Bonner v. Chapman
| Docket Number | 364 M.D. 2022 |
| Decision Date | 27 June 2023 |
| Parties | Timothy R. Bonner, P. Michael Jones, David H. Zimmerman, Barry J. Jozwiak, Kathy L. Rapp, David Maloney, Barbara Gleim, Robert Brooks, Aaron J. Bernstine, Timothy F. Twardzik, Dawn W. Keefer, Dan Moul, Francis X. Ryan, and Donald "Bud" Cook, Petitioners v. Leigh M. Chapman, in her official capacity as Acting Secretary of the Commonwealth of Pennsylvania, and Commonwealth of Pennsylvania, Department of State, Respondents |
| Court | Pennsylvania Commonwealth Court |
25 P.S. §§ 3146.6(a) (absentee ballots), 3150.16(a) (mail-in ballots) (emphasis added). More specifically at issue is whether judicial interpretations of the dating part of the above emphasized sentence (Dating Provisions), in conjunction with the Election Code and other state and federal statutes, invalidated those provisions by holding that a timely received, otherwise valid mail-in or absentee ballot of a qualified Pennsylvania elector could not be rejected or excluded from a county board of elections' certified results as a collateral consequence of the elector not having a handwritten date on a declaration contained on the ballot's return mailing envelope.[5] See Migliori v. Cohen, 36 F.4th 153 (3d Cir. 2022), pet. for cert. granted, judgment vacated by Ritter v. Migliori, 143 S.Ct. 297 (2022)[6]; Chapman v. Berks Cnty. Bd. of Elections (Pa. Cmwlth., No. 355 M.D. 2022, filed Aug. 18, 2022) (Cohn Jubelirer, P.J., single-judge op.) (Berks County).
Petitioners,[7] who are current members of the Pennsylvania House of Representatives and bring this matter as registered Pennsylvania electors and past and future likely candidates, assert that Sections 6 and 8 of Act 77 were declared to be nonseverable by the General Assembly and that Migliori and/or Berks County "invalidated" the Dating Provisions found in those sections. Petitioners argue this invalidation triggered Section 11 of Act 77 (Nonseverability Provision), which states: Section 11 of Act 77. Petitioners assert that the Nonseverability Provision requires the Court to declare that Act 77 is void in its entirety. Respondents Leigh M. Chapman, in her official capacity as Acting Secretary of the Commonwealth of Pennsylvania (Secretary), and the Commonwealth of Pennsylvania, Department of State (Department), and intervenors the Democratic National Committee and Pennsylvania Democratic Party (together, DNC/PDP), and the Democratic Senatorial Campaign Committee and Democratic Congressional Campaign Committee (together, Committees) (collectively, Intervenor Respondents), argue that Petitioners' claims of invalidation and nonseverability are without legal merit and that Petitioners lack standing and are barred from bringing this action.
Presently before the Court are Petitioners' Application for Summary Relief (Petitioners' Application), the separate Cross-Applications for Summary Relief (Cross-Applications) filed by Respondents and Intervenor Respondents, and the separate preliminary objections (POs) filed by those groups, which assert the same bases for relief as in their Cross-Applications. Each party asserts they have established a clear right to relief and are entitled to judgment as a matter of law on their respective positions as to the ongoing viability of Act 77, and that the opposing parties' contrary arguments must be rejected. However, while Migliori and Berks County interpreted the Dating Provisions, Migliori has been vacated by the United States Supreme Court, our Supreme Court, in Ball v. Chapman, 289 A.3d 1 (Pa. 2023), has weighed in on the interpretation of the Dating Provisions and Section 10101(a)(2)(B) of the Civil Rights Act of 1964[8] (), and the current state of the law does not support Petitioners' contention that they have a clear right to relief. Further, even in the absence of these intervening events, the Courts in Migliori and Berks County did not invalidate the Dating Provisions, which remain a part of the Election Code. Rather, those Courts performed their constitutional obligation to engage in statutory interpretation in resolving the matters before them. Therefore, contrary to Petitioners' arguments, the Nonseverability Provision has not been triggered to invalidate Act 77 in its entirety. Accordingly, the Court denies Petitioners' Application, grants the Cross-Applications, and dismisses the POs as moot.
Petitioners have filed, in this Court's original jurisdiction, a Petition for Review in the Nature of an Action for Declaratory Judgment (Petition) pursuant to the Declaratory Judgments Act[9] (DJA). Petitioners seek a determination that the Dating Provisions of Sections 6 and 8 of Act 77 were invalidated in Migliori and/or Berks County. They maintain the United States Court of Appeals for Third Circuit (Third Circuit) in Migliori invalidated the Dating Provisions by precluding their use as a basis to reject timely received, otherwise valid absentee and mail-in ballots that had not included handwritten dates on the declarations as being prohibited by the Materiality Provision. Petitioners further assert that this Court, by single-judge opinion and order in Berks County, invalidated the Dating Provisions when it found Migliori's reasoning persuasive as to the Civil Rights Act's Materiality Provision and, separately, as a matter of state law, when it held that the Dating Provisions were directory, not mandatory, and, therefore, the consequence of an elector's failure to handwrite a date on the declaration was not the rejection of a timely received mail-in or absentee ballot of a qualified Pennsylvania elector. Petitioners assert that either decision clearly implicates the Nonseverability Provision, which states "[i]f any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void." Section 11 of Act 77. Under the Nonseverability Provision, Petitioners assert that Act 77, and all amendments thereto, such as Act No. 12 of 2020,[10] are now void and must be struck down in their entirety. (Petition ¶ 28.) Petitioners argue that, notwithstanding the invalidation of the Dating Provisions of Sections 6 and 8 of Act 77 and the Nonseverability Provision, the Secretary continues to implement the provisions of the Election Code enacted pursuant to the now-void Act 77 and urges compliance with the relevant judicial decisions, rather than the express language of the Dating Provisions. (Id. ¶¶ 29-31.) Petitioners further assert that the Nonseverability Provision reflects, and serves a key function in preserving, the compromises made by the General Assembly in enacting Act 77, which should be given effect by the Court. (Petitioners' Application at 3-4.) "Blocking the application of a mandatory provision like the [D]ating [P]rovisions [sic]" "triggers Section 11 of Act 77[,]" and, therefore, Petitioners assert that their Application should be granted and "Act 77, and all amendments thereto, including Act [N]o. 12 of 2020[,] should be declared void." (Id. at 8.)
In their Cross-Applications and POs,[11] Respondents and Intervenor Respondents assert that Petitioners have failed to state a claim, and that Respondents, not Petitioners, have established a clear right to legal relief in their favor because Petitioners' claims fail as a matter of law for multiple reasons. They argue that Petitioners failed to establish that they have standing to bring this challenge to the ongoing viability of Act 77. Respondents and Intervenor Respondents further contend Petitioners failed to exercise due diligence and simply waited too long to file the Petition, without a valid excuse and to Respondents' prejudice, and, therefore, Petitioners' claims are barred by the equitable doctrine of laches. On the merits of Petitioners'...
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