HARRISBURG – In a 4-3 decision, the Supreme Court of Pennsylvania decided to consider if county election officials are permitted to discard mail-in ballots purely predicated on comparing the signatures of voters on ballot envelopes and registration forms, prior to Election Day in less than three weeks.
Commonwealth Secretary Kathy Boockvar issued guidance to county election boards last month that signature comparison alone should not be used to evaluate the legitimacy of mail-in ballots, saying voters’ signatures change over time and such methods may discard valid ballots.
Such guidance was opposed by the re-election campaign of President Donald Trump, in its action against Boockvar.
In response, Boockvar asked the state Supreme Court to use its “King’s Bench” powers to intervene in the case, which originated in the U.S. District Court for the Western District of Pennsylvania and was dismissed just last weekend.
The Trump campaign is appealing to the decision to the U.S. Court of Appeals for the Third Circuit, feeling that comparison and verification of signatures was crucial to preventing widespread voter fraud.
Supreme Court of Pennsylvania justices Debra Todd, Christine Donohue, Kevin M. Dougherty and David N. Wecht counted themselves in the per curiam majority ruling.
“The Court will decide this issue based on the current filings; however, supplemental filings are permitted to be submitted by Friday, Oct.16, 2020, at 5 p.m. No other filings will be permitted thereafter,” according to the majority ruling.
“Further, the motions to intervene filed by the following entities are granted: Donald J. Trump for President, Inc., Republican Party of Pennsylvania, Republican National Committee, and National Republican Congressional Committee.”
The state Supreme Court opted to deny intervening motions to Elizabeth Radcliffe, a qualified elector, Bryan Cutler, Speaker of the Pennsylvania House of Representatives, Kerry Benninghoff, Majority Leader of the Pennsylvania House of Representatives, Joseph B. Scarnati III, Pennsylvania Senate President Pro Tempore, and Jake Corman, Senate Majority Leader.
However, those individuals were given permission to file amicus briefs in the matter.
Justice Dougherty issued an individual concurring statement.
“I reluctantly agree that our exercise of King’s Bench jurisdiction is warranted in this unique and time-sensitive case of substantial importance. However, I respectfully believe the proper course is not to elevate form over substance, and I ultimately depart from Justice Baer’s assessment that the present legal question was resolved in Donald J. Trump for President, Inc. v. Kathy Boockvar,” Dougherty stated.
“Although Judge [J. Nicholas] Ranjan opined our Election Code does not impose a signature comparison requirement for absentee and mail-in ballots and applications, and Secretary Boockvar’s directive to all Pennsylvania county boards of elections on this precise issue is consistent with that holding, Secretary Boockvar observes ‘the district court’s decision, while timely and persuasive, is not authoritative.’ In any event, the district court decision is surely subject to appeal.”
Dougherty agreed with Boockvar that only the state Supreme Court could have the last word on the issue.
Supreme Court of Pennsylvania justices Max Baer, Thomas G. Saylor and Sallie Updyke Mundy dissented, though Baer was the only one to issue a dissenting statement.
“In my view, there is no case or controversy for this Court to address and the legal question presented has been resolved in a federal lawsuit, thus, our exercise of jurisdiction would provide nothing more than an advisory opinion. As indicated, no action has ever been filed in a lower court and the Secretary’s application names no respondents,” Baer said.
“In substance, the Secretary’s request to this Court is essentially a letter asking us to interpret a provision of the Code. While I recognize that in theory this Court may accept a King’s Bench petition with no pending action and no opposing parties, the operative question is whether it should. In my respectful view, under the circumstances of this matter, the answer is a resounding no.”
Baer continued that with Ranjan’s recent decision in Boockvar’s favor, the federal court determined that Pennsylvania’s Election Code does not permit signature comparison of absentee and mail-in ballots and county election boards statewide were mandated to follow Boockvar’s guidance.
“In my view, given that the Secretary did not provide the Court initially with a case regarding the question she asks us to address and that the federal court has resolved the controversy over interpretation of the Code in her favor, I see no basis for this Court to entertain further the Secretary’s request for review. Accordingly, I would deny the application for King’s Bench review,” Baer said.
Supreme Court of Pennsylvania case 149 MM 2020
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com