Received 7/10/2020 10:10:16 PM Commonwealth Court of Pennsylvania
Filed 7/10/2020 10:10:00 PM Commonwealth Court of Pennsylvania
407 MD 2020

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
PENNSYLVANIA DEMOCRATIC
PARTY, NILOFER NINA AHMAD,
DANILO BURGOS, AUSTIN DAVIS,
DWIGHT EVANS, ISABELLA
FITZGERALD, EDWARD GAINEY,
MANUEL M. GUZMAN, JR.,
JORDAN A. HARRIS, ARTHUR
HAYWOOD, MALCOLM
KENYATTA, PATTY H. KIM,
STEPHEN KINSEY, PETER
SCHWEYER, SHARIF STREET, and
ANTHONY H. WILLIAMS,
Petitioners,
v.
KATHY BOOCKVAR, in her capacity
as Secretary of the Commonwealth of
Pennsylvania;
ADAMS COUNTY BOARD OF
ELECTIONS; ALLEGHENY
COUNTY BOARD OF ELECTIONS;
ARMSTRONG COUNTY BOARD OF
ELECTIONS; BEAVER COUNTY
BOARD OF ELECTIONS; BEDFORD
COUNTY BOARD OF ELECTIONS;
BERKS COUNTY BOARD OF
ELECTIONS; BLAIR COUNTY
BOARD OF ELECTIONS;
BRADFORD COUNTY BOARD OF

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ELECTION MATTER

No. ______ MD 2020

 ELECTIONS; BUCKS COUNTY
BOARD OF ELECTIONS; BUTLER
COUNTY BOARD OF ELECTIONS;
CAMBRIA COUNTY BOARD OF
ELECTIONS; CAMERON COUNTY
BOARD OF ELECTIONS; CARBON
COUNTY BOARD OF ELECTIONS;
CENTRE COUNTY BOARD OF
ELECTIONS; CHESTER COUNTY
BOARD OF ELECTIONS; CLARION
COUNTY BOARD OF ELECTIONS;
CLEARFIELD COUNTY BOARD OF
ELECTIONS; CLINTON COUNTY
BOARD OF ELECTIONS;
COLUMBIA COUNTY BOARD OF
ELECTIONS; CRAWFORD COUNTY
BOARD OF ELECTIONS;
CUMBERLAND COUNTY BOARD
OF ELECTIONS; DAUPHIN
COUNTY BOARD OF ELECTIONS;
DELAWARE COUNTY BOARD OF
ELECTIONS; ELK COUNTY BOARD
OF ELECTIONS; ERIE COUNTY
BOARD OF ELECTIONS; FAYETTE
COUNTY BOARD OF ELECTIONS;
FOREST COUNTY BOARD OF
ELECTIONS; FRANKLIN COUNTY
BOARD OF ELECTIONS; FULTON
COUNTY BOARD OF ELECTIONS;
GREENE COUNTY BOARD OF
ELECTIONS; HUNTINGDON
COUNTY BOARD OF ELECTIONS;
INDIANA COUNTY BOARD OF
ELECTIONS; JEFFERSON COUNTY
BOARD OF ELECTIONS; JUNIATA
COUNTY BOARD OF ELECTIONS;
LACKAWANNA COUNTY BOARD
OF ELECTIONS; LANCASTER
COUNTY BOARD OF ELECTIONS;
LAWRENCE COUNTY BOARD OF

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 ELECTIONS; LEBANON COUNTY
BOARD OF ELECTIONS; LEHIGH
COUNTY BOARD OF ELECTIONS;
LUZERNE COUNTY BOARD OF
ELECTIONS; LYCOMING COUNTY
BOARD OF ELECTIONS; MCKEAN
COUNTY BOARD OF ELECTIONS;
MERCER COUNTY BOARD OF
ELECTIONS; MIFFLIN COUNTY
BOARD OF ELECTIONS; MONROE
COUNTY BOARD OF ELECTIONS;
MONTGOMERY COUNTY BOARD
OF ELECTIONS; MONTOUR
COUNTY BOARD OF ELECTIONS;
NORTHAMPTON COUNTY BOARD
OF ELECTIONS;
NORTHUMBERLAND COUNTY
BOARD OF ELECTIONS; PERRY
COUNTY BOARD OF ELECTIONS;
PHILADELPHIA COUNTY BOARD
OF ELECTIONS; PIKE COUNTY
BOARD OF ELECTIONS; POTTER
COUNTY BOARD OF ELECTIONS;
SCHUYLKILL COUNTY BOARD OF
ELECTIONS; SNYDER COUNTY
BOARD OF ELECTIONS;
SOMERSET COUNTY BOARD OF
ELECTIONS; SULLIVAN COUNTY
BOARD OF ELECTIONS;
SUSQUEHANNA COUNTY BOARD
OF ELECTIONS; TIOGA COUNTY
BOARD OF ELECTIONS; UNION
COUNTY BOARD OF ELECTIONS;
VENANGO COUNTY BOARD OF
ELECTIONS; WARREN COUNTY
BOARD OF ELECTIONS;
WASHINGTON COUNTY BOARD
OF ELECTIONS; WAYNE COUNTY
BOARD OF ELECTIONS;
WESTMORELAND COUNTY

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 BOARD OF ELECTIONS;
WYOMING COUNTY BOARD OF
ELECTIONS; and YORK COUNTY
BOARD OF ELECTIONS,

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Respondents.

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 PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF
In support of this Petition for Declaratory and Injunctive Relief, Petitioners, the
Pennsylvania Democratic Party, Dwight Evans, Nina Ahmad, Anthony H.
Williams, Arthur Haywood, Sharif Street, Jordan A. Harris, Stephen Kinsey,
Danilo Burgos, Austin Davis, Isabella Fitzgerald, Edward Gainey, Manuel M.
Guzman, Jr., Malcolm Kenyatta, Patty H. Kim, and Peter Schweyer, by and
through undersigned counsel, respectfully request that the court issue declaratory
and injunction relief so as to protect the franchise of absentee and mail-in voters
and respectfully aver as follows:
I. Introduction
1.

The forthcoming General Election occurs in the midst of uncertainty

arising from a recent revamping of the Commonwealth’s election laws. In late
2019 and early 2020, pursuant to its Constitutional authority, the General
Assembly made significant changes to how Pennsylvania runs its elections. See
Act 77 of 2019, Act 12 of 2020. Major legislative changes made to a complicated
regulatory scheme inadvertently create uncertainty while those changes are
implemented.

Some snags in implementation may be resolved administratively,

while others require Court intervention or corrective action over time. These
shake-out issues are “normal.”

5

 2.

The stakes in this forthcoming election could not be higher. And any

uncertainty or other inconsistency, creates heightened space for mischievous havoc
and genuine concern. One national candidate, trailing in the polls, has already
invoked the specter of Bush v. Gore and the 2000 Presidential election in an overly
dramatic and transparently irrelevant attempt to create such havoc.
3.

Indeed, just this morning, President Trump again spread false

information regarding the use of mail-in ballots in the midst of a global pandemic
so severe that renders standing in line at a polling place a significant health risk.
Donald J. Trump
⁦@realDonaldTrump⁩

Mail-In Ballot fraud found in many elections. People are
just now seeing how bad, dishonest and slow it is. Election
results could be delayed for months. No more big election
night answers? 1% not even counted in 2016. Ridiculous!
Just a formula for RIGGING an Election....
7/10/20, 7:51 AM

Donald J. Trump
⁦@realDonaldTrump⁩

….Absentee Ballots are fine because you have to go
through a precise process to get your voting privilege. Not
so with Mail-Ins. Rigged Election!!! 20% fraudulent
ballots?
7/10/20, 7:51 AM

6

 4.

Even the clear fact that mail-in voting is safe and an important health

measure in these times has not stopped litigants in pending federal court litigation
from making wild unsupported assertions or challenging even clear provisions of
Pennsylvania statutes. (See Trump v. Boockvar, No. 20-CV-00966 (W.D. Pa.)
(Ranjan, J.) (the “Trump Litigation”)).
5.

The 2020 Primary was the test run for the implementation of some of

the Act 77 changes. Analysis of the Primary identified implementation snags that
needed to be smoothed in time for the November General Election.
6.

Legislation has been introduced in the Pennsylvania General

Assembly to correct some of these issues, but in light of the existing extreme
partisanship, may never be adopted. See, e.g., H.B. 2626. Given that reality, the
Petitioners here are compelled, to file this petition with this Court, but could not do
so until after the results of the primary election were certified on July 7, 2020.
7.

Petitioners raise a number of issues: some appropriately require a

statewide solution; and others require a statewide objectives or policies, with
county-specific implementations. Statewide policies must address the statewide
objectives but do so with consideration given to the 67 different county densities,
developed environments, transportation networks, and public services
infrastructure across Pennsylvania’s counties.

7

 8.

While voting by mail has been available for absentee electors in

Pennsylvania for decades, in 2019, the General Assembly passed Act 77 to expand
mail-in voting to all registered Pennsylvania voters who choose that option to
exercise their constitutional franchise to vote.
9.

Voting by mail is generally safe and reliable. Some states have

conducted all-mail elections for many years. Prior to Act 77, Pennsylvania was
one of the states that most significantly restricted the right of citizens to vote from
home.
10.

By expanding mail-in balloting to all registered voters, the

Pennsylvania General Assembly made a series of choices to promote the exercise
of the franchise, even before the shelter-in-place and health concerns caused by
COVID-19).
11.

Expansion of mail-in voting also called for standardized protocols, but

flexible enough for each county to adjust to account for the specific geographic and
populations of each county.
12.

For example, larger populated counties need multiple collection sites

in order to accommodate for the increased demand.

II. Jurisdiction

8

 13.

This Court has original jurisdiction in cases relating to statewide

election matters. See 42 Pa. C.S. § 764(2); see also Mohn v. Bucks County
Republican Committee, 218 A.3d 927 (Pa. Super. 2019).

III. Parties
14.

Petitioner, the Pennsylvania Democratic Party (the “Party”), is a

major statewide political party pursuant to 25 P.S. § 2831 with offices in
Harrisburg, Pennsylvania. The Party brings this action for itself, the Democratic
Party, all of its members, all registered Democratic voters, and all nominated
Democratic candidates in the November 3, 2020 General Election in the
Commonwealth.
15.

Petitioner Dwight Evans is a resident of the 10th Ward in Philadelphia,

Pennsylvania, and is the Democratic nominee running for reelection as
Congressman for the 3rd District in the 2020 General Election. Representative
Evans is both a “candidate” and a “qualified elector” as those terms are defined
under the Election Code. See 25 P.S. §§ 2602(a), (t). Representative Evans brings
this suit in his capacity as a candidate for federal office and a private citizen.
16.

Petitioner Nilofer Nina Ahmad is a resident of the 9th Ward in

Philadelphia, Pennsylvania, and is the Democratic nominee for Auditor General in

9

 the 2020 General Election. Ms. Ahmad brings this suit in her capacity as a
candidate for state office and a private citizen.
17.

Petitioner Anthony H. Williams is a resident of the 3rd Ward in

Philadelphia, Pennsylvania, and serves as the State Senator for 8th District. Senator
Williams brings this suit as a private citizen.
18.

Petitioner Arthur Haywood is a resident of Wyncote, Pennsylvania,

and serves as the State Senator for the 4th District. Senator Haywood brings this
suit as a private citizen.
19.

Petitioner Sharif Street is a resident of the 32nd Ward in Philadelphia,

Pennsylvania, and is the Democratic nominee running for reelection as State
Senator for the 3rd District in the 2020 General Election. Senator Street brings this
suit in his capacity as a candidate for state office and a private citizen.
20.

Petitioner Jordan A. Harris is a resident of the 43rd Ward in

Philadelphia, Pennsylvania, and is the Democratic nominee running for reelection
as State Representative for the 186th District in the 2020 General Election.
Representative Harris brings this suit in his capacity as a candidate for state office
and a private citizen.
21.

Petitioner Stephen Kinsey is a resident of the 59th Ward in

Philadelphia, Pennsylvania, and is the Democratic nominee running for reelection
as State Representative for the 201th District in the 2020 General Election.

10

 Representative Kinsey brings this suit in his capacity as a candidate for state office
and a private citizen.
22.

Petitioner Danilo Burgos is a resident of the 43rd Ward in

Philadelphia, Pennsylvania, and is the Democratic nominee running for reelection
as State Representative for the 197th District in the 2020 General Election.
Representative Burgos brings this suit in his capacity as a candidate for state office
and a private citizen.
23.

Petitioner Austin Davis is a resident of McKeesport, Pennsylvania,

and is the Democratic nominee running for reelection as State Representative for
the 35th District in the 2020 General Election. Representative Davis brings this suit
in his capacity as a candidate for state office and a private citizen.
24.

Petitioner Isabella Fitzgerald is a resident of the 10th Ward in

Philadelphia, Pennsylvania, and is the Democratic nominee running for reelection
as State Representative for the 203rd District in the 2020 General Election.
Representative Fitzgerald brings this suit in her capacity as a candidate for state
office and a private citizen.
25.

Petitioner Edward Gainey is a resident of Pittsburgh, Pennsylvania,

and is the Democratic nominee running for reelection as State Representative for
the 24th District in the 2020 General Election. Representative Gainey brings this
suit in his capacity as a candidate for state office and a private citizen.

11

 26.

Petitioner Manuel M. Guzman, Jr. is a resident of Reading,

Pennsylvania, and is the Democratic nominee running for election as State
Representative for the 127th District in the 2020 General Election. Mr. Guzman
brings this suit in his capacity as a candidate for state office and a private citizen.
27.

Petitioner Malcolm Kenyatta is a resident of the 47th Ward in

Philadelphia, Pennsylvania, and is the Democratic nominee running for reelection
as State Representative for the 181st District in the 2020 General Election.
Representative Kenyatta brings this suit in his capacity as a candidate for state
office and a private citizen.
28.

Petitioner Patty H. Kim is a resident of Harrisburg, Pennsylvania, and

is the Democratic nominee running for reelection as State Representative for the
103rd District in the 2020 General Election. Representative Kim brings this suit in
her capacity as a candidate for state office and a private citizen.
29.

Petitioner Peter Schweyer is a resident of the Allentown,

Pennsylvania, and is the Democratic nominee running for reelection as State
Representative for the 22nd District in the 2020 General Election. Representative
Schweyer brings this suit in his capacity as a candidate for state office and a
private citizen.

12

 30.

Respondent Kathryn Boockvar is Secretary of the Commonwealth.

Her office address is 302 North Office Building, 401 North Street, Harrisburg,
Pennsylvania. She is a respondent solely in her official capacity.
31.

The 67 County Boards of Elections are also named as individual

respondents. Boards “have jurisdiction over the conduct of primaries and elections
in such count[ies].” Id. at § 2641(a). The Boards’ powers are set forth under the
Election Code. See 25 P.S. § 2642.

IV.

Questions of Suffrage Must Be Construed in the Voter’s Favor

32.

It has long been the law in the Commonwealth that:
In the sphere of popular elections . . . nothing can be
more vital in the accomplishment of an honest and just
selection than the ascertainment of the intention of the
voter. Election laws will be strictly enforced to prevent
fraud, but ordinarily will be construed liberally in favor
of the right to vote. All statutes tending to limit the
citizen in his exercise of the right of suffrage should be
liberally construed in his favor. Where the elective
franchise is regulated by statute, the regulation should,
when and where possible, be so construed as to insure
rather than defeat the exercise of the right of suffrage.
Technicalities should not be used to make the right of the
voter insecure. No construction of a statute should be
indulged that would disfranchise any voter if the law is
reasonably susceptible of any other meaning. . . .
The power to throw out a ballot for minor irregularities . .
. must be exercised very sparingly and with the idea in
mind that either an individual voter or a group of voters
are not to be disfranchised at an election except for
13

 compelling reasons. The purpose in holding elections is
to register the actual expression of the electorate's will
and that computing judges should endeavor to see what
was the true result.
In re James Appeal, 105 A.2d 64, 65-66 (Pa. 1954) (citing Bauman’s Election
Contest Case, 41 A.2d 630 (Pa. 1945) (internal quotations omitted).
33.

This longstanding policy is inextricably intertwined with the

challenges posed by COVID-19.
34.

Put simply, it is the desire of the people of the Commonwealth to vote

in the upcoming election. Through Act 77, the General Assembly created a
universal right to vote by mail in Pennsylvania elections. Unfortunately, COVID19 presents unpredictable constraints upon in-person voting that, in turn, raises
questions about ambiguities in Act 77. Petitioners call upon the Court to make
commonsense declarations to ensure that the 2020 General Election registers “the
actual expression of the electorate’s will.” Id.

V.
35.

Act 77

On October 31, 2019, Governor Wolf signed Act 77 into law. Act 77

is a sweeping election reform bill aimed to improve Pennsylvania’s elections and
make voting easier and more accessible for all Commonwealth citizens.
36.

Significantly, Act 77 permits no excuse mail-in voting for all qualified

electors. See 25 Pa. C.S. §§ 3150.11-3150.17.
14

 37.

Under Act 77, the general mail-in process for a voter is as follows:
In secret, proceed to mark the ballot only in black lead
pencil, indelible pencil or blue, black or blue-black ink,
in fountain pen or ball point pen, and then fold the ballot,
enclose and securely seal the same in the envelope on
which is printed, stamped or endorsed “Official Election
Ballot.” This envelop shall be placed in the second one,
on which is printed the form of declaration of the elector,
and the address of the elector’s county board and the
local election of the elector. The elector shall then fill
out, date and sign the declaration printed on such
envelope. Such envelope shall then be securely sealed
and the elector shall send same by mail, postage prepaid,
except where franked, or deliver it in person to said
county board of election.

Act 77 § 1306-D(a) (there are special provisions for those in need of assistance).
38.

Act 77 bars counting an absentee or mail-in ballot that has “any text,

mark or symbol which reveals the identity of the elector, the elector’s political
affiliation or the elector’s candidate preference” on the privacy envelope. See 25
Pa. C.S. § 3146.8(g)(4)(i)-(iv).
39.

As discussed in more detail below, and unlike the express statutory

language applicable to provisional ballots, Act 77 contains no requirement or
authorization for Boards to exclude ballots solely because the voter forgot to utilize
the inner secrecy envelope.
40.

Voters who vote by mail-in or absentee ballots must return their

ballots to their county Board using the envelope provided by the Commonwealth,
or by dropping it off in person to a facility of the county Board of Elections. The
15

 Board of Elections must receive the voted ballot by 8:00 pm on election day. See
Act 77 § 1306-D.
41.

Act 77 also allows Boards to begin conducting a pre-canvass of all

absentee and mail-in ballots no earlier than 7:00 am on Election Day. A single
canvass observers for each candidate and political party can attend. 25 Pa. C.S. §
3146.8(g)(2).

VI. The Novel Coronavirus
42.

The novel coronavirus began infecting humans in China in December

2019 and as of March 11, 2020, the World Health Organization announced that the
coronavirus was officially a pandemic. See Friends of Danny Devito v. Wolf, No.
68 MM 2020, at *3 (Pa. Apr. 13, 2020).
43.

COVID-19 has impacted nearly every facet of people’s lives and the

General Assembly and Governor Wolf responded accordingly.
44.

Governor Wolf declared a disaster emergency due to the pandemic on

March 6. See Governor Wolf, “Proclamation of Disaster Emergency,” (Mar. 6,
2020), Commonwealth of Pennsylvania Office of the Governor,
https://www.scribd.com/document/450457202/2020-3-6-COVID19-DigitalProclamation-pdf#from_embed.

16

 45.

On March 19, 2020, consistent with his earlier disaster emergency

declaration, the Governor issued an order closing businesses that were not
considered life-sustaining. See Governor Wolf, “Order of the Governor of
Pennsylvania Regarding the Closure of All Businesses That Are Not Life
Sustaining,” (Mar. 19, 2020), Commonwealth of Pennsylvania Office of the
Governor, https://www.governor.pa.gov/wp-content/uploads/2020/03/20200319TWW-COVID-19-business-closure-order.pdf.
46.

On June 3, 2020, the Governor renewed the Disaster Emergency

Proclamation for an additional ninety days. See Governor Wolf, “Amendment to
the Proclamation of Disaster Emergency,” (June 3, 2020), Commonwealth of
Pennsylvania Office of the Governor https://www.pema.pa.gov/GovernorProclamations/Documents/06.03.2020%20TWW%20amendment%20to%20COVI
D%20disaster%20emergency%20proclamation.pdf.
47.

Despite the efforts of the Commonwealth’s elected officials and the

resolve of its citizens, as of this writing, 90,202 Pennsylvania citizens have been
confirmed to have been infected with COVID-19 and 6,848 have died. Department
of Health, “COVID-19 Data for Pennsylvania,”
https://www.health.pa.gov/topics/disease/coronavirus/Pages/Cases.aspx (last
accessed July 10, 2020).

17

 48.

Unfortunately, there is no evidence to suggest that we will defeat

COVID-19 by the November election. Day by day, the United States records
record high cases. See Derek Hawkins, Marisa Iati and Jacqueline Dupree,
Coronavirus Updates: Seven-Day Average Case Total in the U.S. Sets Record for
27th Straight Day, Washington Post, July 5, 2020, available at
https://www.washingtonpost.com/nation/2020/07/05/coronavirus-update-us/.
49.

In May, President Trump admitted that a second wave was “a very

distinct possibility . . . it’s standard.” Fox News First, Trump Vows ‘Second Wave’
of Coronavirus Won’t Shut Down US, May 22, 2020, available at
https://www.foxnews.com/us/trump-vows-second-wave-of-coronavirus-wont-shutdown-us.
50.

The Federal Administration’s top infectious disease expert, Dr.

Anthony Fauci, has also made clear that “we will have coronavirus in the fall . . . I
am convinced of that.” Berkeley Lovelace Jr., Dr. Anthony Fauci Says a Second
Wave of Coronavirus is ‘Not Inevitable,’ CNBC, May 27, 2020,
https://www.cnbc.com/2020/05/27/dr-anthony-fauci-says-a-second-wave-ofcoronavirus-is-not-inevitable.html.
51.

As such, it is highly probable – if not a certainty – that medical risks

and government restrictions will remain in place that change Pennsylvanians’ day
to day life, including voting procedures.

18

 52.

In the words of our Supreme Court, “[t]he enforcement of social

distancing to suppress transmission of the disease is currently the only mitigation
tool.” Wolf, No. 68 MM 2020, at *28.
53.

COVID-19 impacted the 2020 Primary Election and how citizens cast

their ballots.’
54.

On March 25, 2020, the General Assembly passed Act 12, which

delayed the date of the primary election from April 28 to June 2.
55.

In response to concerns from counties that COVID-19 threatened their

ability to staff polling locations, Act 12 also allowed counties to temporarily
consolidate polling places without court approval and eased other rules related to
location and staffing of polling places. Act 12 of 2020 § 1802-B.
56.

As a result of Act 12, the state’s two most populous counties,

Philadelphia and Allegheny, shifted from the more than 2,100 polling places they
open in a typical election to fewer than 500. See Allegheny County 2020 Primary
Election Polling Places, available at
https://www.alleghenycounty.us/uploadedFiles/Allegheny_Home/DeptContent/Elections/Docs/2020%20Primary%20Election%20Polling%20Places.pdf;
Sarah Reyes, Election Day Guide: June 2, 2020, Philadelphia Office of the Mayor,
June 1, 2020, available at https://www.phila.gov/2020-05-29-election-day-guidejune-2-2020/.

19

 57.

Similarly, Montgomery County officials reduced the number of

polling places by 60% for the Primary Election in response to the COVID-19
outbreak and in Delaware County there were 238 fewer polling places than in a
typical election. Carl Hessler, Jr., Montgomery County Officials Reduce Polling
Places Under ‘Pandemic Election Plan,’ Pottstown Mercury, May 12, 2020,
available at https://www.pottsmerc.com/news/montgomery-county-officialsreduce-polling-places-under-pandemic-election-plan/article_925f3e3e-93a8-11ea8c91-2369be893bb1.html; Kathleen E. Carey, Pandemic Forces Dramatic
Changes in Delco Election Procedures, Delaware County Times, May 8, 2020,
available at https://www.delcotimes.com/news/coronavirus/pandemic-forcesdramatic-changes-in-delco-election-procedures/article_389603b4-90a2-11ea-a4c41b7d54d5ea21.html.
58.

Act 12 also amended the Election Code to allow a “pre-canvass”

which permitted Boards to begin counting mail-in ballots at 7:00 a.m. on Election
Day.
59.

But the most significant change is the increase to approximately 1.8

million of the number of voters who participated solely by mail, with the
concurrent impact on the number of ballots rejected for imperfectly following the
complicated procedures.

20

 VII. The Implementation Challenges of Starting Elections by Mail
60.

A failure to accurately complete mailed ballots is not new – this has

long been an issue with Pennsylvania absentee ballots. In 2018, under a law that
had not changed materially in over a decade and without a flood of new mail
participants, approximately 3.7 percent of ballots were rejected from voters who
had already proven their eligibility and applied to vote, leading to 8,137 voters
being disenfranchised.
61.

According to nationwide data from the Election Assistance

Commission, in the 2018 General Election, 8.2 percent of the total number of
returned ballots were not counted or, 2,491,998 votes. 2018 Comprehensive
Report: A Report to the 116th Congress, United States Election Assistance
Commission at 14, June 2019, available at
https://www.eac.gov/sites/default/files/eac_assets/1/6/2018_EAVS_Report.pdf.
62.

We do not yet know the numbers for the 2020 Primary, but the

volume of mailed ballots in the current environment, and the increase of people
who are new to the process, the issue of disqualified ballots was exacerbated, with
some reports estimating that as many as ten percent of ballots were rejected.
63.

A significant percentage of ballots are returned without being

completely and properly processed. See Enrijeta Shino, Mara Suttmann-Lea, and
Daniel A. Smith, Here’s the Problem with Mail-In Ballots, They Might Not be

21

 Counted, The Washington Post, May 21, 2020, available at
https://www.washingtonpost.com/politics/2020/05/21/heres-problem-with-mail-inballots-they-might-not-be-counted/; Colleen O’Dea, One in 10 Ballots Rejected in
Last Month’s Vote-By-Mail Elections, NJ Spotlight, June 10, 2020, available at
https://www.njspotlight.com/2020/06/one-in-10-ballots-rejected-in-last-monthsvote-by-mail-elections/.
64.

Completing a mail-in ballot is not a simple task. It starts with

obtaining an application (on paper or online). Then the voter must complete the
application, including proving their identity. At a later time, sometimes weeks
later, the ballot arrives, and the voter must then open the envelope, review the
directions, and complete the ballot. After completing the ballot, the voter is
instructed to package the ballot into the Privacy Envelope, seal the Privacy
Envelope, and then place the sealed privacy envelope inside the outer envelope
(the “Mailing Envelope”). After sealing the Mailing Envelope, the voter must then
complete some information on the outside of the mailing envelope, including a
voter’s declaration. Finally, the voter must return the Mailing Envelope to the
Board, either by taking it to a Board’s location (discussed further, infra) or by
stamping and mailing the mailing envelope through the United States mail.
65.

In Pennsylvania, the issues with absentee or mail-in ballots have

generally been threefold: first, many ballots are returned without the Privacy

22

 Envelope (a “Naked Ballot”); second, many ballots are returned with an
incomplete Mailing Envelope – this could be an envelope not completed at all or
could be one where the declaration is missing a date or a signature; and third, many
ballots are not timely returned because of delays – some from the Boards, some
from the voter, some from the Postal Service, and some due to a combination of
factors from all three sources.

VIII. The Need for a Better Ballot Distribution and Collection Process
66.

When faced with an unanticipated flood of mail-in ballot applications

arising from the global pandemic, most county Boards fell behind in sending
ballots to voters; almost all Boards, except in the smallest counties, failed to meet
the 48-hour requirement set in Act 77.
67.

In the Primary, this issue led to an as-applied infirmity in the statute.

68.

Despite the opinion of some, COVID-19 did not magically disappear

in warmer months, but, instead, will continue to present an unpredictable challenge
to the operation and functioning of the upcoming General Election and thus the asapplied infirmity is certain to reoccur in the Fall.
69.

When mail-in ballot applications are received, the Board must verify

the information submitted in the application against the voter’s record in the SURE
system. See Act 77 § 1302.2-D(a). The Board then “shall commence to deliver or

23

 mail official mail-in ballots as soon as a ballot is certified and the ballots are
available.” Id. at § 1305-D. At which point, the voter has until 8:00 p.m. on
Election Day to return the ballot to the Board. See 25 P.S. §§ 3146.6(c), 3146.8
(g)(1(ii) and 3150.16(c).
70.

Given the new right to do so, and the COVID-19 necessity to avoid

large gatherings at polling places, Pennsylvanians applied in overwhelming
numbers to vote by mail in the 2020 Primary Election. This crush of applications
created massive disparities in the distribution and return of mail-in ballots in the
primary election.
71.

By May 4, 2020, nearly one million voters sent applications to vote by

mail. Of that number, almost a quarter million voters (241,170) still had not yet
been sent a ballot by their Board 17 days later. 5/22 Supplemental Declaration of
Jonathan Marks at ¶ 4, Crossey v. Boockvar, No. 266 MD 2020 (Pa. Commw. Ct.),
attached hereto as Exhibit A.
72.

In fact, as of May 20, Philadelphia voters had requested more mail-in

ballots than the statewide total from 2016 and twenty-three times as many as in
Philadelphia County in 2016. See Jonathan Lai, Philly Voters Have Requested
More Mail Ballots Than All of Pennsylvania Did in 2016, Philadelphia Inquirer,
May 20, 2020, available at https://www.inquirer.com/politics/election/coronavirusphiladelphia-mail-ballot-requests-20200520.html.

24

 73.

By the May 26 application deadline, approximately 1.8 million voters

had requested to vote by mail.
74.

In other litigation, the Department of State has admitted that counties

where the prevalence of COVID-19 was highest, like Philadelphia and its collar
counties, experienced the compounding problem of a “surge of paper ballot
applications” and “COVID-19 related staffing shortages and social distancing
rules” which, it worried would cause “difficulties in promptly processing all of the
outstanding applications.” See Marks 5/22 Decl. ¶¶ 13-15.
75.

A study by local media found disparities between counties in the time

it took to approve applications and mail ballots to voters. See 6abc Action News
Analysis, Action News Data: Huge Disparities Found Among Pa. Voters for MailIn Ballot Wait Times, May 27, 2020, available at https://6abc.com/absentee-ballotvote-by-mail-in-voting-election/6215538/.
76.

As of May 27, 2020, the statewide average was seven days from the

receipt of an application by the Board to when a ballot was mailed to a voter. See
id. However, that average time varied significantly by county. For instance, in
Delaware County where 77,123 applications were requested, the wait time was an
average of 20.4 days. Id. Contrarily, in neighboring Chester County, where
90,016 applications were requested, the wait time was 6.6 days. Id. Some smaller
counties were mailing ballots out on the day received. Id.

25

 77.

In Delaware County the processing was so delayed that thousands

were not mailed out until the night of the election, and thousands more were
mailed out at great expense as overnight mail in the days leading into the election.
See In re: Extension of Time for Absentee and Mail-In Ballots to Be Received by
Mail and Counted in the 2020 Primary, No. CV-2020-003416 (Del. Co. C. P. June
2, 2020) (permitting an “election to be conducted whereby [qualified electors]
could be deprived of their opportunity to participate because of circumstances
beyond their control would be inconsistent with the Election Laws of this
Commonwealth”).
78.

This Petition thus requests that the Court extend the deadline for

receipt of mail-in ballots in the certainty that the Boards are once again inundated
with an influx of mail-in ballot requests later in the cycle.
79.

It is normal in elections with significant public attention for there to

be a flood of registrations received right before deadlines. That pattern in the
Primary clearly extended to vote-by-mail applications as voters considered the
situation and decided not to go to the polls to avoid putting themselves at risk.

VIII. a. The Need for Drop Boxes and Satellite Sites

26

 80.

One of the choices made by the General Assembly was to allow

Boards to collect ballots at any location controlled by the Board, not limited to a
central office. See Act 77 at § 1306-D.
81.

The General Assembly’s decision clearly authorizes this action, but

that legislative determination is not being implemented by some counties due to a
concern over allegations about authorization and federal litigation that
mischaracterizes this issue of Pennsylvania law.
82.

The Primary election showed us that counties need to be creative in

handling the challenges presented by the massive influx of mail-in ballots, the
challenges of COVID-19, and the need to timely collect and canvass the votes of
their residents.
83.

The actions of certain county Boards provided examples of how,

moving forward, counties may craft solutions that make sense for their geography,
citizens and realities.
84.

In Delaware County, at the last minute, the Board permitted its voters

to return their sealed ballots to any polling location throughout the county. See
June 1 Update on the Primary Election in Delaware County, Delaware County
Press Release, June 1, 2020,
https://www.delcopa.gov/publicrelations/releases/2020/primaryupdate_june1.html.

27

 The Board noted that the drop boxes inside polling locations were “under
observation by the poll workers.” Id.
85.

Similarly, Montgomery County created ten drop-off locations at

various county township buildings, firehouses and parks throughout the county
where voters could return mail-in ballots. See 2020 Primary Election Secure
Ballot Box Drop-Off Locations, Montgomery County Board of Elections,
https://www.montcopa.org/ArchiveCenter/ViewFile/Item/5177. The Montgomery
County Board specifically stated “[y]ou may not return any ballot that does not
belong to you. County Security will be on-site at each location and there will be
video surveillance. Anyone depositing a ballot that does not belong to them will
be referred to the District Attorney’s office.”
86.

Philadelphia County partnered with a non-partisan organization, the

Committee of Seventy, to execute the County’s mail-in ballot collection initiative.
See Mobile Drop Off Location For Mail-In-Ballot, Philadelphia Commissioners,
https://www.philadelphiavotes.com/en/home/item/1814mobile_drop_off_location-_for_mail_in_ballot. The Philadelphia Board created
24/7 drop off locations at City Hall and the Board of Elections Office and
temporary stations throughout the City from Saturday, May 30, to Monday, June 1.
Id. Personnel from the City Commissioners Office, including Commissioner Al
Schmidt (R), personally greeted voters at schools and community centers

28

 throughout the City and Board staff were the only personnel receiving ballots from
the voters. As was required by statute, voters were only permitted to drop off their
own ballot. Id.
87.

The foregoing actions are all under attack in the federal court as

allegedly violating both federal and state law. See Trump Litigation Complaint at
Counts I, II, III, VI, VII.
88.

If invalidated, the requirement that a single collection site only be

used will have a greater and disparate impact on the citizens of larger counties and
those who rely on suddenly unsafe public transportation systems.
89.

Notably, the United States Department of Homeland Security’s

Cybersecurity and Infrastructure Security Agency (“CISA”) has issued guidance
on election security. CISA’s Elections Infrastructure Government Coordinating
Council and Sector Coordinating Council’s Joint COVID Working Group released
guidelines on how to administer and secure election infrastructure during the
pandemic. See CISA Guidance, Ballot Drop Boxes,
https://www.eac.gov/sites/default/files/electionofficials/vbm/Ballot_Drop_Box.pdf
(the “CISA Guidance”).
90.

The first sentence of the CISA Guidance states that “[a] ballot drop

box provides a secure and convenient means for voters to return their mail ballot.”
Id.

29

 91.

The CISA Guidance provides that “[b]allot drop boxes should be

placed in convenient, accessible locations, including places close to public
transportation routes, near or on college campuses, and public buildings, such as
libraries and community centers familiar to voters and easy to find” and
recommends one drop box for “every 15,000-20,000 registered voters.” Id. at 2.
92.

The Delaware, Montgomery and Philadelphia counties examples

above followed the recommended guidance by choosing easily accessible
locations.
93.

In fact, according to the CISA Guidance, the volume of drop-boxes

available in the Primary election were woefully inadequate.
94.

Unlike other claims, such as review of ballots submitted, the process

cannot be identical from county-to-county as not all counties are identical, or even
similar.
95.

When it comes to how to best provide services, and for many other

issues, classes of counties are classified by their population and history and are
treated differently in many ways in applicable law. This makes sense in terms of
service delivery because there are different challenges servicing a densely packed
metropolis or an openly expansive rural county.
96.

Counties separately administer elections in many varying ways, and

this county-based structure has been upheld repeatedly by the Pennsylvania courts.

30

 97.

Once a voter is properly registered, qualified, and has applied for his

or her ballot, and has completed it, each county Board should use all reasonable
measures to encourage and facilitate the return of that ballot.
98.

This is particularly true in situations where mail delivery would not be

an acceptable option, such as returns over the last few days before Election Day, or
areas where there is not daily mail collection at each voter’s door. In fact, there are
no appropriate reasons to attempt to impede the true return of a ballot.
99.

This Petition requests a declaratory judgment that the Boards take

reasonable and commonsense steps to facilitate the return of mail-in ballots – as
some counties did in the primary election by sponsoring secure drop-off locations
– and enjoin them from requiring electors to mail or deliver their mail-in ballots to
the Boards’ central offices.
100. A prompt resolution of this petition is required to allow Boards to buy
and install necessary equipment (such as collection mail boxes) and to arrange for
site-control for collection locations.

b. The Need to Extend the Mail Receipt Deadline
101. In the Primary, at least tens of thousands of voters ultimately did not
receive their ballots with enough time to return them by the close of the polls on
Election Day.

31

 102. When this Court addressed this issue in early June, it did so without
the full body of evidence now available after the post-mortem on the Primary.
103. In the Primary election, at least two counties (Bucks and Delaware)
were so behind in mailing out ballots that the Boards themselves sought, and
received, authorization to accept ballots for up to 7 days post-election so long as
the ballots were mailed by the day of the Primary. See In re: Extension of Time for
Absentee and Mail-In Ballots to be Received By Mail and Counted in the 2020
Primary Election, No. 2020-02322-37 (C.P. Bucks) (McMaster, J.); In re:
Extension of Time for Absentee and Mail-In Ballots to be Received By Mail and
Counted in the 2020 Primary Election, No.-CV 2020-003416 (C.P. Delaware).
104. This Court addressed this issue generally in a decision issued on
Primary Day, stating in an unpublished memorandum opinion that while the
petitioners in that case had not alleged facts to show that enforcement of the
received-by deadline will result in an unconstitutional statewide deprivation of the
right to vote, the Court sided with the petitioners and directed the petitioners to
seek relief in Common Pleas court on a county-by-county basis. See Delisle v.
Boockvar, Dkt. 319 M.D. 2020 (Pa. Commw. Ct., June 2, 2020).
105. While county-by-county litigation may have been necessary based on
the evidence before the Court in June, at this time, the Petitioners assert that a
broader remedy is appropriate both because of the evidence gathered at the June

32

 primary and because the election will be more efficient, and less subject to
challenge on federal Equal Protection grounds, if this issue were to be addressed
on a statewide basis.
106. In six counties, there are, or will be, available the number of ballots
counted that were received between Election Day and the UOCAVA Deadline, as
the postmark rule was ordered by the Governor, due to the State of Emergency
resulting from the unrest following the police murder of George Floyd. See
Executive Order No. 2020-20 at ¶ 1.
107. Petitioners’ requested remedy seeks to lift the deadline in the Election
Code across the state in a uniform standard to allow any ballot postmarked by 8 pm
on Election Night to be counted if it is received by the deadline for ballots to be
received under the Uniformed and Overseas Citizens Absentee Voting Act,
specifically the end of business on Tuesday, November 10 (the “UOCAVA
Deadline”).
108.

As an alternative remedy, Petitioners propose that the Court tailor

the extension of ballot deadlines on a ballot-by-ballot basis to the date that is 21
days after the ballot is mailed by the county, provided that (i) in no extent would
the deadline be extended past the UOCAVA Deadline, and (ii) no extension would
apply if the ballot was mailed within 24 hours of receipt of a completed application
from the qualified elector.

33

 IX. Boards Must Allow Imperfectly Completed Envelopes to be Corrected
109. Voters who did receive their ballots timely but returned their ballot
with certain procedural defects were disenfranchised because they were not
notified of the defects and given an opportunity to cure them.
110. The Pennsylvania Constitution expressly guarantees to voters the right
to participate in a free and fair election. Pa. Const. art. I § 5.
111. And, it is well-settled that the Election Code should be “liberally
construed to protect . . . the voters’ right to elect the candidate of their choice.” In
re 2003 General Election for Office of Prothonotary, 849 A.2d 230, 237 (2004)
(citations omitted).
112. Consistent with this principle, the Pennsylvania Constitution and the
spirit of the Election Code require Boards to provide qualified electors a grace
period to cure minor defects in their ballots.
113. The vote-by-mail ballot packet contains no fewer than five separate
items. After reading the directions, voters must (1) complete their ballot in either
black lead pencil, indelible pencil or blue, black or blue-black ink, or fountain pen
or ball point pen; (2) fold the ballot and place it in the Official Election Ballot
envelope or Privacy Envelope; (3) place the Privacy Envelope inside the Mailing

34

 Envelope; and (4) complete the back of the Mailing Envelope, the so-called voter
declaration. See 25 Pa. C.S. §§ 3146.6(a), 3150.16(a).
114. This process inevitably leads to minor errors like a voter forgetting to
complete the voter declaration or completing the ballot in colored ink.
115. Voters, many of whom are new to mail ballots, should not be
disenfranchised by technical errors or incomplete ballots.
116. Indeed, “[a]ll statutes tending to limit the citizen in his [or her]
exercise of the right of suffrage should be liberally construed in his [or her] favor.
Where the elective franchise is regulated by statute, the regulation should, when
and where possible, be so construed as to insure rather than defeat the exercise of
the right of suffrage. Technicalities should not be used to make the right of the
voter insecure. . .” James Appeal, 105 A.2d at 65-66.
117. Courts have cautioned that “[t]he power to throw out a ballot for
minor irregularities . . . must be exercised very sparingly and with the idea in mind
that either an individual voter or a group of voters are not to be disfranchised at an
election except for compelling reasons. . . . The purpose in holding elections is to
register the actual expression of the electorate’s will and that computing judges
should endeavor to see what was the true result. In re Pennsylvania General
Election, 841 A.2d 593, 597 n. 6 (Pa. Cmmw. Ct. 2003) (citations omitted).

35

 118. Accordingly, Petitioners seek a declaratory judgment requiring that
when a Board has knowledge of an incomplete ballot and has the elector’s contact
information, the Board should notify the qualified elector using the most
expeditious means feasible and provide the individual a chance to cure the facial
defect until the UOCAVA Deadline. Petitioners also request this Court enjoin any
Board from not providing a qualified elector until the UOCAVA Deadline to
remedy facial defects on their mailing envelope.
119. With these precepts in mind, where Boards have both (a) knowledge
of an incomplete or incorrectly filled out ballot and (b) the elector’s contact
information (i.e., email or telephone number), Boards should be required to contact
the electors and provide them the opportunity to cure the facial defect until the
UOCAVA Deadline.
120. There is no governmental interest in requiring that the formalities of
the outside of the Mailing Envelope be completed prior to mailing rather than prior
to counting.
121. Nor is there any timeliness governmental interest in rejecting a ballot
count as long as ballots continue to arrive under federal law, which is required until
the UOCAVA Deadline.

36

 122. Having Boards contact electors when they have knowledge of an
incomplete or incorrectly filled out ballot ensures that all electors, who desire to
cast a ballot, have the opportunity to do so and for their ballot to be counted.
123. Balancing the impacts of disenfranchising electors for minor
inconsistencies, against the (non-existent) governmental interest the harm to the
voter is overwhelming; thus, electors should be allowed to cure a facial defect on
their Mailing Envelope.

X. Imperfectly Packaged “Naked Ballots” Must be Clothed and Counted
124. Once ballots were received, some county Boards were unsure of what
to do with ballots returned by voters without the secrecy envelope (the “Naked
Ballots”) under Act 77.
125. In advance of the Primary, several Boards communicated this
confusion to the Department of State.
126. The Department considered their concerns, reviewed the law, and on
May 28 issued clear direction from the Secretary of the Commonwealth, which
was distributed to the counties on May 28, 2020, after this issue appeared to arise.
See Directive of the Pennsylvania Department of State sent to the county election
directors on May 28, 2020, a copy of this correspondence is attached as Exhibit B
(the “Marks Guidance”).

37

 127. The Department of State instructed as follows:
Though the Election Code requires county boards of
elections to set aside absentee or mail-in ballots enclosed
in official election ballot envelopes that contain “any
text, mark or symbol which reveals the identity of the
elector,” there is no statutory requirement, nor is there
any statutory authority, for setting aside an absentee or
mail-in ballot solely because the voter forgot to properly
insert it into the official election ballot envelope. See 25
P.S. § 3146.8(g)(4)(ii).
To preserve the secrecy of such ballots, the board of
elections in its discretion may develop a process by
which the members of the pre-canvass or canvass boards
insert these ballots into empty official election ballot
envelopes or privacy sleeves until such time as they are
ready to be tabulated.
Id. A significant majority of counties followed the Marks Guidance and counted
the Naked Ballots, but some did not.
128. During the Primary, several county Boards, including specifically the
Lawrence County Board, in the canvass of mail-in and/or absentee ballots which
were marked and returned by voters, refused to count ballots that were returned to
the Board without a Privacy Envelope, or inner-envelope. That is, voters placed
their ballot in the outer envelope, the Mailing Envelope.
129. A challenge to the rejection of the Naked Ballots was filed on Election
Day in Lawrence County but was later abandoned as moot as the results of all
elections covered by such order would not have been affected. See In re: Canvass
of Mail-In Ballots for the 2020 General Primary, No. _________________
38

 (Lawrence Co. C.P. June 2, 2020).
130. The refusal by certain Boards to canvass and count ballots which lack
the Privacy Envelope is in violation of the provisions of the Pennsylvania Election
Code and the rights of Electors to vote and have their ballots counted under the
Pennsylvania Constitution.
131. While voters are instructed to use a Privacy Envelope in submitting
the ballot, there is nothing in the Election Code allowing or authorizing a Board to
discard a ballot cast without a Privacy Envelope. See 25 P.S. § 3146.8.
132. This Court has addressed the issue of voter intent in a case where a
form of ballot was argued to override the will of the voter and stated that the intent
of the voter should control in the absence of a clear indication of fraud. See In re
Pennsylvania Gen. Elec. for Snyder County Comm’r, 841 A.2d 593, 597 (Pa.
Commw. 2003).
133. The clear legislative intent to allow these votes to be counted can be
seen by comparison to the statute applicable to provisional ballots, which expressly
includes language authorizing/requiring the Board to not count provisional ballots
that are not in a privacy envelope. See 25 P.S. § 3050(a.4)(5)(ii)(C).
134. No parallel language is located in the statute applicable to the mail-in
or absentee ballots. See 25 P.S. § 3146.8.
135. If the General Assembly had wanted to incorporate this language into

39

 the absentee and mail-in ballots when those statutes were being revised in 2019
and 2020, it could have done so; the choice not to include that language evidences
the intent to allow valid votes to count and for the Boards to do what is necessary
to count the votes while reasonably protecting the privacy of voters.
136. The Legislative decision not only is express, but also logical.
Provisional ballots run a much greater theoretical risk from the compromise of
privacy as they are voted at polling places, oftentimes in front of local precinct
officials who are neighbors and friends.
137. As a result, the General Assembly logically determined that this
potentially greater risk of pressure on the voters offsets the risk of
disenfranchisement from the failure to use a ballot envelope and chose to mandate
rejection of a provisional ballot without a Secrecy Envelope.
138. On the other hand, mail-in and absentee ballots are packaged in the
privacy of the voter’s home and are only removed from the envelope at all in a
central process, en masse with other ballots, by sworn election officials under the
scrutiny of authorized representatives and poll watchers. Understanding this
difference, and the lack of possible pressure from a negligent failure to use a
secrecy envelope, the General Assembly made a conscious choice not to require
disenfranchisement in the situation of absentee and mail-in ballots.
139. In this case of Naked Ballots, the choice is thus to either (i)

40

 completely disenfranchise the voter in contravention of the Election Code, or (ii)
take corrective measures to protect privacy – such as placing the ballot inside a
replacement Privacy Envelope before examination – and not disenfranchise a vote
from a valid and qualified elector.
140. While each Board is empowered, and expressly authorized, to review
the facts and circumstances where the situation is unclear, both federal and state
law require equal treatment of similarly situated voters.
141. Where, as is the case here, there is a clearly right course of action that
can be adopted statewide, the Court can and should issue a declaratory judgment
and injunctive relief to cause Naked Ballots to be counted, but after the county
undertakes reasonable measures to protect the privacy of voter ballots and allow
the ballots to be intermingled before review and tabulation.

XI. The Poll Watcher Law Remains Valid
142. Despite raising this issue election after election, the Trump litigants
are again asserting – in the Western District – the same argument about poll
watchers that was rejected in 2016 by the Eastern District, and which they did not
raise in any Commonwealth court in the last four years.
143. Poll watchers should be required to be residents of the county, if only
to allow local law enforcement access and jurisdiction to enforce after Election

41

 Day penalties for any malicious shenanigans that out-of-county or out-of-state poll
watchers may be more willing to undertake.
144. This Petition asks this Court to resolve ambiguities associated with the
interpretation and implementation of Act 77 against the backdrop of a global
pandemic and the presumptive nominee of one political party routinely spreading
misinformation about the legitimacy of mail-in and absentee ballots.
145. There is nothing more sacrosanct in democracy than the right to vote,
this Petition seeks only to protect that right uniformly for all qualified electors in
the Commonwealth.
146. The Commonwealth simply cannot invite a post-election attack on the
fairness of Pennsylvania’s elections like was alleged in Bush v. Gore.
147. When initially enacted, the poll watcher provisions of the Election
Code restricted a poll watcher’s geographical territory to the election district in
which the elector lived. See 25 Pa. C.S. § 2687 (1947).
148. In 2004, the Pennsylvania General Assembly amended the Election
Code to allow poll watchers to work anywhere within their county. See 25 Pa. C.S.
§ 2687(b).
149. Four years ago, on the eve of the last Presidential election, the
Republican Party of Pennsylvania sued the Secretary of the Commonwealth, Pedro
Cortes, seeking to enjoin the enforcement of the geographic restriction and to allow

42

 registered voters to poll watch anywhere in the Commonwealth. See Republican
Party of Pa. v. Cortés, 218 F. Supp. 3d 396, 402 (E.D. Pa. 2016) (Pappert, J.). The
Cortes plaintiffs asserted two primary arguments: (1) poll watchers uncover
election law violations and that when an unqualified elector votes within a district,
the legitimate votes of qualified electors in the district are diluted and their
fundamental right to vote is violated; and (2) the poll watcher geographic
restriction violated the Equal Protection and Due Process Clause by “arbitrarily
and unreasonably distinguish[ing] between voters within the same electoral district
by allowing some, but not others, to serve as poll watchers.” Id. at 407.
150. The District Court for the Eastern District of Pennsylvania, however,
declined to enjoin the enforcement of the geographic restriction. In so doing, the
Court found that the poll watcher residency requirement did not dilute the
complainants’ votes because the theory was based purely on speculation that
fraudulent voters may be “casting ballots elsewhere in the Commonwealth and the
unproven assumption that these alleged instances of voter fraud would be
prevented by the affected poll watchers were they not precluded from serving at
those locations.” Id.
151. The Cortés Court also found that the poll watcher residency
requirement did not burden the plaintiff’s fundamental right to vote and therefore

43

 the state need only provide a rational basis for the poll watcher residency
requirement. Id.
152. The Cortés Court deferred to the General Assembly’s decision to limit
poll watchers to county residents because the choice was “rationally related to the
state’s interest in maintaining from their own county is rationally related to the
state’s interests in maintaining its county-run election system [under which] each
county election official is tasked with managing credentials for a discrete part of
the state’s population.” Id. at 410.
153. After losing the injunction hearing, the Cortés plaintiff abandoned
those arguments and did not raise the issue for the next four years in either
Pennsylvania state or federal court.
154. Nor did the Republican leadership in the General Assembly offer any
changes to the applicable statutes when they drafted the bills that became Acts 77
and 12.
155. Apparently undeterred by continuous clear and unambiguous ruling,
the Trump plaintiffs again sued the Pennsylvania Secretary of the Commonwealth
and the 67 Boards in the Commonwealth seeking, inter alia, an injunction that
permits poll watchers regardless of their county of residence, to be present in all
locations where votes are cast, including without limitation all locations where
absentee or mail-in ballots are being returned. See Trump Lawsuit, Complaint, ¶ 5.

44

 The Plaintiffs in the Trump Lawsuit make virtually the same arguments made by
the Cortés plaintiffs and appear doomed to suffer the same fate under both federal
and Pennsylvania Law.
156. Neither Act 77 nor Act 12 altered or amended the Election Code
requirement that poll watchers may only watch polls at polling locations within the
county where the poll watcher is registered to vote.
157. That is not to say that the General Assembly did not consider this
provision – Act 77 specifically created the position of Canvass Authorized
Representative who do not have to be registered voters in the county or the
Commonwealth who can observe canvass activities. See Act 12 of 2020 §
1308(g)(1.1).
158. This choice is also consistent and reflects the distinction between an
activity in a polling place away from watchful eyes and activity taking place under
the watch of sworn election officials.
159. The changes to Pennsylvania election processes and procedures
enacted under Acts 77 and 12 in no way makes the Election Code’s poll watcher
residency requirement violative of either the United States or Pennsylvania
Constitution nor does it alter the outcome in Cortés.
160. As explained in Cortés, the poll watcher residency requirement does
not dilute any voters’ vote and continues to serve the “state’s interests in

45

 maintaining its county-run election system; each county election official is tasked
with managing credentials for a discrete part of the state’s population.” Cortés, 218
F. Supp. 3d at 410.
161. The fact that counties are using fewer actually polling locations and
more drop off of absentee and mail-in ballots locations due to a global pandemic
does not change the state’s interests in the poll watcher geographic restriction. The
Commonwealth still has an interest in maintaining its county-run election system.

COUNT I
DECLARATORY JUDGMENT THAT COUNTY OFFICES ARE NOT
LIMITED SOLELY TO A CENTRAL OFFICE, AND THAT SECURE
BALLOT DROP-BOXES ARE PERMITTED UNDER THE ELECTION
CODE; AND FOR AFFIRMATIVE INJUNCTION REQUIRING BOARDS
TO USE ALL REASONABLE MEASURES TO ENCOURAGE AND
FACILITATE THE RETURN OF MAIL-IN BALLOTS
162. Petitioners refer to and incorporate Paragraphs 1 through 161 of this
Complaint as though the same were repeated at length herein.
163. Pursuant to the Declaratory Judgment Act, the Court may declare the
rights, status, or other legal relations of any interested person under a statute or
contract. See 42 Pa. C.S. § 7533.
164. Section 1306-D of Act 77 outlines the manner in which mail-in ballots
may be returned. An elector shall, after completing the ballot “send same by mail,

46

 postage prepaid, except where franked, or deliver it in person to said county board
of election.” Id.
165. Petitioners seek a declaration that a reasonable interpretation of Act
77 permits Respondents to provide secure, easily accessible locations as the Board
deems appropriate, including, where appropriate, mobile or temporary collection
sites, and/or drop-boxes for the collection of mail-in ballots.
166. Additionally, Petitioners seek relief in the form of an affirmative
injunction requiring that county Boards are required to evaluate the particular facts
and circumstances in their jurisdictions and develop a reasonable plan reflecting
the needs of the citizens of the county to ensure the expedient return of mail-in
ballots.
167. A party seeking a permanent injunction must establish three elements:
(1) a clear right to relief; (2) that an injunction is necessary to avoid an injury that
cannot be compensated by damages; (3) that a greater injury will result from
refusing the injunction.” Mazin v. Bureau of Prof’s Occupational Affairs, 950
A.2d 382, 389 (Pa. Commw. Ct. 2008).
168. So long as ballots are returned by the elector to the Board in a manner
that respects the integrity of the election, creative solutions by county Boards to
facilitate ballot return are permitted by the Election Code. Thus, there is a clear
right to relief.

47

 169. The right to allow an elector to exercise the franchise without fear of
death is not a harm even potentially compensable by damages. Until a vaccine is
available, which is not anticipated before November, and widespread precautions
are taken, which many are actively discouraging, the impact of COVID-19 on the
administration of 2020 General Election is unpredictable. As such, procedures
from county Boards will prevent disenfranchisement, which cannot be
compensated by damages. See Kuznik v. Westmoreland Cty. Bd. of Com'rs, 902
A.2d 476 (Pa. 2006).
170. Despite what the President has asserted on Twitter, enhanced
collections will not change the likely date of the announcement of election returns
– with the volume of mail-in vote it will take days, and potentially weeks, until
final numbers are known. In the Primary, it was 35 days before returns were
certified earlier this week. The threat of disenfranchising thousands of voters
through no fault of their own and a potentially inaccurate election poses a greater
threat than depriving candidates of “big election night answers.”
COUNT II
INJUNCTION THAT MAIL-IN AND ABSENTEE BALLOTS
POSTMARKED BY 8 P.M. ON ELECTION DAY AND RECEIVED BY
THE BOARDS BY THE UOCAVA DEADLINE MUST BE TABULATED
171. Petitioners refer to and incorporate Paragraphs 1 through 170 of this
Complaint as though the same were repeated at length herein.

48

 172. Act 77 requires electors who vote via mail-in or absentee ballot must
return their ballots to the county Board and the Board must receive the voted ballot
by 8:00 pm on Election Day. See Act 77 § 1306-D.
173. Due in part to COVID-19, in the 2020 Primary, numerous Boards saw
a crushing late cycle influx in requests for mail-in and absentee ballots
overwhelming the resources of even the best funded Voter Services Offices.
174. More qualified electors vote in General elections than in primaries.
175. A larger number of voters combined with a potential “second wave”
of COVID-19 will likely lead to an even greater demand for mail-in and absentee
ballots, causing similar, if not worse delays in getting voters their ballots.
176. The Free and Fair Election Clause requires that all voters have a bona
fide and fair right to participate in each election and that the Boards of Elections
may not interfere with that right through a failure to timely take required action.
See Pa. Const. art. I § 5.
177. The Election Code provides Pennsylvania courts with the power to
decide matters pertaining to the election as may be necessary to carry out the intent
of the Election Code, including ensuring fair elections including an equal
opportunity for all eligible electors to participate in the election process. See 25
P.S. § 3046.

49

 178. In order to protect the right of voters under the Free and Fair Elections
Clause, Petitioners seek an injunction ordering Respondents to lift the deadline in
the Election Code across the state to allow any ballot postmarked by 8:00 p.m. on
Election night to be counted if it is received by the Boards by the deadline for
ballots to be received by the UOCAVA Deadline, at 5 pm on Tuesday, November
10.
179. Alternatively, this Court could enjoin the Counties to extend a more
tailored ballot extension deadline to the date that is 21 days after the particular
voter’s ballot is mailed by the county, provided that (i) in no extent would the
deadline be extended past the UOCAVA deadline, and (ii) no extension would
apply if the ballot was mailed within 24 hours of receipt by the Board of Election
of a completed application from the qualified elector.
180. A party seeking a permanent injunction must establish three elements:
(1) a clear right to relief; (2) that an injunction is necessary to avoid an injury that
cannot be compensated by damages; (3) that a greater injury will result from
refusing the injunction.” See Mazin, 950 A.2d at 389.
181. As exhibited by the Courts in Bucks and Delaware Counties in the
Primary election, where ballots are not able to be timely mailed, there is a
significant barrier to the exercise of the franchise, and given the experience in the
Primary, the state of the pandemic in the United States, and the known increase in

50

 activity just before deadlines in Presidential elections, similar delays are inevitable.
To avoid disenfranchising innocent electors there is a clear need for and right to
relief.
182. An injunction will prevent disenfranchisement, which cannot be
compensated by damages. See Kuznik, 902 A.2d at 476.
183. The balancing of harm falls on the side of granting of relief, as there is
no harm on an extension to the UOCAVA Deadline, as federal law already
requires that ballots continue to be allowed to be received by such date.

COUNT III
INJUNCTION REQUIRING BOARDS TO CONTACT ELECTORS
WHOSE MAIL-IN OR ABSENTEE BALLOTS CONTAIN FACIAL
DEFECTS AND PROVIDE THOSE ELECTORS AN OPPORTUNITY TO
CURE THE FACIAL DEFECTS BY THE UOCAVA DEADLINE
184. Petitioners refer to and incorporate Paragraphs 1 through 183 of this
Complaint as though the same were repeated at length herein.
185. The Pennsylvania Constitution expressly guarantees to voters the right
to participate in a free and fair election. Pa. Const. art. I § 5.
186. The procedure for mail-in ballots often leads to minor errors, which
result in many ballots being rejected and disenfranchising voters who believe they
have exercised their right to vote.

51

 187. Petitioners are not seeking to impose a pre-election review
requirement on Respondents, however, where Respondents undertake such a
review, whether before, on, or after Election Day, and have knowledge of an
incomplete or incorrectly filled out ballot and has the elector’s contact information
(i.e., email or telephone number), Respondents should contact the potentially
disenfranchised electors and provide each of them the opportunity to cure the facial
defect until the UOCAVA Deadline.
188. A party seeking a permanent injunction must establish three elements:
(1) a clear right to relief; (2) that an injunction is necessary to avoid an injury that
cannot be compensated by damages; (3) that a greater injury will result from
refusing the injunction.” Mazin, 950 A.2d at 389.
189. There is no government interest in requiring that the formalities of the
outside of the Mailing Envelope be completed prior to mailing rather than prior to
counting, nor is there a governmental interest in denying a ballot on timeliness
grounds so long as ballots continue to arrive under federal law, which is required
until the UOCAVA Deadline. Thus, a right to relief is clear.
190. An injunction will prevent disenfranchisement, which cannot be
compensated by damages. See Kuznik, 902 A.2d at 476.

52

 191. There is no governmental interest in disenfranchising the votes of
valid, qualified electors, and for the reasons set forth above there is no temporal
benefit from any deadline to cure errors prior to the UOCAVA Deadline.
COUNT IV
DECLARATORY JUDGMENT THAT, UNDER ACT 77, BOARDS MUST
CLOTHE AND COUNT NAKED BALLOTS AND NOTHING IN THE
UNITED STATES CONSTITUTION, THE PENNSYLVANIA
CONSTITUTION OR FEDERAL OR STATE LAW MANDATES
OTHERWISE; AND INJUNCTION AGAINST BOARDS FROM
EXCLUDING SUCH BALLOTS FROM THE CANVASS.
192. Petitioner’s refer to and incorporate Paragraphs 1 through 191 of this
Complaint as though the same were repeated at length herein.
193. Pursuant to the Declaratory Judgment Act, the Court may declare the
rights, status, or other legal relations of any interested person under a statute or
contract. See 42 Pa. C.S. § 7533.
194. The Pennsylvania Constitution bestows the right to vote upon
qualified citizens and to equal protection in the enjoyment of that right. See Pa.
Const. art. VII, § 1 & art. I, § 28.
195. The Free and Equal Elections Clause of the Pennsylvania
Constitution, provides that “[e]lections shall be free and equal; and no power, civil
or military, shall at any time interfere to prevent the free exercise of the right to
suffrage.” Pa. Const. art. I, § 5.

53

 196. Voting is a fundamental right also protected by the Fourteenth
Amendment to the United States Constitution.
197. Act 77 requires Boards to set aside absentee ballots or mail-in ballots
enclosed in official election ballot envelopes that contain “any text, mark or
symbol which reveals the identity of the elector.” 25 P.S. § 3146.8(g)(4)(ii).
198. Petitioners request a declaration that there is no statutory authority for
Respondents to set aside an absentee or mail-in ballot solely because the voter
forgot to properly insert it into the official election ballot envelope.
199. Additionally, Petitioners seek an injunction prohibiting Respondents
from invalidating Naked Ballots which are otherwise satisfactory.
200. A party seeking a permanent injunction must establish three elements:
(1) a clear right to relief; (2) that an injunction is necessary to avoid an injury that
cannot be compensated by damages; (3) that a greater injury will result from
refusing the injunction.” Mazin, 950 A.2d at 389.
201. There is no statutory authority that permits Defendants to refuse to
clothe and count Naked Ballots, the right to relief is clear.
202. An injunction will prevent disenfranchisement, which cannot be
compensated by damages. See Kuznik, 902 A.2d at 476.
203. If the Commonwealth were to determine to count all Naked Ballots on
a uniform basis, pursuant to an order of this Court, there would be no potential

54

 Equal Protection claim arising from the fact that such votes were wrongfully
disqualified in a few counties.
COUNT V
DECLARATORY JUDGMENT THAT THE POLL WATCHER
RESIDENCY REQUIREMENT DOES NOT VIOLATE THE FIRST OR
FOURTEENTH AMENDMENT OF THE UNITED STATES
CONSTITUTION, EQUAL PROTECTION CLAUSE, OR EQUAL
PROTECTION AND FREE AND EQUAL ELECTIONS CLAUSES OF THE
PENNSYLVANIA CONSTITUTION.
204. Plaintiffs refer to and incorporate Paragraphs 1 through 203 of this
Complaint as though the same were repeated at length herein.
205. Pursuant to the Declaratory Judgment Act, the Court may declare the
rights, status, or other legal relations of any interested person under a statute or
contract. See 42 Pa. C.S. § 7533.
206. The Election Code only permits a poll watcher to serve in an election
district in a county in which the watcher is not a qualified registered elector. See
Election Code 417, 25 Pa. C.S. § 2687(b). The state’s interest in the poll watcher
residency requirement remains the same today as it was in 2016.
207. Petitioners request a declaration that Election Code’s poll watcher
residency requirement does not violate the United States Constitution’s First and
Fourteenth Amendments, its Equal Protection Clause, or the Equal Protection and
Free and Equal Elections Clauses of the Pennsylvania Constitution.

55

 WHEREFORE, Petitioners pray this Honorable Court to order make the
above declarations and issue the requested injunctive relief.
Respectfully submitted,
Greenberg Traurig, LLP
/s/ Kevin Greenberg___________
Kevin Greenberg, Attorney ID 82311
A. Michael Pratt, Attorney ID 044973
Adam Roseman, Attorney ID 313809
George J. Farrell, Attorney ID 324521
1717 Arch Street, Suite 400
Philadelphia, Pennsylvania 19103
(215) 988-7818
greenbergk@gtlaw.com
prattam@gtlaw.com
rosemana@gtlaw.com
farrellg@gtlaw.com
Lazar M. Palnick, Attorney ID 52762
Lazar M. Palnick, Esq.
1216 Heberton Street
Pittsburgh, Pennsylvania 15206
(412) 661-3633
lazarpalnick@gmail.com
Attorneys for Petitioners

July 10, 2020

56

 PUBLIC ACCESS POLICY CERTIFICATE OF COMPLIANCE
It is hereby certified by the undersigned that this filing complies with the
provisions of the Public Access Policy of the Unified Judicial System of
Pennsylvania: Case Records of the Appellate and Trial Courts that require filing
confidential information and documents differently than non-confidential
information and documents.
Respectfully submitted,
GREENBERG TRAURIG, LLP
/s/ Kevin Greenberg

Dated:

July 10, 2020

Kevin Greenberg (No. 82311)
1717 Arch Street, Suite 400
Philadelphia, PA 19103
(t) 215.988.7818
(f) 215.988.7801
greenbergk@gtlaw.com

 EXHIBIT A

 

Received 5/22/2020 9:05:44 PM Commonwealth Court of Pennsylvania
Filed 5/22/2020 9:05:00 PM Commonwealth Court of Pennsylvania
266 MD 2020

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

MICHAEL CROSSEY, et al.,
Petitioners,
v.
KATHY BOOCKVAR, SECRETARY
OF THE COMMONWEALTH, et al.,
Respondents.

:
:
:
:
:
No. 266 MD 2020
:
:
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:
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:

SUPPLEMENTAL DECLARATION OF JONATHAN MARKS
I, Jonathan Marks, declare under the penalty of perjury pursuant to 18
Pa.C.S. § 4902 that:
I am the Deputy Secretary for Elections and Commissions for the
Department of State (the “Department”) of the Commonwealth of Pennsylvania.
This Declaration supplements the Declaration I submitted to the Court on May 18,
2020.
1.

In my May 18, 2020 Declaration, I gave statistics on the Pennsylvania

counties’ progress in processing applications for mail in and absentee ballots and
mailing out ballots.
2.

I stated that the Election Code requires counties to mail absentee and

mail-in primary election ballots for all approved applications by Tuesday, May 19,

 2020, and that I would update the Court after that date. See May 18 Declaration ¶¶
14-43.
3.

Statewide, a large majority of counties are keeping up with mail-in

and absentee voting applications, with ballots being mailed out as applications are
processed.
4.

Some counties, however, are facing obstacles, especially those in

areas where the prevalence of COVID-19 is highest. If these obstacles persist into
next week, there is a possibility that they could result in significant delays in
voters’ receipt of ballots.
5.

As of Thursday, May 21, 2020, the counties had reported receipt of

approximately 1,701,141 applications for absentee and mail-in ballots.
6.

The counties had approved 1,528,212, or approximately 90%, of the

applications.
7.

Preliminary data indicates that the counties have mailed 1,459,871

million ballots, or approximately 96% of the applications approved so far, to
voters.
8.

The counties have received 441,012 voted ballots, which accounts for

approximately 29% of applications approved so far.
9.

Counties have continued to take steps to deal with the high volume of

applications by, for example, reassigning staff to assist with ballot processing and,

-2-

 in some cases, adding extra shifts at their election offices.
10.

The vast majority of counties do not appear to be having difficulty

managing the application process. As of May 21, 2020, more than half of the
counties in the Commonwealth had mailed ballots in response to more than 90% of
their approved applications.
11.

Certain counties, however, are experiencing delays or backlogs.

12.

For example, preliminary data shows that Montgomery County has

mailed out 131,932 ballots out of the 138,363 applications it has approved.
However, for reasons not within Montgomery County’s control, many ballots that
the county has mailed have been delayed in arriving at voters’ homes. These
delays may make it more difficult for voters who requested ballots well in advance
of the application deadline to return those ballots on time.
13.

Philadelphia County recently began receiving a surge of paper ballot

applications. Because these applications take longer to process than online
applications, and because of COVID-19 related staffing shortages and social
distancing rules, Philadelphia’s staff will face difficulties in promptly processing
all of the outstanding applications.
14.

A recent outage in Philadelphia’s Verizon connection, which covered

the network connection with the election database, further impeded Philadelphia’s
progress.

-3-

 15.

Preliminary data shows that as of May 21, Philadelphia County had

received 181,655 applications, rejected 2,114 of them, approved 159,772, and
mailed out 142,836 ballots.
16.

Of the counties identified in my May 18 declaration, other than

Philadelphia and Montgomery, preliminary data reported by the counties shows
that:
x Allegheny County had received 242,349 applications, rejected
20,120 of them, approved 222,757, and mailed out 205,646
ballots;
x Delaware County had received 78,333 applications, rejected
4,290 of them, approved 53,851, and mailed out 42,904 ballots;
x Lawrence County had received 9,400 applications, rejected 623
of them, approved 8,813, and mailed out 8,654 ballots;
x Lehigh County had received 47,057 applications, rejected 3,991
of them, approved 43,220, and mailed out 43,011 ballots; and
x Mercer County had received 11,067 applications, rejected 807
of them, approved 9,746, and mailed out 9,569 ballots.
17.

The last day for applying for a mail in or absentee ballot is Tuesday,

May 26.
18.

I understand that because of COVID-19 related staffing shortages or

technical difficulties, a small number of other counties may face challenges in
keeping up with their outstanding applications as the application deadline
approaches.
19.

After May 26, unless the Court instructs otherwise, I will give the
-4-

 Court further information about the counties’ application numbers and the
existence of any backlogs.
I declare under penalty of perjury that the foregoing is true and correct.
Executed on May 22, 2020.

Jonathan Marks

-5-

 EXHIBIT 

 

 

From: Marks, Jonathan <jmarks@pa.gov>
Sent: Thursday, May 28, 2020 7:44 PM
To: Marks, Jonathan <jmarks@pa.gov>
Subject: Important DOS Email re: Absentee/Mail-in Ballot Canvass
Importance: High
To all county election officials.
I hope you are all safe and well.
The department has received some questions from county officials in recent days regarding
the proper disposition of absentee or mail-in ballots cast by voters who did not enclose their
voted ballots in the official election ballot envelope (“secrecy” or “inner” envelope).
Though the Election Code requires county boards of elections to set aside absentee or mailin ballots enclosed in official election ballot envelopes that contain “any text, mark or
symbol which reveals the identity of the elector,” there is no statutory requirement, nor
is there any statutory authority, for setting aside an absentee or mail-in ballot solely
because the voter forgot to properly insert it into the official election ballot envelope. See 25
P.S. § 3146.8(g)(4)(ii).
To preserve the secrecy of such ballots, the board of elections in its discretion may develop
a process by which the members of the pre-canvass or canvass boards insert these ballots
into empty official election ballot envelopes or privacy sleeves until such time as they are
ready to be tabulated.
Please consult with your solicitor about your plans to deal with such instances should they
occur during the pre-canvass or canvass.
Thank you for everything you are doing to administer the 2020 Primary while coping with
the unique challenges presented by COVID-19.
Kind regards,
Jonathan M. Marks
Deputy Secretary for Elections & Commissions
Pennsylvania Department of State
302 North Office Building   Harrisburg, PA 17120
 717.783.2035  717.787.1734
 jmarks@pa.gov