Pennsylvania S. Ct. Rejects Challenges to Certain Mail-In Ballots

The claim was brought by the Trump campaign; the decision appears to be 4-3 as to some matters, 7-0 as to others.

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From Justice Christine Donohue's 3-Justice plurality opinion today (joined by Justices Max Baer and Debra Todd) in In re: Canvass of Absentee & Mail-In Ballots (Appeal of: Donald J. Trump for President, Inc.):

These appeals present the question of whether the Election Code requires a county board of elections to disqualify mail-in or absentee ballots submitted by qualified electors who signed the declaration on their ballot's outer envelope but did not handwrite their name, their address, and/or a date, where no fraud or irregularity has been alleged. Pursuant to our longstanding jurisprudence, central to the disposition of these appeals is whether the information is made mandatory by the Election Code or whether the inclusion of the information is directory, i.e., a directive from the Legislature that should be followed but the failure to provide the information does not result in invalidation of the ballot….

[W]e conclude that the Election Code does not require boards of elections to disqualify mail-in or absentee ballots submitted by qualified electors who signed the declaration on their ballot's outer envelope but did not handwrite their name, their address, and/or date, where no fraud or irregularity has been alleged….

Justice David Wecht concurred in part but dissented as to how such matters should be dealt with in the future:

I agree with the conclusion that no mail-in or absentee ballot should be set aside solely because the voter failed to hand print his or her name and/or address on the declaration form on the ballot mailing envelope. These items are prescribed not by statute but by the Secretary of the Commonwealth under legislatively delegated authority. Absent evidence of legislative intent that what in context amounts to redundant information must be furnished to validate a mail ballot, their omission alone should not deny an elector his or her vote. But I part ways with the conclusion reflected in the Opinion Announcing the Judgment of the Court ("OAJC") that a voter's failure to comply with the statutory requirement that voters date the voter declaration should be overlooked as a "minor irregularity." …

[I]n future elections, I would treat the date and sign requirement as mandatory in both particulars, with the omission of either item sufficient without more to invalidate the ballot in question. However, under the circumstances in which the issue has arisen, I would apply my interpretation only prospectively. So despite my reservations about the OAJC's analysis, I concur in its disposition of these consolidated cases….

And Justices Kevin Dougherty, Thomas G. Saylor, and Sallie Updyke Mundy concurred in part and dissented in part:

I concur in the decision to affirm the lower courts' orders pertaining to ballots where the qualified electors failed to print their name and/or address on the outer envelope containing their absentee or mail-in ballots. However, I cannot agree that the obligation of electors to set forth the date they signed the declaration on that envelope does not carry "weighty interests." I therefore respectfully dissent from the holding at Section III(2) of the OAJC which provides that the undated ballots may be counted….

I can't opine on the merits of the matter, since I'm not up on the relevant Pennsylvania law (and this is a question of state law, not of the U.S. Constitution); but I thought I'd pass along the opinions. Thanks to Howard Bashman (How Appealing) for the pointer.

NEXT: Conversation on Free Speech and Inequality Between Prof. Nelson Tebbe (Cornell) and Me

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  1. So the legislature has the right to set the rules, but if people don’t follow the rules, then it doesn’t matter and the ballot should be counted anyway? Without reading the actual court case, have I read the snippets somewhat accurately? In which case it seems to me that the court is saying “the legislature can set any rules it wants, we will tell you after the election which ones matter”.

    This is why the Pennsylvania election ended up in the Supreme Court before the election, because the Pennsylvania SCo was just making it up as they went along.

    1. Quite the opposite.
      “These items are prescribed not by statute but by the Secretary of the Commonwealth under legislatively delegated authority. Absent evidence of legislative intent that what in context amounts to redundant information must be furnished to validate a mail ballot, their omission alone should not deny an elector his or her vote.”

      1. The Sec of Com. was granted the authority to create rules. This power was vested to the office by the power holding branch, the legislature. As such, the Sec’s actions should be reas as extensions of the legislative branch and carry the same weight. Now, if the argument was made that the legislature does not possess the authority to delegate then that would be a whole different ball of wax, and one in which I would say they can not (I am generally of the opinion that powers vested by the people to a particular organ of the government can not be passed around sans the people’s directive).
        But that does not seem to be the argument being made. The argument seems to be that yes, the legislature has the power to define the rules, yes they delegated some of that, yes the new office with these delegated powers made rules in compliance with the legislature’s consent, no you don’t have to follow then because the court who is not vested with the power to decide these things said so.

    2. Except that it is now a 5-4 vote rather than a 4-4 vote, and things could get interesting.

      I’d like to know the true story on Sidney Powell, best I can figure out is that it was her statement that Republicans were engaging in VoteAMatic fraud as well. That makes Watergate look like the third rate brgularly that it was.

      Could be interesting….

      1. The true story is that Sidney Powell is mentally ill.

    3. It’s not just about following rules. The PA Supreme Court in the past has recognized a mandatory vs directive dichotomy. Some cases have walked that back but the idea is failure to do a mandatory action results in disqualification, while failure of to do a directive doesn’t. The problem is that the analysis tended to focus a lot on intent with biases (stated, not hidden) towards enfrachisment.

      In this cases they basically all said this distinction remains, however, 4 said the analysis needs to change. Clear language governs and we don’t look towards intent or bias one view. Despite that the printing of name and address is not by statute buy by directive from the Sec of State and doesn’t have the mandatory language. So all 7 agreed that failure to do them is not disqualifying.

      The dating one is where it changed, because that was directly from the statute with mandatory language of “shall”. The opinion of the court was a plurality of 3 who are the 3 not to go the clear language route and instead followed the past precedent of looking for whether there was clear intent to disqualify. They said there wasn’t. The 3 in dissent said that shall is mandatory and we don’t need to look any farther and they should be disqualified. Justice Wecht provided the 4th vote. He shared the dissents view on how the analysis should go and even the result of that analysis that “shall” is mandatory. However, to him, given the circumstances, the ruling should only be prospective and therefore not disqualify votes in this election, only subsequent. He came to that conclusion because there was unclear and contradictory messaging about what was required and because of the past precedent that while he is disagreeing with it murked up the law in this area about. I think if you just read his concurrence you will get a good idea on how all three opinions went and his discussion on why he is only disqualifying prospectively is pretty short. I have to say I sympathize with the reasons he gave to only go prospectively and have thought about this in other areas about when is it fair to apply it retroactively. I still lean towards they should be disqualified (definitely agree with the initial merits conclusion that it is mandatory) but I’m not rock solid on that.

      1. I appreciate your summary and understand the issue at hand re: a murky past makes a current ruling hard.

        But by deferring to a prescriptive application the court is essentially telling one party “You are absolutely right. But we are going to ignore the law this time, prevent you the security the law is supposed to provide, refuse to give you remedy in the face of admitting you were wronged, and wish you better luck next tine.”

        “Yes, we know he stole your TV. We know the law says he can’t do that. We know you are without your TV. We have the opportunity to give it back to you. However… we aren’t going to do that this time. We promise that we will next time though. Now get out of our courtroom.”

  2. So, that makes it, what? 1 for 31 if I counted right.

    There don’t seem to be serious legal claims being made in court, it appears to be just theater for the Parler crowd.

    Meanwhile, Michigan and Georgia have certified the results. I was about to say “stick a fork in him, he’s done”, but this is the kind of done-ness that you don’t test by sticking a fork in, more like seeing if it’s a charred mess of ash yet.

    1. I think this was a serious claim. Here’s the text of the law.

      Here’s the issue. The legislature delegated the details of the form to the Secretary of the Commonwealth, as follows.

      “Said form of declaration and envelope shall be as prescribed by the Secretary of the Commonwealth and shall contain
      among other things a statement of the electors
      qualifications, together with a statement that such
      elector has not already voted in such primary or election. ”

      The Secretary of the Commonwealth decided some details including the address and date of the declaration were important to be included, and were very clearly put down to be filled out. Now, if someone didn’t fill those out, the ballot would be disqualified.

      Except the court says “Nope, doesn’t matter if those details were delegated, we don’t need to count them”

      1. Let’s use an analogy here.

        Congress delegates a lot of the details about your tax return to the IRS, for them to fill out.

        If you didn’t fill out some of these details, normally the IRS may reject your tax return, or hold you liable for fines. Except the PN Court system may say “Well, the legislature didn’t EXPRESSLY tell you to do these things, they delegated it to the IRS so, no fines for you!”

      2. Armchair,
        I get your point. But you’d agree that even though the language of the law places no restrictions on what additional requirements the Secretary of the Commonwealth adds, there are lots of easy examples of things that would be impermissible. Examples:
        “In order for this ballot to be counted, you must answer the following:…”
        -Have you had an abortion?
        -What is your religion?
        -What is your race?
        -What is your sexual orientation?
        -What pornographic websites have you visited in the past __ days?

        Obviously, I’m going to the extreme here. But making, I hope, the point: the Secretary of the Commonwealth does not have unfettered discretion to require any and all things that he or she wants.

        And if you agree with that; then who–other than the courts–could possibly decide when a valid voting-by-mail requirement has been added vs when an invalid one has been added?

        1. Unfettered? No.

          But items that are reasonable and acceptable and commonly used when making a declaration like this? Like the date you make the declaration? Absolutely.

        2. Did anyone make the claim that the requests in question were beyond the pale? Were needless? I assume the arguments, if any of this vein, were of the “needless” variety. If that is the case… what was the argument, exactly? If that argument holds up here, should it be applied to all delegates requests of information of the same type (like name, date, etc. on forms)?

          And wouldn’t judicial deference (granted, an idea I’m not a huge fan of) mean that the court should assume the Sec. od Com. acted in good faith and shirt of a clear and convincing argument otherwise the Sec’s directives should stand?

      3. “I think this was a serious claim.”

        A stopped clock is right twice a day.

    2. PA SC is a joke. The vote for the ends. The means are violating the PA Constitution.

  3. Trucks backed up in the middle of the night in Philadelphia, and dumped thousands of unfolded ballots with only Biden marked off and no other candidates. Poll watchers were not allowed within 100 feet of them.

    As to the PA Supreme Court, it is just a bunch of Democrat thugs, and partisan hacks.

    This case should be taken to the US Supreme Court, now.

    1. Get back on your medications; you’re more delusional than your normal self.

      That, and you’re a lying POS.

      1. Hi, Jason. It is just facts that are frustrating you, not me.

        1. None of your comments have involved any facts, ever.

          You’re a foreign troll, here to spread lies. Thankfully, you’re not persuasive or coherent enough to accomplish even that.

          1. Get off the internet, and start doing your homework. Fourth Grade is hard.

            1. If you believe Fourth grade is hard, that does explain a lot about your deficiencies.

              For the other 99.9% of us, Fourth grade was not hard.

              Keep trying bucko. Someday you…no, sorry: you’ll always be a joke.

        1. Oh good; we’re citing to revolver.news now. What, was QAnon unavailable for comment?

    2. dum dum dum dum dum dum

      Don’t mind me; just humming a song.

    3. Thousands of ballots would not take trucks to deliver, they would fit in a few boxes. Also how do they know how they were marked if the watchers were not allowed with in 100 feet?

    4. Dumped? In the road? That would be bad for Biden, not good.

      If nobody was allowed within 100 feet, how do you know what the ballots said?

      If we’re gonna make claims, can they at least make some tiny bit of sense?

    5. Not sure why I’m bothering, but:

      –There was a smaller percentage of President-only ballots cast in Pennsylvania this time than in the previous two quadrennials.

      –Biden’s margin in Philadelphia was smaller in absolute terms than Clinton’s (2016). Biden won the election (i.e., improved his performance over Clinton’s) most notably in the Philadelphia suburbs and Pennsylvania’s mid-sized cities.

      –So if Democrats stole the election, they did not do it by dumping a ton of ballots marked only for Biden in Philadelphia.

      1. See, this is what I was talking about in the comments on the post about conspiracy theories. You actually addressed the theory seriously, and made a relevant point, instead of just saying, “You’re nuts!”

        That’s how you respond to these things if you actually want to avoid reenforcing them.

        1. Do you anticipate anyone’s mind being changed as a result?

  4. I would like if we at least had some quantitative and consistent overall standards for whether we take election fraud seriously or not. The current standard we seem to be operating on is whether the msm decides to kick up a fuss about it (Russians under muh bed) or not (trumps current litigation).

    1. The media and the Democrat Party are owned by tech billionaires. Reason is owned by the Koch Brothers, thus, the above bullshit.

      I support seizing their assets in civil forfeiture for the billions of federal crimes committed on their platforms, and the millions of crimes they committed themselves, defrauding advertisers. Auction them off like the Ferrari of a drug dealer.

    2. Well, Russia screwing without election is not voter fraud. They are completely different things. That might be why they are being treated as completely different things.

      Hope this helps.

      1. So meddling, we even if totally ineffective, matters. Fraud or otherwise illegal things we could broay term “electioneering”, even if in large numbers (not saying they are, this is simply defining your standard) doesn’t matter.

        Why? The act involved, not the impact or gravity, is what tells us about the importance of such an event.

  5. The core of democracy is voting, with the majority winning (along with protection of minority rights). An election is a sample of registered voters. Registered voters are a sample of the population.

    Basic statistics tells us that there can be sampling error, that the sample may not reflect the population. If one party is in the minority about the only way that party can win is to skew the sample, and create a sampling error that results in the minority being deemed the majority. One way to do this is to shrink the sample, as statistics tells us that the smaller the sample the greater the probability of a sampling error and of course, the larger the sample the less the probability of a sampling error.

    The Republican party is a minority party. As such, it has opted to take the disgraceful path of trying to reduce voting so as to create a sampling error that produces a Republican majority when in fact it is a minority. The Courts are the last line of defense, the last place where voting supression can be reduced so that elections are honest. This decision, along with the others that protect voting rights and allow votes to count where there are minor technical faults must be hailed as a trip along the long path of saving American democracy from those who would subvert it for their own political gain.

    1. In other words, maintaining power through manipulation of the system, rather than through obtaining majority support.

      I cannot think of a good argument that the electoral college or the current apportionment of house seats is fair or democratic or in keeping with american values or the spirit of the constitution.

      1. How about we agree to disregard the Electoral College in exchange for reinstating the Articles of Confederation?
        Because without the former, we would still have the latter.

        1. I never lived under the Articles of Confederation, but it’s difficult for me to imagine they made a bigger hash of good governance than the current Constitution.

          We would have none of this mess if we didn’t have the electoral college. It would simply be: Biden is 6 million votes ahead, that settles it, period, full stop.

          1. Considering that the Electors haven’t voted yet, that seems to be a rather big leap to think Trump wouldn’t be filing idiotic lawsuits about the vote tallies if the EC didn’t exist.

            1. Without the electoral college, Trump would never have been president in the first place.

              One of the rationales of the electoral college is that it was supposed to make it harder for dangerous demagogues to get elected. It’s kind of amusing, in a gallows humor sort of way, to contemplate that in the case of Trump, the EC actually facilitated a dangerous demagogue getting elected.

              1. Eh, you don’t know that. Every time somebody makes that claim, it has to be pointed out that, without the electoral college, the candidates would have run different campaigns, and the voters would be behaving differently, too.

                It’s like saying, “Sure, you won this football game, but if we’d been playing soccer you’d have lost for sure!”

                1. I may not know it to a 100% certainty, but neither can I come up with a plausible scenario in which Trump would have been elected without the electoral college. He would have had to somehow make up a 3 million vote deficit, and I just don’t see that happening.

                  1. If there weren’t an EC, our federal politics would be very different. Political minorities in non-swing states wouldn’t be highly demoralized, for instance.

                    I’m not saying he would have won under a popular vote system, I’m just saying that you can’t simply look at the vote totals under an EC system, and assume they’d be replicated in a popular vote system. It would be a whole different game, everybody would be doing things differently.

                    1. If there weren’t an EC, our federal politics would be far more tranquil. No Bush v. Gore and no Trump and his 31 frivolous lawsuits. And the fact that the GOP is willing to run the country through such unpleasantness as the price of staying in power tells you everything you need to know about the GOP.

                      You have a point that there would be unintended consequences from getting rid of the electoral college, but I think it’s a minor point. When the Democrats win the popular vote in seven of the last eight presidential elections, I think that’s a pretty good indication of where the country is at.

                      But your argument strikes me as being somewhat akin to the following: Negligent driver kills a teenager. Negligent driver argues at trial, “But you can’t know that if I hadn’t killed her, that she wouldn’t have gotten cancer and died anyway.” True, but not the point. The point is that you *did* kill her, even if something else might have done it anyway.

              2. When the Elector system was designed, States did not have ‘all or nothing’ laws.

                Perhaps you should start your quest with revoking those. Your complaints about the EC are literally the results of States deciding to implement those laws.

                The system was fine when Electors had free will, and States didn’t force them to turn into hive-minded glorified rubber stamps for the idiot citizenry.

                1. Jason, a great many things have changed in our politics since the elector system was designed, all or nothing laws being one of them. I actually have a long list of complaints about the EC, and the ones we’ve discussed in this thread are the tip of the iceberg.

                  But I think if you’re going to deprive the “idiot citizenry” of self governance through anti-democratic measures like the EC, you need a pretty compelling reason to do so. Self governance is right up there with free speech and trial by jury and private gun ownership as a basic right. As with other rights it’s not unlimited — no right is — but it is a basic right. And as with free speech and trial by jury, it shouldn’t be taken away absent a pretty compelling rationale.

                  Which is why I disagree with you about the all or nothing rule. Removing it would make the system even less democratic than it is now.

                  In modern times, we have twice experienced the EC awarding the presidency to the popular vote loser. Looking at that experience, can you really say that the cost to the country of a Gore or Hillary Clinton presidency would have been so great as to deny millions of Americans a genuine election? You may have preferred the policies of Bush and Trump, or you may not have, but would Gore and Clinton administrations have been so catastrophic as to justify depriving people of self governance?

                  1. The Elector system does not violate your concerns about self-governance, because it’s how America decided to self-govern.

                    You are incorrect in stating that removing the all-or-nothing laws would make the system less democratic. Right now, conservatives in California are completely, and utterly dismissed. Explain how having their desires proportionally represented (if you’re not going to allow Electors to actually do their duty and vote of their own free will) somehow diminishes the currently non-existent impact of their votes?

                    The other issue which has destroyed the fundamental purpose and protection that Electors are supposed to offer, is the political party system itself.

                    If the parties weren’t interested solely in power for themselves, Trump may never have been elected.

                    It’s no coincidence that political parties appoint Electors who will (for the most part) do precisely what they are told to do, and nothing more.

                    1. By why not eliminate the middleman by allowing the votes of those California conservatives to count directly?

                      That’s how the members of the Constitutional convention and state legislatures decided to self govern over 200 years ago, when conditions were radically different than they are now. Whatever purpose the EC may have served in 1789, those conditions no longer exist. And they’re not coming back. We are straddled with a political system created for a radically different set of circumstances than we have now.

                      And if we returned to the system under which the electors voted for whomever they liked, that would be an open invitation for political parties, kingmakers, and brokers to be the decision makers. Making it as democratic as possible is the one thing placing any sort of a check on the establishment.

    2. You’re so confident your side is in the majority we can’t have ids or verification in elections at all and constant institutialized brainwashing has to be implemented from cradle to grave through the media, entertainment, schools etc. And even with that you still lost seats running against what you’ve proclaimed as the worst candidate in history.

      1. 1. In a democracy an election is decided by the candidate that gets the most votes.

        2. In 2020 the Democratic candidate received millions of more votes than the Republican candidate.

        3. The Republican’s government officials concluded the election was fair and devoid of fraud.

        4. Conclusion: The Republican won and the election was stolen from him.

        Yep, that about sums it up.

        1. If you believe in democracy at all times so strongly, why are you guys mia everytime some judge decided to overturn a popular initiative like prop 8 or 187? Where are you for the right of the rest of California outside of la/sf or ny outside of NYC to form their own state when you turn out so readily for dc? Heck let’s junk obergefall and roe etc and let the People decide on a state by state or town by town basis whether they want ssm or abortion recognition. Isn’t that more Democratic than having Robert’s decree one thing for the entire nation?

          You guys are pro free speech until you’re not. Proliberty until you’re not prodemocracy until you’re not. So spare us the fake righteous indignation and hit the tab for the WAPOO comment section or Twitter if you want an audience dumb enough for that act.

          1. Maximum people voting is not the same as direct democracy, you yutz.

          2. I agree lets let New York outside of NYC, Buffalo and Rochester secede. Then each of those cities can be their own states. Sounds like a good trade off to me–each of the new states gets two senators and the appropriate number of representatives for their population. We can extend it to the entire country!

          3. Opposing the electoral college is not the same thing as having no checks on democracy whatsoever. That’s a false alternative. There are other options for protecting the rights of minorities.

            1. Like the senate, and the rest of minority and rights protections in the constitution. The constitution did not specifically grant rural americans more voting power. That is an accident of history that has become a GOP entitlement.

              1. You do realize that the EC is merely a combination of House representative power (based on population) and Senate representative power (based on each unique political organization that makes up the federation governed by the federal government)? To argue against the EC one must also argue against the Senate. To argue against the Senate is to argue against federalism and the very idea of states. It is to argue for democracy with fewer safeguards against majoritarianism.

                Besides… it isn’t like Team Blue doesn’t benefit from places like RI, Vermont, Delaware, etc. Tiny states that also have two “bonus” EC and Senatorial votes beyond what they population would demand.

                If you count states (and include DC) that have 4 or fewer EC votes it splits 6 to 7 (Dems with one more actually). The Dems benefit nearly as much as the GOP does from the small states. It is only 5-3 GOP (counting DC) for states that have only 3 votes. It isn’t really that huge of a “benefit” to the GOP except that the EC very clearly demands that all political entities within the whole of the country be considered and not merely urban population centers. Self-determination for various demographic, cultural, and political enclaves is built into the system by design. It is the only way to keep individual interests valued by government as they vary from place to place. Just as an urbanite does not want and should not have a Wyoming farmer deciding local laws for the city, the same holds true in reverse. And to try and avoid that from happening through a centralization of the fedgov, the EC and Senate were created as they are.

      2. The reason we don’t have a national ID is that Republicans don’t want it. They fear that it gives too much power to the central government. The problem is actually that Republicans choose which IDs are acceptable and amazingly they include things like gun licenses but exclude photo college IDs.

        1. You don’t need a national ID to have ID requirements for voting. Ast I checked all 50 states have state IDs and are responsible for their own voting.

  6. This seems right. I’ve done a little election work, albeit in a different state. The distinction between “directory” and “mandatory” requirements is well established as a general doctrine. The case I defended turned on that issue, and we prevailed. Throwing out a vote is a big thing, and it should not be because of a small thing. The law is full of such concepts as “substantial compliance” and “de minimis” violations. Generally, the law is not the ass folks imagine it to be. The number of true technical “gotcha’s” in law is limited, as it should be.

  7. Snowflakes melting all over wondering just how their god king is gonna save them.

  8. Pennsylvania today certified its Electoral College delegates and Biden’s victory in Pennsylvania.

    I guess people will be eternally tormented by the question, ‘could most of the Volokh Conspirators have changed the outcome by helping the Elite Strike Force of the Trump Legal Team with something more than cowardly silence?’

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