

     (b) An application for a qualified elector under subsection (a) shall contain the following information: Home

     residence at the time of entrance into actual military service or Federal employment, length of time a citizen, length of

     residence in Pennsylvania, date of birth, length of time a resident of voting district, voting district if known, party

     choice in case of primary, name and, for a military elector, his stateside military address, FPO or APO number and

     serial number. Any elector other than a military elector shall in addition specify the nature of his employment, the

     address to which ballot is to be sent, relationship where necessary, and such other information as may be determined

     and prescribed by the Secretary of the Commonwealth. When such application is received by the Secretary of the

     Commonwealth it shall be forwarded to the proper county board of election.

     (b.1)An application for a qualified elector other than under subsection (a) shall contain the following information:

     Date of birth, length of time a resident of voting district, voting district if known, party choice in case of primary and

     name. The elector shall in addition specify the nature of his or her employment, the address to which ballot is to be

     sent, relationship where necessary, and other information as may be determined and prescribed by the Secretary of the

     Commonwealth. When the application is received by the Secretary of the Commonwealth it shall be forwarded to the

     proper county board of election.

     (c) A qualified absentee military or overseas elector, as defined by the Uniformed and Overseas Citizens Absentee

     Voting Act (Public Law 99-410, 100 Stat. 924), may submit his application for an official absentee ballot by electronic

     transmission method. The electronic transmission method shall not be acceptable for the official absentee ballot. As

     used in this subsection, “electronic transmission method” means any technology that can transmit a document or an

     image of a document via electronic or electromechanical means, including, but not limited to, facsimile method. An

     elector entitled to submit an application for an official absentee ballot under a method authorized under 25 Pa.C.S. Ch.

     35 (relating to uniform military and overseas voters) may submit an application using a method authorized under 25

     Pa.C.S. Ch. 35, in addition to the methods authorized in this article.

     (d) The application of any qualified elector, as defined in preceding section 1301, subsections (a) to (h), inclusive, for

     an official absentee ballot in any primary or election shall be signed by the applicant, except that for electors under

     section 1301(a), an adult member of the applicant’s immediate family may sign the application on the elector’s behalf.

     (e) Any qualified bedridden or hospitalized veteran absent from the municipality of his residence and unable to attend

     his polling place because of such illness or physical disability, regardless of whether he is registered or enrolled, may

     apply at any time before any primary or election for an official absentee ballot on any official county board of election

     form addressed to the Secretary of the Commonwealth of Pennsylvania or the county board of elections of the county

     in which his voting residence is located.

     The application shall contain the following information: Residence at the time of becoming bedridden or hospitalized,

     length of time a citizen, length of residence in Pennsylvania, date of birth, length of time a resident in voting district,

     voting district if known, party choice in case of primary, name and address of present residence or hospital at which

     hospitalized. When such application is received by the Secretary of the Commonwealth, it shall be forwarded to the

     proper county board of elections.

     The application for an official absentee ballot for any primary or election shall be made on information supplied over

     the signature of the bedridden or hospitalized veteran as required in the preceding subsection. Any qualified registered

     elector, including a spouse or dependent referred to in subsection (l) of section 1301, who expects to be or is absent

     from the municipality of his residence because his duties, occupation or business require him to be elsewhere on the

                                                                                                                                          Page 2 of 4

                                                                 25 P.S. § 3146.2


      day of any primary or election and any qualified registered elector who is unable to attend his polling place on the day

      of any primary or election because of illness or physical disability and any qualified registered bedridden or

      hospitalized veteran in the county of residence, or in the case of a county employe who cannot vote due to duties on

      election day relating to the conduct of the election, or in the case of a person who will not attend a polling place

      because of the observance of a religious holiday, may apply to the county board of elections of the county in which his

      voting residence is located for an Official Absentee Ballot. Such application shall be made upon an official application

      form supplied by the county board of elections. Such official application form shall be determined and prescribed by

      the Secretary of the Commonwealth of Pennsylvania.

              (1) The application of any qualified registered elector, including spouse or dependent referred to in subsection (l)

              of section 1301, who expects to be or is absent from the municipality of his residence because his duties,

              occupation or business require him to be elsewhere on the day of any primary or election, or in the case of a

              county employe who cannot vote due to duties on election day relating to the conduct of the election, or in the

              case of a person who will not attend a polling place because of the observance of a religious holiday, shall be

              signed by the applicant and shall include the surname and given name or names of the applicant, proof of

              identification, his occupation, date of birth, length of time a resident in voting district, voting district if known,

              place of residence, post office address to which ballot is to be mailed, the reason for his absence, and such other

              information as shall make clear to the county board of elections the applicant’s right to an official absentee ballot.

              (2) The application of any qualified registered elector who is unable to attend his polling place on the day of any

              primary or election because of illness or physical disability and the application of any qualified registered

              bedridden or hospitalized veteran in the county of residence shall be signed by the applicant and shall include

              surname and given name or names of the applicant, proof of identification, his occupation, date of birth, residence

              at the time of becoming bedridden or hospitalized, length of time a resident in voting district, voting district if

              known, place of residence, post office address to which ballot is to be mailed, and such other information as shall

              make clear to the county board of elections the applicant’s right to an official ballot. In addition, the application of

              such electors shall include a declaration stating the nature of their disability or illness, and the name, office

              address and office telephone number of their attending physician: Provided, however, That in the event any

              elector entitled to an absentee ballot under this subsection be unable to sign his application because of illness or

              physical disability, he shall be excused from signing upon making a statement which shall be witnessed by one

              adult person in substantially the following form: I hereby state that I am unable to sign my application for an

              absentee ballot without assistance because I am unable to write by reason of my illness or physical disability. I

              have made or have received assistance in making my mark in lieu of my signature.

..............................................................            ...............................(Mark)

(Date)

..............................................................            ..............................................................

(Complete Address of Witness)                                             (Signature of Witness)


      (e.1)Any qualified registered elector who is unable because of illness or physical disability to attend his polling place

      on the day of any primary or election or operate a voting machine and state distinctly and audibly that he is unable to

      do so as required by section 1218 of this act may at any time request, with the certification by his attending physician

      that he is permanently disabled and physically unable to attend the polls or operate a voting machine and make the

      distinct and audible statement required by section 1218 appended to the application hereinbefore required, to be placed

      on a permanently disabled absentee ballot list file. An absentee ballot application shall be mailed to every such person

      otherwise eligible to receive one, by the first Monday in February each year, or within forty-eight hours of receipt of

      the request, whichever is later, so long as he does not lose his voting rights by failure to vote as otherwise required by

      this act. Such person shall not be required to file a physician’s certificate of disability with each application as required

      in subsection (e) of this section. Should any such person lose his disability he shall inform the county board of

      elections of the county of his residence. An absentee ballot application mailed to an elector under this section, which is

      completed and timely returned by the elector, shall serve as an application for any and all primary, general or special

      elections to be held in the remainder of that calendar year and for all special elections to be held before the third

      Monday in February of the succeeding year. The transfer of a qualified registered elector on a permanently disabled

      absentee ballot list from one county to another county shall only be permitted upon the request of the qualified

      registered elector.

                                                                                                            Page 3 of 4

                                                 25 P.S. § 3146.2


(e.2)Notwithstanding the other provisions of this act any qualified elector who expects to be or is absent from the

municipality of his residence because his duties, occupation or business require him to be elsewhere on the day of any

election or a county employe who cannot vote due to duties on election day relating to the conduct of the election or a

person who will not attend a polling place because of the observance of a religious holiday may make an application

for an absentee ballot by mail by sending a letter to the county board of elections in the county in which his voting

residence is located. The letter shall be signed by the applicant and contain his name, place of residence and proof of

identification.

(f) The county chairman of each political party or the head of each political body shall designate one representative

from his respective political party or body for each public institution. The representatives so appointed shall, at the

same time on a date fixed by the county board of election visit every public institution situate in the county for the

purpose of obtaining the names and addresses of public institution residents who desire to receive applications for

absentee ballots and to act as an election board as provided in subsection (g) of this section. The list of names and

addresses thus obtained shall then be submitted by said representatives to the board which shall furnish applications

individually to those appearing in the written request. If the chairman or head of a political party or body fails to

appoint a representative within fifteen days from written notice from the county board of election, the county board of

election shall appoint a representative from the political party or body.

(g) The county board of election shall appoint teams of three members for each public institution that shall go to the

public institutions and hold the election on the first Friday prior to election day. Each member of the board shall

appoint one member on every team. After the votes are cast, the teams shall collect the ballots and return them to the

county board of election where they shall be placed unopened in a secure, safe and sealed container in the custody of

the board until they shall be distributed to the respective absentee voters’ election district as provided in section 1308

of this act where they shall be counted with the other absentee ballots, if any.

(h) The county board of election shall number, in chronological order, the applications for an official absentee ballot,

which number shall likewise appear on the official absentee ballot for the qualified elector. The numbers shall appear

legibly and in a conspicuous place but before the ballots are distributed the number on the ballot shall be torn off by

the county board of election. This number information shall be appropriately inserted and become a part of the

Registered Absentee Voters File and the Military, Veterans and Emergency Civilian Absentee Voters File provided in

section 1302.3 of this act.

(i)

      (1) Application for official absentee ballots shall be on physical and electronic forms prescribed by the Secretary

      of the Commonwealth. The application shall state that an elector who applies for an absentee ballot pursuant to

      section 1301 shall not be eligible to vote at a polling place on election day unless the elector brings the elector’s

      absentee ballot to the elector’s polling place, remits the ballot and the envelope containing the declaration of the

      elector to the judge of elections to be spoiled and signs a statement subject to the penalties of 18 Pa.C.S. § 4904

      (relating to unsworn falsification to authorities) to the same effect. Such physical application forms shall be made

      freely available to the public at county board of elections, municipal buildings and at such other locations

      designated by the secretary. Such electronic application forms shall be made freely available to the public through

      publicly accessible means. No written application or personal request shall be necessary to receive or access the

      application forms. Copies and records of all completed physical and electronic applications for official absentee

      ballots shall be retained by the county board of elections.

      (2) Nothing in this act shall prohibit a private organization or individual from printing blank voter applications

      for absentee ballots or shall prohibit the use of such applications by another individual, provided the form, content

      and paper quality have been approved by the Secretary of the Commonwealth.

(j) Notwithstanding the provisions of this section requiring proof of identification, a qualified absentee elector shall

not be required to provide proof of identification if the elector is entitled to vote by absentee ballot under the

Uniformed and Overseas Citizens Absentee Voting Act (Public Law 99-410, 100 Stat. 924) or by an alternative ballot

under the Voting Accessibility for the Elderly and Handicapped Act (Public Law 98-435, 98 Stat. 1678).

(k) The Secretary of the Commonwealth may develop an electronic system through which all qualified electors may

apply for an absentee ballot and request permanent absentee voter status under subsection (e.1), provided the system is

                                                                                                         Page 4 of 4

                                               25 P.S. § 3146.2


able to capture a digitized or electronic signature of the applicant. A county board of elections shall treat any

application or request received through the electronic system as if the application or request had been submitted on a

paper form or any other format used by the county.

                                           25 P.S. § 3146.6


§ 3146.6. Voting by absentee electors


         (a) Except as provided in paragraphs (2) and (3), at any time after receiving an official

         absentee ballot, but on or before eight o’clock P.M. the day of the primary or election, the

         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.

               (1) (Deleted by amendment).

               (2) Any elector, spouse of the elector or dependent of the elector, qualified in

               accordance with the provisions of section 1301, subsections (e), (f), (g) and (h) to

               vote by absentee ballot as herein provided, shall be required to include on the form of

               declaration a supporting declaration in form prescribed by the Secretary of the

               Commonwealth, to be signed by the head of the department or chief of division or

               bureau in which the elector is employed, setting forth the identity of the elector,

               spouse of the elector or dependent of the elector.

               (3) Any elector who has filed his application in accordance with section 1302

               subsection (e) (2), and is unable to sign his declaration because of illness or physical

               disability, shall be excused from signing upon making a declaration which shall be

               witnessed by one adult person in substantially the following form: I hereby declare

               that I am unable to sign my declaration for voting my absentee ballot without

               assistance because I am unable to write by reason of my illness or physical disability.

               I have made or received assistance in making my mark in lieu of my signature.


(Date)                                                  (Mark)




(Complete Address of Witness)                           (Signature of Witness)


         (b)

               (1) Any elector who receives and votes an absentee ballot pursuant to section 1301

               shall not be eligible to vote at a polling place on election day. The district register at

                                                                                      Page 2 of 2

                                   25 P.S. § 3146.6




   each polling place shall clearly identify electors who have received and voted

   absentee ballots as ineligible to vote at the polling place, and district election officers

   shall not permit electors who voted an absentee ballot to vote at the polling place.

   (2) An elector who requests an absentee ballot and who is not shown on the district

   register as having voted the ballot may vote by provisional ballot under section

   1210(a.4)(1).

   (3) Notwithstanding paragraph (2), an elector who requests an absentee ballot and

   who is not shown on the district register as having voted the ballot may vote at the

   polling place if the elector remits the ballot and the envelope containing the

   declaration of the elector to the judge of elections to be spoiled and the elector signs a

   statement subject to the penalties under 18 Pa.C.S. § 4904 (relating to unsworn

   falsification to authorities) in substantially the following form:

       I hereby declare that I am a qualified registered elector who has obtained an

       absentee ballot or mail-in ballot. I further declare that I have not cast my absentee

       ballot or mail-in ballot, and that instead I remitted my absentee ballot or mail-in

       ballot and the envelope containing the declaration of the elector to the judge of

       elections at my polling place to be spoiled and therefore request that my absentee

       ballot or mail-in ballot be voided.

        (Date)

        (Signature of Elector)...................... (Address of Elector)

        (Local Judge of Elections)

(c) Except as provided under 25 Pa.C.S. § 3511 (relating to receipt of voted ballot), a

completed absentee ballot must be received in the office of the county board of elections

no later than eight o’clock P.M. on the day of the primary or election.

                                     25 P.S. § 3146.8


§ 3146.8. Canvassing of official absentee ballots and mail-in ballots


      (a) The county boards of election, upon receipt of official absentee ballots in sealed

      official absentee ballot envelopes as provided under this article and mail-in ballots as in

      sealed official mail-in ballot envelopes as provided under Article XIII-D, shall safely

      keep the ballots in sealed or locked containers until theyare to be canvassed by the county

      board of elections. An absentee ballot, whether issued to a civilian, military or other voter

      during the regular or emergency application period, shall be canvassed in accordance

      with subsection (g). A mail-in ballot shall be canvassed in accordance with subsection

      (g).

      (b) Watchers shall be permitted to be present when the envelopes containing official

      absentee ballots and mail-in ballots are opened and when such ballots are counted and

      recorded.

      (b.1)(Deleted by amendment).

      (c) Deleted by 1968, Dec. 11, P.L. 1183, No. 375, § 8.

      (d) Whenever it shall appear by due proof that any absentee elector or mail-in elector

      who has returned his ballot in accordance with the provisions of this act has died prior to

      the opening of the polls on the day of the primary or election, the ballot of such deceased

      elector shall be rejected by the canvassers but the counting of the ballot of an absentee

      elector or a mail-in elector thus deceased shall not of itself invalidate any nomination or

      election.

      (e) (Deleted by amendment).

      (f) Any person challenging an application for an absentee ballot, an absentee ballot, an

      application for a mail-in ballot or a mail-in ballot for any of the reasons provided in this

      act shall deposit the sum of ten dollars ($10.00) in cash with the county board, which sum

      shall only be refunded if the challenge is sustained or if the challenge is withdrawn within

      five (5) days after the primary or election. If the challenge is dismissed by any lawful

      order then the deposit shall be forfeited. The county board shall deposit all deposit money

      in the general fund of the county.

      Notice of the requirements of subsection (b) of section 1306 shall be printed on the

      envelope for the absentee ballot or mail-in ballot.

      (g)

            (1)

                                                                                  Page 2 of 4

                                25 P.S. § 3146.8




   (i) An absentee ballot cast by any absentee elector as defined in section 1301(a),

   (b), (c), (d), (e), (f), (g) and (h) shall be canvassed in accordance with this

   subsection if the ballot is cast, submitted and received in accordance with the

   provisions of 25 Pa.C.S. Ch. 35 (relating to uniform military and overseas voters).

   (ii) An absentee ballot cast by any absentee elector as defined in section 1301(i),

   (j), (k), (l), (m) and (n), an absentee ballot under section 1302(a.3) or a mail-in

   ballot cast by a mail-in elector shall be canvassed in accordance with this

   subsection if the absentee ballot or mail-in ballot is received in the office of the

   county board of elections no later than eight o’clock P.M. on the day of the

   primary or election.

(1.1)The county board of elections shall meet no earlier than seven o’clock A.M. on

election day to pre-canvass all ballots received prior to the meeting. A county board

of elections shall provide at least forty-eight hours’ notice of a pre-canvass meeting

by publicly posting a notice of a pre-canvass meeting on its publicly accessible

Internet website. One authorized representative of each candidate in an election and

one representative from each political party shall be permitted to remain in the room

in which the absentee ballots and mail-in ballots are pre-canvassed. No person

observing, attending or participating in a pre-canvass meeting may disclose the results

of any portion of any pre-canvass meeting prior to the close of the polls.

(2) The county board of elections shall meet no earlier than the close of polls on the

day of the election and no later than the third day following the election to begin

canvassing absentee ballots and mail-in ballots not included in the pre-canvass

meeting. The meeting under this paragraph shall continue until all absentee ballots

and mail-in ballots received prior to the close of the polls have been canvassed. The

county board of elections shall not record or publish any votes reflected on the ballots

prior to the close of the polls. The canvass process shall continue through the eighth

day following the election for valid military-overseas ballots timely received under 25

Pa.C.S. § 3511 (relating to receipt of voted ballot). A county board of elections shall

provide at least forty-eight hours’ notice of a canvass meeting by publicly posting a

notice on its publicly accessible Internet website. One authorized representative of

each candidate in an election and one representative from each political party shall be

permitted to remain in the room in which the absentee ballots and mail-in ballots are

canvassed.

(3) When the county board meets to pre-canvass or canvass absentee ballots and

mail-in ballots under paragraphs (1), (1.1) and (2), the board shall examine the

declaration on the envelope of each ballot not set aside under subsection (d) and shall

compare the information thereon with that contained in the “Registered Absentee and

Mail-in Voters File,” the absentee voters’ list and/or the “Military Veterans and

Emergency Civilians Absentee Voters File,” whichever is applicable. If the county

board has verified the proof of identification as required under this act and is satisfied

that the declaration is sufficient and the information contained in the “Registered

                                                                                   Page 3 of 4

                               25 P.S. § 3146.8




Absentee and Mail-in Voters File,” the absentee voters’ list and/or the “Military

Veterans and Emergency Civilians Absentee Voters File” verifies his right to vote,

the county board shall provide a list of the names of electors whose absentee ballots

or mail-in ballots are to be pre-canvassed or canvassed.

(4) All absentee ballots which have not been challenged under section 1302.2(c) and

all mail-in ballots which have not been challenged under section 1302.2-D(a)(2) and

that have been verified under paragraph (3) shall be counted and included with the

returns of the applicable election district as follows:

   (i) The county board shall open the envelope of every unchallenged absentee

   elector and mail-in elector in such manner as not to destroy the declaration

   executed thereon.

   (ii) If any of the envelopes on which are printed, stamped or endorsed the words

   “Official Election Ballot” contain any text, mark or symbol which reveals the

   identity of the elector, the elector’s political affiliation or the elector’s candidate

   preference, the envelopes and the ballots contained therein shall be set aside and

   declared void.

   (iii) The county board shall then break the seals of such envelopes, remove the

   ballots and count, compute and tally the votes.

   (iv) Following the close of the polls, the county board shall record and publish

   the votes reflected on the ballots.

(5) Ballots received whose applications have been challenged and ballots which have

been challenged shall be placed unopened in a secure, safe and sealed container in the

custody of the county board until it shall fix a time and place for a formal hearing of

all such challenges, and notice shall be given where possible to all absentee electors

and mail-in electors thus challenged and to every individual who made a challenge.

The time for the hearing shall not be later than seven (7) days after the deadline for all

challenges to be filed. On the day fixed for said hearing, the county board shall

proceed without delay to hear said challenges, and, in hearing the testimony, the

county board shall not be bound by the Pennsylvania Rules of Evidence. The

testimony presented shall be stenographically recorded and made part of the record of

the hearing.

(6) The decision of the county board in upholding or dismissing any challenge may

be reviewed by the court of common pleas of the county upon a petition filed by any

person aggrieved by the decision of the county board. The appeal shall be taken,

within two (2) days after the decision was made, whether the decision was reduced to

writing or not, to the court of common pleas setting forth the objections to the county

board’s decision and praying for an order reversing the decision.

(7) Pending the final determination of all appeals, the county board shall suspend any

action in canvassing and computing all challenged ballots received under this

subsection irrespective of whether or not appeal was taken from the county board’s

                                                                                      Page 4 of 4

                                    25 P.S. § 3146.8




   decision. Upon completion of the computation of the returns of the county, the votes

   cast upon the challenged official absentee ballots that have been finally determined to

   be valid shall be added to the other votes cast within the county.

(h) For those absentee ballots or mail-in ballots for which proof of identification has not

been received or could not be verified:

   (1) (Deleted by amendment).

   (2) If the proof of identification is received and verified prior to the sixth calendar

   day following the election, then the county board of elections shall canvass the

   absentee ballots and mail-in ballots under this subsection in accordance with

   subsection (g)(2).

   (3) If an elector fails to provide proof of identification that can be verified by the

   county board of elections by the sixth calendar day following the election, then the

   absentee ballot or mail-in ballot shall not be counted.

(i) Notwithstanding the provisions of this section, a qualified absentee elector shall not

be required to provide proof of identification if the elector is entitled to vote by absentee

ballot under the Uniformed and Overseas Citizens Absentee Voting Act (Public Law 99-

410, 100 Stat. 924) or by an alternative ballot under the Voting Accessibility for the

Elderly and Handicapped Act (Public Law 98-435, 98 Stat. 1678).

                                    25 P.S. § 3150.11


§ 3150.11. Qualified mail-in electors


      (a) General rule. A qualified mail-in elector shall be entitled to vote by an official mail-

      in ballot in any primary or election held in this Commonwealth in the manner provided

      under this article.

         (1) [Repealed by amendment]

         (2) [Repealed by amendment]

      (b) Construction. The term “qualified mail-in elector” shall not be construed to include

      a person not otherwise qualified as a qualified elector in accordance with the definition in

      section 102(t).

                                      25 P.S. § 3150.16

§ 3150.16. Voting by mail-in electors


      (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.

      (a.1) Signature. Any elector who is unable to sign the declaration because of illness or

      physical disability, shall be excused from signing upon making a declaration which shall

      be witnessed by one adult person in substantially the following form:

          I hereby declare that I am unable to sign my declaration for voting my mail-in ballot

          without assistance because I am unable to write by reason of my illness or physical

          disability. I have made or received assistance in making my mark in lieu of my

          signature.

          (Mark)

          (Date)

          (Complete Address of Witness)

          (Signature of Witness)

      (b) Eligibility.

          (1) Any elector who receives and votes a mail-in ballot under section 1301-D shall

          not be eligible to vote at a polling place on election day. The district register at each

          polling place shall clearly identify electors who have received and voted mail-in

          ballots as ineligible to vote at the polling place, and district election officers shall not

          permit electors who voted a mail-in ballot to vote at the polling place.

          (2) An elector who requests a mail-in ballot and who is not shown on the district

          register as having voted may vote by provisional ballot under section 1210(a.4)(1).

          (3) Notwithstanding paragraph (2), an elector who requests a mail-in ballot and who

          is not shown on the district register as having voted the ballot may vote at the polling

          place if the elector remits the ballot and the envelope containing the declaration of the

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                                  25 P.S. § 3150.16




   elector to the judge of elections to be spoiled and the elector signs a statement subject

   to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities)

   which shall be in substantially the following form:

       I hereby declare that I am a qualified registered elector who has obtained an

       absentee ballot or mail-in ballot. I further declare that I have not cast my absentee

       ballot or mail-in ballot, and that instead I remitted my absentee ballot or mail-in

       ballot to the judge of elections at my polling place to be spoiled and therefore

       request that my absentee ballot or mail-in ballot be voided.

        (Date)

        (Signature of Elector)...................... (Address of Elector)

        (Local Judge of Elections)

(c) Deadline. Except as provided under 25 Pa.C.S. § 3511 (relating to receipt of voted

ballot), a completed mail-in ballot must be received in the office of the county board of

elections no later than eight o’clock P.M. on the day of the primary or election.

APPENDIX L

                IN THE SUPREME COURT OF PENNSYLVANIA

                             MIDDLE DISTRICT



IN RE: CANVASS OF ABSENTEE AND/OR : No. 676 MAL 2020

MAIL-IN BALLOTS OF NOVEMBER 3, 2020 :

GENERAL ELECTION                    :

                                    :

                                    :

PETITION OF: DONALD J. TRUMP FOR    :

PRESIDENT, INC.                     :



                                     ORDER




PER CURIAM


      AND NOW, this 8th day of December, 2020 the Emergency Petition for Allowance


of Appeal is DENIED.

APPENDIX M

        IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA

                               CIVIL DIVISION



IN RE: CANVASS OF ABSENTEE AND/OR

MAIL-IN BALLOTS OF NOVEMBER 3, 2020                                             No. 20-05786-35

GENERAL ELECTION


PETITION OF DONALD J. TRUMP FOR

PRESIDENT, ET AL.


                                     MEMORANDUM AND ORDER


    I.      Introduction


    The above captioned matter is before the Bucks County Court of Common


Pleas pursuant to§§ 3146.8 and 3157(a) of the Pennsylvania Election Code. 25


P.S. §§ 3146.8, 3157(a). Petitioners are asking the Court to reverse the Decision of


the Bucks County Board of Elections relevant to certain ballots which were


received by the Board of Election as part of the General Election which took


place November 3, 2020. The Petitioners are Petitioner Donald J. Trump for


President,       lnc. 1;    Petitioner       Republican          National        Committee 2 ;         Petitioner





1

 Petitioner Donald J. Trump for President, Inc. is the principle committee for the reelection campaign of Donald J.

Trump, the forty-fifth President of the United States of America. Petitioner Donald J. Trump for President, Inc. is

bringing this action for itself and on behalf of its candidate President Trump.


2

  Petitioner Republican National Committee is the national political committee that leads the Republican Party of

the United States. It works to elect Republican candidates to State and Federal Offices throughout the United States,

including the Commonwealth of Pennsylvania . Petitioner Republican National Committee is bringing this action for

itself and on behalf of the Republican Party, all of its members, all registered Republican voters, and all nominated

Republican candidates in the November 3, 2020 General Election in Pennsylvania.


                                                                      N.B. It is the responsibility of

                                                                      all parties to notify all inte~ested

                                                                      parties of the content of th1s

                                                                      order/ action

Heidelbaugh for Attorney General, lnc.3; and Petitioner Garrity for PA 4 • This matter


has also been improperly captioned as "Donald J. Trump for President, Inc., et al.


vs. Bucks County Board of Elections". The Respondent is the Bucks County Board


of Elections5 (hereinafter referred to as "Board"). Parties also include the


Democratic National Committee6, the Bucks County Democratic Committee 7 ,


and the Pennsylvania House Democratic Campaign Committees; these parties


were permitted to intervene without objection.





3

 Petitioner Heidelbaugh for Attorney General, Inc. is the principal committee for the election campaign of Heather

Heidelbaugh for the office of Attorney General of Pennsylvania. Heidelbaugh is the Republican candidate for the

office of Attorney General of Pennsylvania in the November 3, 2020 General Election. Petitioner Heidelbaugh for

Attorney General, Inc. is bringing this action for itself and on behalf of its candidate.


4

  Petitioner Garrity for PA is the principle committee for the election campaign of Stacy L. Garrity for the Office of

Treasurer of Pennsylvania. Stacy l. Garrity is the Republican candidate for the office of the Treasurer of Pennsylvania

in the Election of November 3, 2020. Petitioner Garrity for PAis bringing this action for itself and on behalf of its

candidate.


5

  Respondent Bucks County Board of Elections is responsible for overseeing the conduct of elections in Bucks County,

including the administration of the pre-canvass and canvass sessions of the Board during which absentee and mail-

in ballots were opened, reviewed, and counted, as required by the Election Code.


6

 The Democratic National Committee is a national committee dedicated to electing local, state, and national

candidates of the Democratic Party to public office throughout the United States, including Pennsylvania . The

Democratic National Committee has members who submitted absentee and mail-in ballots in the November 3, 2020

General Election.


7

 The Bucks County Democratic Committee is a local committee with a mission of electing qualified members of the

Democratic Party to local office at all levels of government. The Bucks County Democratic Committee has members

and constituents across Bucks County who submitted absentee and mail-in ballots in Bucks County in the November

3, 2020 General Election.


8

 The Pennsylvania House Democratic Campaign Committee is a state committee dedicated to electing local

members of the Democratic Party to the Pennsylvania House of Representatives. The Pennsylvania House

Democratic Campaign Committee has members and constituents who submitted absentee and mail-in ballots in

Bucks County in the November 3, 2020 General Election.



                                                          2

    In this appeal, Petitioners argue9 that the Board violated State Law when it


failed to reject certain specific ballots, and over objection, accepted the ballots


as valid votes of Bucks County citizens. The Respondent, as part of its statutory


duties, sorted through and reviewed approximately 165,000 total absentee and


mail-in ballots. In this process, the Respondent Board deemed a total of 918 ballots


to be legally insufficient, and therefore, those specific ballots were not canvassed;


in other words, the ballots were rejected. These ballots were not rejected because


there was a finding that the person submitting the ballot was not authorized to


vote, but rather because of some deficiency required by the Election Code, such


as a lack of signature or a lack of privacy envelope.


     The actual vote offered on any of those rejected ballots is unknown. Whether


or not a specific vote on any of those ballots would be for or against any of the


Petitioner candidates, or their opponents is unknown. There are 2,177 ballots are


at issue in this case being challenged by the Petitioners.


     This decision will be abbreviated because of time constraints caused by the


need for a prompt resolution of the issues presented to allow for certification of


votes. Should an appeal be filed the Court reserves the right to supplement this


Memorandum with additional facts and laww.



9

 On the day of the hearing, Petitioners were solely represented by Britain R. Henry, Esquire. Other attorneys had

entered their appearance and represent all the Petitioners for purposes of the record. Attorney Henry confirmed

that he had the authority to speak for all Petitioners, but that he was proceeding primarily on behalf of Petitioner

Donald J. Trump for President, Inc.


10

   While drafting this Memorandum and Order, the Court has learned that the Supreme Court of Pennsylvania has

Exercised Extraordinary Jurisdiction over the some of the Commonwealth Courts cases with respect to Election Code

issues similar to the ones at issue herein. In Order to expedite the completion of this Memorandum and Order, this


                                                         3

   After careful deliberation and study of the relevant statutory and appellate


case law, the undersigned is confident that the final decision is correct. However,


the electorate and the various county boards of elections would benefit from


clear precise legislation on the subjects presented in this appeal. It must be noted


that the parties specifically stipulated in their comprehensive stipulation of facts


that there exists no evidence of any fraud, misconduct, or any impropriety with


respect to the challenged ballots. There is nothing in the record and nothing


alleged that would lead to the conclusion that any of the challenged ballots were


submitted by someone not qualified or entitled to vote in this election. At no time


did Petitioners present evidence or argument to the contrary. The challenges are


all to form rather than substance but premised on specific statutory language


which Petitioners argue supported the issues presented. There is insufficient time_


for this Court to construct a comprehensive response to all issues raised but


hopefully this decision will provide an explanation for the Court's reasoning.


    II.      Undisputed factual record


    Upon assignment of this case the undersigned issued scheduling orders


including an order that the parties meet prior to the date of the hearing on this


matter to craft a stipulation of undisputed facts. Counsel for the parties did an


excellent job crafting 47 paragraphs of stipulated facts. The stipulation was




Decision will not cite all of the legal authority reviewed and considered and which supports each and every

conclusion. The Intervenors in this case, and the Respondent, submitted ample legal authority for their positions,

and this Court will presume that all Appellate Judges reviewing this Decision will be familiar with the body of Election

Law which defines and establishes broad principles of law, which for purposes of Petitioners' Appeal have not been

challenged by any party, but which would normally be cited for completeness as a matter of course.


                                                          4

presented to the court during the on the record conference held the morning of


the hearing. Stipulated Facts, Ct. Ex. 1. The hearing was held in the afternoon of


November 17th, 2020. The stipulation of facts also included exhibits. During both


the conference and the hearing, counsel were frequently questioned whether


everyone agreed to something stated by an attorney or the Court. The record


has not been transcribed and is not available to the Court at this time, and for


that reason, there will be no references to a transcript. However, the Court is


confident that the facts stated herein were agreed to by all parties on the record.


   On November 7th, 2020 during the course of the canvass meeting of mail-in


and   absentee    ballots,   and   in   the   presence   of interested    authorized


representatives of the various candidates, the Respondent Board met to


determine whether declarations on the envelopes of certain ballots were


"sufficient" pursuant to the mandate of 25 P.S. § 3146.8(g)(3). 3,095 specific ballots


had been identified and placed in different categories based on a possible


deficiency of the ballot. The physical ballots were separated from the other


ballots and secured along with all ballots of the same category. The Board made


findings and decisions with respect to ten different categories of ballots,


accepting some categories for canvassing and excluding others, as reflected in


the Board's written decision made part of the record. The meeting and vote were


conducted in the presence of authorized representatives of both Republican and


Democratic candidates and parties. No one objected to or challenged the


segregation of ballots into the designated categories. No one has appealed the



                                          5

Board's decision to exclude 918 ballots for various reasons set forth in its written


Decision. The only appeal has been from the Board's decision to not exclude


certain ballots.


   The parties' stipulation of facts identified the six categories which were


challenged by Petitioners. During the hearing, counsel for Petitioner withdrew the


challenge of category 6 and reduced the challenge of category 4. As a result,


the following are the categories at issue for this decision:


      •   Category 1: 1196 ballots with no date or a partial date handwritten on


          the outer envelope;


      •   Category 2: 644 ballots with no handwritten name or address on the


          outer envelope;


      •   Category 3: 86 ballots with a partial written address on the outer


          envelope;


      •   Category 4: 182 ballots with a mismatched address on the outer


          envelope; and


      •   Category 5: 69 ballots with "unsealed" privacy envelopes.


      The ballots in category 1 were deemed to be sufficient by the Respondent


Board, and as a result they were canvassed. During oral argument the Court


inquired whether it would be possible to segregate that category of ballots into


two separate groups, one being ballots with no date and the other being ballots


with a partial date. The Respondent Board has explained that the ballots were


canvassed and cannot be retrieved as two separate groups. This Court believes



                                          6

that the category as identified should have been segregated into two separate


groups, however that was not done. All the ballots in this category are mingled


together and a decision on those ballots must now accept this fact. Should this


Court or an appellate court conclude that the absence of any date would


invalidate a ballot but that a partial date would preserve the ballot the Court


would be faced with the fact that invalidating the entire c a tegory would


disenfranchise voters that had properly submitted their ballot. No record has been


created to determine the exact number of ballots with no date versus ballots with


a partial date. This Court concluded that to order a further review would be a


futile exercise under the circumstances and now accepts the factual situation for


what it is.


   Ill.       Discussion


   Petitioners' Appeal as pled is limited to the argument that the Board's Decision


to validate (and not reject) each of the ballots which have been categorized into


five separate distinct groups was an "error of law." Petitioners have pled, in their


challenge, that each category of ballots represents a violation of a specific


provision of the Election Code citing§§ 3146.6(a) and 3150.16(a).


   Although all provisions of the Election Code should be strictly enforced, the


ultimate goal as confirmed by case law is to enfranchise voters, not to


disenfranchise them. In re Wieskerqer, 290 A .2d 108, 109 (Pa. 1972). The Court


"cannot ignore the clear mandates of the Election Code." In re Canvass of


Absentee Ballots of Nov. 4. 2003 Gen . Election, 843 A.2d 1223, 1231 (Pa. 2004)



                                         7

[hereinafter "Appeal of Pierce"]. But, the Court must be flexible in favor of the


right to vote. Wieskerqer, 290 A.2d at 109; Appeal of Pierce, 843 A.2d at 1231.


   In an attempt to balance those two overriding principles, the Pennsylvania


Supreme Court has ruled that certain provisions of the Election Code are


mandatory, and some are directory. Specifically, the Pennsylvania Supreme


Court has identified and explained principles of law which control the argument


set forth by the litigants herein, which provides guidance and clear direction to


this Court. Ballots should not be disqualified based upon failure to follow directory


provisions of the law. Shambach v. Bickhart, 845 A.2d 793, 803 (Pa. 2004) (holding


that although the Election Code provides that an elector may cast a write-in vote


for any person not printed on the ballot, a write-in vote for a candidate whose


name in fact appears on the ballot is not invalid where there is no evidence of


fraud and the voter's intent is clear); Wieskerqer, 290 A.2d at 109 (holding that the


elector's failure to mark the ballot with the statutorily enumerated ink color does


not render the ballot invalid unless there is a clear showing that the ink was used


for the purpose of making the ballot identifiable or otherwise indicating fraud).


There is an important difference between mandatory and directory provisions of


law: failure to strictly adhere to the requirements of a directory statute will not


nullify the validity of the action involved, whereas mandatory provisions must be


followed.


   Applying the law to the facts of this case, this Court is mindful of the following


facts which are set forth in the parties' stipulation of facts. Petitioners do not



                                           8

allege that there is any evidence of fraud, misconduct, impropriety, or any


undue influence committed with respect to the challenged ballots. There is no


suggestion, evidence, or allegation that the electors who cast the ballots at


issue were ineligible to vote in this election. There is no suggestion, evidence, or


allegation that the challenged ballots were cast by someone other than the


elector whose signature was on the outer envelope. No mail-in or absentee


ballots were mailed out to electors before October 7th, 2020. The ballots which


are the subject of this challenge were timely received by the Respondent Board


before 8:00PM on Election Day, November 3rd, 2020.


   Petitioners raise challenges under Section 3146.6 and 3150.16 of the Election


Code. These provisions are nearly identical, but one is applicable to absentee


ballots while the other is applicable to mail-in ballots. Section 3146.6(a) provides


for voting by absentee electors:


            Except as provided in paragraphs (2) and (3), at any

            time after receiving an official absentee ballot, but on or

            before eight o'clock P.M. the day of the primary or

            election, the 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.

                                          9

25 P.S. § 3146.6(a). Section 3150.16(a) provides for voting by mail-in electors:


                    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.


25 P.S. § 3150.16(a).


       Pursuant to these provisions of the Election Code, Petitioners challenge ballots


that were set aside for specific review in the following categories 11:


       1. No date or partial date,


       2. No printed name or address,


       3. Partial address,





11

     There has been no challenge to the Board's Decision to set aside and not count ballots in the following categories:

       a. 110 ballots that failed to include a signature, which the Board ruled rendered the ballot "insufficient" and

           therefore it was not canvassed;

       b. 12 ballots where the elector's printed name did not match the name on the label located on the envelope;

       c. 2 ballots which came from the same household where the voters appeared to have inadvertently signed

           one another's declarations;

       d. 708 ballots which were not placed in a secrecy envelope thereby rendering them to be "naked"; and

       e. 21 ballots which contained secrecy envelopes with writing that revealed the elector's identity.


See Written Decision of Board.


                                                           10

  4. Mismatched address, and


   5. Unsealed privacy envelopes.


   The relevant portion of the Election Code set forth above uses mandatory


language which provides that electors "shall" take certain steps when submitting


an absentee or mail-in ballot. Importantly, "the elector shall ... fold the ballot,


enclose and securely seal the same in the envelope on which is printed, stamped


or endorsed 'Official Election Ballot."' 25 P.S. §§ 3146.6(a), 3150.16(a) (emphasis


added). And, "[t]he elector shall then fill out, date and sign the declaration


printed on such envelope." J..Q.. (emphasis added). Although not relevant to this


decision, there is additional mandatory language in this provision of the Election


Code: "[t]his 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"; "[s]uch


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." J..Q.. (emphasis added).


   Mandatory language is used throughout the Election Code. "Pennsylvania's


Election Code, no less than any other, is steeped with requirements phrased in the


imperative, not only in terms of the technical requirements for ballot completion,


but also in terms of the overall conduct of elections." Bickhart, 845 A.2d at 806


(Saylor, C.J., concurring). Because of the excessive use of imperative language in


the Election Code, the Supreme Court has distinguished between provisions that



                                         11

are directory and those that are mandatory. "It would be unreasonable to


assume that the General Assembly thus intended that, unless each and every


such requirement (using imperative language] is strictly adhered to by those


conducting the elections, election results must be deemed void." lQ,_ If the


provisions are read as directory, although "they are intended to be obeyed, and


will be enforced if raised before or during an election, [they] do not require


invalidation of the election or disenfranchisement of electors where discovered


in the election aftermath." ld. at n.2.


   Respondent and Intervenors argued that even when imperative language


such as "shall" is used in the statute, it is not necessarily mandatory language; it


can, in fact, be used in directory provisions. Respondent and Intervenors argued


that looking to the consequence of non-compliance with the provision


determined whether the provision was mandatory or directory; the inquiry did not


end with the plain language of the Election Code.


   In support of this argument, Respondent and Intervenors relied on the


Pennsylvania Supreme Court's opinion in Boockvar, where the inquiry was to


determine whether the Election Code allowed a board to void ballots that were


not within a secrecy envelope. Pa. Democratic Party v. Boockvar, No. 133 MM


2020, 2020 Pa. LEXIS 4872, at *57 (Pa. 2020 Sept. 17, 2020). "In determining the


propriety of naked ballots, we must ascertain the General Assembly's intention by


examining the statutory text of the secrecy envelope provision to determine


whether it is mandatory or directory, as that will govern the consequences for non-



                                          12

compliance." 2020 Po. LEXIS 4872, at *66. The Court ruled that "the difference


between a mandatory and directory provision is the consequence for non-


compliance: a failure to strictly adhere to the requirements of a directory statute


will not nullify the validity of the action involved." ld. {quoting JPay, Inc. v. Dep't


of Corrs. & Governor's Off. of Admin., 89 A.3d 756, 763 {Po. Cmwlth. 2014)). The


Court distinguished the statutory provision at issue from those involved in cases


where imperative language was found              to be directory. Specifically, it


distinguished Bickhart and Wieskerqer. lQ_,_ at *68-69. In both of those cases, the


Court found that ballots with "minor irregularities" should only be stricken when


there is a compelling reason to do so. In Bickhart, the Court counted a ballot


where a candidate who was already named on the ballot was written in by the


elector. Bickhart, 845 A.2d at 803. In Wieskerqer, the Court counted a ballot that


was completed in the wrong color ink. Wieskerqer, 290 A.2d at 109. "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 requirement."


kL {quoting Reading Election Recount Case, 188 A.2d 254, 256 {Po. 1963)).


   In contrast, in Appeal of Pierce, where the provision at issue was the "in-


person" delivery requirement, the Pennsylvania Supreme Court found this


provision "unambiguously 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." Boockvar, 2020 Po. LEXIS 4872, at *70. The


Court "was unpersuaded by the argument that the language was directory and



                                          13

declined the invitation to interpret 'shall' as anything less than mandatory." &


"The word 'shall' carries an imperative or mandatory meaning." Appeal of Pierce,


843 A.2d at 1231. In Appeal of Pierce, the Supreme Court distinguished Wieskerqer


based on the fact that it was "decided before the enactment of the Statutory


Construction Act, which dictates that legislative intent is to be considered only


when a statute is ambiguous." 1£;h The Pennsylvania Supreme Court stated that to


construe the provision at issue, which utilized the word "shall," as "merely directory


would render its limitation meaningless and. ultimately, absurd." ld. at 1232. The


Court stated that "precedent is clear: we cannot simply ignore substantive


provisions of the Election Code." ld. at 1234. "[S]o-called technicalities of the


Election Code are necessary for the preservation of secrecy and the sanctity of


the ballot must therefore be observed." ld.


   Being mindful of the Pennsylvania Supreme Court's recent rulings, interpreting


the current Election Code, this Court finds the following with respect to each


category:


      1. Category 1: 1196 Ballots With No Date or a Partial Date Handwritten on


         the Outer Envelope


   As mentioned, when setting aside ballots because of deficiencies in the


cor:npletion of the declaration, the Board combined those ballots which had a


partial date with those that had no date into one category. This category co-


mingles what this Court considers two separate categories: ballots with no dates


and ballots with partial dates. There are an undefined number of ballots with



                                         14

absolutely no date whatsoever and an undefined number of ballots that were


dated in some fashion, but where the date was considered to be partial. This


Court would, with little hesitation, accept the argument that a deficiency (i.e., a


partial date) on an envelope would not invalidate that ballot. The totality of the


circumstances confirms that the ballot was signed on a date that qualified the


ballot because the parties stipulated in their stipulation of facts at       ~   44 that


"challenged ballots were completed and received between October 71h and


November 3rd, 2020." Therefore, these ballots would meet the requirement that


the elector "shall fill out, date and sign the declaration" as stated in Sections


3146.6 and 3150.16 of the Election Code. See 25 P.S. §§ 3146.6(a), 3150.16(a).


Within this subcategory, the elector would have complied with the law's mandate


that "[t] he elector shall then fill out, date and sign the declaration printed on such


envelope." ld. (emphasis added).


   With respect to a subcategory of ballots which were completely undated, this


Court finds that the question before the Court is much more complicated.


Respondent and Intervenors passionately argue that the mandate to "date" is


directory only and the totality of the evidence proves that the ballots were signed


on a date consistent with the law. This Court agrees with the conclusion that the


totality of the evidence, stipulated to by the parties, proves that the ballots were


signed on some date appropriate to the Election Law; however, the only specific


guidance available to this Court, on this subject, is found in In re Nov. 3. 2020.. Gen.


Election, No. 149 MM 2020, 2020 Po. LEXIS 5560, at *36 (Po. Oct. 23, 2020), where



                                          15

the Pennsylvania Supreme Court specifically ruled on the Board's duty to


determine the sufficiency of the Declaration on the envelope. The Pennsylvania


Supreme Court has provided this Court, and all Board of Elections, with this


mandate:


            Both sections [3146.6(a) and 3150.16(a)] require that the

            elector "fill out, date and sign the declaration." Thus, in

            determining whether the declaration is "sufficient" for a

            mail-in or absentee ballot at canvassing, the county

            board is required to ascertain whether the declaration

            on the return envelope has been filled out, dated, and

            signed. This is the extent of the board's obligation in this

            regard. In assessing a declaration's sufficiency, there is

            nothing in this language which allows or compels a

            county board to compare signatures. Accordingly, we

            decline to read a signature comparison requirement

            into the plain and unambiguous language of the

            Election Code, as Intervenors urge us to do, inasmuch as

            the General Assembly has chosen not to include such a

            requirement at canvassing.


2020 Po. LEX IS 5560, at *36 (emphasis added).


   Intervenors and Respondent argued to this Court that the language of the


Pennsylvania Supreme Court was dicta as it relates to the words "dated and


signed". Ultimately, an Appellate Court may rule that the language was merely


dicta; however, the undersigned feels constrained to follow the clear language


of the Pennsylvania Supreme Court's Decision with respect to this issue. A studied


review of election law has demonstrated to the undersigned that many sections


of the Election Law which were ultimately concluded to be directory rather than


mandatory despite the use of the word "shall", went through a gauntlet of judicial


opinions with varying views up until the question was resolved by the Pennsylvania



                                        16

Supreme Court. See Appeal of Pierce, 843 A.2d 1223 (Pa. 2003); Bickhart, 845 A.2d


793 (Pa. 2004).


   In reflecting on this issue, the undersigned cannot help but see the irony in the


fact that the absence of a signature invalidates the ballot. Respondent refused


to Canvass ballots that had not been signed.        However, if someone put an


obviously false signature on the ballot, the ballot would have been most probably


counted because the Court has also ruled that nothing in the language of the


Statute compelled a County Board to compare the signature; whereas if


someone put a date on the envelope which demonstrated that the vote was


made at an improper time, that fact would be readily apparent to the Board


when Canvassing and it would result in a ballot being set aside.        During oral


argument, the Court pointed out ihat virtually all-important documents are dated


when signed. If these two subcategories of ballots had not been co-mingled, and


if it were possible to segregate those ballots which had no date at all, this Court


would have reflected on the issue further, searched for additional legal authority,


but most probably would have ruled that an undated ballot is not sufficient based


on the existing law set by the Pennsylvania Supreme Court's ruling in In re Nov. 3,


2020 Gen. Election. However, the ballots were co-mingled and therefore there is


no practical way to discard those un-dated ballots without disenfranchising


electors whose ballots (partially dated) this Court would conclude are valid.


   The act of co-mingling ·those ballots was done in the presence of both


Republican and Democratic representatives.        All candidates had the right to



                                        17

have a representative present when the Board issued its ruling.                    The


representatives present were specifically named in the Stipulated Findings of Fact.


Pursuant to this Court's Scheduling Order, those representatives received a copy


of Petitioners' Petition and notice of the hearing.        Only one of the named


representatives participated in the hearing.       The undersigned noted, on the


record, that he was personally familiar with the lawyers who were acting as


representatives and knew them to be bright, articulate people, not shy or


reluctant to speak out. Those lawyer/representatives all knew how to contact the


Bucks County Court of Common Pleas, and therefore, any or all of them could


have insisted on subcategorizing this category of ballots before they were co-


mingled.


   This issue identified by the undersigned has effectively created a waiver issue


for these ballots. This Court specifically finds with respect to these specific ballots


that it would be unfair and improper to disenfranchise the undefined number of


electors who issued a proper ballot, simply because their ballot was co-mingled


with what the undersigned would have felt compelled under current law to deem


"insufficient".


   Upon review of this issue by an Appellate Court, this Court urges consideration


to the issue of co-mingling and this Court's ruling that the issue has been waived.


The issue of co-mingling was before the Pennsylvania Supreme Court in Appeal


of Pierce, and is noted at footnote 16. See Appeal of Pierce, 843 A.2d at 250, n.l6





                                          18

There, the Court declined to rule on the validity of a co-mingled ballot because


the issue was not preserved.


      2. Categ ories 2-4:644 Ballots With No Handwritten Nam_e or Address on the


           Outer EnveloQe. 86 Ballots With a Partial Written Address on the Outer


           Envelop e. and 182 Ballots With a Mismatched Address on the Outer


           Envelope


   The 644 ballots with no handwritten name or address on the outer envelope,


the 86 ballots with a partial written address on the outer envelope, and the 182


ballots with a mismatched address on the outer envelope should be counted as


these errors are ministerial, technical errors. Failure of the elector to complete this


information is not an error of law. Although the provision in question requires an


elector to "fill out" the declaration, there is no requirement that filling out the


declaration needs to. include handwriting the elector's name and address. Even


following a strict construction of the Election Code language, as urged by


Petitioners, these "errors" (failure to adequately complete information on the


outer envelope) are not mandated by the statute. Rather, these errors are "minor


irregularities," which should not invalidate ballots. As with the Supreme Court's


decision in Bickhart and Wieskerqer, the minor irregularity of a lack of a complete


handwritten name or address is not necessary to prevent fraud, and there would


be no other significant interest undermined by allowing these ballots to be


counted.


      3. Category 5: 69 Ballots With .,Unsealed., Privacy Envelopes



                                          19

  The ballots at issue in this category are not "naked ballots," which would be


invalid pursuant to the Supreme Court's decision in Boockvar. 2020 Po. LEXIS 4872,


at *73. Rather, these ballots were enclosed within their respective privacy


envelopes; however, those envelopes were not sealed at the time of canvassing.


There is no factual evidence that supports a conclusion that the envelopes had


not been sealed by the elector prior to that time. In the stipulation of facts   at~   46,


the parties stipulated "[w]ith respect to Category 5 (69 ballots in "unsealed"


privacy envelopes), Defendant could not determine whether the privacy


envelopes were initially sealed by the elector but later became unsealed."


Therefore, this Court finds there is no evidence that the electors failed to "securely


seal [the ballot] in the [privacy] envelope," as required by the Election Code. The


elector was provided the envelope by the government.             If the glue on the


envelope failed that would be the responsibility of the government. There is


insufficient evidence to determine whether the specific language of the


mandated law was violated.         This Court finds it would be an injustice to


disenfranchise these voters when it cannot be shown that the ballots in question


were not "securely sealed" in the privacy envelope prior to the canvassing of


those ballots, and for all of the reasons stated previously, there has been no


suggestion or evidence that the absence of a sealed inner envelope in anyway


jeopardized the privacy of the ballot.





                                         20

IV.     Conclusion


      For the reasons set forth herein above, the objections to the ballots of


Petitioner Donald J. Trump for President, Inc., et al. are all OVERRULED, the


requests for relief made therein are DENIED and the Appeal is DISMISSED.




                                   BY THE COURT:





                                     21

  IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANJA

                                         CIVIL DIVISION





IN RE: CANVASS OF ABSENTEE AND/OR

MAIL-IN BALLOTS OF NOVEMBER 3, 2020                                    No. 20-05786-35

GENERAL ELECTION

ELECTION


PETITION OF DONALD J. TRUMP FOR

PRESIDENT, et al.



                                            ORDER


       AND NOW, this 191h day ofNovember, 2020, upon consideration of(l) the Petition for


Review of Decision by the Bucks County Board of Elections filed on behalf of Petitioners


Donald J. Trump for President, Inc., Republican National Committee, Heidelbaugh for Attorney


General, Inc., and Garrity for PA; (2) the responses in opposition thereto filed by Respondent


Bucks County Board of Elections, Intervenor Democratic National Committee, and Intervenors


Pennsylvania House Democratic Campaign Committee and Bucks County Democratic


Committee; and (3) the evidence presented including all stipulations and admissions by counsel


as well as the arguments of counsel during the on the record prehearing conference and the


hearing on November 171\ 2020, for the reasons set forth in the accompanying Memorandum, it


is hereby ORDERED and DECREED that said Petition for Review is DENIED. The Bucks


County Board of Elections is ORDERED consistent with the Memorandum to count the ballots


which are the subject of the Petition:


    1. 1,196 ballots with no date or a partial date handwritten on the outer envelope;


    2. 644 ballots with no handwritten name or address on the outer envelope;


    3. 86 ballots with a partial written address on the outer envelope;

                                            N.B. It is the responsibility of

                                            all parties to notify all inte~ested

                                            parties of the content of th1s

                                            order/ action

4. 182 ballots with a mismatched address on the outer envelope; and


5. 69 ballots with "unsealed" privacy envelopes.

APPENDIX N

    COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA

                            CIVIL ACTION


DONALD J. TRUMP FOR PRESIDENT, INC.,

et al.,

                Plaintiffs/ Petitioners                       NO. 2020-18680


       v.


MONTGOMERY COUNTY BOARD OF

ELECTIONS,

             Defendant/ Respondent


DEMOCRATIC NATIONAL COMMITTEE,

et al.,

              Intervenor


HAAZ,J.                                                                        November 13,2020

                                MEMORANDUM AND ORDER


   I. INTRODUCTION


   Petitioners, Donald J. Trump for President, Inc., et al., filed a Petition for Review of Decision


by the Montgomery County Board of Elections (the "Board") on November 5, 2020 seeking to


invalidate about six hundred (600) absentee and mail-in ballots cast by voters in the November 3,


2020 General Election. Petitioners seek review of the Board's decision to overrule Petitioners'


objections to count these ballots. Petitioners allege these challenged ballots were cast in violation


of 25 P.S. §§ 3146.6(a) and 3150.16(a) because the electors failed to fill out their address


immediately below their signed declaration on the outer envelope of the absentee and mail-in


ballots. A telephone conference was held on November 6, 2020 where the parties agreed to submit


stipulated facts. The Democratic National Convention ("DNC") and the Montgomery County


Democratic Committee moved to intervene in the action. Petitioners and Respondent did not object


and these motions were granted by the court.





                                                 1

                         RULE 236 NOTICE PROVIDED ON 11/13/2020

      II. STIPULATED FACTS


       The parties stipulated to the following facts:


           1. Electors of the Commonwealth of Pennsylvania may choose to cast their vote

              in any primary or election by absentee or by mail-in ballot.


           2. In both instances, the elector who desires to cast a vote either by absentee ballot

              or mail-in ballot must request such a ballot from the county board of elections,

              in this case, Respondent.


           3. Upon application to, and approval of that application by Respondent, the elector

              is provided balloting materials that include: 1) instructions as to how the elector

              is to complete and return the ballot; 2) the ballot; 3) an inner secrecy envelope

              into which the ballot is to be placed; and 4) an outer envelope into which the

              secrecy envelope containing the ballot is to be placed and returned to

              Respondent.


           4. When the balloting materials are sent to the elector by Respondent, pre-printed

              on the reverse side of the outer envelope is a voter's declaration.


           5. Underneath the voter's declaration is a place for the voter to sign, date, and print

              their name and address.


           6. Also pre-printed on the same side of the outer envelope as the voter's

              declaration is a unique nine-digit bar code that links the outer envelope to the

              voter's registration file contained in the Statewide Uniform Registry of Electors

              ("SURE") system. Also, in most cases, the elector's name and address is pre-

              printed on that side of the envelope. 1


           7. On the front side of the outer envelope is preprinted the Respondent's address

              where the ballot is to be sent as well as a place in the upper left-hand comer

              where the elector may indicate his or her return address by writing it thereon or

              affixing a label.


1

    Footnote 1 of the parties' stipulation states as follows:

                    Of the 592 ballots at issue, 509 of those ballots have the voter's address pre-

                    printed on the outer envelope to the right of the voter's declaration. This was done

                    by the Board when it sent the ballot materials to the elector who had requested

                    them. Of these 509 "pre-printed address" ballots, 266 voters also affixed their

                    address in the space provided for return addresses on the front of the envelope.

                     So, for 266 of these ballots, the voter's address actually appears twice. For the

                    remaining 83 ballots, the pre-printed address was blacked-out in order to facilitate

                    the delivery of the ballot materials by the USPS. In 47 of these "blacked-out

                    ballots," the voter wrote their address on the space provided for a return address

                    on the front of the outer envelope. 36 out of 592 ballots have an outer envelope

                    with no easily discernable voter address. However, all 592 ballots contain the bar

                    code that links each one to the SURE system and the specific voter's information

                    - including address - is visible when scanned.



                                                             2

          8. The Board has received 592 absentee and mail-in ballots where electors have

              signed the voter's declaration and provided a date, but have not printed their

              complete address in the space provided below the Declaration on the outer

              envelope.


           9. Respondent has segregated and not opened nor counted these 592 ballots.


           10. When Respondent brought the existence of this group of unopened ballots to

               the attention of Petitioners' counsel, an objection was verbally lodged.


           11. Respondent has verbally overruled that objection and intends to open and count

               these ballots subject to a ruling of this honorable Court.


           12. A true and correct copy of the instructions to absentee and mail-in electors

               contained in the ballot packages is attached hereto as Exhibit "A."


           13. True and correct copies of examples of unopened absentee and mail-in ballots

               (front and back) that are part of, and indicative of, the 592 ballots at issue before

               this Court are attached as Exhibits "B" through "E" respectively. 2


Stipulated Facts, filed 1119/20.


           Respondent and Intervenor filed responses in opposition to the Petition on November 9,


2020. The court heard oral argument on November 10, 2020. Petitioners stated they were not


claiming any voter fraud, undue or improper influence regarding the challenged ballots at issue.


N.T. 11110/20, at 11.


           The parties stipulated that all of the 592 ballots at issue are signed and dated. All of the


outer declaration envelopes contain the electors' signatures directly below the Voter's Declaration


which states as follows:


                   I hereby declare that I am qualified to vote from the below stated

                   address at this election; that I have not already voted in this election;

                   and I further declare that I marked my ballot in secret. I am qualified

                   to vote the enclosed ballot. I understand I am no longer eligible to

                   vote at my polling place after I return my voted ballot. However, if

                   my ballot is not received by the county, I understand I may only vote

                   by provisional ballot at my polling place, unless I surrender my



2

    Exhibits A through E are appended hereto.



                                                      3

                balloting materials, to be voided, to the judge of elections at my

                 polling place.


Exhibits B-E, Stipulated Facts, filed 1119/20. Beneath the elector's declaration and signature are


areas for the elector to indicate the date they voted, their printed name and address.


        Petitioners claim the Board violated the requirements of 25 P.S. §§ 3146.6(a) and


3150.16(a) by canvassing and counting absentee and mail-in ballots where the outer declaration


envelope has not been properly "filled out" with the elector's address. The Board maintains the


above provisions do not require the elector to provide their address and the outer envelopes comply


with the above statutory requirements. 3


    III. DISCUSSION


        The five statutory provisions of the Election Code at issue do not specifically require the


absentee or mail-in elector to provide their address below the declaration on the outer envelope.


25 P.S. §§ 3146.6(a) and 3150.16(a) govern voting by absentee and mail-in electors. Sections


3146.4. and 3150.14(b) address the form of the declaration on the outer envelope. Section


3146.8(g) addresses the county board's obligations related to canvassing.


        25 P. S. § 3146.6(a) states the following regarding absentee ballots:


                 (a) Except as provided in paragraphs (2) and (3), at any time after

                 receiving an official absentee ballot, but on or before eight o'clock

                 P.M. the day of the primary or election, the 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,


3

  Both the Board and Intervenor, DNC, have argued that the 2020 amendments to the Election Code have eliminated

time-of-canvassing challenges entirely from§ 3146.8(g)(3). The court is not addressing the merits of this argument.



                                                        4

              postage prepaid, except where franked, or deliver it in person to said

               county board of election.


25 P.S. § 3146.6(a) (emphasis added). The same requirements are set forth with respect to mail-in


ballots. See 25 P.S. § 3150.16(a) ("The elector shall then fill out, date and sign the declaration


printed on such envelope.").


        Sections 3146.4 and 3150.14(b), regarding absentee and mail-in ballots respectively, both


delegate the form of the declaration to the Secretary of the Commonwealth. For absentee ballots,


Section 3146.4 states as follows:


               . . . On the larger of the two envelopes, to be enclosed within the

               mailing envelope, shall be printed the form of the declaration of the

               elector, and the name and address of the county board of election of

               the proper county. The larger envelope shall also contain

               information indicating the local election district of the absentee

               voter. Said form of declaration and envelope shall be as prescribed

               by the Secretary of the Commonwealth and shall contain among

               other things a statement of the electors qualifications, together with

               a statement that such elector has not already voted in such primary

               or election ...

               25 P.S. § 3146.4.


For mail-in ballots, the statute provides:


                (b) Form of declaration and envelope.-- The form of declaration and

                envelope shall be as prescribed by the Secretary of the

                Commonwealth and shall contain, among other things, a statement

                of the elector's qualifications, together with a statement that the

                elector has not already voted in the primary or election.

                25 P.S. § 3150.14(b).


These two provisions, specific to the content of the voter declaration, do not require the elector's


address to be included in the declaration or for the elector to write it in.


        The pre-canvassing or canvassing ofballots is processed as follows:


               When the county board meets to pre-canvass or canvass absentee

               ballots and mail-in ballots under paragraphs (1 ), (1.1) and (2), the

               board shall examine the declaration on the envelope of each ballot

               not set aside under subsection (d) and shall compare the information




                                                   5

&

§

s.

'0~

g ~                              thereon with that contained in the "Registered Absentee and Mail-

~

 (l).g

        a                        in Voters File," the absentee voters' list and/or the "Military

~ -o                             Veterans and Emergency Civilians Absentee Voters File,"

oc:

~ ~                              whichever is applicable. If the county board has verified the proof

~~                               of identification as required under this act and is satisfied that the

        E

o...Cll.l2                       declaration is sufficient and the information contained in the

~~                               "Registered Absentee and Mail-in Voters File," the absentee voters'

 ~~                              list and/or the "Military Veterans and Emergency Civilians

·sa;g

·iil                             Absentee Voters File" verifies his right to vote, the county board

 ~~                              shall provide a list of the names of electors whose absentee ballots

~       2                        or mail-in ballots are to be pre-canvassed or canvassed.

£~

"§:£

 ~

:.::::c:

        s    25 P.S. § 3146.8(g)(3) (emphasis added).

 9..~

 §:jg

 ~ '6                   The court agrees with the Board's interpretation of§ 3146.6(a) and 3150.16(a). The

 c:~

iiE53

:§ ~         statutory provisions provide that "[t]he elector shall then fill out, date and sign the declaration

10-8

:S-o

~~           printed on such envelope." 25 P.S. §§ 3146.6(a), 3150.16(a). The Legislature did not include a

iji,g

 ~~          requirement that the elector include their address on the outer envelope. By contrast, in sections

ii::.s2

 Cll.£;

~~           3146.6(a)(3) and 3150.16(a.l), the Legislature explicitly imposed the requirement of a "Complete

OCII

c:;;g

': 8         Address of Witness" when an elector is unable to sign the declaration due to illness or physical

 CliO>

~ .£;

~-~          disability. 4 Sections 3146.6(a) and 3150.16(a) do not include an explicit requirement to include

:g&

-<t~

0       10   the address of the elector as is clearly stated and required in subsequent subsections of the same

C\l.c:

o-

~~

S 8

.....

             statute. "It is a well established principle of statutory interpretation that we 'may not supply

 c:~

 ~~          omissions in the statute when it appears that the matter may have been intentionally omitted."' In

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 eCI)

0...    8:   4

                 By comparison, 25 P.S. § 3150.16(a.l) states as follows:

g '!                    (

                        a.l) Signature.--Any elector who is unable to sign the declaration because of illness or physical

8~                     disability, shall be excused from signing upon making a declaration which shall be witnessed by

 ~~                    one adult person in substantially the following form:

 ~a

 oo

~~                               I hereby declare that I am unable to sign my declaration for voting my mail-in ballot

~       5l                       without assistance because I am unable to write by reason of my illness or physical

10 ~                             disability. I have made or received assistance in making my mark in lieu of my signature.

ijl.!l!                                    (Mark)

-c:

~ ~                                        (Date)

8~                                                                             (Complete Address ofWitness)

l7 ~                                                                           (Signature ofWitness)

~'l5

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~~

~~

~-

lll·!:,!                                                                6

~~

re November 3, 2020 General Election, No. 149 MM 2020, 2020 WL 6252803, at *14 (Pa. Oct.


23, 2020) (citing Sivickv. State Ethics Commission, No. 62 MAP 2019,2020 WL 5823822, at *10


(Pa. Oct. 1, 2020)) (holding, inter alia, that the Election Code does not require signature


comparison).


         The instructions by the Board accompanying each absentee or mail-in ballot do not inform


the voter that their address is required or that its omission will invalidate their ballot. The


instructions state "Be sure that you sign and date your [return] envelope." Exhibit A, Stipulated


Facts, filed 1119/20 (emphasis in original). Underneath that instruction, it is stated "Please Note:


Your ballot cannot be counted without a signature on the return envelope." Ibid. The instructions


do not state that a ballot will be not be counted without an address on the outer declaration


envelope. Additionally, the checkbox reminder on the top of the outer envelope only asks the


elector if they have signed the declaration in their own handwriting and if they have put their ballot


inside the secrecy envelope and placed it in the outer envelope. It would be patently improper and


unfair to invalidate a ballot where a voter reasonably relies upon lawful voting instructions by their


election board. 5 In re Recount ofBallots Cast in General Election on November 6, 1973, 325 A.2d


303, 308-309 (Pa. 1974) ("[T]he invalidation of a ballot where the voter has complied with all


instructions communicated to him and in the absence of any evidence of improper influence having


been exerted, invalidation would necessarily amount to an unreasonable encroachment upon the


franchise and the legislative enactment should not be interpreted to require such a result.") (holding


that votes must be counted where electors failed to remove, as explicitly required by the Election


Code, a perforated comer containing identifying information where "[t]here was no direction on



5

  The court is aware that "erroneous guidance from the Department or county boards of elections cannot nullify the

express provisions of the Election Code." In re Scroggin, 237 A.3d 1006, 1021 (Pa. Sept. 17, 2020). However, the

court finds that requiring an elector to "fill out" their address on the outer envelope is not expressly stated in the

Election Code. The Board's instructions to voters is consistent with the requirements of the Election Code.



                                                          7

&

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g ~         the face of the ballot instructing the voter of the need to remove that particular portion before

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~ -o        casting the ballot").

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"(c:

~~                   Petitioners urge the court to construe "fill out" in Sections 3146.6(a) and 3150.16(a) to

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~~          mean "fill out your address in order for your vote to be counted." The Election Code does not

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       ;g   explicitly state as such and the court will not add language to the statute imposing a voting

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~      2    condition which the Legislature did not specifically include. Even if one assumes, arguendo, that

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            the address requirement may be required, 556 of 592 challenged ballots include the electors'

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~ '6        addresses on the outer declaration envelopes (266 of which contain both the electors' pre-printed

c:~

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:§ ~        addresses and hand-written/typed mailing labels on the return addresses of the outer envelope, 243

10-8

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~~          of which contain the electors' pre-printed addresses, and 47 ofwhich contain the electors' hand-

iji,g

~~          written/typed mailing labels on the return addresses of the outer envelope). The remaining 36

ii::.s2

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~~          ballots contain a bar code which links the outer envelope to the voter's registration file contained

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': 8        in the Statewide Uniform Registry ofElectors system (validating their addresses) provided to state

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~ .£;

~- ~        election officials earlier in 2020. 6 By signing and dating the declaration, the elector has declared

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       i    they are "qualified to vote the enclosed ballot." 7

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  ~         6

              In order to vote by absentee or mail-in ballot, an elector must submit an application where he or she must attest to

~"tJ

~ ~         their address at least annually or for each election. See 25 P.S. § 3150.12(g)(l) ("A mail-in ballot application mailed

§ !!        to an elector under this section [permanent mail-in voting list], which is completed and timely returned by the elector,

~~          shall serve as an application for any and all primary, general or special elections to be held in the remainder of that

0...   8:   calendar year and for all special elections to be held before the third Monday in February of the succeeding year.");

g'!

            25 P.S. § 1350.12(b)(l)(ii) (requiring an application for mail-in ballot to contain the length of time the elector has

0 '0        been a resident of the voting district); 25 P.S. § 3146.2(e.l); 25 P.S. § 3146.2(b). There is no similar requirement for

~~          an in-person voter. While an in-person voter could vote at the polls without having submitted their address for many

~      8    years, a mail-in or absentee elector can only receive a ballot if they have provided an address and attested to its

~~          accuracy as set forth above.

~lll

1ii ~       7

             25 P.S. § 2811- Qualifications of Electors- states that every citizen of the Commonwealth at least eighteen years

1!·~        of age, if properly registered, shall be entitled to vote if the elector possesses the following qualifications:

~~

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                     (1) He or she shall have been a citizen of the United States at least one month.

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::5 '0               (2) He or she shall have resided in the State ninety days immediately preceding the election.

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~~

      Voters should not be disenfranchised by reasonably relying upon voting instructions


provided by election officials which are consistent with the Election Code. There is a


"longstanding and overriding policy in this Commonwealth to protect the elective franchise."


Pennsylvania Democratic Party v. Boockvar, No. 133 MM 2020, 2020 WL 5554644, at *9 (citing


Shambach v. Bickhart, 845 A.2d 793, 798 (Pa. 2004)). "[A]lthough election laws must be strictly


construed to prevent fraud, they ordinarily will be construed liberally in favor of the right to vote."


Ibid. "[B]allots containing mere minor irregularities should only be stricken for compelling


reasons." Shambach v. Bickhart, 845 A.2d 793,798 (Pa. 2004). The Supreme Court has recognized


that "marking a ballot in voting is not a matter of precision engineering but of an unmistakable


registration of the voter's will in substantial conformity to the statutory requirements." !d. at 799


(citing Appeal ofGallagher, 41 A.2d 630,632-33 (Pa. 1945)).


       Petitioners' concerns about a voter's address are legitimate. A voter's address is a core


qualification to vote. It is true that 36 of the outer envelopes in this case do not contain any written


or pre-printed indicia of the voter's address. This omission should not, and will not, disqualify a


declared, qualified voter from participating in this election - particularly where the bar code


confirms the recently declared address of the mail-in voter with the state registry and where no


claim of fraud or improper influence is alleged.


   IV. CONCLUSION


        The Election Code does not require a voter to provide their address on the declaration


envelope. The Montgomery County Board of Elections properly was satisfied, in accordance with


section 3146.8(g)(3), that the voters' declarations are "sufficient." The court finds that the Board




       (3) He or she shall have resided in the election district where he or she shall offer to vote at least

       thirty days immediately preceding the election, except that if qualified to vote in an election district

       prior to removal of residence, he or she may, if a resident of Pennsylvania, vote in the election

       district from which he or she removed his or her residence within thirty days preceding the election.



                                                          9

properly overruled Petitioners' objections to all 592 challenged ballots. These ballots must be


counted.


       Accordingly, based upon all of the foregoing, the court denies Plaintiffs' petition for review


and will enter the accompanying order.



                                                     BY THE COURT:





                                                     RICHARD P. HAAZ,                J.





                                                10

    COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA

                            CIVIL ACTION


DONALD J. TRUMP FOR PRESIDENT, INC.,

et al.,

                Plaintiffs/ Petitioners                       NO. 2020-18680


       v.


MONTGOMERY COUNTY BOARD OF

ELECTIONS,

             Defendant/ Respondent


DEMOCRATIC NATIONAL COMMITTEE, et al. :

              Intervenor


                                              ORDER


       AND NOW, this        13th   day of November, 2020, upon consideration of the Petition for

Review of Decision by the Montgomery County Board of Elections filed on behalf of Petitioners

Donald J. Trump for President, Inc., Republican National Committee, Heidelbaugh for Attorney

General, Inc., Garrity for PA, and Daniel J. Wissert, and the responses in opposition thereto filed

by Respondent Montgomery County Board of Elections, Intervenor Democratic National

Committee, Amici Curiae on behalf of the NAACP-Pennsylvania State Conference, Common

Cause Pennsylvania, League of Women Voters of Pennsylvania, and the Black Political

Empowerment Project, it is hereby ORDERED and DECREED that said Petition for Review is

DENIED. The Montgomery County Board of Elections is ORDERED to count the 592 ballots

which are the subject of the petition.

                                                       BY THE COURT:


                                                                      ~

                                                       RICHARD P. HAAZ,               J.


This Memorandum and Order has been e-filed on 11113/20.

Copies sent via Prothonotary to the parties of record.

Michael Kehs, Esq., Andrea Grace, Esq., Michael Jorgensen, Court Administration, Civil Division

~~~

Secretary





                                                  11

Case# 2020-18680-36 Docketed at Montgomery County Prothonotary on 1111312020 4:06 PM, Fee = $0. 00. The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified

Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.





                                                                                                       ~

                                                                                                       ~

                                                                                                       ~

                                                                                                       =

                                                                                                       ~

                                                                                                       =

                                                                                                       ~

                                                                                                       >

Case# 2020-18680-36 Docketed at Montgomery County Prothonotary on 1111312020 4:06 PM, Fee = $0. 00. The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified

Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.





                                                                                                       ~

                                                                                                       ~

                                                                                                       ~

                                                                                                       =

                                                                                                       ~

                                                                                                       =

                                                                                                       ~


                                                                                                       =

Case# 2020-18680-36 Docketed at Montgomery County Prothonotary on 1111312020 4:06 PM, Fee = $0. 00. The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified

Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.





                                                                                                       ~

                                                                                                       ~

                                                                                                       ~

                                                                                                       =

                                                                                                       ~

                                                                                                       =

                                                                                                       ~

                                                                                                       ~

Case# 2020-18680-36 Docketed at Montgomery County Prothonotary on 1111312020 4:06 PM, Fee = $0. 00. The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified

Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.





                                                                                                       ~

                                                                                                       ~

                                                                                                       ~

                                                                                                       =

                                                                                                       ~

                                                                                                       =

                                                                                                       ~

                                                                                                       ~

Case# 2020-18680-36 Docketed at Montgomery County Prothonotary on 1111312020 4:06 PM, Fee = $0. 00. The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified

Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.





                                                                                                       ~

                                                                                                       ~

                                                                                                       ~

                                                                                                       =

                                                                                                       ~

                                                                                                       =

                                                                                                       ~

                                                                                                       ~

Case# 2020-18680-36 Docketed at Montgomery County Prothonotary on 1111312020 4:06 PM, Fee = $0. 00. The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified

Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.

Case# 2020-18680-36 Docketed at Montgomery County Prothonotary on 1111312020 4:06 PM, Fee = $0. 00. The filer certifies that this filing complies with the provisions of the Public Access Policy of the Unified

Judicial System of Pennsylvania: Case Records of the Appellate and Trial Courts that require filing confidential information and documents differently than non-confidential information and documents.