Pennsylvania Democratic Party v. Boockvar (2020) [Vote-by-Mail Law]

Summary:

The Pennsylvania Supreme Court’s majority—Justices Baer, Todd, Dougherty, and Wecht—interpreted the Election Code to allow for mail-in ballot collection sites and unmanned “drop boxes.” It also mandated the counting of mail-in ballots received up to three days after Election Day, even without proof they were cast on or before Election Day. Dissenting Chief Justice Saylor and Justices Donohue and Mundy would not have permitted the counting of late mail-in ballots but would have required local election boards to send mail-in ballots to voters at an earlier date. Chief Justice Saylor and Justice Mundy also disagreed with the majority that drop boxes could be allowed, as there was no provision in law to permit them.

The Verdict:

The Majority exceeded its judicial authority by effectively amending the Election Code to fix potential problems in an upcoming election. Worse, they did so by adding substantive requirements not found in the statute itself, risking statewide confusion during every election thereafter. Election law is inherently political and best left in the hands of the legislative branch.

Background:

Following passage of a no-excuse mail-in ballot law and in anticipation of the 2020 General Election, the Pennsylvania Democratic Party filed a lawsuit against the Secretary of the Commonwealth and all 67 county election boards arguing (1) for the use of collection sites or drop boxes to collect mail-in ballots; (2) for a one-week extension to the Election Code’s deadline for receipt of mail-in ballots; (3) for voter alerts to those with mail-in ballots deemed defective with the chance to “cure” the defect; (4) that the absence of a “secrecy envelope” did not render a mail-in ballot invalid; and (5) that the Election Code’s residency requirement for poll watchers was not unconstitutional.

The Pennsylvania Supreme Court assumed jurisdiction and ruled in favor of the Democratic Party regarding drop boxes, late counting of mail-in ballots, and—less controversial—the residency requirement for poll watchers. According to the majority opinion, drop boxes and counting late mail-in ballots were constitutional requirements to avoid disenfranchising voters. However, as the dissenting justices pointed out, there were no provisions in the Election Code to support these results, making them contrary to legislative intent.

Interestingly, the majority sidestepped a severability clause included within the mail-in ballot law that would have required the entire statute to be stricken if one of its portions were deemed unconstitutional. The Republican Caucus—an intervenor in the suit—had argued that the law included the clause because it was a product of compromise that hinged on implementation of all aspects of the bill.

Opinions:

Majority Opinion (Hon. Max Baer, joined by the Hon. Debra Todd, Hon. Kevin M. Dougherty, and Hon. David N. Wecht)

Concurring Opinion (Justice Wecht)

Concurring and Dissenting Opinion (Chief Justice Thomas G. Saylor, joined by the Hon. Sallie Updyke Mundy)

Concurring and Dissenting Opinion (Hon. Christine Donohue, joined by Chief Justice Saylor and Mundy)