Pa. Justices Say Ballots Missing Minor Info Can Be Counted

Law360 (November 23, 2020, 7:36 PM EST) -- The Supreme Court of Pennsylvania ruled Monday that counties can count mail-in ballots that had minor technical defects with their outer envelopes, such as missing handwritten dates, addresses or voter names, freeing up thousands of votes that had been held up by litigation by President Donald Trump's reelection campaign.

In a series of consolidated cases over whether various counties should count such votes, the justices ruled that directions saying a voter "shall fill out, date and sign" part of the outer envelope declaring their eligibility to vote were not mandatory or part of the state's Election Code, and failure to fill out sections other than the signature was not grounds to toss out a ballot.

"The decision to include spaces in the declaration for handwritten names and addresses was made solely by the secretary of the commonwealth, not the General Assembly. It would be a stretch to divine that the General Assembly was advancing any weighty interest for the inclusion of handwritten names and addresses in the declaration such that a voter's failure to include them should result in the ballot not being counted," wrote Justice Christine Donohue in the opinion.

"Failures to include a handwritten name, address or date in the voter declaration on the back of the outer envelope, while constituting technical violations of the Election Code, do not warrant the wholesale disenfranchisement of thousands of Pennsylvania voters," she concluded.

The appeals involved about 8,300 ballots from Philadelphia County, where the Trump campaign had challenged a trial court's ruling that they be counted, and 2,300 ballots from Allegheny County, where a Republican candidate for State Senate had sought to keep them from being counted in a tight race she was running against the Democratic incumbent. But other cases in Bucks and Montgomery counties dealt with similarly situated ballots.

Justice Donohue wrote that the voters' addresses and printed names appeared preprinted elsewhere on each ballot, so the directions to "fill out" the declaration may have been ambiguous enough for some to think they could skip those steps if their information was already there, and that information was not necessary for election officials to compare the declaration to voter registrations to see where the two matched up.

"A voter could reasonably have concluded that the blanks requesting his or her name and address needed to be 'filled out' only if the name and/or address on the label was incorrect or incomplete, as it was unnecessary to provide information that was already on the back of the outer envelope," she wrote. "The date that the declaration is signed is irrelevant to a board of elections' comparison of the voter declaration to the applicable voter list, and a board can reasonably determine that a voter's declaration is sufficient even without the date of signature."

Other sections of the Election Code specified cases where a voter did need to fill out an address, such as when they received assistance filling out their ballot due to a disability, so the legislature knew it could make that information part of the more general requirements but did not, the opinion said.

Justice Donahue was joined by Justices Max Baer and Debra Todd in her opinion.

Justice David N. Wecht wrote a concurring and dissenting opinion that said, while he agreed with the rest of the court that failing to include a printed name or address was not grounds to toss a ballot, he thought the date was necessary under the law. But he said he would not apply it to the ballots already received, but only for future elections.

Chief Justice Thomas Saylor and Justices Kevin M. Dougherty and Sallie Updyke Mundy filed another concurring and dissenting opinion that likewise said the date carried more weight than the other sections.

"Given that our goal in interpreting the Election Code is to construe ambiguous provisions liberally, in order to avoid disenfranchisement where possible, I do not consider the failure of qualified electors to 'fill out' their name and address, particularly where the name and address already appear on the other side of the envelope, to require disqualification of the ballot," wrote Justice Dougherty. "But, the meaning of the terms 'date' and 'sign' — which were included by the legislature — are self-evident, they are not subject to interpretation, and the statutory language expressly requires that the elector provide them."

A representative for Allegheny County said the state's election board, which voted 2-1 along partisan lines Monday morning to certify other election results that weren't subject to litigation, was reviewing the decision and may reconvene to supplement or amend its certification.

"We are grateful that the Pennsylvania Supreme Court rejected the Trump campaign's attempt to disenfranchise thousands of Pennsylvania voters. The Trump campaign repeatedly acknowledged in court that they were not challenging the voters' qualifications nor alleging any fraud occurred in these cases. Rather, they were seeking to disenfranchise over 8,000 individuals because of minor technical issues with the declarations," said a representative for the City of Philadelphia. "The court rightfully upheld the decision of our county board to count the ballots at issue and protected the franchise."

Matthew Haverstick of Kleinbard LLC, representing state Senate candidate Nicole Ziccarelli, said he was not done fighting.

"We are asking for reconsideration," he told Law360. "In any other case, if I got four justices to vote that I'm right on the law, I'd win."

Representatives of the Trump campaign did not immediately respond to requests for comment.

The Philadelphia Board of Elections is represented by Mark A. Aronchick, Michele D. Hangley, Robert A. Wiygul and John G. Coit of Hangley Aronchick Segal Pudlin & Schiller, and Marcel S. Pratt, Benjamin H. Field, Lydia M. Furst and Craig Gottlieb of the Philadelphia Law Department.

The Trump campaign is represented by Linda A. Kerns of the Law Offices of Linda A. Kerns LLC, and Ronald L. Hicks Jr. of Porter Wright Morris & Arthur LLP.

Ziccarelli is represented by Matthew H. Haverstick, Shohin H. Vance and Samantha G. Zimmer of Kleinbard LLC.

The Allegheny County Board of Elections is represented by Andrew F. Szefi, Virginia S. Scott and Frances Liebenguth of the Allegheny County Law Department.

The cases are In re: Canvass of Absentee and Mail-In Ballots of the Nov. 3, 2020, General Election, case numbers 31 EAP 2020, 32 EAP 2020, 33 EAP 2020, 34 EAP 2020 and 35 EAP 2020, and In re: 2,349 Ballots in the 2020 General Election, case number 29 WAP 2020, in the Supreme Court of Pennsylvania.

--Editing by Adam LoBelia.

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