B. Baxter v. Philadelphia Board of Elections

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian T. Baxter and Susan T. Kinniry : CASES CONSOLIDATED

:

v. : Trial Ct. No. 2024 No. 02481

:

Philadelphia Board of Elections, :

Republican National Committee, :

and Republican Party of Pennsylvania :

:

:

Appeal of: Philadelphia County :

Board of Elections : No. 1305 C.D. 2024

Brian T. Baxter and Susan T. Kinniry :

:

v. :

:

Philadelphia Board of Elections, :

Republican National Committee, :

and Republican Party of Pennsylvania :

:

Appeal of: Republican National :

Committee and Republican Party : No. 1309 C.D. 2024

of Pennsylvania : SUBMITTED: October 15, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

JUDGE CEISLER FILED: October 30, 2024

In these consolidated cross-appeals, we must decide whether a court of

common pleas correctly reversed a county board of elections’ decision not to count

69 undated and incorrectly dated absentee and mail-in ballots in a special election in

accordance with Sections 1306 and 1306-D of the Pennsylvania Election Code

(Election Code),1 25 P.S. §§ 3146.6(a) and 3150.16(a) (dating provisions), on the

basis that such refusal violates the free and equal elections clause set forth in article

I, section 5 of the Pennsylvania Constitution, Pa. Const. art. I, § 5.2

The Philadelphia County Board of Elections (County Board or Board), and

the Republican National Committee and the Republican Party of Pennsylvania (RNC

and RPP) (collectively, Designated Appellants), appeal from the Court of Common

Pleas of Philadelphia County’s (trial court) September 26, 2024 order that granted

Brian T. Baxter and Susan T. Kinniry’s (Designated Appellees) Petition for Review

in the Nature of a Statutory Appeal (Petition) filed pursuant to Section 1407 of the

Election Code, 25 P.S. § 3157,3 and reversed the County Board’s September 21,

2024 decision not to count Designated Appellees’ and 67 other registered voters’

1

Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591. Section 1306 was

added to the Election Code by the Act of March 6, 1951, P.L. 3, and thereafter amended by the

Act of October 31, 2019, P.L. 552, No. 77 (Act 77). Section 1306 relates to voting by absentee

electors and provides, in relevant part, that an absentee “elector shall . . . fill out, date and sign the

declaration printed on” the second, or outer, envelope “on which is printed the form of declaration

of the elector,” among other things. 25 P.S. § 3146.6(a). Section 1306-D was added to the Election

Code by Act 77 and includes the same language as Section 1306 with respect to voting by mail-in

electors. 25 P.S. § 3150.16(a).

2

The free and equal elections clause provides: “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.” Pa. Const. art. I, § 5.

3

Section 1407(a) provides, in relevant part:

(a) Any person aggrieved by any order or decision of any county board regarding

the computation or canvassing of the returns of any primary or election . . . may

appeal therefrom within two days after such order or decision shall have been made,

whether then reduced to writing or not, to the court specified in this subsection,

setting forth why he feels that an injustice has been done, and praying for such order

as will give him relief.

25 P.S. § 3157(a).

2

undated and incorrectly dated mail ballots4 in the September 17, 2024 Special

Election to fill two seats in the Pennsylvania House of Representatives (House) in

the 195th and 201st Legislative Districts in Philadelphia County. In so doing, and

relying on the parties’ stipulation of the facts and representations made on the record

at a hearing held on September 25, 2024, the trial court determined that the refusal

to count a mail-in ballot due to a voter’s failure to “date . . . the declaration printed

on” the outer envelope used to return his/her ballot to county election officials, as

required by the Election Code’s dating provisions, violates the free and equal

elections clause set forth in article I, section 5 of the Pennsylvania Constitution. The

trial court thus directed the County Board to count Designated Appellees’ and the

67 other registered voters’ date-disqualified mail ballots to be verified, counted if

otherwise valid, and included in the results of the Special Election for the 195th and

201st Legislative Districts.5

On appeal, the County Board agrees with the trial court’s ruling that the Board

erred in not counting the 69 undated and incorrectly dated mail ballots at issue based

on the meaningless dating provisions in violation of the free and equal elections

clause given the unsettled nature of the case law addressing that issue, and further

asserts there are no impediments to us addressing the issue now based on the

undisputed facts of these matters. However, the Board confusingly requests that this

Court reverse the trial court’s September 26, 2024 order. RNC and RPP argue that

several procedural issues preclude this Court’s review of the constitutional issue.

4

The term “mail ballots” used in this opinion encompasses both absentee and mail-in

ballots, unless otherwise indicated.

5

Designated Appellants also appeal the trial court’s order entered on September 28, 2024

(dated September 27, 2024), which granted RNC and RPP’s unopposed Petition for Leave to

Intervene (Intervention Petition); declared as moot Designated Appellees’ and the County Board’s

Joint Emergency Motion for Reconsideration and Clarification (Joint Emergency Motion); and

denied RNC and RPP’s Motion to Dismiss Designated Appellees’ Petition.

3

Alternatively, they contend that the law is well settled that the dating provisions are

mandatory and enforceable, and not violative of the free and equal elections clause,

and that the trial court erred in changing the rules for determining the validity of mail

ballots after the Special Election. Designated Appellees request that this Court

affirm the trial court’s ruling directing that the noncompliant ballots, including

theirs, be counted in the Special Election. Upon careful review, we affirm the trial

court under the circumstances of this case.

I. BACKGROUND

Designated Appellees and the County Board6 stipulated to the operative facts

of this matter as garnered at the September 25, 2024 trial court hearing and as set

forth in Designated Appellees’ Petition filed in the trial court, as follows. See

9/25/2024 Hearing Transcript (H.T.) at 4-9, 12-17, 20-21; Original Record (O.R.),

Items 1 (Petition (Pet.)) & 12 (9/26/2024 Trial Court Order).

State law in Pennsylvania provides that mail ballots that fail to comply with

the dating provisions shall not be counted. See O.R., Item 1, Pet. ¶ 3 (citing Ball v.

Chapman, 289 A.3d 1 (Pa. 2023)); H.T. at 14. However, multiple state and federal

courts have determined that the dating provisions are meaningless, as they do not

establish voter eligibility, timely ballot receipt, or fraud. Id. ¶¶ 39-40.7 This is

illustrated by the fact that a voter whose ballot was timely received could have signed

the declaration form only in between the date the county board sent the mail ballot

package and the election day deadline, and ballots received after 8:00 p.m. on

6

Counsel for the RNC and RPP also indicated her understanding of the stipulated facts at

the hearing. 9/25/2024 Hearing Transcript (H.T.) at 19-22.

7

Designated Appellees cited Pennsylvania State Conference of the NAACP v. Schmidt, 703

F. Supp. 3d 632 (W.D. Pa. 2023), 2023 WL 8091601 (NAACP I), reversed & remanded,

Pennsylvania State Conference of NAACP Branches v. Secretary, 97 F.4th 120 (3d Cir. 2024)

(NAACP II), as support for their assertion that courts have previously found the dating provisions

to be meaningless.

4

election day are not counted regardless of the handwritten date. Id. Enforcement of

the dating provisions has resulted in the arbitrary and baseless rejection of thousands

of timely ballots, resulting in disenfranchisement in violation of the free and equal

elections clause. Id. ¶¶ 5-6, 8, 37.8 Notwithstanding the state and federal cases

addressing this, the only case to have addressed whether enforcement of the

meaningless dating provisions violates the free and equal elections clause found that

it did; however, that decision has since been vacated on procedural grounds by the

Supreme Court of Pennsylvania. Id. ¶¶ 7, 62 (citing Black Political Empowerment

Project v. Schmidt (Pa. Cmwlth., No. 283 M.D. 2024, filed Aug. 30, 2024) (BPEP

II) (en banc),9 2024 WL 4002321, vacated, 322 A.3d 221 (Pa. 2024) (Pa., No. 68

MAP 2024, order filed Sept. 13, 2024) (BPEP III) (per curiam) (vacating for lack of

original jurisdiction), order clarified, (Pa., No. 68 MAP 2024, order filed Sept. 19,

2024) (BPEP IV) (per curiam) (clarifying Supreme Court’s September 13, 2024

order)).

As it relates to the instant appeals, Designated Appellees opted to vote by mail

in the September 17, 2024 Special Election for the 195th Legislative District in

8

Designated Appellees pointed out that nearly 10,000 voters whose mail ballots were

timely received were disenfranchised in the 2022 General Election and thousands more voters

were disenfranchised in the 2023 Municipal Election and the 2024 Presidential Primary Election.

O.R., Item 1, Pet. ¶¶ 5-6, 35-38 (providing these figures and citing, inter alia, Ex. 3, Declaration

of Ariel Shapell, ¶ 12, which notes that more than 10,000 mail ballots in the November 2023

Municipal Election and 2024 Presidential Primary Election were marked as cancelled in the

Statewide Uniform Registry of Electors (SURE) System due to missing or incorrect handwritten

dates). We note that “[t]he SURE system is . . . the statewide database of voter registration

maintained by the Department of State and administered by each county.” In re Nom. Pet. of

Morrison-Wesley, 946 A.2d 789, 792 n.4 (Pa. Cmwlth. 2008).

9

In Black Political Empowerment Project v. Schmidt (Pa. Cmwlth., No. 283 M.D. 2024,

order filed July 9, 2024, & opinion filed July 18, 2024) (Ceisler, J.) (single-Judge order & opinion)

(collectively, BPEP I), this Court denied the intervention application of Westmoreland County

Commissioner Doug Chew. BPEP I is not relevant for purposes of the instant appeals.

5

Philadelphia. O.R., Item 1, Pet., Ex. 1, ¶ 9 (Declaration of Brian T. Baxter (Baxter

Decl.)) & Ex. 2, ¶ 9 (Decl. of Susan T. Kinniry (Kinniry Decl.)). Designated

Appellees are qualified electors who are registered to vote in Pennsylvania and live

in Philadelphia. They validly applied for, received, and timely submitted their mail-

in ballots prior to the Special Election on September 17, 2024. They signed the outer

envelopes, and while lacking handwritten dates, the outer envelopes do in fact

contain the County Board’s date stamps of the dates the ballots were received. The

Designated Appellees’ undated mail-in ballots were set aside and not counted. O.R.,

Item 1, Pet. ¶¶ 11, 14-18, 20-22, 41-43; H.T. at 8-9, 12. The timeliness and eligibility

of the 67 other voters whose mail ballots were rejected on similar grounds is

undisputed. H.T. at 5, 12, 21.

On September 9, 2024, the County Board posted a list of mail ballots received

ahead of the Special Election that were “administratively determined to be

potentially flawed,” which stated that such ballots “have the possibility of NOT

being counted” and provided information about requesting a replacement ballot or

casting a provisional ballot. O.R., Item 1, Pet. ¶ 44 & n.14.10 Designated Appellees’

names appeared on the list of defective ballots,11 but they did not correct the error

on their ballots before 8:00 p.m. on the day of the Special Election. Designated

Appellee Kinniry additionally attested to the fact that she received an email from the

County Board on August 27, 2024, informing her that her vote would not be counted

if she did not take additional steps to fix her omission of the date. However, she did

10

See https://vote.phila.gov/news/2024/09/09/2024-special-election-unverifiable-

identification-undeliverable-and-or-potentially-flawed-ballots/ (last visited Oct. 28, 2024).

11

See O.R., Item 1 (Petition ¶ 44 & n.14) (citing

https://vote.phila.gov/media/2024_Special_Election_Deficiency_List.pdf (listing, inter alia,

Brian T. Baxter and Susan T. Kinniry and indicating “Ballot Status Reason” for each as “NO

DATE”) (last visited Oct. 28, 2024)).

6

not attempt to fix her mail-in ballot because she read the news about this Court’s

decision in BPEP II, in which this Court held that it is unconstitutional for county

boards of elections to reject mail ballots for noncompliance with the Election Code’s

dating provisions. Id., Ex. 2, Kinniry Decl., ¶¶ 12, 14 & Ex. A (email from County

Board). Designated Appellee Baxter, who is 81 years old, attested that his old age

and increasing forgetfulness likely contributed to his failure to date his mail-in

ballot. Id., Ex. 1 (Baxter Decl.), ¶¶ 2, 11.

Following the September 17, 2024 Special Election, and pursuant to Section

1404(f) of the Election Code, 25 P.S. § 3154(f) (providing for computation of returns

by county board, among other things), the County Board met in a public meeting on

Saturday, September 21, 2024, to review the mail ballots from the Special Election,

23 of which had been segregated due to missing dates and 46 of which had been

segregated for possible incorrect dates. O.R., Item 1, Pet. ¶¶ 24, 45-46, 52 & n.16

(citing County Board Agenda); H.T. at 4-5. Regarding the 23 undated ballots,

Philadelphia City Commissioner12 Sabir moved to not count them, which motion

was seconded by Commissioner Bluestein. Id. ¶ 46, n.17 (citing link to County

Board Meeting livestream). Commissioner Deeley responded by reading an excerpt

from this Court’s now-vacated opinion and order in BPEP II, providing that a strict

scrutiny standard of review applies to the dating provisions’ restriction on the

fundamental right to vote guaranteed by our Constitution and holding that in the

absence of any compelling reasons therefor, the refusal to count undated or

incorrectly dated but timely mail ballots submitted by otherwise eligible voters

because of meaningless and inconsequential paperwork errors violates the

fundamental right to vote recognized in the free and equal elections clause. O.R.,

12

The Philadelphia City Commissioners sit as the County Board for the City and County

of Philadelphia. See H.T. at 4; O.R., Item 1 (Pet. ¶ 23, n.5).

7

Item 1, Pet. ¶¶ 47-48. Commissioner Deeley thus concluded, based on BPEP II and

the Commissioners’ sworn oath to uphold the Pennsylvania Constitution, that not

counting the 23 undated mail-in ballots because of meaningless and inconsequential

errors would violate the Pennsylvania Constitution. Id. ¶¶ 48-49. Although

Commissioner Bluestein indicated his apparent concurrence in principle that the 23

ballots should be counted, he noted the Supreme Court’s ruling in BPEP III, vacating

this Court’s BPEP II decision, and that the Commissioners have an obligation to

follow the law as it currently stands, which prohibits the counting of the 23 undated

ballots. Id. ¶ 50. As for the 46 incorrectly dated ballots, the County Board moved

to not count them, and Commissioner Deeley again noted her objection considering

this Court’s BPEP II ruling that the free and equal elections clause requires that the

ballots be counted, with which Commissioner Sabir appeared to agree. Id. ¶¶ 52-53.

Despite that the County Board acknowledged at the September 21 meeting that the

dating provisions serve no purpose, it nevertheless voted 2-1 as to each set of

defective mail ballots and thereafter orally announced its decision not to count the

69 undated and incorrectly dated mail ballots, including Designated Appellees’

undated but timely received mail-in ballots. Id. ¶¶ 24 & nn.8-9, 51, 54, 61; H.T. at

5 (stating that all 69 undated and incorrectly dated mail ballots were timely received

by the County Board), 6 (noting Exs. 1-2 (Baxter & Kinniry Decls.) are stipulated

facts of record), 12-13.

On September 23, 2024, Designated Appellees timely filed their Petition in

the trial court, setting forth the above facts and asserting that the County Board’s

failure to count Designated Appellees’ undated mail-in ballots violated their

fundamental right to vote under the free and equal elections clause of the

Pennsylvania Constitution. Designated Appellees argued that a strict scrutiny

8

standard of review applies to the dating provisions’ restriction on that right, under

which the party defending the challenged action must prove that it serves a

compelling government interest. According to Designated Appellees, the County

Board cannot demonstrate a compelling interest that justifies its wholesale

disenfranchisement of voters where the handwritten date requirement serves no

purpose in determining timeliness of receipt or voter qualifications, which the

County Board acknowledged at its September 21 meeting. Designated Appellees

thus requested that the trial court issue an order reversing the County Board’s

decision, declaring that the Pennsylvania Constitution requires the counting of their

mail-in ballots, and directing the County Board to count their undated mail-in ballots

cast in the September 17, 2024 Special Election. See O.R., Item 1, Pet. ¶¶ 55-63 &

Wherefore Clause.

The trial court held a hearing on the Petition on September 25, 2024, during

which many of the above facts were again relayed by the parties. Designated

Appellees’ counsel also acknowledged during the hearing that “[t]he number of

ballots at issue is not enough to impact the outcome, especially in an unopposed race,

or two unopposed races.” H.T. at 16-17 (further recognizing “[i]t is impossible” that

the at-issue ballots “would be outcome determinative in the [S]pecial [E]lection”),

18. The County Board thus filed a proposed Consent Order of Court (Consent Order)

between it and Designated Appellees, which the trial court signed and entered on the

docket on September 25, 2024, stating as follows:

1. The [County Board] is authorized to certify the results of the

September 17, 2024 Special Election to the Pennsylvania

Department of State [(Department)] and to take any and all such

other actions necessary to accomplish the same, without impacting

the pending litigation; and

9

2. The parties have agreed that if either or both of the [p]etitioners

[(i.e., Designated Appellees)] ultimately prevail on the merits, the

[County Board] will open and canvass their mail ballots and file an

amended vote count with the . . . Department . . . reflecting their

votes in the September 17, 2024 Special Election.

O.R., Item 10, Consent Order of Court signed 9/23/2024 & entered 9/25/2024; H.T.

at 16-18.

Also during the hearing, RNC and RPP preserved their Intervention Petition

filed prior to the hearing, which the trial court indicated it had yet to review;

however, the court allowed RNC and RPP to participate in the proceedings and noted

their objection to Designated Appellees’ Petition. H.T. at 6-7, 19-20; see O.R., Item

11, RNC/RPP Intervention Petition. RNC and RPP also filed the proposed Motion

to Dismiss Designated Appellees’ Petition with their Intervention Petition, and a

supporting brief, asserting that the holdings in In re Canvass of Absentee & Mail-in

Ballots, 241 A.3d 1058 (Pa. 2020) (In re Canvass 2020), and Ball that the dating

provisions are mandatory remain controlling here; that the Supreme Court already

rejected a free and equal elections clause challenge to the dating provisions in

Pennsylvania Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020); that the

Supreme Court rejected a request for it to exercise its extraordinary jurisdiction in

in BPEP III, 322 A.3d at 222; and that, even if Designated Appellees’ challenge to

the dating provisions’ constitutionality is an open question, the clause’s plain text

and history and controlling federal and other states’ precedent foreclose such claim.

RNC and RPP also argued that granting the requested relief would distort state law

and violate various provisions of the United States and Pennsylvania Constitutions,

would result in nonuniformity amongst the county boards in applying the dating

provisions and sow chaos amid an ongoing election, and would require invalidation

of the entirety of Act 77 under its nonseverability provision. Even if the trial court

10

did consider the issue, they further highlighted that the Supreme Court recently

reaffirmed that strict scrutiny does not apply and that mandatory ballot-casting rules

only violate the free and equal elections clause if they deny the franchise itself or

make it so difficult to vote so as to amount to a denial in In re Canvass of Provisional

Ballots in 2024 Primary Election (Walsh), __ A.3d __ (Pa., No. 55 MAP 2024, filed

Sept. 13, 2024) (also citing Winston v. Moore, 91 A. 520 (Pa. 1914)). Finally, RNC

and RPP contended that the Petition is procedurally defective for the same

jurisdictional reasons the Supreme Court cited in vacating our BPEP II decision.

Based upon the above undisputed facts, the trial court recognized that “a

degree of uncertainty” had been created by recent appellate case law, including Ball

and BPEP II and III, regarding whether undated and incorrectly dated mail ballots

should or should not be counted and observed that “[t]here is no per se controlling

law on this conflict issue.” H.T. at 9, 14-16. In apparent reliance on our vacated

decision in BPEP II, the trial court then ruled on the record that Designated

Appellees made out a claim under the free and equal elections clause of article I,

section 5 of the Pennsylvania Constitution, noting the Constitution “always prevails

over a conflict in the statutory language” and that its ruling was based “upon the

undeniable and confirmatory position of the parties that this will in no way prejudice

the ordinary and efficient process of the [County] Board . . . in processing [its]

faithful duty to the Election Code.” H.T. at 18, 21-22. The court also reserved ruling

on RNC and RPP’s Intervention Petition. Id. at 21-22.

On September 26, 2024, the trial court issued its order granting Designated

Appellees’ Petition, reversing the County Board’s decision not to count Designated

Appellees’ undated mail-in ballots and the 67 other registered voters’ defective mail

ballots because such refusal violates the free and equal elections clause, and

11

directing the County Board to verify, count if otherwise valid, and include in the

results of the Special Election all 69 defective mail ballots. O.R., Item 12, 9/26/2024

Trial Court Order. By separate Rule to Show Cause order issued on September 26,

2024, the trial court directed the parties to respond to RNC and RPP’s Intervention

Petition. See O.R., Item 13, 9/26/2024 Trial Court Rule to Show Cause Order.13

On September 27, 2024, Designated Appellees and the County Board filed

their Joint Emergency Motion, asserting that RNC and RPP’s Intervention Petition

was uncontested and seeking clarification on whether the trial court intended its first

September 26, 2024 order on the merits of the Petition to be the final order in this

case for appeal purposes considering the Supreme Court’s August 27, 2024 Order

shortening certain election-related appeal deadlines,14 or whether the trial court

intended to conduct further proceedings in light of its second September 26, 2024

Rule to Show Cause order regarding the Intervention Petition. O.R., Item 16, Joint

Emergency Motion. The trial court thereafter entered its final order on September

28, 2024 (dated September 27, 2024), granting RNC and RPP’s Intervention

Petition,15 declaring moot the parties’ Joint Emergency Motion, and denying RNC

and RPP’s Motion to Dismiss. O.R., Item 17, 9/27/2024 Trial Court Final Order.

13

By September 27, 2024 order, the trial court declared as moot the parties’ “Filed

Stipulation,” as it was duplicative of their Consent Order. See O.R., Item 15 (9/27/2024 Trial

Court Order).

14

The Supreme Court’s Order was effective as of August 29, 2024. See In Re Temporary

Modification and Suspension of the Rules of Appellate Procedure and Judicial Administration for

Appeals Arising Under the Pennsylvania Election Code (Pa., No. 622 Judicial Admin. Dkt., filed

Aug. 27, 2024) (per curiam), slip op. at 3.

15

The trial court noted that the Intervention Petition was not docketed until the day after

the court issued its September 25, 2024 order on the Petition (which is actually dated and entered

as of September 26, 2024), and that this delayed the matter and caused inconvenience to the parties

in obtaining finality of the court’s ruling and necessitated further proceedings to dispose of the

Intervention Petition. See O.R., Item 17 (9/27/2024 Trial Court Final Order), at 1, n.1.

(Footnote continued on next page…)

12

Designated Appellant County Board thereafter appealed the trial court’s

September 26, 2024 order on the merits of the Petition and its September 28, 2024

final order to this Court on October 1, 2024, and Designated Appellants RNC and

RPP filed their cross-appeal of the same orders on October 3, 2024.16

By separate orders entered on October 3, 2024, the trial court directed

Designated Appellants to file concise statements of the errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b) within 21 days of the order. O.R., Items 20 &

21. This Court, by Order of October 3, 2024, sua sponte consolidated the cross-

appeals and directed the filing of Statements of Issues to be Presented on Appeal by

October 8, 2024, transmission of the record to this Court by October 10, 2024, and

the filing of simultaneous briefs on the merits of the appeals no later than October

15, 2024. The Court also indicated the appeals would be submitted on briefs without

oral argument unless otherwise ordered. By Order of October 8, 2024, this Court

granted Designated Appellees’ partially contested Application for Expedited

Although the parties appealed the trial court’s September 28, 2024 final order granting

RNC and RPP’s Intervention Petition, they raise no issues as to RNC and RPP’s intervention on

appeal. We therefore do not address their intervention further for purposes of these appeals and

will affirm the trial court’s final order in that regard.

16

In their Notice of Appeal, RNC and RPP assert various reasons why the Supreme Court’s

August 27, 2024 Order is inapplicable to this matter. First, they assert that this case involves the

September 17, 2024 Special Election in Philadelphia, not the November 5, 2024 General Election.

They also claim the underlying Petition sought a declaration that the County Board’s decision was

unlawful under the Pennsylvania Constitution, not the Election Code; therefore, they concluded a

30-day appeal period for a declaratory judgment matter was appropriate. Finally, RNC and RPP

point out that the trial court did not append a copy of the Supreme Court’s Order to either its

September 26 or September 28 orders. See O.R., Item 19.

This Court agrees with RNC and RPP that the Supreme Court’s August 27, 2024 Order

does not apply to this matter, which relates to a Special Election that has already occurred,

and not the 2024 General Election. However, given that time is of the essence in any actions

that may be required following issuance of this opinion, such as amending the Special Election

vote count pursuant to the parties’ Consent Order, the Court urges the parties to proceed

expeditiously should they wish to appeal this decision.

13

Briefing Schedule, directed the parties to file their briefs on October 14, 2024,

instead of October 15, 2024, and indicated the remainder of the Court’s October 3,

2024 Order remained in full force and effect. The parties complied with the Court’s

orders and filed Statements of Issues and briefs as directed.

On October 10, 2024, the trial court issued a 2-page opinion pursuant to

Pa.R.A.P. 1925(a),17 setting forth an abbreviated version of the above facts and

procedural history of this matter and noting that “the court’s reasons for its decision

[on the Petition] were fully stated on the record at the hearing and are reflected in

the transcript” and that the court issued an order the next day “memorializing that

decision.” See 10/10/2024 Trial Court “1925a Order” at 1-2. Further, the court

rejected the parties’ arguments in the Joint Emergency Motion and observed that the

order granting Designated Appellees’ Petition on the merits “related to a special

election that had already occurred and did not involve voting in the November 2024

election[.]” Id. at 2, n.1. The court also explained that it denied RNC and RPP’s

Motion to Dismiss because it was not identified or asserted at the hearing and was

not properly filed as a motion in time for the court to consider it, and it was also

untimely and procedurally defective. Id. at 2.

17

This Court notes that the trial court’s October 10, 2024 Pa.R.A.P. 1925(a) opinion is

titled, “1925a Order,” and that it is replete with typos, making it difficult to read. However, the

Court can discern the trial court’s reasoning, which appears in the September 25, 2024 hearing

transcript and is based primarily on our decision in BPEP II.

14

II. PARTIES’ & AMICI CURIAE ARGUMENTS

A. Parties’ Arguments

1. Designated Appellant County Board

Contrary to its statement in its brief that it “takes no position on the issue” of

whether the free and equal elections clause prohibits county boards of elections from

rejecting mail ballots because of dating errors on the outer declaration envelope, the

County Board nevertheless agrees with the trial court that not counting such ballots

based on the meaningless dating provisions violates the free and equal elections

clause. (County Board Brief (Br.) at 2, 6-7, 13.) It claims this constitutional issue

remains unsettled, highlighting the “shifting” federal and relevant state litigation on

the issue since 2020, including decisions of our Supreme Court in In re Canvass

2020 and Ball, and our now-vacated decision in BPEP II, the “net effect of” which

“strongly suggests that the Board would violate voters’ constitutional rights if it were

to refuse to count mail ballots with dating errors in the 2024 General Election.” (Id.

at 9-12.) Confusingly, however, the County Board seeks reversal of the trial court’s

September 26, 2024 order to avoid the scenario where the Board is (1) an outlier

from other county boards on this issue, and (2) ordered to count mail ballots with

dating errors in the Special Election but then is ordered to not count the same

defective ballots weeks later in the General Election. (Id. at 13.)

It nevertheless urges this Court to address the constitutional issue now,

asserting this Court has a statutory and jurisdictional obligation to resolve the issue’s

merits in the context of these direct statutory election appeals filed under Section

1407(a) of the Election Code, 25 P.S. § 3157(a), and claiming that Purcell v.

Gonzalez, 549 U.S. 1 (2006), is not a barrier to us doing so. (Id. at 14-15 (pointing

out that these appeals do not involve a preliminary injunction entered without a

15

developed factual record regarding changes to voter identification (ID) laws, as was

the case in Purcell).) The Board highlights that unlike in Purcell, here, there would

be no disruption to an imminent election, i.e., the 2024 General Election, as any

decision by this Court in these appeals would merely be “a vote-counting decision

and not a change in the rules impacting the voting process or voter behavior.” (Id.

at 7, 14-15.) Further distinguishing this case from Purcell, the Board submits there

is no risk of voter confusion or hardship on election administrators for either prior

or future elections, because the September 17 Special Election already occurred, and,

therefore, the only issue is whether the at-issue mail ballots should be included in

final tally for the Special Election, “which is a normal post-election occurrence”

contemplated by the Election Code and also our Supreme Court in New PA Project

Education Fund v. Schmidt (Pa., No. 112 MM 2024, order filed Oct. 5, 2024) (New

PA Project) (per curiam) (denying the same BPEP II petitioners’ application for the

exercise of King’s Bench or extraordinary jurisdiction that sought review of whether

disenfranchising voters based on the meaningless dating provisions violates the free

and equal elections clause).18 (Id. at 14-18 (further observing that Purcell places no

constraints on state courts, and that the Supreme Court stated in New PA Project it

would continue to exercise its appellate jurisdiction with respect to lower court

decisions that have already come before it in the normal course).)

The County Board also points out that the facts here are straightforward and

undisputed and that it does not use the handwritten date to determine a voter’s

qualifications or timeliness of ballots, or to detect fraud. Rather, the Board adds that

it uses an automated sorting machine to recognize envelopes that fail to include

handwritten signatures or secrecy envelopes but assesses handwritten dates

18

Three minority statements were issued, which we summarize below.

16

manually, which is time-consuming. (Id. at 19-21.) Finally, the Board argues that

resolution of this appeal also will not require invalidation of any part of Act 77, and

even if it does, the Court has discretion on whether to apply Act 77’s nonseverability

provision. (Id. at 7-8, 21-24 (citing Bonner v. Chapman, 298 A.3d 153, 168-69 (Pa.

Cmwlth. 2023), in which this Court decided Act 77’s nonseverability provision was

not triggered because the decision not to enforce the dating provisions did not strike

those provisions from the statute, and asserting that, in any event, Stilp v.

Commonwealth, 905 A.2d 918 (Pa. 2006), is on point as to nonseverability).)

2. Designated Appellants RNC & RPP

For their part, Designated Appellants RNC and RPP disagree with the County

Board’s position, arguing that several procedural defects require reversal of the trial

court’s order, namely that (1) Designated Appellees committed the same error as in

BPEP II by failing to name the other 66 purportedly indispensable county boards in

their Petition filed in the trial court; (2) additional factual development regarding the

dating provisions is necessary; and (3) the trial court erred in retroactively changing

election rules for the Special Election in violation of Purcell and without any factual

development, regular briefing, or setting forth any reasoning in an opinion. (RNC

& RPP’s Br. at 53-56.) If the procedural defects are determined to be nonissues,

RNC and RPP submit that Purcell’s holding, allegedly confirmed by our Supreme

Court’s citation thereto in New PA Project, forecloses invalidation of the dating

provisions in these appeals during the ongoing 2024 General Election. (Id. at 10-

12.) As to the merits of the constitutional and nonseverability issues, RNC and RPP

largely repeat the same arguments in their brief to this Court as in their Motion to

Dismiss filed in the trial court, which we do not repeat here for the sake of brevity.

17

(See supra pp. 10-11; see also RNC & RPP’s Br. at 10-53.) They request that the

trial court’s order be reversed.

3. Designated Appellees Baxter & Kinniry

Designated Appellees respond to RNC and RPP’s procedural arguments,

largely agreeing with the County Board’s assertions that there are no impediments

to our review of these election appeals in our appellate jurisdiction. They

specifically assert that the timing of the 2024 General Election does not compel

reversal of the trial court’s order, as Purcell does not apply here because it is a federal

law equitable doctrine grounded in federalism and is specific to federal courts, not

state courts; they thus disagree with RNC and RPP that New PA Project constitutes

a sea change on this point. (Designated Appellees’ Br. at 45-48.) They also suggest

that application of a Purcell-type principle is out of place in the context of an appeal

under Section 1407 of the Election Code, which actions can only arise when “county

boards are in the throes of an election” given the time constraints attendant thereto

in that section. (Id. at 47-48.) Designated Appellees further claim that the other 66

county boards need not have been named in this action, because these are appeals

authorized by Section 1407 of the Election Code regarding the Special Election held

in Philadelphia County only, and none of those county boards sought to intervene.

(Id. at 23, 51-60.)

As to the merits of the constitutional issue, Designated Appellees repeat their

arguments from their Petition, which we also do not repeat here for the sake of

brevity. (See supra p. 9; see also O.R., Item 1 & Designated Appellees’ Br. at 24-

57.) All in all, they assert that “the Constitution . . . compels the same result on the

merits” as our now-vacated decision in BPEP II. (Designated Appellees’ Br. at 1,

31.) They finally assert that the relief they sought in the trial court does not implicate

18

Act 77’s severability clause or the federal Elections Clause of the United States

Constitution,19 and they request that we affirm the trial court’s order. (Id. at 53-60.)

B. Amici Curiae Arguments

The Department of State and the Secretary of the Commonwealth, Al Schmidt

(collectively, Secretary), filed an amicus brief in support of Designated Appellees,20

adding that, while he agrees with the Supreme Court’s statement in New PA Project

that it will not change election rules at this late stage of the game, the Supreme Court

will nevertheless be confronted with this issue at some point specifically in relation

to the 2024 General Election. (Sec’y’s Br. at 8-9.)21 The Secretary submits that

resolving the constitutional issue now would not be disruptive or affect voters

in any way, but rather, it would make county boards’ responsibilities easier on

election day. The Secretary suggests that this case is an opportune one for

resolving the question left open by the Supreme Court in BPEP III, and he

requests that we affirm. (Id. at 11-12.)

Thirty-four county board of elections’ officials (Amici BOE Officials) filed a

joint brief as amici curiae, similarly agreeing with Designated Appellees, and the

County Board to an extent, and arguing that this Court’s holding in BPEP II was

correct on the merits. (Amici BOE Officials’ Br. at 2-3.) They highlight this is

especially so now given that nearly 70 “highly motivated electors in a low turnout

Philadelphia special election” were disenfranchised by enforcement of the dating

19

U.S. Const. art. I, § 4, cl.1.

20

The Secretary attached, as Exhibit A, his brief filed in BPEP II.

21

The Secretary cites Zimmerman v. Schmidt (Pa. Cmwlth., No. 33 M.D. 2024, filed Aug.

23, 2024) (en banc), vacated & remanded, __ A.3d __ (Pa., No. 63 MAP 2024, order filed Sept.

25, 2024) (per curiam), in which the Supreme Court vacated our decision for lack of jurisdiction

similar to its order in BPEP III, and remanded for this Court to dismiss the suit with prejudice,

noting that it is better to address election-related questions before such a decision becomes

outcome determinative. The merits of Zimmerman are otherwise not relevant for our purposes.

19

provisions. (Id. at 3, 6-7.) Amici BOE Officials add that, in their experience, such

disenfranchisement will likely affect thousands of voters in the upcoming General

Election and disproportionately affect older electors, like Designated Appellee

Baxter in this case. (Id. at 3, 8-15.) They further claim, among other things, that the

dating provisions divert Amici BOE Officials away from other pressing election

administration duties. (Id. at 3-4, 15-19.) Amici BOE Officials depart from the

County Board’s position here by requesting that we affirm the trial court.

The Republican Leader of the Pennsylvania House of Representatives, Bryan

Cutler; President Pro Tempore of the Pennsylvania State Senate, Kim Ward; and

Majority Leader of the Pennsylvania Senate, Joe Pittman (collectively, Amici

Republican Leaders), filed an amici curiae brief in support of RNC and RPP,

essentially repeating the same arguments on the merits and in favor of reversal.

Amici Republican Leaders add only that, in the alternative, this Court should remand

for further proceedings to develop the record with complete advocacy and a legally

sufficient Pa.R.A.P. 1925(a) opinion, which they claim is, at present, lacking. (Amici

Republican Leaders’ Br. at 4-8.)

III. DISCUSSION

Before reaching the merits of the free and equal elections clause issue, we first

address our jurisdiction over these election appeals. The parties do not dispute that

this Court has subject matter jurisdiction over the appeals under Section

762(a)(4)(i)(C) of the Judicial Code, 42 Pa.C.S. § 762(a)(4)(i)(C),22 or that the

22

In Dayhoff v. Weaver, 808 A.2d 1002, 1004-06 (Pa. Cmwlth. 2002), we considered an

appeal from a court of common pleas’ order that upheld a determination of a county board of

elections, albeit with respect to two candidates who tied in an election for township supervisor. In

addressing whether we or our Supreme Court had jurisdiction over the appeal, we acknowledged

that Section 1407 of the Election Code, 25 P.S. § 3157, under which the instant Petition was filed

in the trial court, does not provide for an appeal to this Court from a court of common pleas. Id.

(Footnote continued on next page…)

20

manner in which the appeals were brought was proper under Section 1407(a) of the

Election Code, 25 P.S. § 3157(a). They instead disagree about whether Purcell

forecloses, or even applies to, this Court’s consideration of the constitutional issue

of first impression presented by these appeals during the ongoing 2024 General

Election, even though the appeals relate to the September 17 Special Election.

In Purcell, the United States (U.S.) Supreme Court considered a challenge of

the State of Arizona and county officials from four counties to an interlocutory

injunction issued by a two-judge motions panel of the United States Court of

Appeals for the Ninth Circuit that enjoined operation of Arizona’s voter ID

requirements without any explanation or justification mere weeks before the 2006

general election. Purcell, 549 U.S. at 2-3. Noting that “[c]ourt orders affecting

elections, especially conflicting orders, can themselves result in voter confusion and

consequent incentive to remain away from the polls” and that “[a]s an election draws

closer, that risk will increase[,]” as one of the possible reasons why the Ninth Circuit

may have taken prompt action without providing any explanation therefor, the U.S.

Supreme Court found those considerations, and others, were not controlling and that

the Ninth Circuit erred in not giving deference to the District Court’s denial of the

injunction as a procedural matter. Id. at 4-5. The U.S. Supreme Court therefore

vacated the Ninth Circuit’s order, citing “the necessity for clear guidance to the State

of Arizona” given the impending election and the inadequate time to address any

factual issues in the case. Id. at 5-6.

at 1005. However, we observed that Section 762(a)(4)(i)(C) of the Judicial Code, 42 Pa.C.S. §

762(a)(4)(i)(C), does “provide[] expressly that the Commonwealth Court shall have exclusive

jurisdiction over appeals from the trial courts in cases involving elections or election procedures.”

Id. at 1006 (emphasis in original). This is such a case over which we have exclusive appellate

jurisdiction.

21

We do not believe that the U.S. Supreme Court’s vacatur of an Arizona federal

court’s interlocutory injunction halting implementation of an entire voter ID scheme

established by proposition mere weeks before a general election is comparable to

these cross-appeals involving a court of common pleas’ reversal of a Pennsylvania

county board’s decision to reject mail ballots for failure to comply with our state

Election Code’s dating provisions at the expense of disenfranchising voters in

violation of our Constitution in a special election that has already occurred.

While the considerations specific to general elections expressed in Purcell may ring

true in Pennsylvania in other contexts, such as in our Supreme Court’s recent order

in New PA Project,23 we do not find that those statements foreclose our ability to

decide the constitutional issue of first impression presented by these appeals, filed

in our exclusive appellate jurisdiction, relating to whether certain votes should be

counted in that special election.24 See 42 Pa.C.S. § 762(a)(4)(i)(C). We highlight

23

We also reject RNC and RPP’s assertion that the Supreme Court’s citation to Purcell in

New PA Project, in a footnote, was a wholesale adoption of “the Purcell principle” as it relates to

Pennsylvania special elections, particularly ones that have already happened. New PA Project

involved a request by the same BPEP II petitioners filed against the 67 county boards of elections,

which asked our Supreme Court to exercise its King’s Bench authority to decide whether

disenfranchising voters based on the Election Code’s meaningless dating provisions violates the

free and equal elections clause. Notably, the petitioners’ request in New PA Project was made in

relation to the 2024 General Election, and not as to the September 17, 2024 Special Election,

which has already occurred. We believe this distinguishes New PA Project from this case. Our

conclusion in this regard is bolstered by our Supreme Court’s recognition in New PA Project that

it would still exercise its appellate role with respect to lower court decisions that already came

before it in the ordinary course. See New PA Project, slip op. at 3, n.2 (citing Genser v. Butler

Cnty. Bd. of Elections (Pa., Nos. 26 & 27 WAP 2024), and Ctr. for Coalfield Justice v. Wash. Cnty.

Bd. of Elections (Pa., No. 28 WAP 2024)). This case too may reach the Supreme Court in the

ordinary course. The Supreme Court has since decided Genser. See Genser (Pa., Nos. 26 & 27

WAP 2024, filed Oct. 23, 2024).

24

This Court has previously observed that “a special election is separate and apart from a

primary” or general election, and that “special election[] votes are considered separate and apart

from any other votes cast as part of any other election.” In re Nom. Papers of Adams, 648 A.2d

(Footnote continued on next page…)

22

that we must decide only whether the trial court erred in reversing the County

Board’s decision not to count the 69 date-disqualified mail ballots and directing that

those ballots be counted; we are not being asked to make changes with respect to

the impending 2024 General Election. Purcell is therefore distinguishable, and

under Section 1407(a) of the Election Code and Section 762(a)(4)(i)(C) of the

Judicial Code, Designated Appellants were entitled to appeal the trial court’s order

reversing the County Board’s decision to this Court.25 We therefore hold that we

may decide the constitutional issue of first impression properly preserved and

presented to us in our exclusive appellate jurisdiction.

Turning to the merits, we first observe that these appeals involve the important

constitutional principle enshrined in the free and equal elections clause of article I,

section 5 of the Pennsylvania Constitution that “[e]lections 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.” Pa. Const. art. I, § 5. Our Supreme Court has recognized

that “[t]he broad text of this specific provision mandates clearly and unambiguously,

and in the broadest possible terms, that all elections conducted in this

Commonwealth must be free and equal. Stated another way, this clause was

specifically intended to equalize the power of voters in our Commonwealth’s

election process.” Pa. Democratic Party, 238 A.3d at 356 (quoting League of

Women Voters v. Cmwlth., 178 A.3d 737, 804, 812 (Pa. 2018) (emphasis in original)

1350, 1352 (Pa. Cmwlth. 1994) (citing Section 102(v) of the Election Code, 25 P.S. § 2702(v)

(defining “special election” as “any election other than a regular general, municipal or primary

election”), and Munce v. O’Hara, 16 A.2d 532, 533 (Pa. 1940)).

25

On this same basis, we also reject any contention that the other 66 county boards of

elections needed to be joined as parties for Designated Appellees to obtain the relief they sought

from the trial court pertaining to the September 17, 2024 Special Election, which only took place

in one county of this Commonwealth, Philadelphia County. The requested relief could not

have been sought against any other county board in relation to that Special Election.

23

(brackets & internal quotes omitted)). Additionally, the Supreme Court has

“observed that the purpose and objective of the Election Code, which contains Act

77, is ‘[t]o obtain freedom of choice, a fair election[,] and an honest election

return[.]’” Id. (quoting Perles v. Hoffman, 213 A.2d 781, 783 (Pa. 1965)). We have

also stated that “the purpose of the Election Code is to protect, not defeat, a citizen’s

vote.” Dayhoff v. Weaver, 808 A.2d 1002, 1006 (Pa. Cmwlth. 2002) (internal

quotations omitted).

In considering election-related matters generally, including where the

fundamental right to vote is at stake, “we are mindful of the ‘longstanding and

overriding policy in this Commonwealth to protect the elective franchise.’” Pa.

Democratic Party, 238 A.3d at 360-61 (quoting Shambach v. Bickhart, 845 A.2d

793, 798 (Pa. 2004)). “‘[O]ur goal must be to enfranchise and not to disenfranchise

[the electorate].’” Id. (quoting In re Luzerne Cnty. Return Bd., 290 A.2d 108, 109

(Pa. 1972)). Our Supreme Court has indeed recognized that “[t]he disfranchisement

of even one person validly exercising his right to vote is an extremely serious

matter.” Perles v. Cnty. Return Bd. of Northumberland Cnty., 202 A.2d 538, 540

(Pa. 1964) (emphasis added).

Our Supreme Court has further cautioned that the power to reject ballots based

on 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.” Appeal of Gallagher, 41 A.2d 630, 632-

33 (Pa. 1945) (emphasis added) (also observing that “[m]arking a ballot in voting is

a matter not of precision engineering but of unmistakable registration of the voter’s

will in substantial conformity to statutory requirements”). Further, “[e]very

rationalization within the realm of common sense should aim at saving [a] ballot

24

rather than voiding it[,]” Appeal of Norwood, 116 A.2d 552, 554-55 (Pa. 1955)

(emphasis added), and, therefore, “[t]echnicalities should not be used to make the

right of the voter insecure[,]” Appeal of James, 105 A.2d 64, 65-66 (Pa. 1954)

(further providing that “[w]here 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”). Considering these overarching

principles and bearing in mind our limited standard of review,26 we turn to the merits

of the parties’ arguments.

At issue is whether the trial court correctly reversed the County Board’s

decision not to count 69 undated and incorrectly dated mail ballots in the September

17, 2024 Special Election in accordance with the Election Code’s meaningless

dating provisions on the basis that the failure to count those ballots violates the free

and equal elections clause of article I, section 5 of the Pennsylvania Constitution.

The parties’ arguments as to this issue all hinge to some extent on this Court’s

opinion and order in BPEP II, in which we considered the same free and equal

elections clause claim as a matter of first impression in our original jurisdiction.

26

This Court’s review “in election contest cases is limited to [an] examination of the record

to determine whether the trial court committed errors of law and whether the [trial court’s] findings

[a]re supported by adequate evidence.” Dayhoff, 808 A.2d at 1005 n.4. In reviewing questions of

law, our standard of review is de novo. In re Benkoski, 943 A.2d 212, 215 n.2 (Pa. 2007).

25

However, as the parties point out in their briefs, our Supreme Court vacated our

BPEP II order in BPEP III,27, 28 relied solely on jurisdictional grounds in doing so,

27

On September 13, 2024, the Supreme Court vacated our BPEP II order on jurisdictional

grounds in BPEP III, concluding that we lacked subject matter jurisdiction to consider the matter

in the absence of all 67 county boards being named as parties, and because the Secretary’s joinder

was not sufficient to invoke our original jurisdiction. BPEP III, 322 A.3d at 222 (further denying

the request for extraordinary jurisdiction). Justice Wecht filed a dissenting statement, in which

Chief Justice Todd and Justice Donohue joined, offering his view that “[a] prompt and definitive

ruling on the constitutional question presented in th[e] appeal is of paramount public importance

inasmuch as it will affect the counting of ballots in the upcoming general election.” BPEP III, 322

A.3d at 222-23 (Wecht, J., dissenting). Justice Wecht also expressed that he would have exercised

the Court’s King Bench authority over the dispute and ordered that the matter be submitted on

briefs. Id. at 223. Thus, at least three Supreme Court Justices appeared to agree with this Court,

at least as to the public import of the same constitutional question involved in the instant appeals.

Six days later, on September 19, 2024, the Supreme Court granted the

intervenor/appellants’ Emergency Application for Enforcement and/or Clarification and clarified

its September 13 Order in BPEP III, explaining that the Secretary was not an indispensable party,

and that the other named county boards did not vest this Court with original jurisdiction. BPEP

IV, slip op. at 1-2. The Court further clarified it vacated our order for an additional independent

jurisdictional reason, i.e., the failure of the petition for review to join all indispensable parties—

the other 65 county boards of elections. BPEP IV, slip op. at 2. Because this jurisdictional defect

could not be remedied, the Court directed that we dismiss the matter upon remand, which we did

by Order of September 20, 2024. Id., slip op. at 2-3.

28

As noted above, in New PA Project, the Supreme Court rejected a third attempt to have

the constitutional issue heard under its King’s Bench authority before the 2024 General Election.

In its Order denying the petitioners’ requested relief, the Supreme Court stated that it “will neither

impose nor countenance substantial alterations to existing laws and procedures during the

pendency of an ongoing election.” New PA Project, slip op. at 3. The Court’s order also cited

Purcell, which we have already determined is not a bar to our consideration of the constitutional

issue in the context of these appeals involving the Special Election. Id., slip op. at 3, nn. 1-2.

Justice Brobson filed a concurring statement, in which Justice Mundy joined, opining that

laches also warranted denial of the application, in that the petitioners waited over a year after Ball

was issued and after multiple elections had been held to challenge the dating provisions, as

interpreted to be mandatory in Ball, under the free and equal elections clause. New PA Project,

slip op. at 3-4 (Brobson, J., concurring). He further observed that the Court’s disposition of the

application in New PA Project “should discourage all who look to the courts of the Commonwealth

to change the rules in the middle of an ongoing election.” New PA Project, slip op. at 5 (Brobson,

J., concurring). He expressed a similar sentiment in another election case decided the same day,

Republican National Committee v. Schmidt (Pa., 108 MM 2024, order filed Oct. 5, 2024) (RNC)

(Footnote continued on next page…)

26

and did not consider the merits or disapprove of our reasoning on the merits of the

constitutional claim. We do not believe the Supreme Court’s order precludes our

analysis of that issue now in these appeals relating to the Special Election. The

record reveals that our reasoning in BPEP II was central to the trial court’s reasoning

in reversing the County Board’s decision not to count the 69 mail ballots at issue,

and we see no reason to depart from that reasoning here. See N.T. at 3-22; see also

10/10/2024 Trial Court “1925a Order” at 1-2.

The trial court found that the legal landscape that exists after BPEP II and III

is uncertain, and the parties agree this essentially puts us back to square one on the

merits of this important constitutional question that has arisen during our primary,

general, and now special elections in this Commonwealth since 2020, when Act 77

went into effect. The question is one of first impression, and the parties have not

identified any cases in which any court has considered this issue aside from BPEP

II. We are left to interpret the law in this area as it existed before we issued our

decision in BPEP II, beginning with the plain text of the dating provisions.

The dating provisions provide that absentee and mail-in electors “shall . . . fill

out, date and sign the declaration printed on” the second, or outer, envelope “on

(per curiam), observing that deciding an issue regarding notice and cure issues “would . . . be

highly disruptive to county election administration” given that the 2024 General Election is already

underway. RNC, slip op. at 2 (Brobson, J., concurring).

Chief Justice Todd filed a dissenting statement in New PA Project, setting forth her opinion

that the Court should exercise its King’s Bench power and decide the issue of “grave importance”

now, citing the possibility of disenfranchisement and potential post-election challenges related to

the same. In Chief Justice Todd’s view, both Ball and BPEP II and III “amply demonstrate

continued uncertainty in this area of the law.” New PA Project, slip op. at 3-4, n.2, 5 (Todd, C.J.,

dissenting). Justice Donohue issued a statement in support of denial, noting her view that the

Court is not “standing on firm terrain” in the legal landscape surrounding the constitutional issue,

consideration of which she characterized as “serious business,” and observing that “[t]ime will tell

if there is a future challenge, in the ordinary course, in a court of common pleas.” New PA Project,

slip op. at 3-4 (Donohue, J., statement in support of denial).

27

which is printed the form of the declaration of the elector,” among other things. See

25 P.S. §§ 3146.6(a), 3150.16(a) (emphasis added). Designated Appellants RNC

and RPP argue that the Supreme Court’s decisions in In re Canvass 2020,

Pennsylvania Democratic Party, and Ball require reversal of the trial court’s order.

We briefly address those cases before reaching the constitutional claim.

In In re Canvass 2020, 241 A.3d 1058, which involved five consolidated

appeals, our Supreme Court addressed, in the context of the November 2020 General

Election, whether the Election Code required county boards to disqualify mail

ballots submitted by qualified electors who signed the declaration on their ballot’s

outer envelope but did not handwrite their name, address, and/or the date, where no

fraud or irregularity was alleged. See id. at 1061-62. The Court concluded that the

Election Code did not require that county boards disqualify signed but undated mail

ballot declarations, reading the dating provisions’ language as directory rather

than mandatory. Id. at 1076-77, 1079 (noting the Court found that such defects,

“while constituting technical violations of the Election Code, do not warrant the

wholesale disenfranchisement of thousands of Pennsylvania voters” and that

“[h]aving found no compelling reasons to do so, we decline to intercede in the

counting of the votes at issue in these appeals” (emphasis added)). However, a

majority of the Justices in In re Canvass 2020 ultimately agreed that the failure to

comply with the dating provisions would render noncompliant ballots invalid in any

election after 2020. See Ball, 289 A.3d at 21-22 (reaffirming In re Canvass 2020’s

majority’s holding in this regard as a matter of statutory interpretation). As such, In

re Canvass 2020 is not helpful for our purposes.

In Pennsylvania Democratic Party, 238 A.3d 345, which notably was issued

mere weeks before a hotly contested Presidential election and amid the novel

28

COVID-19 pandemic, our Supreme Court did not consider any issue regarding the

Election Code’s dating provisions specifically, let alone under the free and equal

elections clause. Rather, Pennsylvania Democratic Party involved notice and

opportunity cure procedures, which are not at issue in these appeals. RNC and

RPP’s reliance on this case is thus without merit.29

Most recently for our purposes, in Ball, 289 A.3d 1,30 a majority of our

Supreme Court weighed in on the interpretation of the dating provisions, recognizing

29

Designated Appellants RNC and RPP rely on this case for the proposition that the

Supreme Court already rejected a challenge to the broader mail ballot declaration requirements,

only one part of which is the dating provisions, under the free and equal elections clause. They

point to the Supreme Court’s consideration of whether the Constitution’s free and equal elections

clause required that county boards implement notice and opportunity to cure procedures for mail

ballots containing minor defects, which is just one of the discrete issues that was before the Court

in that case. See Pa. Democratic Party, 238 A.3d at 372-74. We reject these interpretations.

30

For background purposes, we note that in Ball, the Supreme Court issued a per curiam

Order on November 1, 2022, granting in part and denying in part the petitioners’ request for

injunctive and declaratory relief and ordering Pennsylvania county boards of elections to refrain

from counting any absentee and mail-in ballots received for the November 8, 2022 General

Election that were contained in undated or incorrectly dated outer envelopes; further noting the

Court was evenly divided on the issue of whether failing to count such ballots violates 52 U.S.C.

§ 10101(a)(2)(B) (i.e., the federal Materiality Provision); further directing the county boards to

segregate and preserve any ballots contained in undated or incorrectly dated outer envelopes; and

dismissing the individual voter petitioners from the case for lack of standing. The Court noted that

opinions would follow, and that Chief Justice Todd and Justices Donohue and Wecht would find

a violation of federal law, while Justices Dougherty, Mundy, and Brobson would find no violation

of federal law. See Ball v. Chapman, 284 A.3d 1189 (Pa. 2022) (per curiam).

On November 5, 2022, the Supreme Court issued a supplemental Order, clarifying that for

purposes of the November 8, 2022 General Election, “incorrectly dated outer envelopes” are as

follows: (1) mail-in ballot outer envelopes with dates that fall outside the date range of September

19, 2022, through November 8, 2022; and (2) absentee ballot outer envelopes with dates that fall

outside the date range of August 30, 2022, through November 8, 2022 (citing Sections 1302.1-D

(added by Act 77), 1305-D (added by Act 77), 1302.1 (added by the Act of August 13, 1963, P.L.

707, and amended by Act 77), and 1305 (added by the Act of March 6, 1951, P.L. 3, and amended

by Act 77), 25 P.S. §§ 3150.12a, 3150.15, 3146.2a(a), 3146.5(a)). See Ball v. Chapman (Pa., No.

102 MM 2022, suppl. order issued Nov. 5, 2022) (per curiam). Notably, this Order was issued by

the Court unanimously.

(Footnote continued on next page…)

29

that “an undeniable majority [of that Court] already ha[d] determined that the

Election Code’s command is unambiguous and mandatory, and that undated ballots

would not be counted in the wake of In re [] Canvass [2020].” Ball, 289 A.3d at 21-

22 (noting that “[f]our Justices [in In re Canvass 2020] agreed that failure to comply

with the date requirement would render a ballot invalid in any election after 2020”)

(emphasis in original). The Ball Court therefore reaffirmed the In re Canvass 2020

majority’s conclusion as a matter of statutory interpretation of the Election Code.

Id. at 22. As for incorrectly dated mail ballots, which In re Canvass did not address,

the Court rejected other state and federal courts’ interpretation31 that any date is

“sufficient,” reasoning that “[i]mplicit in the Election Code’s textual command . . .

is the understanding that the ‘date’ refers to the day upon which an elector signs the

declaration.” Id. The Court determined, however, that how county boards verify

the date an elector provides is the day upon which he or she completed the

declaration was, “in truth,” a question beyond its purview. Id. at 23. Further, having

issued guidance for the November 8, 2022 General Election in its November 5, 2022

supplemental Order,32 the Court observed that “county boards of elections retain

authority to evaluate the ballots that they receive in future elections—including those

that fall within the date ranges derived from statutes indicating when it is possible to

On February 23, 2023, the Court issued numerous opinions explaining the Court’s rationale

and/or agreement or disagreement with the Court’s prior orders. See Ball, 289 A.3d 1.

31

See Chapman v. Berks Cnty. Bd. of Elections (Pa. Cmwlth., No. 355 M.D. 2022, filed

Aug. 19, 2022) (Cohn Jubelirer, P.J.) (single-Judge op.), 2022 WL 4100998, at *18 (observing that

the dating provisions say “date” but that the statute “does not specify which date”); and Migliori

v. Cohen, 36 F.4th 153, 163 (3d Cir.) (observing that the county board of elections “counted ballots

with obviously incorrect dates”), vacated as moot, 143 S. Ct. 297 (2022).

32

It also clarified that its November 5, 2022 supplemental Order was intended to provide

guidance and uniformity for the November 8, 2022 General Election, and that the date ranges

included therein “were intended to capture the broadest discernible period of time within which an

elector could have an absentee or mail-in ballot in hand, and thus could become able to ‘fill out,

date and sign’ the declaration on the return envelope.” Ball, 289 A.3d at 23.

30

send out mail-in and absentee ballots—for compliance with the Election Code.” Id.

This was the extent of the Supreme Court’s interpretation of the dating provisions

under state law in Ball.

With respect to whether the dating provisions violated the federal Materiality

Provision, as to which the Ball Court was evenly divided33 and regarding which it

did not issue any order, we note, in relevant part, the Supreme Court’s finding that

“invalidating ballots received in return envelopes that do not comply with the [dating

provisions] denies an individual the right of ‘having such ballot counted and

included in the appropriate totals of votes cast,’ and therefore [] ‘den[ies] the right

of an individual to vote in any election.’” Ball, 289 A.3d at 25 (citing federal

Materiality Provision). Further, recognizing that the interpretive rule against

superfluities (i.e., that a statute should be read together so effect is given to all of its

provisions and so none are rendered inoperative or superfluous) counseled against a

reading of the Materiality Provision as including, in the term “voting,”34 all steps

involved in casting a ballot, which would render the Materiality Provision’s term

“other act requisite to voting” without meaning, the Court opined, as follows, in

footnote 156:

In the event that Congress’ meaning in the phrase “other act requisite

to voting” might be deemed ambiguous, we would reach the same

result. In such a circumstance, failure to comply with the [dating

provisions] would not compel the discarding of votes in light of the

33

Three Supreme Court Justices at the time joined Part III(C) of Ball regarding the

Materiality Provision, including Justice Wecht, Chief Justice Todd, and Justice Donohue.

34

For context, we note the Materiality Provision provides, in relevant part, that “[n]o

person acting under color of law shall . . . deny the right of any individual 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.” See 52 U.S.C. § 10101(a)(2)(B)

(emphasis added).

31

[f]ree and [e]qual [e]lections [c]lause, and our attendant

jurisprudence that ambiguities are resolved in a way that will

enfranchise, rather than disenfranchise, the electors of this

Commonwealth. See Pa. Const. art. I, § 5; [Pa. Democratic Party],

238 A.3d at 361.

Ball, 289 A.3d at 26-27, n.156 (emphasis added).

The precise issues that were before the Court in Ball were whether the

Election Code required disqualification of undated and incorrectly dated absentee

and mail-in ballots and whether failing to count mail ballots that do not comply with

the dating provisions would violate the federal Materiality Provision of the Civil

Rights Act of 1964, 52 U.S.C. § 10101(a)(2)(B). Notably, the Ball Court did not

decide the precise question raised in these appeals of whether the dating provisions’

enforcement to reject undated and incorrectly dated but timely received absentee and

mail-in ballots violates the free and equal elections clause. Nevertheless, the Ball

Court recognized, albeit with respect to the federal Materiality Provision, that a free

and equal elections clause challenge to the dating provisions may someday arise

notwithstanding their unambiguous and mandatory command. We therefore reject

RNC and RPP’s contention that Ball settled the free and equal elections clause issue

for purposes of these appeals.

Turning to the constitutional claim regarding the dating provisions,

Designated Appellees argue that the failure to count their undated mail-in ballots in

the Special Election violates the free and equal elections clause, and that the trial

court was correct in so ruling. In considering this issue, we begin with the well-

established principle that “‘acts passed by the General Assembly are strongly

presumed to be constitutional.’” Cmwlth. v. Neiman, 84 A.3d 603, 611 (Pa. 2013)

(quoting Pa. State Ass’n of Jury Comm’rs v. Cmwlth., 64 A.3d 611, 618 (Pa. 2013)).

The Court is cognizant that “[t]he judiciary should act with restraint, in the election

32

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.” In re Clymer, __ A.3d __ (Pa. Cmwlth., No.

376 M.D. 2024, filed Aug. 23, 2024) (three-Judge panel op.) (citing Green Party of

Pa. v. Dep’t of State Bureau of Comm’ns, Elections & Legislation, 168 A.3d 123,

130 (Pa. 2017) (quoting In re Guzzardi, 99 A.3d 381, 386 (Pa. 2014))), slip op. at

24-25. However, “[w]hile deference is generally due the legislature, we are

mindful that the judiciary may not abdicate its responsibility to ensure that

government functions within the bounds of constitutional prescription under

the guise of its deference to a coequal branch of government.” Mixon v. Cmwlth.,

759 A.2d 442, 447 (Pa. Cmwlth. 2000) (emphasis added).

The free and equal elections clause is at the heart of these appeals, which

provides that “[e]lections 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.” Pa.

Const. art. I, § 5; Applewhite v. Cmwlth., 54 A.3d 1, 3 (Pa. 2012); see also League

of Women Voters, 178 A.3d at 803. Our Supreme Court has observed that

[t]he broad text of the first clause of this provision mandates clearly and

unambiguously, and in the broadest possible terms, that all elections

conducted in this Commonwealth must be “free and equal.” In

accordance with the plain and expansive sweep of the words “free and

equal,” we view them as indicative of the framers’ intent that all aspects

of the electoral process, to the greatest degree possible, be kept open

and unrestricted to the voters of our Commonwealth, and, also,

conducted in a manner which guarantees, to the greatest degree

possible, a voter’s right to equal participation in the electoral process

for the selection of his or her representatives in government. Thus,

[a]rticle I, [s]ection 5 guarantees our citizens an equal right, on par with

every other citizen, to elect their representatives. Stated another way,

33

the actual and plain language of [s]ection 5 mandates that all voters

have an equal opportunity to translate their votes into representation.

Id. at 804 (emphasis in original). Furthermore, in recognizing that it “has

infrequently relied on this provision to strike down acts of the legislature pertaining

to the conduct of elections, the qualifications of voters to participate therein, or the

creation of electoral districts, [the Supreme Court noted its] view as to what

constraints [a]rticle I, [s]ection 5 places on the legislature in these areas has been

consistent over the years.” League of Women Voters, 178 A.3d at 809.

In describing such constraints, the Supreme Court first cited Patterson v.

Barlow, 60 Pa. 54, 75 (1869),35 for the proposition that “while our Constitution gives

to the General Assembly the power to promulgate laws governing elections, those

enactments are nonetheless subject to the requirements of the [f]ree and [e]qual

[e]lections clause . . . , and hence may be invalidated by our Court ‘in a case of plain,

palpable[,] and clear abuse of the power which actually infringes the rights of the

electors’”; therefore, “any legislative scheme which has the effect of impermissibly

diluting the potency of an individual’s vote for candidates for elective office relative

to that of other voters will violate the guarantee of ‘free and equal’ elections afforded

by [a]rticle I, [s]ection 5.”36 League of Women Voters, 178 A.3d at 809-10 (quoting

Patterson, 60 Pa. at 75).

Next, citing its decision in Winston, 91 A. 520, which involved an

unsuccessful challenge under the free and equal elections clause to an act of the

35

Patterson v. Barlow, 60 Pa. 54, 74-75 (1869), involved a challenge to an act of the

legislature that established eligibility qualifications for electors to vote in all elections held in

Philadelphia, and it specified the manner in which those elections were to be conducted.

36

League of Women Voters, 178 A.3d 737, involved a constitutional challenge to

Pennsylvania’s 2011 congressional redistricting plan. The Court’s holding is not particularly

relevant for purposes of these appeals.

34

legislature that set standards regulating the nominations and elections for judges and

elective offices in the City of Philadelphia, the Supreme Court noted it nevertheless

prescribed in that case that elections shall be “free and equal” within the meaning of

the Constitution

when they are public and open to all qualified electors alike; when

every voter has the same right as any other voter; when each voter under

the law has the right to cast his ballot and have it honestly counted;

when the regulation of the right to exercise the franchise does not

deny the franchise itself, or make it so difficult as to amount to a

denial; and when no constitutional right of the qualified elector is

subverted or denied him.

League of Women Voters, 178 A.3d at 810 (quoting Winston, 91 A. at 523 (emphasis

added)); see also Banfield, 922 A.2d 36, 48 (Pa. Cmwlth. 2007) (citing same

standard).

It is undisputed that the fundamental right to vote guaranteed by our

Constitution is at issue in these appeals. Banfield v. Cortés, 110 A.3d 155, 176 (Pa.

2015) (observing that “the right to vote is fundamental and ‘pervasive of other basic

civil and political rights’”) (citing Bergdoll v. Kane, 731 A.2d 1261, 1269 (Pa.

1999)); In re Nader, 858 A.2d 1167, 1181 (Pa. 2004) (holding that, “where the

fundamental right to vote is at issue, a strong state interest must be demonstrated”).

However, the parties disagree about the applicable level of judicial review to be

applied to the dating provisions’ restriction on that right.37

37

RNC and RPP claim that our Supreme Court recently reaffirmed that strict scrutiny does

not apply and that mandatory ballot-casting rules only violate the free and equal elections clause

if they deny the franchise itself or make it so difficult to vote so as to amount to a denial in Walsh.

The Walsh Court held, inter alia, that a provisional ballot should not be counted because the

envelope was unsigned, relying on the unambiguous language of the Election Code provision

providing that such unsigned provisional ballot shall not be counted. It also rejected a free and

equal elections clause challenge because the county board made no showing that a voter having to

(Footnote continued on next page…)

35

Because it is instructive, we return to Pennsylvania Democratic Party, in

which our Supreme Court set forth the proper standards to be considered in

evaluating whether state election regulations violate the Constitution. See Pa.

Democratic Party, 238 A.3d at 384-85:

In analyzing whether a state election law violates the constitution,

courts must first examine the extent to which a challenged regulation

burdens one’s constitutional rights. Burdick v. Takushi, 504 U.S. 428,

434 . . . (1992). Upon determining the extent to which rights are

burdened, courts can then apply the appropriate level of scrutiny needed

to examine the propriety of the regulation. See id. (indicating that “the

rigorousness of our inquiry into the propriety of a state election law

depends upon the extent to which a challenged regulation burdens First

and Fourteenth Amendment[, U.S. Const. amends. I, XVI,] rights”).

Where a state election regulation imposes a “severe” burden on a

plaintiff’s right to vote, strict scrutiny applies and requires that the

regulation is “narrowly drawn to advance a state interest of

compelling importance.” Id. When a state election law imposes only

“reasonable, nondiscriminatory restrictions,” upon the constitutional

rights of voters, an intermediate level of scrutiny applies, and “the

State’s important regulatory interests are generally sufficient to justify”

the restrictions. See [i]d. (upholding Hawaii’s ban on write-in voting

in the primary where doing so places a minimal burden on one’s voting

right and supports the state’s interest in supporting its ballot access

scheme). Where, however, the law does not regulate a suspect

classification (race, alienage, or national origin) or burden a

fundamental constitutional right, such as the right to vote, the state

need only provide a rational basis for its imposition. See Donatelli [v.

Mitchell], 2 F.3d [508,] 510 & 515 [(3d Cir. 1993)].

sign the outer envelope of a provisional ballot denied the franchise or made it so difficult so as to

amount to a denial. Walsh is readily distinguishable because, among other reasons, it involved

provisional ballots, which are not at issue here. We therefore reject RNC and RPP’s argument in

that regard.

36

(Emphasis added.)38

Here, Designated Appellees argue that the dating provisions’ restriction on

their fundamental right to vote violates our Constitution, such that the restriction

must be evaluated under strict scrutiny. We agree and conclude that the dating

provisions impose a significant burden on Designated Appellees’ constitutional right

to vote, in that those provisions restrict the right to have one’s vote counted in the

Special Election to only those voters who correctly handwrite the date on their mail

ballots and effectively deny the right to all other qualified electors who sought to

exercise the franchise by mail in a timely manner but made minor mistakes or

omissions regarding the handwritten date on their mail ballots’ declarations.

Accordingly, we hold that strict scrutiny applies to the dating provisions’ restriction

on that fundamental right, such that the government bears the heavy burden of

proving that the law in question is “narrowly drawn to advance a state interest of

compelling importance.” Pa. Democratic Party, 238 A.3d at 385.

We also agree with Designated Appellees that the dating provisions cannot

survive strict scrutiny, as they serve no compelling government interest. As the

undisputed factual findings underlying the trial court’s order illustrate, thousands of

Pennsylvania voters have been disenfranchised by the County Board’s rejection of

their mail ballots due to missing or incorrect dates on their ballot envelopes,

including Designated Appellees and the 67 other qualified voters who were

disenfranchised as recently as September 21, 2024, the date the County Board voted

38

See also In re Clymer, __ A.3d __ (Pa. Cmwlth., No. 376 M.D. 2024, filed Aug. 23,

2024) (three-Judge panel op.) (setting forth the same standards), slip op. at 24-28; Appeal of

Norwood, 116 A.2d at 555; Petition of Berg, 712 A.2d 340, 341-42 (Pa. Cmwlth. 1998) (setting

forth the same standards); Applewhite v. Cmwlth. (Pa. Cmwlth., No. 330 M.D. 2012, filed Jan. 17,

2014) (McGinley, J.) (single-Judge op.), 2014 WL 184988, at *20-21 (analyzing former voter ID

law under strict scrutiny).

37

not to count their ballots in the September 17, 2024 Special Election. See O.R., Item

1, Pet., ¶¶ 5-6, 35-36 & Ex. 3, 37-40. The trial court also found that the date on the

outer mail ballot envelopes is not used to determine the timeliness of a ballot, a

voter’s qualifications/eligibility to vote, or fraud. Id. ¶ 39. We further observe the

trial court’s findings that all 69 mail ballots at issue were timely submitted to the

County Board by 8:00 p.m. on the day of the Special Election and timestamped with

the date and time they were so received. See O.R., Item 1, Pet. ¶¶ 11, 14-18, 20-22,

41-43 & Exs. 1-2 (Baxter & Kinniry Decls.); H.T. at 5, 8-9, 12, 21. It is apparent

that the trial court determined, as we did in BPEP II under similar factual

circumstances, that the dating provisions are virtually meaningless and, thus, serve

no compelling government interest.

We cannot countenance any law governing elections, determined to be

mandatory or otherwise, that has the practical effect in its application of

impermissibly infringing on certain individuals’ fundamental right to vote, which is

“pervasive of other basic civil and political rights,” relative to that of other voters

who may be able to exercise the franchise more easily in light of the free and equal

elections clause’s prescription guaranteeing all citizens an equal right on par with

every other citizen to elect their representatives. See League of Women Voters, 178

A.3d at 809-10; Banfield, 110 A.3d at 176 (emphasis added); Patterson, 60 Pa. at

75. To look at a mail ballot that substantially follows the requirements of the

Election Code, save for including a handwritten date on the outer envelope

declaration, and which also includes a timestamped date indicating its timely

receipt by the voter’s respective county board of elections by 8:00 p.m. on

Election Day, and say that such voter is not entitled to vote for whomever candidates

he or she has chosen therein due to a minor irregularity thereon “is to negate the

38

whole genius of our electoral machinery.” Appeal of James, 105 A.2d at 66. Simply

put, the “practical” regulation of requiring voters to date their mail ballot

declarations “obstructs and hampers the independent voter” and places voters on

unequal playing fields where voters timely submit their mail ballots, but one voter

may inadvertently include an “incorrect” date, or a birthdate, or forgets to include

the date altogether, and another may include the date on which they filled out the

declaration. Oughton v. Black, 61 A. 346, 349 (Pa. 1905) (Dean, J., dissenting).

Other voters’ ballots may not be counted for unknown reasons.

While this Court is fully cognizant that the General Assembly is the entity

tasked with effectuating “free and equal” elections vis-à-vis reasonable regulations

directing the manner and method of voting, “when the effect of a restriction or a

regulation is to debar a large section of intelli[gent] voters from exercising their

choice, the Constitution is certainly violated in spirit, if not in letter.” See Oughton,

61 A. at 349-50 (Dean, J., dissenting); see also Ball, 289 A.3d at 25; In re Canvass

2020, 241 A.3d at 1076-77, 1079.

Because the refusal to count the 69 undated and incorrectly dated but timely

received mail ballots submitted by otherwise eligible voters in the Special Election

because of meaningless dating errors violates the fundamental right to vote

recognized in and guaranteed by the free and equal elections clause of the

Pennsylvania Constitution, we hold that the trial court, faced with the above

undisputed facts, did not err in reversing the County Board’s decision not to count

those ballots and directing the County Board to count them in the September 17,

2024 Special Election.

As a final matter, we address whether our holding triggers Act 77’s

nonseverability provision, which the trial court did not address. Act 77’s

39

nonseverability provision is found in Section 11 of the Act, which provides, in

relevant part: “Sections 1, 2, 3, 3.2, 4, 5, 5.1, 6, 7, 8, 9 and 12 of this act are

nonseverable. If any provision of this act or its application to any person or

circumstance is held invalid, the remaining provisions or applications of this act

are void.”39 (Emphasis added.) In Stilp, 905 A.2d at 970, our Supreme Court

recognized that Section 1925 of the Statutory Construction Act of 1972 (Statutory

Construction Act), 1 Pa.C.S. § 1925,40 established a presumption of severability

applicable to all statutes which “is not merely boilerplate” and “does not mandate

severance in all instances, but only in those circumstances where a statute can stand

alone absent the invalid provision.” It also “sets forth a specific, cogent standard,

one which both emphasizes the logical and essential interrelationship of the void and

valid provisions, and also recognizes the essential role of the Judiciary in

undertaking the required analysis.” Id. Furthermore, because severability “has its

roots in a jurisprudential doctrine . . . , the courts have not treated legislative

declarations that a statute is severable, or nonseverable, as ‘inexorable commands,’

but rather have viewed such statements as providing a rule of construction.” Id. at

972. Considering the substantive standard in Section 1925 of the Statutory

Construction Act and the above principles, and the fact we are not asked in these

39

For our purposes, we are concerned only with Sections 6 and 8 of Section 11 of Act 77,

which comprise the dating provisions.

40

It provides: “The provisions of every statute shall be severable. If any provision of any

statute or the application thereof to any person or circumstance is held invalid, the remainder

of the statute, and the application of such provision to other persons or circumstances, shall

not be affected thereby, unless the court finds that the valid provisions of the statute are so

essentially and inseparably connected with, and so depend upon, the void provision or application,

that it cannot be presumed the General Assembly would have enacted the remaining valid

provisions without the void one; or unless the court finds that the remaining valid provisions,

standing alone, are incomplete and are incapable of being executed in accordance with the

legislative intent.” 1 Pa.C.S. § 1925 (emphasis added).

40

appeals to declare the dating provisions unconstitutional or otherwise strike them

from Act 77, we decline to treat Act 77’s nonseverability as an “inexorable

command” requiring that the entirety of Act 77 be declared void. Rather, we find

that the other provisions of Act 77, which enacted a comprehensive scheme of no-

excuse mail-in voting that has since been upheld in full as a constitutional exercise

of our General Assembly’s legislative authority to create universal mail-in voting41

will not be affected by our ultimate conclusion regarding the unconstitutional

application of the dating provisions to the 69 voters in the Special Election.42 For

these reasons, we find in our judicial discretion that the nonseverability clause is

ineffective, and, accordingly, we will not enforce it under the circumstances of this

case. See Stilp, 905 A.2d at 977-81 (holding that nearly identical nonseverability

provision was “ineffective and cannot be permitted to dictate [the Court’s] analysis”

and that “enforcement of the clause would intrude upon the independence of the

Judiciary and impair the judicial function”).

IV. CONCLUSION

These appeals have placed us in the position of having to decide a

constitutional issue of first impression regarding whether the application of certain

provisions of our Election Code, held to be unambiguous and mandatory but found

to be otherwise meaningless, violates the free and equal elections clause of our

41

See McLinko v. Department of State, 279 A.3d 539, 582 (Pa. 2022).

42

See Stilp, 905 A.2d at 973; see also Pa. Fed’n of Teachers v. Sch. Dist. of Phila., 484

A.2d 751, 754 (Pa. 1984). We observe that nothing in the otherwise valid provisions of Act 77 is

“so essentially and inseparably connected with” the dating provisions, nor can we say that the

remaining valid provisions of Act 77, “standing alone, are incomplete [or] are incapable of being

executed in accordance with the legislative intent” of that Act. See 1 Pa.C.S. § 1925. We therefore

see no reason to interfere with this comprehensive scheme enacted and amended multiple times by

our Legislature since its inception in 2019, which allows voters of this Commonwealth to

confidently vote from the comfort of their own homes.

41

Constitution. Under the circumstances of these appeals, and for the reasons stated

above, we hold that the trial court did not err in ordering the County Board to count

the 69 undated and incorrectly dated absentee and mail-in ballots cast in the

September 17, 2024 Special Election for the 195th and 201st Legislative Districts

on the basis that not counting those ballots violates the free and equal elections

clause of the Pennsylvania Constitution. See In re Canvass 2020, 241 A.3d at 1076-

77, 1079 (finding that defects in form of undated mail ballots, “while constituting

technical violations of the Election Code, do not warrant the wholesale

disenfranchisement . . . of Pennsylvania voters” and that “[h]aving found no

compelling reasons to do so,” it “decline[d] to intercede in the counting of the

votes at issue in th[o]se appeals” (emphasis added)). We also conclude that our

narrow holding does not trigger Act 77’s nonseverability provision.

Accordingly, we affirm.

ELLEN CEISLER, Judge

42

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian T. Baxter and Susan T. Kinniry : CASES CONSOLIDATED

:

v. : Trial Ct. No. 2024 No. 02481

:

Philadelphia Board of Elections, :

Republican National Committee, :

and Republican Party of Pennsylvania :

:

:

Appeal of: Philadelphia County :

Board of Elections : No. 1305 C.D. 2024

Brian T. Baxter and Susan T. Kinniry :

:

v. :

:

Philadelphia Board of Elections, :

Republican National Committee, :

and Republican Party of Pennsylvania :

:

Appeal of: Republican National :

Committee and Republican Party : No. 1309 C.D. 2024

of Pennsylvania :

ORDER

AND NOW, this 30th day of October, 2024, the Court of Common Pleas of

Philadelphia County’s (trial court) September 26 and September 28, 2024 orders are

AFFIRMED. The Philadelphia County Board of Elections is ORDERED to count

the undated mail-in ballots cast by Designated Appellees Brian T. Baxter and Susan

T. Kinniry, and the absentee and mail-in ballots cast by the other 67 qualified

electors whose ballots were rejected due to outer envelope dating errors, in the

September 17, 2024 Special Election in the 195th and 201st Legislative Districts in

Philadelphia County, and take any other steps necessary in accordance with the

parties’ Consent Order of Court entered by the trial court on September 25, 2024.

ELLEN CEISLER, Judge

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian T. Baxter and Susan T. Kinniry : CASES CONSOLIDATED

:

v. : Trial Ct. No. 2024 No. 02481

:

Philadelphia Board of Elections, :

Republican National Committee, :

and Republican Party of :

Pennsylvania :

:

Appeal of: Philadelphia County :

Board of Elections : No. 1305 C.D. 2024

Brian T. Baxter and Susan T. Kinniry :

:

v. :

:

Philadelphia Board of Elections, :

Republican National Committee, :

and Republican Party of Pennsylvania :

:

Appeal of: Republican National :

Committee and Republican Party : No. 1309 C.D. 2024

of Pennsylvania : Submitted: October 15, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

DISSENTING OPINION

BY JUDGE McCULLOUGH FILED: October 30, 2024

This Court once again has unnecessarily hurried to change the mail-in

voting rules in Pennsylvania, this time mere days before the consummation of a hotly

contested general election. The ballots at issue in this appeal were cast in an

uncontested special election in Philadelphia County, and, although important in their

own right, those ballots could not and will not change the outcome. Nevertheless,

the Court of Common Pleas of Philadelphia County (trial court), and now this Court,

have accepted the invitation of Brian T. Baxter and Susan T. Kinniry (Designated

Appellees) to vitiate as unconstitutional the enforceability of the requirements in

Sections 1306 and 1306-D of the Pennsylvania Election Code (Election Code)1 that

mail voters date the declarations on the envelopes enclosing their ballots

(Declaration Dating Provisions). There simply was and is no reason to decide this

question now, and the Majority certainly has not done so in ordinary course. Both

the trial court and this Court should have declined to issue rushed and novel

constitutional rulings that surely will confuse the expectations of both voters and

county boards of elections alike. The rulings could and should have waited.

Further, and even to the extent that we could2 or should rule on the

merits of this appeal now, the Majority’s decision suffers fatally from the same errors

1

Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591. Section 1306 was

added to the Election Code by the Act of March 6, 1951, P.L. 3, and was amended by the Act of

October 31, 2019, P.L. 552, No. 77 (Act 77). Section 1306 applies to votes cast by absentee

electors and pertinently requires that they fill out, sign, and date the declaration on the outer

envelope enclosing their ballots. 25 P.S. § 3146.6(a). Section 1306-D was added to the Election

Code by Act 77 and includes the same language as Section 1306 with respect to votes cast by mail-

in electors. 25 P.S. § 3150.16(a). For ease of discussion, I refer herein to both absentee and mail-

in voting as “mail” voting.

2

I agree with Judge Wolf’s conclusion in his dissenting opinion that the Majority did not

adequately address the question of whether this Court should have transferred this appeal directly

to the Supreme Court for consideration pursuant to Section 722(7) of the Judicial Code, 42 Pa.

C.S. § 722(7). Section 722(7) provides, in pertinent part, that the Supreme Court shall have

exclusive jurisdiction over any “matters where the court of common pleas has held invalid as

repugnant to the . . . [c]onstitution of this Commonwealth . . . any provision of . . . any statute of[]

this Commonwealth[.]” Id. Here, although the trial court’s order directs the counting of the

(Footnote continued on next page…)

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that beset the now-vacated majority decision in Black Political Empowerment

Project v. Schmidt (Pa. Cmwlth., No. 283 M.D. 2024, filed August 30, 2024) (BPEP

II), vacated, 322 A.3d 221 (Pa. 2024). I discussed at length in my dissenting opinion

in BPEP II, and reiterate again here, that the Majority devises out of whole cloth a

strict scrutiny standard that it wields to preclude the enforcement of generic,

universally applicable ballot-casting requirements that do not “disenfranchise” any

voters or burden or affect their “right” to vote to any degree.

Wrong decisions issued at the wrong time are doubly threatening to the

integrity of Pennsylvania’s elections and the public’s confidence in them. Because

the Majority here countenances, nay, orders, a substantial change to voting rules at

the eleventh hour and on specious grounds, I must respectfully dissent.

I. The Majority Changes the Rules For the Upcoming General Election.

Designated Appellants Republican National Committee and

Republican Party of Pennsylvania argue, and I agree, that the Pennsylvania Supreme

Court only a few weeks ago ruled that it would “neither impose nor countenance

substantial alternations to existing laws and procedures during the pendency of an

ongoing election.” New PA Project Education Fund, NAACP v. Schmidt (Pa., No.

112 MM 2024, filed October 5, 2024), slip op. at 1. Citing to both Purcell v.

contested mail ballots on the ground that to do otherwise would violate the free and equal elections

clause, the trial court did not invalidate the Declaration Dating Provisions on their face. The

Supreme Court nevertheless appears to have accepted jurisdiction under Section 722(7) to address

as-applied constitutional rulings, see, e.g., Department of Transportation, Bureau of Driver

Licensing v. Hettich, 669 A.2d 323 (Pa. 1995), and I agree with Judge Wolf that a strong argument

can be made that transfer was appropriate here. Nevertheless, given the thin record, the curt

analysis below, and no express holding from the trial court as to the Provisions’ validity, I leave

the ultimate question of this Court’s jurisdiction to our Supreme Court for a final determination.

In the event that the Supreme Court determines that we do have jurisdiction, I proceed below to

analyze the issues in this case.

PAM - 3

Gonzalez, 549 U.S. 1, 4-5 (2006), and Crookston v. Johnson, 841 F.3d 396, 398 (6th

Cir. 2016), the High Court relied on the Purcell3 principle, laches, and/or common

sense (an increasingly scarce quality in our election law jurisprudence) to deny an

application asking the Court to exercise King’s Bench or extraordinary jurisdiction

to invalidate under the free and equal elections clause4 the enforceability of the same

3

Purcell involved an Arizona election law that arguably discriminated against some voters

because it required proof of citizenship to cast an in-person ballot on election day. Voting rights

groups challenged the law, seeking to enjoin its implementation two years after it was approved

but only months before the next election. They brought suit in federal district court, which

summarily denied the motion. 549 U.S. at 2-3. On appeal, a two-judge motions panel of the Ninth

Circuit Court of Appeals granted an injunction pending appeal, which had the effect of reversing

the decision below and precluding enforcement of the law. In a per curium opinion, the United

States Supreme Court vacated the Ninth Circuit’s order just days before the 2006 election, once

again restoring the status quo. Id. at 6. In vacating the Ninth Circuit’s order, the Supreme Court

stated:

Faced with an application to enjoin operation of voter identification

procedures just weeks before an election, the Court of Appeals was

required to weigh, in addition to the harms attendant upon issuance

or nonissuance of an injunction, considerations specific to election

cases and its own institutional procedures. Court orders affecting

elections, especially conflicting orders, can themselves result in

voter confusion and consequent incentive to remain away from the

polls. As an election draws closer, that risk will increase. So the

Court of Appeals may have deemed this consideration to be grounds

for prompt action. Furthermore, it might have given some weight to

the possibility that the nonprevailing parties would want to seek en

banc review. . . . These considerations, however, cannot be

controlling here. It was still necessary, as a procedural matter, for

the Court of Appeals to give deference to the discretion of the

District Court. We find no indication that it did so, and we conclude

this was error.

Id. at 5. Finally, the Court concluded that, “[g]iven the imminence of the election and the

inadequate time to resolve the factual issues, our action today shall of necessity allow the election

to proceed without an injunction suspending the voter identification rules.” Id. at 5-6.

4

“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.” Pa. Const. art. I, § 5.

PAM - 4

Declaration Dating Provisions at issue in both BPEP II and this case. New PA

Project, slip op. at 1. Quite obviously, then, the Court determined that precluding

as unconstitutional the enforceability of the Declaration Dating Provisions was a

substantial change to the election rules that it would neither make itself nor permit

in the lower courts. It went on to note that it would nevertheless “continue to

exercise [its] appellate role with respect to lower court decisions that have already

come before this Court in the ordinary course,” referencing the appeals it already

had granted in Genser v. Butler County Board of Elections, ___ A.3d ___ (Pa., No.

26 & 27 WAP 2024, filed October 24, 2024), and Center for Coalfield Justice v.

Washington County Board of Elections (Pa., No. 28 WAP 2024) (emphasis added).

Justice Donohue concurred, noting that both Genser and Center for

Coalfield Justice were pending in that Court and could impact the determination of

whether enforcement of the Declaration Dating Provisions violates the free and

equal elections clause. Id. (Donohue, J., concurring), slip op. at 3-4. She further

noted that “[t]ime will tell if there is a future challenge, in the ordinary course, in a

court of common pleas.” (emphasis added). Id., slip op. at 4. Justice Brobson also

concurred, stressing that the petitioners in New PA Project had delayed challenging

the Declaration Dating Provisions until the last minute, which precluded the

development of a record on the question. They accordingly were barred by the

equitable doctrine of laches from seeking the exercise of King’s Bench jurisdiction.

New PA Project (Brobson, J., concurring), slip op. at 3-4. See also id., slip op. at 5

(“This Court’s disposition of the King’s Bench applications in this matter and in

[Republican National Committee v. Schmidt (Pa., No. 108 MM 2024, filed October

5, 2024),] should discourage all who look to the courts of the Commonwealth to

change the rules in the middle of an ongoing election.”).

PAM - 5

The Supreme Court’s pronouncements straightforwardly apply in this

case to preclude the Majority’s hasty ruling. The Majority today affords the exact

relief that the Supreme Court refused to consider or afford in New PA Project

precisely because it changes the rules in the middle of a general election. Not only

does the Majority’s decision change how election boards will count mail ballots with

undated or misdated declarations, but it also changes the voting rules after thousands,

if not millions, of mail ballots already have been completed and cast by Pennsylvania

voters. Many, if not all, counties have procedures in place to notify mail voters if

their declarations are undated or misdated and afford them the ability to either

request a new mail ballot or vote by provisional ballot. See Genser; Center for

Coalfield Justice v. Washington County Board of Elections (Pa. Cmwlth., No. 1172

C.D. 2024, filed September 24, 2023). What happens to the ballots already cast with

undated or misdated declarations? Are they now valid? What do county boards of

elections do with replacement mail ballots that have been cast with corrected or

filled-in declaration dates? Are the replacement ballots counted, are the original,

defective ballots counted, or both? And what about the voters who, due to the defects

in the declarations on their mail ballots, have now elected to go to their polling place

on election day and cast a provisional ballot, which they now unquestionably may

do under the Election Code. See Genser. May they do that? Must they do that?

Will their prior, defective ballots now be counted?

The Majority fails to consider or sidesteps entirely all of these questions

and summarily concludes that New PA Project and the Purcell do not apply in this

case because this case comes to us in our appellate jurisdiction and concerns ballots

cast in a now-completed and uncontested special election. But that precisely is the

point. The ballots at issue in this appeal, whether or not counted, cannot change the

PAM - 6

outcome of the special election. We could rule on these issues next month, next

year, or in five years, and the outcome for the special election would be the same in

each instance. The only reason that either the trial court or the Majority would rule

on this question now is precisely to change the rules for the already underway

general election. The Majority at best fails to consider the weight of the principles

underlying New PA Project and Purcell, and at worst refuses to comply with a clear

and unequivocal directive of our Supreme Court.

Finally, the Supreme Court’s recent decision in Genser does not compel

a different conclusion. The Supreme Court in New PA Project identified Genser as

one of two cases that “already had come before [that] Court in ordinary course.”

New PA Project, slip op. at 1 n.2. Genser involved the question of whether voters

whose defective mail ballots are received but not counted by a county board of

elections may still go to their polling place on election day and cast a provisional

ballot. The majority in Genser, interpreting the pertinent provisions of Sections

1210 and 1306-D of the Election Code, 25 P.S. §§ 3050, 3150.16, concluded that

they may. See Genser, ___ A.3d at ___ , slip op. at 44-45. The Court in Genser did

not change any voting rules or strike any provisions from the Election Code, but,

rather, interpreted and enforced them consistently with its prior precedents (and with

what appears to be standard practice in most, if not all, counties in the

Commonwealth).5

5

Notably, the Supreme Court in Genser reiterated that defective mail ballots, including

those with undated or misdated declarations, must not be counted because the failure to follow the

rules for mail voting nullifies the mail ballot. ___ A.3d at ___ , slip op. at 33 & n.29, 44 (citing,

in part, Pennsylvania Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020) (Pennsylvania

Democratic Party)).

PAM - 7

In sum, given the timing of this appeal and the Supreme Court’s clear

directive in New PA Project, I would vacate the trial court’s order and remand for

the development of an adequate record and the issuance of a new decision with

adequate reasoning after the completion of the 2024 General Election.

II. Enforcement of the Declaration Dating Provisions does not violate the

free and equal elections clause.

On the merits, the Majority labors under the same errors that were

present in BPEP II. First, and although this point ultimately is irrelevant to the

proper analysis of a free and equal elections clause challenge, it is far from

undisputed here that the Declaration Dating Provisions serve no purpose. The

Majority references other court decisions and the stipulated facts below to assume

throughout its opinion that the dating provisions are “meaningless.” See Baxter v.

Philadelphia Board of Elections (Pa. Cmwlth., Nos. 1305 & 1309 C.D. 2024, filed

October 30, 2024) (MO), slip op. at 4-5. But chanting that word over and over again

does not make it reality. Only the operative facts as set forth in the affidavits of

Designated Appellees were stipulated in the trial court. See Notes of Testimony

(N.T.), 9/25/24, at 5-6. Contrary to what the Majority seems to assume, many of the

allegations in Designated Appellees’ petition for review in the trial court remain

disputed, including the purpose of the Declaration Dating Provisions. The record

from the trial court is scant, and the Majority’s tacit assumption throughout its

opinion that the General Assembly wrote meaningless provisions into the Election

Code is unwarranted and forced. See also BPEP II, slip op. at 32-35 (McCullough

J., dissenting).

Second, the Majority here once again concludes that the Declaration

Dating Provisions create two classes of voters—those who comply with the

Provisions and those who do not. The Majority then concludes that not counting

PAM - 8

ballots accompanied by misdated and undated declarations disenfranchises those

voters and significantly burdens their right to vote, all in violation of the free and

equal elections clause. (MO, slip op. at 35-39.) The Majority accomplishes this by

applying “strict scrutiny,” a standard typically reserved for challenges to laws that

either apply differently to different classes of people or restrict or eliminate

altogether the exercise of a fundamental right. To such challenges, the Pennsylvania

Supreme Court applied such scrutiny in Pennsylvania Democratic Party. 238 A.3d

at 380, 384-85. It did not, however, apply strict scrutiny or anything like it to the

free and equal elections clause challenges that were before it. Id. at 372-74.

As I illustrated at length in my dissent in BPEP II, the Pennsylvania

Supreme Court does not apply and has never applied strict scrutiny in these kinds of

cases where facially nonburdensome and neutral ballot-casting rules result in the

disqualification of non-compliant ballots. See BPEP II, slip op. at 41-48

(McCullough, J., dissenting). The reason for this is patent: if I cast a mail ballot and

fail or refuse to follow the rules for doing so, I have not been “disenfranchised”

because my right to vote remains unaffected, unabridged, and intact. See

Disenfranchise, Black’s Law Dictionary (12th ed. 2024) (defining “disenfranchise”

as “depriv[ing] (someone) of a right, esp[ecially] the right to vote; to prevent (a

person or group of people) from having the right to vote”). Instead, my ballot is

disqualified because I did not follow the rules. Genser; Ball v. Chapman, 289 A.3d

1 (Pa. 2023); Pennsylvania Democratic Party. That is not disenfranchisement; that

is the rule of law.

Just weeks ago, in In re Canvass of Provisional Ballots in the 2024

Primary Election, 322 A.3d 900 (Pa. 2024) (Walsh), Justice Mundy, writing for our

Supreme Court, reaffirmed that strict scrutiny does not apply to free and equal

PAM - 9

elections clause challenges to neutral, universally-applicable ballot-casting rules. In

Walsh, the Court considered, inter alia, whether the Luzerne County Board of

Elections should be required to count a provisional ballot cast by a voter who did

not sign the outer ballot envelope as Section 1210 of the Election Code requires.

The board contended that, under the free and equal elections clause, the electoral

process must be kept open and unrestricted to the greatest degree possible and that

voting regulations are constitutionally suspect if they “deny the franchise itself, or

make it so difficult as to amount to a denial.” 322 A.3d at 905 (citation omitted). In

rejecting this argument, the Court did not apply a strict scrutiny analysis and was not

persuaded that the constitution required it to ignore clear statutory ballot

requirements. Id. at 907-09. In fact, the Court did not mention the “scrutiny”

analysis at all, further underscoring my point that it does not apply to free and equal

elections clause challenges.

Justice Wecht wrote separately in Walsh to emphasize that the

“Election Code really means what it says” and that its plain statutory language

cannot not be disregarded by the courts in order to count non-compliant votes. Id.

at 913 (Wecht, J., concurring). Justice Wecht implored litigants to redirect their

pleadings challenging voting requirements from the judiciary to the General

Assembly and Governor, who are charged with drafting and approving the legal

prerequisites to having a ballot count. Id. at 915. With respect to the free and equal

elections clause, Justice Wecht explained:

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,”

considerations under the [c]onstitution’s [f]ree and [e]qual

[e]lection [c]lause may moderate its enforcement in

particular cases. Arguments advanced under federal

PAM - 10

statutes, such as the Voting Rights Act, may also require

additional considerations and analyses. Neither the

Pennsylvania Constitution nor federal law is implicated in

this case.

Id. at 920 (emphasis added).

Despite this recent and clear guidance from our Supreme Court, the

Majority, as it must, gives short shrift to the Walsh decision and relegates its

discussion to a footnote. (MO, slip op. at 35 n.37.) It simply ignores the fact that

no “scrutiny” analysis is mentioned in Walsh and proceeds to apply it anyway.

Moreover, although the Majority attempts to distinguish Walsh on the basis that it

involved provisional ballots (and for other, unidentified reasons), the principle in

Walsh controls perfectly well here, namely, that strict scrutiny in the traditional sense

simply does not apply to free and equal elections clause challenges to neutral and

nonburdensome ballot-casting rules.

III. The Majority’s holding invalidates the entirety of Act 77.

Although the Majority’s invalidation of the application of Act 77’s

provisions triggers Act 77’s nonseverability clause (Section 11 of Act 77), the

Majority nevertheless exercises its “discretion” to ignore the nonseverability clause

and, once again, changes by judicial fiat how that legislation is to operate. I

disagreed with the exact same missteps taken by the Majority in BPEP II, and my

analysis there applies equally well here. See BPEP II, slip op. at 51-55

(McCullough, J., dissenting). Act 77, and the whole mail voting scheme it created,

is now defunct.

IV. Conclusion.

This Court has rushed this decision on virtually no record and without

any analysis from the trial court. The Majority’s holding disrupts the rules

applicable to the already-underway 2024 General Election and, in my view, directly

PAM - 11

contradicts the Supreme Court’s admonition in New PA Project that these decisions

ought to be made after that election has concluded and on a developed record. I

detailed at length in my dissent in BPEP II why the Declaration Dating Provisions

do not disenfranchise anyone, do not burden the right to vote, and are not subject to

strict scrutiny. I also detailed why the Majority’s holding in BPEP II invalidating

the enforcement of the Declaration Dating Provisions results in the wholesale

invalidation of Act 77 and mail voting with it. Given the undeniable consequences

of the Majority’s holding today, I bid county boards of elections and Pennsylvania

voters the best of luck in trying to decipher what they are supposed to do now.

The Election Code’s rules in this regard are clear. We should have left

them that way.

________________________________

PATRICIA A. McCULLOUGH, Judge

PAM - 12

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Brian T. Baxter and Susan T. Kinniry : CASES CONSOLIDATED

:

v. : Trial Ct. No. 2024 No. 02481

:

Philadelphia Board of Elections, :

Republican National Committee, :

and Republican Party of :

Pennsylvania :

:

Appeal of: Philadelphia County :

Board of Elections : No. 1305 C.D. 2024

Brian T. Baxter and Susan T. Kinniry :

:

v. :

:

Philadelphia Board of Elections, :

Republican National Committee, :

and Republican Party of Pennsylvania :

:

Appeal of: Republican National :

Committee and Republican Party : No. 1309 C.D. 2024

of Pennsylvania : Submitted: October 15, 2024

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

DISSENTING OPINION BY

JUDGE WOLF FILED: October 30, 2024

The Majority Opinion will risk causing confusion on the eve of the

2024 General Election and, therefore, I must dissent.

This appeal concerns a special election that is over. At issue are 69

undated and incorrectly dated absentee and mail-in ballots cast in a special election

held on September 17, 2024, in Philadelphia County. The Philadelphia County

Board of Elections’ counting (or not counting) of those ballots will not impact the

outcome of that election. Notwithstanding, this Court has forged on to “decide a

constitutional issue of first impression regarding whether the application of certain

provisions of our Election Code,[1] held to be unambiguous and mandatory but found

to be otherwise meaningless, violates the free and equal elections clause of our

Constitution.” Baxter v. Phila. Bd. of Elections (Pa. Cmwlth., Nos. 1305, 1307 C.D.

2024, filed _____), slip op. at 41-42 (Maj. Op. at ___). Because this Court’s decision

is ill-timed, proceeding on an unnecessarily expedited track, has the potential to

confuse the electorate, and deprives the Pennsylvania Supreme Court of a reasonable

opportunity to review, I am left with no choice but to dissent.

I. Unnecessarily Expedited Track

The Majority Opinion states several times that its holding is limited to

“the circumstances of these appeals.” See Maj. Op. at 4, 41. Despite the disclaimer,

the Majority, in no uncertain terms, concludes that any county board of elections’

decision not to count undated or incorrectly dated mail-in and absentee ballots

violates the free and equal elections clause of the Pennsylvania Constitution. See

PA. CONST. art. I, § 5. This holding is not limited or “as applied.” See Clifton v.

Allegheny Cnty., 969 A.2d 1197, 1222 (Pa. 2009) (“A statute is facially

unconstitutional only where no set of circumstances exist under which the statute

1

Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3591.

MSW-2

would be valid.”). As of October 30, 2024, there is no set of circumstances in which

a county board of elections’ decision not to count undated or incorrected dated mail-

in and absentee ballots will pass constitutional muster.

The expedited nature of this landmark decision caused the Majority to

gloss over important procedural issues—some raised by the parties and some not.

First and foremost, the Majority does not fully consider the threshold issue of

whether this Court has appellate jurisdiction. Under Section 762 of the Judicial

Code, this Court generally has exclusive appellate jurisdiction of election appeals

from court of common pleas because they affect the “application, interpretation or

enforcement of [a] . . . statute relating to elections.” 42 Pa.C.S. § 762(a)(4)(i)(c);

see Dayhoff v. Weaver, 808 A.2d 1002, 1004-06 (Pa. Cmwlth. 2002) (confirming

that the Election Code does not alter this rule in general). The Majority states that

general rule. See Maj. Op. at 20 n.22 (quoting Dayhoff).

But there is an exception that the Majority does not address. It is from

the Judicial Code, not the Election Code. If a matter is “by [S]ection 722 [of the

Judicial Code] . . . within the exclusive jurisdiction of the Supreme Court,” this Court

lacks appellate jurisdiction. 42 Pa.C.S. § 762(b). Section 722(7) of the Judicial

Code gives our Supreme Court exclusive appellate jurisdiction over “[m]atters

where the court of common pleas has held invalid as repugnant to . . . the

Constitution of this Commonwealth, any . . . provision of . . . any statute of[] this

Commonwealth.” 42 Pa.C.S. § 722(7). In this case, the court of common pleas

“determined that the refusal to count” certain mail-in ballots due to incorrect dating

“violates the free and equal elections clause set forth in [A]rticle I, [S]ection 5 of the

Pennsylvania Constitution.” Maj. Op. at 3. This amounts to a holding of

constitutional invalidity of a statute (specifically, the Election Code’s dating

MSW-3

provision) that triggers exclusive Supreme Court review under Section 722(7) of the

Judicial Code, and thus prohibits this Court’s appellate jurisdiction. This could be

true notwithstanding that the trial court did not expressly say it was declaring any

part of the Election Code unconstitutional.2

Though the parties do not raise that jurisdictional question, we are

obligated to ensure jurisdiction sua sponte. See Commonwealth v. Blystone, 119

A.3d 306, 311 (Pa. 2015); see also Zimmerman v. Schmidt, ___ A.3d ___ (Pa., No.

63 MAP 2024, filed Sept. 25, 2024) (per curiam order) (vacating this Court’s

decision for want of subject matter jurisdiction after this Court failed to consider the

jurisdictional issue sua sponte). And although parties can waive jurisdictional

defects and thus perfect appellate jurisdiction in any appellate court in our Unified

Judicial System, we need not accept the waiver because we retain the authority to

“otherwise order[]”—i.e., to transfer the matter to the court with proper appellate

jurisdiction. 42 Pa.C.S. § 704 (waiver of jurisdictional objections); see id. § 5103(a)

(transfer).

Thus, there is an open question about whether the Court should transfer

this matter to the Supreme Court for it to exercise the exclusive appellate jurisdiction

arguably committed to it in the Judicial Code.3 The Majority does not address that

2

The jurisdictional rule of Section 722(7) appears to apply regardless whether the underlying

constitutional holding is facial or as applied. See Commonwealth v. Torsilieri, 316 A.3d 77, 97

(Pa. 2024) (describing earlier Supreme Court decision on direct appeal from common pleas court

as an “as applied” matter (citing Commonwealth v. Torsilieri, 232 A.3d 567, 572 (Pa. 2020))).

Debating whether the trial court found the dating provision itself unconstitutional, or only its

application or enforcement unconstitutional, seems to be a distinction without a difference, at least

for jurisdictional purposes.

3

Indeed, this Court could have done so immediately, which would have given the Supreme

Court more time to review—and if necessary, to correct—the trial court’s decision here.

MSW-4

question.4 Because the constitutional issues dealt with by the trial court will have

such an immediate and potentially significant impact on Pennsylvania elections, and

the immediate November 5th election in particular, I believe this matter should be

before the Pennsylvania Supreme Court without our opinion.

Second, the Majority identifies a distinct procedural issue that some

Designated Appellants here have raised: the failure to name or join the other 66

purportedly indispensable county boards in the appeal filed in the trial court. Maj.

Op. at 17 (summarizing parties’ arguments). Although that issue could implicate the

trial court’s jurisdiction, the Majority discusses it only in a footnote, without

significant analysis or citation to caselaw. See Maj. Op. at 23 n.25. In this

Commonwealth’s decentralized election system, where elections are managed

individually in each of the 67 counties, local election officials look to this Court’s

decisions for guidance on legal requirements for counting and not counting votes. It

does not take a stretch of the imagination to anticipate that the Majority Opinion will

have an effect on election officials throughout the Commonwealth, six days before

the November 5th General Election. Regardless of the merits of the indispensability

issue, it deserves explanation the Majority does not give.

4

In this case in particular, there are compelling reasons for us to exercise any discretion we

have to transfer. The trial court’s decision now stands. It has not been stayed, vacated, or

otherwise disturbed. It binds the Philadelphia County Board of Elections to count the ballots at

issue here in contravention of the Election Code, on the basis that not counting them would violate

the Pennsylvania Constitution. As I explain further below, this Court’s decision in this case will

contribute to confusion affecting voter behavior across the Commonwealth, but for those same

reasons, the trial court’s decision already causes confusion in Philadelphia County. That is a more-

than-usually compelling reason for us to promptly transfer this matter to the Supreme Court, which

arguably has exclusive jurisdiction anyway under Section 722(7) and is best suited as the

Commonwealth’s supervisory court to clear the existing confusion. Of course, the Supreme Court,

like this one, need not decide the merits right now. It could stay or vacate the decision below, or

restrict its prospective effects. The point is that there is one court that is best situated—and

arguably statutorily empowered—to do that, and it is not this Court.

MSW-5

II. Confusion to the Electorate & Impediment to Further High Court Review

Procedural issues aside, the Majority Opinion will have significant real-

world ramifications. As recently as this month, our Supreme Court denied an

application for the exercise of King’s Bench jurisdiction to answer the precise

question raised in the instant appeals, stating it “will neither impose nor countenance

substantial alterations to existing laws and procedures during the pendency of an

ongoing election.” New PA Project Educ. Fund v. Schmidt (Pa., No. 112 MM 2024,

filed Oct. 5, 2024) (New PA Project); see also Crookston v. Johnson, 841 F.3d 396,

398 (6th Cir. 2016) (“Call it what you will—laches, the Purcell principle, or

common sense—the idea is that courts will not disrupt imminent elections absent a

powerful reason for doing so.”); Purcell v. Gonzalez, 549 U.S. 1, 4-5 (2006) (“Court

orders affecting elections, especially conflicting orders, can themselves result in

voter confusion and consequent incentive to remain away from the polls. As an

election draws closer, that risk will increase.”).

The Pennsylvania Supreme Court’s New PA Project decision was

issued 30 days before the November 5th General Election. We are now six days

before said election. Despite the crystal-clear directive from our Supreme Court,

this Court is now handing down a sweeping constitutional decision disposing of an

issue of first impression to settle the counting of votes that will not impact the

outcome of a past special election, but which will cause a significant sea change in

the election processes effectuated by the county boards.

All this aside, I am most concerned with how this Court’s decision may

influence voter behavior. On October 23, 2024, the Supreme Court handed down a

decision in Genser v. Butler County Board of Elections, ___ A.3d ___ (Pa., Nos. 26

& 27 WAP 2024, filed Oct. 23, 2024), making clear that certain errors which result

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in mail-in and absentee ballots being voided may be addressed by provisional voting.

Voters and election officials are bound by Genser. But now, this Court’s last-minute

decision calls into question voters’ need to vote by provisional ballot if they suspect

an issue with the date on their mail-in or absentee ballot. When word of the “Baxter

decision” gets out, it may lead an elector or election official to believe that an

undated or incorrectly dated ballot will be counted despite its defect, counseling

away from appearing on election day to vote provisionally. And this may stand true.

But this Court, an intermediate appellate court, will most likely not be the last to

speak on the issue, and the timing of this intermediate appellate Court’s decision

puts the Pennsylvania Supreme Court in a near-impossible position. See New PA

Project, slip op. at 5 (Brobson, J., concurring statement) (“This Court’s disposition

of the King’s Bench applications in this matter [] should discourage all who look to

the courts of the Commonwealth to change the rules in the middle of an ongoing

election.”).

One need not look any further than the facts of this case to see how this

Court’s decisions on vote counting influence voter behavior:

Designated Appellee Kinniry additionally attested to the

fact that she received an email from the County Board on

August 27, 2024, informing her that her vote would not be

counted if she did not take additional steps to fix her

omission of the date. However, she did not attempt to fix

her mail-in ballot because she read the news about this

Court’s decision in [Black Political Empowerment Project

v. Schmidt (Pa. Cmwlth., No. 283 M.D. 2024, filed Aug.

30, 2024) (en banc), vacated, 322 A.3d 221 (Pa. 2024)], in

which this Court held that it is unconstitutional for county

boards of elections to reject mail ballots for

noncompliance with the Election Code’s dating

provisions.

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Maj. Op. at 6-7. The Majority Opinion will undoubtedly influence the behavior of

voters and election officials across the Commonwealth and will do so in a timeframe

that all but forecloses further appellate review from our High Court.

While I am cognizant that the issue here was presented to this Court via

statutory appeal,5 and not through a vehicle grounded in equity, cf. New PA Project,

our Supreme Court’s recent warnings and the Purcell principle remain applicable as

the Majority announces a new procedure just days before an already hotly contested

presidential election, absent any “powerful reason to do so.” Crookston, 841 F.3d at

398.

For the reasons articulated above, this Court should have considered

transferring the matter to the Pennsylvania Supreme Court under Section 722(7) of

the Judicial Code, or at the very least should have refrained from deciding this case

on the eve of the 2024 General Election, and on the heels of Genser.6

_____________________________________

MATTHEW S. WOLF, Judge

5

Section 1407(a) of the Election Code, 25 P.S. § 3157(a).

6

Practically speaking, Genser encourages voting by provisional ballot as a fail-safe

mechanism. Our decision here may discourage use of that fail-safe mechanism if a voter believes

his or her ballot was undated or incorrectly dated. See discussion supra at 6-7. Setting forth a new

ballot-counting rule now, without further appellate review, is the precise change to election

procedures the Supreme Court has cautioned litigants from seeking, and Courts from handing out.

See New PA Project (Brobson, J., concurring statement).

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