In re: Canvass of Provis. Ballots Appeal of Walsh

[J-59-2024] [MO: Mundy, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

IN RE: CANVASS OF PROVISIONAL : No. 55 MAP 2024

BALLOTS IN THE 2024 PRIMARY :

ELECTION : Appeal from the Order of the

: Commonwealth Court at 628 CD

: 2024 dated July 1, 2024 Reversing

APPEAL OF: JAMIE WALSH : the Order of the Luzerne County

: Court of Common Pleas, Civil

: Division, at 2024-05082 dated May

: 15, 2024.

:

: SUBMITTED: August 7, 2024

CONCURRING OPINION

JUSTICE WECHT DECIDED: September 13, 2024

Yet again, we are called upon to decide whether the Election Code really means

what it says. Like the Majority, I believe that it does, and that the two issues presented in

this appeal are resolved by the plain statutory language and the facts established in the

trial court. I join the Majority Opinion in full.

In the first issue on appeal, the appellant, Jamie Walsh, argues that the Luzerne

County Board of Elections should be required to count the provisional ballot cast by

Timothy Wagner, even though Wagner did not sign the outer envelope as the Election

Code requires.1 Rather than examining what the statute requires, Walsh would have us

disregard the statute based upon Wagner’s clear electoral intent, the instructions of

1 25 P.S. § 3050(a.4)(3) (“After the provisional ballot has been cast, the individual

shall place it in a secrecy envelope. The individual shall place the secrecy envelope in

the provisional ballot envelope and shall place his signature on the front of the provisional

ballot envelope. All provisional ballots shall remain sealed in their provisional ballot

envelopes for return to the county board of elections.”).

election workers, and the absence of any allegation of fraud. The Majority correctly

rejects this argument. Not only does the Election Code unambiguously require the

signature—the voter “shall” place his or her signature on the front of the envelope2—the

Code unambiguously imposes a consequence for failing to do so. The ballot “shall not

be counted.”3

This appeal is the latest in a line of cases in which the courts are asked to disregard

unambiguous statutory requirements for voting because those requirements are

purportedly not a “necessity,” because they are directives rather than mandates, or

because they are mere “technicalities.” Although the proffered reasons change, the idea

is the same: this Court should disregard plain statutory requirements in favor of counting

non-compliant votes. Although the Court has been amenable to such arguments in the

past, I continue my efforts to turn this unfortunate tide. We must apply clear statutory

mandates.

Seventy years ago, for example, construing a provision of the Election Code that

authorized a voter to write-in the name of a candidate whose name was not already

printed on the ballot,4 this Court focused not upon the statutory language but upon the

principle that election laws are to be construed in favor of the right to vote, and that

“[t]echnicalities should not be used to make the right of the voter insecure.”5 In Appeal of

Weiskerger,6 we held that the Election Code did not require the disqualification of ballots

that were not completed in the color of ink that the Election Code required, because the

2 25 P.S. § 3050(a.4)(3).

3 25 P.S. § 3050(a.4)(5)(ii) (providing that a provisional ballot without the signature

required by 20 P.S. § 3050(a.4)(3) “shall not be counted”).

4 25 P.S. § 2963(e).

5 Appeal of James, 105 A.2d 64, 65-66 (Pa. 1954).

6 290 A.2d 108, 109 (Pa. 1972).

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statute’s mandatory language was only directory, and because “minor irregularities”

should only sparingly be used to disqualify a ballot.7

Because the Court decided James and Weiskerger before the 1972 enactment of

the Statutory Construction Act (“SCA”), which requires courts to consider legislative intent

only when the statutory language is ambiguous,8 their continued viability is questionable.9

In In re Canvass of Absentee and Mail-In Ballots of November 3, 2020 General Election

(“Absentee & Mail-In 2020”),10 however, the Opinion Announcing the Judgment of the

Court (“OAJC”) reanimated the ideas that we should continue to construe clear statutory

law regulating voting “to insure rather than defeat the exercise of the right of suffrage,”

that “technicalities should not be used to make the right of the voter insecure,” and that

requirements that the Court believed to be “unnecessary” may be overlooked.11 Because

the statutory requirement was plainly made “in unambiguously mandatory terms,” I

indicated my intent to treat the requirements of the Election Code as mandatory in future

elections.12

7 Id. at 109 (quoting Reading Election Recount Case, 188 A.2d 254, 256 (1963)).

8 See 1 Pa.C.S. § 1921(b).

9 Appeal of Pierce, 843 A.2d 1223, 1231 (Pa. 2004).

10 241 A.3d 1058 (Pa. 2020) (plurality).

11 Id. at 1062 (quoting James, 105 A.2d at 66)

12 Id. at 1079 (Wecht, J., concurring and dissenting). The statutory requirements at

issue were contained in 25 P.S. §§ 3146(a) and 3250.16(a), which provided that absentee

and mail-in voters “shall” date the outer envelope of the ballot. Although I found the

statutory requirement to be unambiguous, I also recognized the circumstances under

which the issue arose, including confusing and contradictory guidance issued by the

Secretary of State and the lack of information available to voters regarding the

consequence of failing strictly to adhere to the requirements. Id. at 1089. These

circumstances led me to apply my interpretation prospectively. Id. at 1080.

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I am perplexed by the continued profusion and proliferation of briefing from litigants

and amici curiae alike advocating for the acceptance of ballots that do not comply with

the plain terms of the Election Code. I urge litigants and their amici to redirect their

pleading from the judiciary to the political actors who have a role in establishing the

statutory voting requirements. It is the legislature that drafts, and the Governor that

approves, the legal prerequisites to having a ballot counted. Challenges to the counting

of ballots or to the disregard of ballots inherently arise in a politics-laden area of the law.

Arguments about voting requirements and efforts to liberalize provisions of the Election

Code should be directed to these political branches.

The judiciary does not make policy judgments about the franchise outside of

constitutional requirements13 or the common law. “[T]he judiciary should act with

restraint, in the election arena, subordinate to express statutory directives. Subject to

constitutional limitations, the Pennsylvania General Assembly may require such practices

and procedures as it may deem necessary to the orderly, fair, and efficient administration

of public elections in Pennsylvania.”14 Indeed, it is befuddling and frustrating that

advocacy to disregard the plain text of legislation continues in the judiciary, particularly

given the amenability of the political branches to such lobbying. To the extent that Walsh

believes that Wagner’s electoral intent was clear, that Wagner followed the instructions

of a poll worker, that there was no evidence of fraud, and that these circumstances militate

in favor of disregarding the signature requirement of Section 1210(a.4)(3),15 these

arguments should be directed to the General Assembly, not the courts.

13 See, e.g., PA. CONST. art. 1, § V (“Elections shall be free and equal; and no power,

civil or military, shall at any time interfere to prevent the free exercise of the right of

suffrage.”).

14 In re Guzzardi, 99 A.3d 381, 386 (Pa. 2014).

15 25 P.S. § 3050(a.4)(3).

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While we interpret ambiguous terms in favor of ensuring enfranchisement in the

absence of fraud and in the presence of clear voter intent, our liberal construction does

not give us license to disregard the plain language of the Election Code.16 As we recently

explained, “while it is established public policy in this Commonwealth to protect the

elective franchise, a liberal construction of Code provisions comes into play only where

an election statute is ambiguous.”17 Indeed, there is no need to liberally construe anything

in the face of plain language.

Here, the General Assembly imposed a clear requirement for Wagner to sign the

privacy envelope of his provisional ballot,18 and there is a clear consequence for his failure

to do so: it “shall not be counted.”19 It does not matter what Wagner’s intent was, what

result equity would favor,20 whether fraud was absent, or whether Walsh viewed this

16 Appeal of Pierce, 843 A.2d at 1231 (“All 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 Election Code.”); Trust under Agreement of Taylor, 164 A.3d 1147,

1155 (Pa. 2017) (“If the language of the statute clearly and unambiguously sets forth the

legislative intent, it is the duty of the court to apply that intent and not look beyond the

statutory language to ascertain its meaning.”).

17 In re Major, 248 A.3d 445, 450 (Pa. 2021) (internal quotations omitted); see also

id. (“Only where there are at least two reasonable interpretations of the text do we then

turn to interpretive principles that govern ambiguous statutes generally, and election

matters specifically, including the principle 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 of

their right to elect a candidate of their choice.”) (internal quotations omitted); Pennsylvania

Democratic Party v. Boockvar, 238 A.3d 345, 360-61 (Pa. 2020) (“PDP”)(applying the

interpretive principle that the Election Code is to be liberally construed after determining

that the statute is ambiguous); Petition of Cianfrani, 359 A.2d 383, 384 (Pa. 1976) (“the

policy of the liberal reading of the Election Code cannot be distorted to emasculate those

requirements necessary to assure the probity of the process.”).

18 25 P.S. § 3050(a.4)(3).

19 Id. § 3050(a.4)(5).

20 See Guzzardi, 99 A.3d at 382 (holding that Pennsylvania courts may not resort to

principles of equity to override “the express statutory command that the failure of a

candidate for statewide public office to file a timely statement of financial interests . . .

(continued…)

[J-59-2024] [MO: Mundy, J.] - 5

requirement as a “technicality” that the courts are somehow free to disregard. Neither

equitable nor extratextual considerations have any place in the application of the Election

Code’s plain language.21 This is true even if the General Assembly’s requirement

“appears to have a disenfranchising effect,” or even if jurists think such a requirement is

foolish or ridiculous or benighted, so long as the statute is constitutional.22 Our only task

in applying unambiguous legislative enactments is to recognize that the legislature meant

what it said.

In making his argument, Walsh asserts that the requirement for Wagner to place

an additional signature on the front of the outer envelope was unnecessary. In Absentee

& Mail-In 2020, the OAJC engaged in a similar analysis, holding that the requirement of

a handwritten date was rendered “unnecessary” as a result of the date-stamping of ballots

by county boards of elections.23 Both of these analyses miss the mark. It is not a question

of what a particular judge or justice or court may believe to be necessary. Indeed, if our

opinions about what should be necessary were at all relevant to our interpretation of the

Election Code, our work would never end. The legislature, with the Governor’s approval,

decides what is or is not necessary.24 When those branches enacted the Election Code,

with all of its mandates, the policy choices about what is or is not necessary were baked

shall . . . be a fatal defect to a petition to appear on the ballot”) (quoting 65 Pa.C.S. §

1104(b)(3)).

21 Id. at 387 (holding that, “where the Legislature has attached specific consequences

to particular actions or omissions, Pennsylvania courts may not mitigate the legislatively

prescribed outcome through recourse to equity”).

22 Canvass of Absentee & Mail-In 2020, 241 A.3d at 1082 (Wecht, J., concurring and

dissenting).

23 Id. at 1077.

24 Guzzardi, 99 A.3d at 386 (recognizing that the General Assembly is the arbiter of

what is “necessary to the orderly, fair, and efficient administration of public elections in

Pennsylvania”).

[J-59-2024] [MO: Mundy, J.] - 6

into the terms of the statute. The question for a court is not what is “necessary.” The

question is what the statute means. And if the language is plain, the answer is clear.

Walsh attempts to overcome the plain language of Section 1210 of the Election

Code by challenging the mandatory nature of the word “shall” contained therein.25 Walsh

again relies upon the OAJC in Absentee & Mail-In 2020 as holding that the Election

Code’s use of the word “shall” is directory, rather than mandatory, when the statutory

requirement can be considered “unnecessary.”26 Walsh believes that Wagner’s signature

was “unnecessary and superfluous,”27 rendering the statutory use of “shall” in 25 P.S. §

3050(a.4)(5)(ii) directory, not mandatory, and Wagner’s failure to comply to be

inconsequential.

In construing the requirement that a voter casting a provisional ballot “shall place

his signature on the front of the provisional ballot envelope,”28 the Majority recognizes

that this Court has sometimes interpreted the word “shall” as directory rather than

mandatory, and has refused to disqualify ballots that did not conform to the statute.29

Whether “shall” is directory—“you should”—or mandatory—“you must”—is a question that

Pennsylvania courts have “labored mightily but in vain” to answer.30

25 25 P.S. § 3050(a.4)(3) (providing that the individual voting by provisional ballot

“shall place his signature on the front of the provisional ballot envelope”); see also id. at

§ 3050(a.4)(5) (providing that a provisional ballot without such a signature “shall not be

counted”).

26 Appellant’s Br. at 9.

27 Id. at 19.

28 25 P.S. § 3050(a.4)(3).

29 Maj. Op. at 7.

30 PDP, 238 A.3d at 391 (Wecht, J., concurring and dissenting).

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Although in James the Court disregarded a mandatory requirement indicated by

use of the word “shall,”31 we held shortly thereafter that “shall” as used in Section 909 of

the Election Code32 was “mandatory.”33 “To hold otherwise would be to thwart the evident

intent and purpose of the provision and to introduce confusion, if nothing worse, in

connection with the filing of nomination petitions.”34 And although Weiskerger35 held that

a requirement of the Election Code was directory because the Code did not specify that

noncompliance would void the ballot, Pierce called this analysis into question given the

subsequent enactment of the SCA.36 Applying the SCA to our interpretation of the

Election Code in Pierce, we observed that, “all 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 Election Code.”37 Acknowledging that “some contexts may leave

the precise meaning of the word ‘shall’ in doubt,”38 the Pierce Court recognized “the

31 James, 105 A.2d at 66.

32 25 P.S. § 2869.

33 In re Steel, 105 A.2d 139, 141 (Pa. 1954).

34 Steel, 105 A.2d at 141.

35 290 A.2d at 109.

36 Pierce, 843 A.2d at 1231 (“Wieskerger Appeal, of course, 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.”); Oberneder v. Link Computer Corp., 696

A.2d 148, 150 n. 2 (Pa. 1997) (reliance on case for proposition that “shall” may be merely

directory depending upon legislature’s intent misplaced because case was decided

before enactment of Statutory Construction Act).

37 Pierce, 843 A.2d at 1231.

38 Id. (citing B. Garner, DICTIONARY OF MODERN LEGAL USAGE 939 (2d. ed. 1995)

(“Courts in virtually every English speaking jurisdiction have held—by necessity—that

shall means may in some contexts, and vice versa”)).

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unambiguous meaning of the word in most contexts” as carrying “an imperative or

mandatory meaning.”39

Notwithstanding the Pierce Court’s attempt to rein in the slippery language of

Weiskerger, the Court reverted to type just days later in Shambach v. Bickhart,40 holding

that the Election Code’s requirement that a write-in vote could only be made for a

candidate not already on the ballot was directory, rather than mandatory, because the

Code did not require non-compliant write-in votes to be excluded. The Shambach Court

relied upon precedent pre-dating the SCA, as well as the absence of a legislative

consequence for noncompliance.41

Later, in In re Scroggin, the Court returned to applying the language of the Election

Code according to its terms, holding that the failure to comply with the affidavit

requirement of 25 P.S. § 2911(e) was a fatal defect.42 In this context, we held that “the

policy of the liberal reading of the Election Code cannot be distorted to emasculate” the

mandatory affidavit requirement, which the General Assembly had deemed “necessary

to assure the probity of the process.”43

In PDP, we applied the Election Code’s mandatory requirement that mail-in ballots

be sealed in secrecy envelopes and rejected the argument that “shall” should be

interpreted as directory. Accepting such an argument would render the Election Code’s

39 Id.; see also Oberneder, 696 A.2d at 150 (“By definition, ‘shall’ is mandatory.”).

40 845 A.2d 793, 801-02 (Pa. 2004).

41 Id. at 801 (rejecting the argument that the Election Code requires write-in votes

cast for listed candidates to be excluded; stating the Code “does not declare that such a

write-in vote must be voided and may not be counted”).

42 237 A.3d 1006, 1019 (Pa. 2020).

43 Id. (quoting Cianfrani, 359 A.2d at 384)

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clear language “meaningless and, ultimately, absurd.”44 Our analysis in PDP, as in

Pierce, was clear: “shall means shall.”45 Although I joined the Majority in PDP, I wrote

separately in support of the Court’s ruling that a violation of the statutory requirement that

mail-in ballots be returned in their secrecy envelopes resulted in the invalidation of those

ballots.

In Absentee & Mail-In 2020, a plurality of the Court held that absentee and mail-in

ballots should be counted even though the declaration on the outer envelope lacked a

date, which the Election Code required the voter to supply.46 In reaching this conclusion,

the OAJC construed the word “shall” as 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”47) rather than mandatory, because, in the plurality’s view, the

Election Code’s date requirements did not serve any “weighty interests.”48 Because the

Election Code’s date requirement was clear and unambiguous, I did not agree. Rather,

in my view, “the only practical and principled alternative” to having courts second-guess

whether the legislature meant a requirement to be mandatory, “is to read ‘shall’ as

mandatory.”49

Concurring in both PDP and Absentee & Mail-In 2020, I have tracked my

“increasing discomfort with this Court’s willingness to peer behind the curtain of

44 238 A.3d at 379.

45 Absentee & Mail-in 2020, 241 A.3d at 1084 (Wecht, J., concurring and dissenting)

(emphasis in original) (citing PDP, 238 A.3d at 380, Pierce, 843 A.2d at 1232).

46 Id. at 1062.

47 Id.

48 Id. at 1076-77 (quoting PDP, 238 A.2d at 379-80).

49 Id. at 1087 (Wecht, J., concurring and dissenting).

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mandatory statutory language in search of some unspoken directory intent.”50 After all of

these cases, we should not be haggling over whether a statutory requirement indicated

by the verb “shall” is directory or mandatory. The General Assembly relies upon the

judiciary to apply the language that it writes into statutes. It knows the difference between

a suggestion and a mandate and how to differentiate between the two. The onus is upon

the legislature to make policy judgments about what is necessary to ensure the integrity

of our elections, and it is the duty of the judiciary to construe these mandates as the plain

language directs. Only by reading “shall” as mandatory do we respect the legislative

prerogative for making policy judgments about the conduct of elections.

Any arguments about the meaning of “shall” in 25 P.S. § 3050(a.4)(3) are

particularly unpersuasive in this case because the General Assembly has attached a

particular consequence for failing to adhere to the mandate to sign the privacy envelope

of a provisional ballot.51 Having established a clear consequence for the failure to follow

the mandatory signature requirement, the General Assembly avoids any textual confusion

that may arise in light of our sometimes befuddling precedent construing the term “shall.”

In advancing his argument, Walsh minimizes Wagner’s failure to abide by the

signature requirement as “a mere technical error.”52 Encouraged by the OAJC in

Absentee & Mail-In 2020, Walsh suggests that if a requirement of the Election Code can

be considered a technicality, then noncompliance with that requirement may be excused.

We are faced with the repeated invocation through litigation and jurisprudence that

ballots are being disregarded because of “mere technicalities,” as if the statutory

requirements to have votes counted are meaningless drivel. The dissent in the

50 Id. at 1080 (Wecht, J., concurring and dissenting).

51 25 P.S. § 3050(a.4)(5)(ii)(A).

52 Appellant’s Br. at 19.

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Commonwealth Court, for example, disregarded the statutory language by characterizing

Wagner’s failure to sign his ballot as a “mere technicality.”53 The plurality in Absentee &

Mail-In 2020 similarly portrayed statutory requirements as “technicalities” that “should not

be used to make the right of the voter insecure.”54 In a similar vein, the plurality also

purported to discern whether a statutory mandate was truly directory by distinguishing

between “weighty interests” and “minor irregularities,” as if the Court has the discretion to

disregard plain statutory language in service of the latter but not the former.55

By this measure, statutory interpretation, the development of the common law, and

upholding the Constitution are all endeavors that are equally subject to the same attack.

Courts live in a world of technicalities. Technicality is our bailiwick, our bread and butter.

It is the reason that litigants seek the clarity that we provide. Everything we do is

enmeshed with technicalities. Indeed, a large part of the stock and trade of the legal

profession is to advise, counsel, and litigate technicalities. I have no patience for the

repeated invocation of technicalities as a way to disparage this Court’s role in applying

the law as written. Technicalities play too big a role in all aspects of the law to be

dismissed as meaningless. Indeed, “[i]t is well-settled that the ‘so-called technicalities of

the Election Code’ must be strictly enforced, ‘particularly where . . . they are designed to

reduce fraud.’”56 The parties and the courts seem to characterize a statutory requirement

53 In re Canvass of Provisional Ballots in 2024 Primary Election, 628 C.D. 2024, 2024

WL 3252970, at *7 (Pa. Cmwlth. 2024) (Wolf, J., dissenting) (unreported).

54 241 A.3d at 1062.

55 Id. at 1073.

56 Scroggin, 237 A.3d at 1018 (citing Pierce, 843 A.2d at 1234).

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as a technicality, a “minor irregularity,”57 or superfluous,58 when they seek to overcome

clear statutory requirements.

Within the bounds of constitutional protections, the legislature is free to impose

technicalities, and the courts are bound to apply them. Although the Election Code will

be interpreted “with unstinting fidelity to its terms,”59 considerations under the

Constitution’s Free and Equal Election Clause may moderate its enforcement in particular

cases.60 Arguments advanced under federal statutes, such as the Voting Rights Act,61

may also require additional considerations and analyses. Neither the Pennsylvania

Constitution nor federal law is implicated in this case.

With respect to the second issue on appeal—the O’Donnell ballot—Walsh argues

that, because O’Donnell had transferred his voter registration to his new address in

Schuylkill County, his provisional ballot in Luzerne County cannot be counted. The

Majority rightly rejects this argument based upon the fact, found by the trial court, that

O’Donnell did not move from Luzerne County until March 29, 2024.62 In an attempt to

overcome this factual finding, the Luzerne County Board of Elections argues that

O’Donnell was able to vote in Schuylkill County because the Department of

57 See Absentee and Mail-In 2020, 214 A.3d at 1082 (Wecht, J., concurring and

dissenting) (observing that this Court has yet to define “minor irregularity” with anything

approaching suitable rigor).

58 Id. at 1077 (“The date stamp and the SURE system provide a clear and objective

indicator of timeliness, making any handwritten date unnecessary and, indeed,

superfluous.”).

59 Id. at 1089 (Wecht, J., concurring).

60 PA. CONST. art. I, § 5.

61 52 U.S.C. § 10301.

62 Maj. Op. at 13.

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Transportation (“PennDOT”) transferred his voter registration to the new address when

O’Donnell renewed his vehicle registration.

The fact that PennDOT transferred a voter’s registration to a new address based

upon the renewal of a vehicle registration strikes me as peculiar and worthy of comment.

Walsh asserts that O’Donnell voluntarily changed his voter registration to his new home

in December 2023,63 and the trial court explained that O’Donnell “opted to change” his

voter registration when he made the renewal.64 The trial court cited testimony by an

election official concerning a change in PennDOT’s vehicle registration system in

Summer 2023. That change requires persons registering vehicles to opt out of concurrent

updates of their voter registration. Absent affirmative opt-out selections, the voter’s

address is now updated to that at which the vehicle is being registered.65

The Pennsylvania Voter Registration Act provides several methods of voter

registration, none of which is tied to the application or renewal of a vehicle registration.66

To the extent PennDOT has taken it upon itself to transform a vehicle registration renewal

into a change in voter registration, it appears to have done so in the absence of any

legislative directive.67 Although PennDOT’s rogue transfer of voter registration in this

case ultimately did not deprive O’Donnell of the right to vote, it would be troubling if

PennDOT has a practice of making such a transfer without statutory authorization, or

even the voter’s consent.

63 Appellant’s Br. at 10.

64 Tr. Ct. Op. at 5.

65 Id. at 6.

66 25 P.S. § 1321.

67 See Maj. Op. at 15.

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A final point. The Pennsylvania Constitution imposes several qualifications for the

entitlement to vote. One such qualification is that the citizen:

shall have resided in the election district where he or she shall offer to vote

at least sixty (60) 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 sixty (60) days

preceding the election.68

By contrast, the Election Code requires that the citizen:

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.69

The discrepancy between the sixty-day requirement of the Constitution and the

thirty-day requirement of the Election Code is curious, and would appear to create a

potential pitfall for unwary voters. A citizen who changed residences forty-five days

before an election, for example, would appear not to be permitted by the Constitution to

vote in the election district of her new residence, but also is not permitted by the Election

Code to vote in the election district of her old residence. As the Majority notes, however,

the difference between the Constitution and the Election Code has no bearing on this

case.70

I join the Majority fully in its rejection of the arguments advanced by Walsh on

appeal and in its affirmance of the Commonwealth Court’s order.

Justice Brobson joins this concurring opinion.

68 PA. CONST. art. 7, § 1(3).

69 25 P.S. § 2811.

70 Maj. Op. at 16 n.14.

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