McLinko v. Commonwealth
| Decision Date | 28 January 2022 |
| Docket Number | 244 M.D. 2021, No. 293 M.D. 2021 |
| Citation | 270 A.3d 1278 |
| Parties | Doug MCLINKO, Petitioner v. Commonwealth of Pennsylvania, DEPARTMENT OF STATE ; and Veronica Degraffenreid, in her official capacity as Acting Secretary of the Commonwealth of Pennsylvania, Respondents 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. Veronica Degraffenreid, in her official capacity as Acting Secretary of the Commonwealth of Pennsylvania, and Commonwealth of Pennsylvania, Department of State, Respondents |
| Court | Pennsylvania Commonwealth Court |
Walter S. Zimolong, Villanova, for Petitioner Doug McLinko.
Thomas W. King, III, Butler, for Intervenors Butler County Republican Committee, York County Republican Committee, and Washington County Republican Committee.
Clifford B. Levine, Pittsburgh and Seth P. Waxman, Washington, D.C., for Intervenors Democratic National Committee and the Pennsylvania Democratic Party.
Robert A. Wiygul, Philadelphia, for Respondents
BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge
OPINION BY JUDGE LEAVITT1
In this companion opinion to McLinko v. Commonwealth , ––– A.3d ––––, 2022 WL 257659 (Pa. Cmwlth., No. 244 M.D. 2021, filed January 28, 2022), Representative Timothy R. Bonner and 13 members of the Pennsylvania House of Representatives (collectively, Petitioners) have filed a petition for review seeking a declaration that Act 77 of 2019,2 which established that any qualified elector may vote by mail for any reason, violates the Pennsylvania Constitution and is, therefore, void. Petitioners also assert that Act 77 violates the United States Constitution. U.S. CONST . art. I, §§ 2, 4 and art. II, § 1; U.S. CONST. amends. XIV and XVII. Finally, Petitioners seek an injunction prohibiting the distribution, collection, and counting of no-excuse mail-in ballots in future state and federal elections.
Respondents, the Acting Secretary of the Commonwealth, Veronica Degraffenreid, and the Department of State (collectively, Acting Secretary), have filed preliminary objections to Petitioners’ challenge to Act 77's system of no-excuse mail-in voting.3 The Acting Secretary also raises procedural challenges to the petition for review, i.e. , it was untimely filed, and Petitioners lack standing to challenge the constitutionality of Act 77. As in McLinko , the parties have filed cross-applications for summary relief, which are now before the Court for disposition.
On the merits, Petitioners’ claims under the Pennsylvania Constitution are identical to those raised by McLinko in the companion case.4 The Court thoroughly addressed those claims in the McLinko opinion, which we incorporate here by reference. For all the reasons set forth in McLinko , we hold that Petitioners are entitled to summary relief on their request for declaratory judgment.5
Additionally, Petitioners seek to enjoin the Acting Secretary from enforcing Act 77, which motion for summary relief will be denied as unnecessary. The declaration has the "force and effect of a final judgment or decree." 42 Pa. C.S. § 7532.
We turn next to the Acting Secretary's procedural objections. As in McLinko , she contends that Petitioners’ petition for review was untimely filed because it is barred by the doctrine of laches or, alternatively, because it was filed after the so-called statute of limitations in Section 13 of Act 77. The Court considered, and rejected, these arguments in McLinko , and we incorporate that analysis here. See McLinko , ––– A.3d at –––– – ––––, slip op. at 40-48. Accordingly, we hold that Petitioners’ petition for review was timely filed.
Finally, we consider the Acting Secretary's challenge to Petitioners’ standing. A party seeking judicial resolution of a controversy must establish a "substantial, direct, and immediate interest" in the outcome of the litigation to have standing. Markham v. Wolf , 635 Pa. 288, 136 A.3d 134, 140 (2016). An interest is "substantial" if the party's interest "surpasses the common interest of all citizens in procuring obedience to the law." Firearm Owners Against Crime v. City of Harrisburg , 218 A.3d 497, 506 (Pa. Cmwlth. 2019) (quotation omitted). A "direct" interest requires a causal connection between the matter complained of and the party's interest. Id . An "immediate" interest requires a causal connection that is neither remote nor speculative. Id . The key is that the petitioner must be "negatively impacted in some real and direct fashion." Pittsburgh Palisades Park, LLC v. Commonwealth , 585 Pa. 196, 888 A.2d 655, 660 (2005).
Petitioners argue that they meet the above standards either as candidates for office or as registered voters. As registered voters, Petitioners have a right to vote on a constitutional amendment prior to the implementation of no-excuse mail-in voting in Pennsylvania. As past and likely future candidates for office, Petitioners have been or will be impacted by dilution of votes in every election in which improper mail-in ballots are counted. As candidates, Petitioners argue that they will have to adapt their campaign strategies to an unconstitutional law.
The Acting Secretary responds that Petitioners’ interest as registered electors does not confer standing.6 She argues that courts have repeatedly rejected the "vote dilution" theory of injury advanced by Petitioners and, further, Petitioners have not explained how mail-in voting injures them as past and future candidates for office.
This Court has recognized that voting members of a political party have a substantial interest in assuring compliance with the Election Code7 in that party's primary election. In re Pasquay , 525 A.2d at 14. Likewise, a political party has standing to challenge the nomination of a party candidate who has failed to comply with election laws. In re Barlip , 59 Pa.Cmwlth. 178, 428 A.2d 1058 (1981).8 In In re Shuli , 105 Pa.Cmwlth. 462, 525 A.2d 6, 9 (1987), this Court concluded that a candidate for district justice had standing to challenge his opponent's nominating petition because his status as a candidate for the same office gave him a substantial interest in the action. See also In re General Election – 1985 , 109 Pa.Cmwlth. 604, 531 A.2d 836, 838 (1987) ().9 In sum, a candidate has an interest beyond the interest of other citizens and voters in election matters. Because Petitioners have been and will be future candidates, they have a cognizable interest in the constitutionality of Act 77.
Nevertheless, the Acting Secretary directs the Court to In re General Election 2014, 2015 WL 5333364 (Pa. Cmwlth., No. 2047 C.D. 2014, filed March 11, 2015).10 In that case, the manager of a rehabilitation center in the City of Philadelphia filed an emergency application for absentee ballots for five patients who had been admitted to the facility just before the 2014 General Election. The trial court granted the emergency application over the objections of attorneys for the Republican State Committee and the Republican City Committee. Two registered electors (objectors), who had not participated in the hearing on the emergency application, appealed the trial court's order and raised the same objections as the Republican committees, which were no longer participating. The trial court determined that the objectors lacked standing.
On appeal, the objectors argued that the trial court erred, asserting that as registered electors in the City of Philadelphia, they had "a substantial, immediate and pecuniary interest that the Election Code be obeyed." In re General Election 2014 , slip op. at 12. The objectors claimed that the disputed absentee ballots affected the outcome of the General Election in which they had voted.
In quashing the objectors’ appeal of the trial court's order, this Court held, inter alia , that the objectors were not "aggrieved" because they could not establish a "substantial, direct and immediate" interest. Id. , slip op. at 11 (citing William Penn Parking Garage, Inc. v. City of Pittsburgh , 464 Pa. 168, 346 A.2d 269, 286 (1975) ). In so holding, we relied upon Kauffman v. Osser , 441 Pa. 150, 271 A.2d 236 (1970),11 where our Pennsylvania Supreme Court rejected a challenge to absentee ballots that was premised on a speculative theory of vote dilution:
Basic in appellants’ position is the [a]ssumption that those who obtain absentee ballots, by virtue of statutory provisions which they deem invalid, will vote for candidates at the November election other than those for whom the appellants will vote and thus will cause a dilution of appellants’ votes. This assumption, unsupported factually, is unwarranted and cannot afford a sound basis upon which to afford appellants a standing to maintain this action.
Kauffman , 271 A.2d at 239-40. We concluded that, as in Kauffman , the objectors’ interest was common to all qualified electors. Further, the objectors offered no support for their claim that the five absentee ballots they challenged would impact the outcome of the election.
In contrast to In re General Election 2014 , Petitioners have pleaded an interest as candidates, as well as electors, and this matter extends far beyond five absentee ballots. In the 2020 general election, 2.7 million ballots were cast as mail-in or absentee ballots; more than 1.38 million Pennsylvania electors have requested to be placed on a permanent mail-in ballot list. Affidavit of Jonathan Marks ¶25. Given these numbers, it is obvious that...
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