Ball v. Chapman
| Decision Date | 08 February 2023 |
| Docket Number | 102 MM 2022,J-85-2022 |
| Parties | DAVID BALL, JAMES D. BEE, JESSE D. DANIEL, GWENDOLYN MAE DELUCA, ROSS M. FARBER, LYNN MARIE KALCEVIC, VALLERIE SICILIANO-BIANCANIELLO, S. MICHAEL STREIB, REPUBLICAN NATIONAL COMMITTEE, NATIONAL REPUBLICAN CONGRESSIONAL COMMITTEE, AND REPUBLICAN PARTY OF PENNSYLVANIA, Petitioners v. LEIGH M. CHAPMAN, IN HER OFFICIAL CAPACITY AS ACTING SECRETARY OF THE COMMONWEALTH, AND ALL 67 COUNTY BOARDS OF ELECTIONS, Respondents |
| Court | Pennsylvania Supreme Court |
SUBMITTED: October 25, 2022
OPINION
The Election Code states that a voter who submits an absentee or mail-in ballot "shall . . . fill out, date and sign the declaration" that is printed on the envelope in which the ballot is returned.[1] Petitioners contend that failure to comply with this instruction renders a ballot invalid, and they challenge guidance from the Acting Secretary of the Commonwealth that instructs county boards of elections to canvass and pre-canvass "[a]ny ballot return-envelope that is undated or dated with an incorrect date but that has been timely received by the county."[2], [3] Petitioners ask this Court: to declare that absentee and mail-in ballots which are "undated or incorrectly dated" cannot be included in the pre-canvass or canvass of votes; to segregate such ballots; and to direct the Acting Secretary to withdraw her guidance.[4]
The Acting Secretary[5] challenges Petitioners' standing and opposes their claim that the Election Code requires disqualification of undated and incorrectly dated absentee and mail-in ballots. Moreover, she argues that failing to count ballots which do not comply with the Election Code's date requirement would violate federal law, specifically, the "materiality provision" of the Civil Rights Act of 1964.[6]
By order dated October 21, 2022, we distilled these claims into the following questions:
Following expedited review of the briefing that ensued, we issued a per curiam order dated November 1, 2022, granting Petitioners' requested relief in part and denying it in part. For the November 8, 2022 election, we ordered the county boards of elections to refrain from counting any absentee or mail-in ballots that arrived in undated or incorrectly dated envelopes.[7] We directed county boards to segregate and preserve such ballots. And we dismissed Voter Petitioners from the case for lack of standing. We divided evenly on the issue of whether failing to count undated or incorrectly dated ballots violated federal law, and accordingly issued no decision on that question. This Opinion provides the rationale that our November 1 order promised.
I. Background Pennsylvania law allows qualified electors to vote by mail, whether on an absentee basis or on a no-excuse basis.[8] The Election Code sets forth instructions for those processes. An elector must mark his or her ballot before 8:00 p.m. on Election Day, place the marked ballot in a secrecy envelope marked "Official Election Ballot," and then deposit the secrecy envelope in a ballot return envelope.[9] The ballot return envelope bears a pre-printed declaration that contains "a statement of the [elector's] qualifications, together with a statement that such elector has not already voted in such primary or election."[10] The Election Code states that electors "shall . . . fill out, date and sign" the declaration.[11]
In 2020, this Court considered the Election Code's date requirement.[12] On that occasion, candidates challenged the decisions of county boards of elections to count absentee and mail-in ballots that had been timely received but lacked complete and accurate handwritten declarations on their ballot return envelopes.[13] The Commonwealth Court issued a decision in one of the cases, and ordered that the ballots not be counted.[14] We stayed that order, granted allowance of appeal to several parties, invoked extraordinary jurisdiction with respect to others, and consolidated the relevant appeals.
The ensuing Opinion Announcing the Judgment of the Court ("OAJC") explained three Justices'[15] conclusion that, "while failures to include a handwritten name, address or date in the voter declaration on the back of the outer envelope" constituted "technical violations of the Election Code," those failures did not warrant "the wholesale disenfranchisement of thousands of Pennsylvania voters."[16] These three Justices maintained that the use of the word "shall" in a statute "is not always indicative of a mandatory directive" and, "in some instances . . . is to be interpreted as merely directory."[17] Under this Court's precedent interpreting the requirements of the Election Code, the OAJC understood the question as implicating the distinction between a "minor irregularity,"[18] which is nonfatal to a ballot, and a "weighty interest,"[19] which is critical to the integrity of the election and must be applied strictly.[20] Because "a signed but undated declaration is sufficient and does not implicate any weighty interest,"[21] these Justices would have held that "the lack of a handwritten date cannot result in vote disqualification."[22]
Three Justices dissented in relevant part.[23] They declined to characterize "the absence of a date as a mere technical insufficiency" that the Court could "overlook."[24] In these Justices' view, the date on the ballot return envelope "provides proof of when the 'elector actually executed the ballot in full [and] . . . establishes a point in time against which to measure the elector's eligibility to cast the ballot.'"[25] The date requirement thus carried an "unquestionable purpose."[26] Accordingly, these three Justices would have ruled that the ballots in question were not to be counted, for failure to comply with the Election Code.
This author concurred in the result of the OAJC but not in its rationale, and filed a concurring and dissenting opinion.[27] That opinion expressed this author's view that "the Election Code should be interpreted with unstinting fidelity to its terms, and . . . election officials should disqualify ballots that do not comply with unambiguous statutory requirements."[28] The opinion recognized, though, that the Secretary of the Commonwealth had "issued confusing, even contradictory guidance" regarding the date requirement, such that "local election officials and voters alike lacked clear information regarding the consequence" of failing to "record the date beside the voter's declaration signature."[29] Our question was one of first impression that had not been considered by the Commonwealth Court or this Court at any time before 2020, which was "an historically tumultuous year."[30] Because our ruling was "not foreshadowed by existing law,"31[] this author proposed to apply the limiting interpretation of the Election Code only prospectively. Accordingly, for purposes of the 2020 election, four votes supported the result of counting non-compliant ballots.
The Commonwealth Court has weighed the precedential effect of our 2020 ruling on multiple occasions, albeit in non-binding memoranda. Twice, that court denied requests to count undated and incorrectly dated absentee and mail-in ballots.[32] In other disputes, the Commonwealth Court reached the opposite conclusion, and ordered that undated and incorrectly dated absentee and mail-in ballots could be counted.[33]
Following one of these Commonwealth Court decisions-Ritter- individual Lehigh County voters filed a federal lawsuit, claiming that applying the date requirement to disqualify non-compliant mail-in ballots violates the materiality provision of the federal Civil Rights Act of 1964. That statute provides that:
[n]o person acting under color of law shall . . . deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.[34]
A federal district court disposed of the Lehigh County case on summary judgment, reasoning that Congress had not intended to create a private right of action to enforce the materiality provision.[35] The United States Court of Appeals for the Third Circuit reversed, finding that the materiality provision was enforceable under 42 U.S.C. § 1983, and that disqualification of ballots for failure to comply with the date requirement violated that provision.[36]
Before the Lehigh County Board of Elections could count the 257 disputed ballots in question, the candidate who had been leading in the race for a seat on the Lehigh County Court of Common Pleas-David Ritter-applied for a stay, which Justice Samuel Alito of the Supreme Court of the United States granted. Shortly thereafter, however, the full Court denied the stay and vacated Justice Alito's order. Ritter petitioned for a writ of certiorari. While his petition was pending, Lehigh County proceeded...
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