In Re: Nov 3, 2020 General Election Pet of PA Sec ( 2020 )

IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
IN RE: NOVEMBER 3, 2020 GENERAL : No. 149 MM 2020
ELECTION :
:
:
PETITION OF: KATHY BOOCKVAR, :
SECRETARY OF THE COMMONWEALTH :
OF PENNSYLVANIA :
CONCURRING STATEMENT
JUSTICE DOUGHERTY FILED: October 14, 2020
I reluctantly agree that our exercise of King’s Bench jurisdiction is warranted in this
unique and time-sensitive case of substantial importance. See, e.g., Friends of Danny
DeVito v Wolf, 227 A.3d 872, 884 (Pa. 2020) (granting review of matter of “public
importance that requires timely intervention by the court of last resort to avoid the
deleterious effects arising from delays incident to the ordinary process of law”). My
hesitation largely tracks Justice Baer’s concern over the arguable lack of a clear case or
controversy before us. See Dissenting Statement at 1 (Baer, J.). However, I respectfully
believe the proper course is not to elevate form over substance, and I ultimately depart
from Justice Baer’s assessment that the present legal question was resolved in Donald
J. Trump for President, Inc. v. Kathy Boockvar, No. 2:20-cv-966 (W.D. Pa. filed October
10, 2020).
Although Judge Ranjan opined our Election Code does not impose a signature-
comparison requirement for absentee and mail-in ballots and applications, and Secretary
Boockvar’s directive to all Pennsylvania county boards of elections on this precise issue
is consistent with that holding, see id., slip op. at 95-106, Secretary Boockvar observes
“the district court’s decision, while timely and persuasive, is not authoritative.” See
Petitioner’s Post-Submission Communication, dated October 11, 2020, at 2. In any event,
the district court decision is surely subject to appeal. Secretary Boockvar thus continues
to seek from this Court “an authoritative ruling of state law binding on all state election
officials and courts.” Id. Accordingly, although I note my disapproval of the precise
manner in which the case was presented for our review, I am persuaded by the
Secretary’s assertion that “[o]nly this Court can render the ultimate determination
concerning Pennsylvania law.” Id. I reiterate that parties pursuing an exercise of this
Court’s jurisdiction under our extraordinary King’s Bench powers should present a clear
case or controversy and seek more than a purely advisory opinion. As I believe these
conditions are met here, I join the Court’s decision to grant the application to consider the
merits of the important and unresolved legal question presented.
[149 MM 2020] - 2