This case presents a question of “substantial public importance.” 210 Pa. Code R. 1114(4). That question is whether the Pennsylvania Constitution’s Free and Equal Elections Clause, art. I, §5 (“Clause”), prohibits county boards of elections from refusing to count eligible voters’ timely received mail ballots solely because a voter did not correctly date the ballot-return envelope—a date that serves no purpose because a ballot’s timeliness is determined by when county officials scan it upon receipt. (“Mail ballots” refers herein to both mail and absentee ballots.) Although this Court previously declined to address that question based on jurisdictional and equitable concerns, no such concerns are present in this statutory appeal, which arises from the decision of a single county board not to count 69 undated or incorrectly dated mail ballots in a September 25, 2024, special election for state office (i.e., a past—not impending—election). This Court should thus resolve the question now, before election day, to ensure uniformity throughout the Commonwealth and to protect Pennsylvanians’ fundamental right to vote.
More specifically, in order to resolve this matter expeditiously and thereby provide clarity and uniformity in advance of the upcoming election, the Court should treat the RNC’s and RPP’s emergency stay application as a petition for allowance of appeal, grant the petition, and summarily affirm for the reasons set forth in the Commonwealth Court’s decision and the briefing in this Court in Black Political Empowerment Project v. Schmidt, No. 68 MAP 2024 (“BPEP”). As explained in the decision below and in the DNC’s and PDP’s brief in BPEP, the requirement that voters date the outer envelopes of their mail-ballot packets (the “date requirement”) serves no state interest, and hence it violates the Free and Equal Elections Clause— no matter the appropriate level of judicial scrutiny—to deny qualified voters the right
to vote based solely on a failure to comply with that requirement. See Op.32-39; DNC-PDP Br., BPEP v. Schmidt, No. 68 MAP 2024 (Pa. Sept. 4, 2024) (“DNC-PDP BPEP Br.”) (attached as Appendix A).Summarily affirming expeditiously, without further briefing, will provide clarity and uniformity—through definitive, pre-canvass precedent guiding the conduct of all 67 county boards of elections. Such a decision will also ensure that the Commonwealth’s courts are not flooded with new appeals in dozens of counties raising the question in the aftermath of the upcoming election, which would delay the resolution of the general election and ultimately require this Court to act.
If the PA Supreme Court followed this suggested path (and I think it is a longshot), it could end up at the U.S. Supreme Court on an independent state legislature theory track.
And it would be different in form from the current case before SCOTUS on an emergency basis. That case was decided at the PA Supreme Court purely as a matter of statutory interpretation. This would be one (more like the 2020 absentee ballot case), where the PA courts would be using the state constitution to trump a state statute.
In both such cases, the question would be about whether the interpretation “arrogates” the power of the state legislature by exceeding the ordinary bounds of judicial review.
Stay tuned.