McLinko v. Commonwealth

• Decision Date: 28 January 2022
• Docket Number: 244 M.D. 2021, No. 293 M.D. 2021
• Citation: 270 A.3d 1243
• 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

270 A.3d 1243

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

No. 244 M.D. 2021

No. 293 M.D. 2021

Commonwealth Court of Pennsylvania.

Argued November 17, 2021

Decided January 28, 2022

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

Doug McLinko (McLinko) has filed an amended petition for review seeking a declaration that Article XIII-D of the Pennsylvania Election Code,² added by Act 77, violates the Pennsylvania Constitution and is, therefore, void. Act 77 established that any qualified elector may vote by mail, but McLinko argues that the Pennsylvania Constitution requires a qualified elector to present her ballot in person at a designated polling place on Election Day, except where she meets one of the constitutional exceptions for absentee voting. See PA. CONST. art. VII, §§ 1, 14. No-excuse mail-in voting cannot be reconciled, McLinko argues, with the Pennsylvania Constitution.

Respondents are the Pennsylvania Department of State and the Acting Secretary of the Commonwealth, Veronica Degraffenreid (collectively, Acting Secretary). She contends that Act 77's system of no-excuse mail-in voting conforms to the Pennsylvania Constitution, which allows elections "by ballot or by such other method as may be prescribed by law" so long as "secrecy in voting be preserved." PA. CONST. art. VII, § 4 (emphasis added). Nevertheless, the Acting Secretary explains that the Court need not reach the merits of McLinko's challenge to Act 77 because his action was untimely filed and McLinko lacks standing to challenge the constitutionality of Act 77.

On August 31, 2021, Timothy R. Bonner and 13 other members of the Pennsylvania House of Representatives (collectively, Bonner) filed a petition for review also seeking a declaration that Act 77 is unconstitutional under Article VII of the Pennsylvania Constitution. Bonner additionally asserts that the enactment of Act 77 violates the United States Constitution. See Bonner v. Degraffenreid (Pa. Cmwlth., No. 293 M.D. 2021, filed January 28, 2022). On September 24, 2021, the Court consolidated the McLinko and Bonner petitions, which raise the same question under the Pennsylvania Constitution.³

Thereafter, the Democratic National Committee and the Pennsylvania Democratic Party (collectively, Democratic Intervenors), and the Butler County Republican Committee, the York County Republican Committee, and the Washington County Republican Committee (collectively, Republican Intervenors) sought intervention in the consolidated matter. The Court granted them intervention.

Before this Court are the cross-applications for summary relief filed by McLinko and the Acting Secretary. McLinko seeks a declaratory judgment that Act 77 violates the requirement that an elector must "offer to vote" in the "election district" where he or she resides unless the elector has grounds to cast an absentee ballot. PA. CONST. art. VII, §§ 1, 14. The Acting Secretary seeks an order dismissing McLinko's amended petition with prejudice on procedural grounds or, in the alternative, because it lacks substantive merit.

For the reasons set forth herein, the Court rejects the Acting Secretary's procedural objections to McLinko's amended petition, and it holds that Act 77 violates Article VII, Section 1 of the Pennsylvania Constitution. This holding, consistent with binding precedent of the Pennsylvania Supreme Court, explains how a system of no-excuse mail-in voting may be constitutionally implemented in the Commonwealth and expresses no view on whether such a system should, or should not, be implemented as a matter of public policy.

We grant McLinko's application for summary relief and deny the Acting Secretary's application for summary relief.

I. Background

Act 77, inter alia , created the opportunity for all Pennsylvania electors to vote by mail without having to demonstrate a valid reason for absence from their polling place on Election Day, i.e. , a reason provided in the Pennsylvania Constitution. Pennsylvania Democratic Party v. Boockvar , ––– Pa. ––––, 238 A.3d 345, 352 (2020). Section 1301-D(a) of the Election Code provides that "[a] qualified mail-in elector shall be entitled to vote by an official mail-in ballot in any primary or election held in this Commonwealth in the manner provided under [Article XIII-D]." 25 P.S. § 3150.11(a).⁴ A "qualified mail-in elector" or "qualified elector" is any person who meets the qualifications for voting in the Pennsylvania Constitution, "or who, being otherwise qualified by continued residence in his election district, shall obtain such qualifications before the next ensuing election." Section 102(t), (z.6) of the Election Code, 25 P.S. § 2602(t), (z.6). Section 1306-D of the Election Code directs that the elector must mark the ballot, "enclose and securely seal [the ballot] in the envelope on which is printed ... ‘Official Election Ballot[,]’ place that envelope in a second envelope, "fill out, date, and sign the declaration on [the outside of the] envelope" and put the envelope in the mail. 25 P.S. § 3150.16(a).⁵

Act 77 directed that during the first 180 days after its effective date, any constitutional challenge to Act 77 had to be filed with the Pennsylvania Supreme Court. See Section 13(2) of Act 77. On July 26, 2021, McLinko filed a petition for review in this Court challenging the constitutionality of Act 77 after the 180-day period for filing such an action in the Supreme Court had elapsed on April 28, 2020.

McLinko asserts that as a member of the Bradford County Board of Elections, he is responsible for the conduct of elections within that county, including voter registration, voting on election day and the computation of votes. Amended Petition ¶¶3,5. McLinko must certify the results of all primary and general elections in the county to the Secretary of the Commonwealth. Id . McLinko believes that no-excuse mail-in voting is illegal and that ballots cast in that manner should not be counted. He asserts that under the Pennsylvania Constitution, a qualified elector must establish residency 60 days before an election in "the election district where he or she shall offer to vote ." Amended Petition ¶12 (quoting PA. CONST. art. VII, § 1 ) (emphasis added). McLinko explains that the Pennsylvania Supreme Court has definitively construed the term "offer to vote" to mean that the elector must "physically present a ballot at a polling place." Amended Petition ¶¶13-14 (citation omitted). Stated otherwise, Article VII, Section 1 requires electors to vote in person at their designated polling place on Election Day.

McLinko acknowledges that there are exceptions to this requirement. Article VII, Section 14(a) of the Pennsylvania Constitution⁶ allows absentee voting, and McLinko asserts that this provision authorizes the only exceptions. Amended Petition ¶15. Specifically, a qualified elector may vote by absentee ballot where he is (1) absent from his residence on Election Day because of business or occupation, (2) unable to "attend" his proper polling place because of illness, disability, or observance of a religious holiday or (3) "cannot vote" because of his Election Day duties. Amended Petition ¶16. McLinko believes that only where qualified electors meet one of the exceptions enumerated in Article VII, Section 14(a) may they vote by mail.

McLinko observes that in 2019, Senate Bill 411, Printer's No. 1012, proposed a Joint Resolution to amend Article VII, Section 14 of the Pennsylvania Constitution to end the requirement that qualified electors must physically appear at a designated polling place on Election Day. However, Senate Bill 411 did not pass,⁷ and the Constitution was not amended as proposed. McLinko believes that if he certifies no-excuse mail-in ballots, then he will be acting unlawfully because it is his duty "to certify, count, and canvas" votes in a manner "consistent with the Pennsylvania Constitution." Amended Petition ¶48.

II. Standards for Summary Relief

Pennsylvania Rule of Appellate Procedure 1532(b) allows the Court to enter judgment at any time after the filing of a petition for review where the applicant's right to relief is clear. PA. R.A.P. 1532(b).⁸ Summary relief is reserved for disputes that are legal rather than factual, Rivera v. Pennsylvania State Police , 255 A.3d 677, 681 (Pa. Cmwlth. 2021), and we resolve "all doubts as to the existence of disputed material fact against the moving party." Id . (quoting Marcellus Shale Coalition v. Department of Environmental Protection , 216 A.3d 448, 458 (Pa. Cmwlth. 2019) ). An application for summary relief is appropriate where a party lodges a facial challenge to the constitutionality of a statute. Philadelphia Fraternal Order of Correctional Officers v. Rendell , 701 A.2d 600, 617 n.24 (Pa. Cmwlth. 1997) (citing Magazine Publishers v. Department of Revenue , ...