Genser v. Butler Brd. of Elec. Appeal of: RNC

[J-82A-2024 and J-82B-2024] [MO: Donohue, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

WESTERN DISTRICT

FAITH GENSER AND FRANK MATIS : No. 26 WAP 2024

:

: Appeal from the Order of the

v. : Commonwealth Court entered

: September 5, 2024, at No. 1074 CD

: 2024, Reversing the Order of the

BUTLER COUNTY BOARD OF : Court of Common Pleas of Butler

ELECTIONS, REPUBLICAN NATIONAL : County entered August16, 2024, at

COMMITTEE, REPUBLICAN PARTY OF : No. MSD-2024-40116.

PENNSYLVANIA, AND THE :

PENNSYLVANIA DEMOCRATIC PARTY : SUBMITTED: September 26, 2024

:

:

APPEAL OF: REPUBLICAN NATIONAL :

COMMITTEE AND REPUBLICAN PARTY :

OF PENNSYLVANIA :

FAITH GENSER AND FRANK MATIS : No. 27 WAP 2024

:

: Appeal from the Order of the

v. : Commonwealth Court entered

: September 5, 2024, at No. 1085 CD

: 2024, Reversing the Order of the

BUTLER COUNTY BOARD OF : Court of Common Pleas of Butler

ELECTIONS, REPUBLICAN NATIONAL : County entered August 16, 2024, at

COMMITTEE, REPUBLICAN PARTY OF : No. MSD-2024-40116.

PENNSYLVANIA, AND THE :

PENNSYLVANIA DEMOCRATIC PARTY : SUBMITTED: September 26, 2024

:

:

APPEAL OF: REPUBLICAN NATIONAL :

COMMITTEE AND REPUBLICAN PARTY :

OF PENNSYLVANIA :

DISSENTING OPINION

JUSTICE MUNDY DECIDED: OCTOBER 23, 2024

I dissent and join in full the thorough, cogent dissenting opinion of my colleague

Justice Brobson. I write separately to emphasize that this Court’s role is to apply a fair

reading of the unambiguous language of the Election Code. Regrettably, the Majority has

exceeded the bounds of statutory interpretation and supplanted the power vested in our

General Assembly to regulate elections.

No-excuse, universal mail-in voting is a voting method prescribed by the

legislature. See McLinko v. Dep’t of State, 279 A.3d 539, 580 (Pa. 2022) (recognizing

Article VII, Section 4 of the Pennsylvania Constitution “broadly authorizes the legislature

to prescribe alternative methods of voting and the Constitution does not otherwise prohibit

the General Assembly from enacting universal mail-in voting.”). The legislature did not

have to permit our Commonwealth’s electors to vote by mail. It chose to allow voting by

mail in Act 77,1 and the rules it prescribed must govern the process of voting by mail as

long as they comport with the Constitution. See, e.g., In re: Canvass of Provisional Ballots

in 2024 Primary Election, ___ A.3d ___, 2024 WL 4181584, *5 (Pa. Sept. 13, 2024)

(noting the state has “‘important regulatory interests’ in orderly elections, and those

interests are sufficient to justify the enforcement of reasonable, nondiscriminatory rules

governing candidate eligibility, voter registration, and the voting process”) (quoting

Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)); Banfield v. Cortes, 110 A.3d 155,

176-77 (Pa. 2015) (stating that “the right to vote is fundamental,” but nonetheless, “the

state may enact substantial regulation containing reasonable, non-discriminatory

restrictions to ensure honest and fair elections that proceed in an orderly and efficient

manner”); In re Guzzardi, 99 A.3d 381, 386 (Pa. 2014) (“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

1 Act of October 31, 2019, P.L. 552, No. 77.

[J-82A-2024 and J-82B-2024] [MO: Donohue, J.] - 2

public elections in Pennsylvania.”); Winston v. Moore, 91 A. 520, 522 (Pa. 1914) (“The

power to regulate elections is a legislative one, and has been exercised by the General

Assembly since the foundation of the government.”).

This case involves the intersection of universal mail-in voting with provisional

voting, another legislatively prescribed voting method. The issue is the interpretation of

the legislative rule that a provisional ballot shall not be counted if “the elector’s absentee

ballot or mail-in ballot is timely received by a county board of elections.” 25 P.S.

§ 3050(a.4)(5)(ii)(F). This directive is not difficult to understand, interpret, or apply. It is

not ambiguous, particularly when viewed in the context of the entire statutory scheme

enacted by the legislature to govern mail-in voting. In this regard, I join Justice Brobson’s

analysis of the relevant provisions of the Election Code.

The Majority’s rationale hinges on its definition of the term “ballot” in Section

3050(a.4). See Maj. Op. at 29. In doing so, the Majority finds that electors who submit

their mail-in ballots without a secrecy envelope have submitted “void mail-in ballots [that]

cannot be afforded legal effect. Because Electors failed to comply with the mandatory

Secrecy Envelope requirement, they failed to cast a ballot.” Id. at 35. Applying this

reasoning to Section 3050(a.4)(5)(ii)(F), the Majority opines that “[a]s a result of the

determination that the Secrecy Envelope was not used, as a matter of law, no ballot was

received by eight o’clock P.M. on Election Day and thus Subsection (a.4)(5)(ii)(F) was not

triggered.” Id. at 37.

The Majority’s analysis is too far divorced from the legislature’s clear directives

regarding mail-in voting to withstand any scrutiny. The Majority plainly reads into Section

3050 the requirement that the elector’s absentee or mail-in ballot must be valid and not

void. However, the only qualification in Section 3050(a.4)(5)(ii)(F) is that the “mail-in

ballot is timely received.” The Majority’s holding usurps the legislature’s unmistakable

[J-82A-2024 and J-82B-2024] [MO: Donohue, J.] - 3

directives and supplants them with a new procedure for counting provisional ballots after

a canvass has determined that the elector’s mail-in ballot is disqualified.

In this vein, Appellants argue that a court mandate to count provisional ballots cast

by electors who have submitted timely received mail-in ballots violates the Elections2 and

Electors3 Clauses of United States Constitution. See Appellants’ Brief at 45-46 (citing

U.S. CONST. art. I, § 4, cl. 1; U.S. CONST. art. II, § 1, cl. 2).4 “[T]he Elections Clause

expressly vests power to carry out its provisions in ‘the Legislature’ of each State, a

deliberate choice that this Court must respect.” Moore v. Harper, 600 U.S. 1, 34 (2023).

Given the Majority’s interpretation of the Election Code, I find merit to Appellants’

argument that this Court has exceeded the scope of judicial review and usurped the

General Assembly’s power to regulate federal elections. As the United States Supreme

Court has recently held, “state courts may not transgress the ordinary bounds of judicial

review such that they arrogate to themselves the power vested in state legislatures to

regulate federal elections.” Id. at 36-37. In my view, the Majority’s decision to direct the

counting of provisional ballots in cases where the electors’ mail-in ballots have been

timely received, in direct contravention of Section 3050(a.4)(5)(ii)(F), is an

2 “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.”

U.S. CONST. art. I, § 4, cl. 1.

3 “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: but no Senator or Representative, or Person

holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

U.S. CONST. art. II, § 1, cl. 2.

4 Appellants did not raise a federal constitutional claim in their Commonwealth Court brief.

However, as the respondents in the trial court and the appellees in the Commonwealth

Court, they had no issue preservation obligations. See HTR Rests., Inc. v. Erie Ins. Exch.,

307 A.3d 49, 61 n.38 (Pa. 2023).

[J-82A-2024 and J-82B-2024] [MO: Donohue, J.] - 4

unconstitutional intrusion upon the role reserved to state legislatures by the Federal

Constitution.5

For these reasons, I dissent.

5 Although the first issue on which we granted review does not expressly mention the

federal Elections and Electors Clause, it asks as a general matter whether the

Commonwealth Court’s actions usurped the authority of the General Assembly. The

question of whether such alleged usurpation violates the federal Constitution is logically

subsumed within that issue as stated.

[J-82A-2024 and J-82B-2024] [MO: Donohue, J.] - 5