The opinion
IN THE SUPREME COURT OF PENNSYLVANIA
EASTERN DISTRICT
BRIAN T. BAXTER AND SUSAN T. : No. 76 EM 2024
KINNIRY :
:
:
v. :
:
:
PHILADELPHIA BOARD OF ELECTIONS, :
REPUBLICAN NATIONAL COMMITTEE, :
AND REPUBLICAN PARTY OF :
PENNSYLVANIA :
:
:
PETITION OF: REPUBLICAN NATIONAL :
COMMITTEE AND REPUBLICAN PARTY :
OF PENNSYLVANIA :
BRIAN T. BAXTER AND SUSAN T. : No. 77 EM 2024
KINNIRY :
:
:
v. :
:
:
PHILADELPHIA BOARD OF ELECTIONS, :
REPUBLICAN NATIONAL COMMITTEE, :
AND REPUBLICAN PARTY OF :
PENNSYLVANIA :
:
:
PETITION OF: REPUBLICAN NATIONAL :
COMMITTEE AND REPUBLICAN PARTY :
OF PENNSYLVANIA :
CONCURRING STATEMENT
JUSTICE DONOHUE FILED: November 1, 2024
The decision and order of the Commonwealth Court was ill timed. Thus, I agree
that the decision and order must be stayed until after the General Election on November
5, 2024. Although the decision was non precedential, the county boards of election might
look to it for guidance in canvassing and pre-canvassing mail in ballots in the upcoming
election thus disturbing the status quo.
I am much more temperate in my reaction than my esteemed colleague Justice
Dougherty to the issuance of the Commonwealth Court’s decision and the litigation
strategy of various parties since the Primary of 2024. There is an election in this
Commonwealth approximately every six months. Undoubtedly, the appellate resolution
of cases filed after the completion of one election may bump up against the next election.
That is the nature of our system. I certainly would not berate interested parties, the courts
of common pleas, and the intermediate appellate court for considering matters arising
under the Election Code because the litigation process might take longer than some
undefined, comfortable period of time before the next election.
If it is our judgment in any given case that a definitive resolution must await the
completion of the next election, then, as in this case, we can take corrective action. In
my view, chastising both interested parties for bringing challenges to the application of
the Election Code in a completed election and the courts of common pleas and
intermediate appellate court for deciding such cases is unwarranted and blind to the
recurring nature of election cycles in our Commonwealth.
Chief Justice Todd joins this concurring statement.
[76 EM 2024; 77 EM 2024] - 2