In Re: 2,349 Ballots in the 2020 General Election

[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-
2020]
IN THE SUPREME COURT OF PENNSYLVANIA
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
IN RE: CANVASS OF ABSENTEE AND : No. 31 EAP 2020
MAIL-IN BALLOTS OF NOVEMBER 3, :
2020 GENERAL ELECTION :
:
: SUBMITTED: November 18, 2020
APPEAL OF: DONALD J. TRUMP FOR :
PRESIDENT, INC. :
IN RE: CANVASS OF ABSENTEE AND : No. 32 EAP 2020
MAIL-IN BALLOTS OF NOVEMBER 3, :
2020 GENERAL ELECTION :
:
: SUBMITTED: November 18, 2020
APPEAL OF: DONALD J. TRUMP FOR :
PRESIDENT, INC. :
IN RE: CANVASS OF ABSENTEE AND : No. 33 EAP 2020
MAIL-IN BALLOTS OF NOVEMBER 3, :
2020 GENERAL ELECTION :
:
: SUBMITTED: November 18, 2020
APPEAL OF: DONALD J. TRUMP FOR :
PRESIDENT, INC. :
IN RE: CANVASS OF ABSENTEE AND : No. 34 EAP 2020
MAIL-IN BALLOTS OF NOVEMBER 3, :
2020 GENERAL ELECTION :
:
: SUBMITTED: November 18, 2020
APPEAL OF: DONALD J. TRUMP FOR :
PRESIDENT, INC. :
IN RE: CANVASS OF ABSENTEE AND : No. 35 EAP 2020
MAIL-IN BALLOTS OF NOVEMBER 3, :
2020 GENERAL ELECTION :
:
: SUBMITTED: November 18, 2020
:
APPEAL OF: DONALD J. TRUMP FOR :
PRESIDENT, INC.
IN RE: 2,349 BALLOTS IN THE 2020 : No. 29 WAP 2020
GENERAL ELECTION :
: Appeal from the Order of the
: Commonwealth Court entered
APPEAL OF: ALLEGHENY COUNTY : November 19, 2020 at No. 1162 CD
BOARD OF ELECTIONS : 2020, reversing the Order of the
: Court of Common Pleas of Allegheny
: County entered November 18, 2020
: at No. GD 20-011654 and remanding
:
: SUBMITTED: November 20, 2020
:
Justice Donohue announces the judgment of the Court,
joined by Justices Baer, Todd and Wecht, and files an
opinion joined by Justices Baer and Todd
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
JUSTICE DONOHUE DECIDED: November 23, 2020
These appeals present the question of whether the Election Code requires a
county board of elections to disqualify mail-in or absentee ballots submitted by qualified
electors who signed the declaration on their ballot’s outer envelope but did not handwrite
their name, their address, and/or a date, where no fraud or irregularity has been alleged.
Pursuant to our longstanding jurisprudence, central to the disposition of these appeals is
whether the information is made mandatory by the Election Code or whether the inclusion
of the information is directory, i.e., a directive from the Legislature that should be followed
but the failure to provide the information does not result in invalidation of the ballot.
We are guided by well-established interpretive principles including that where the
language of a statute is unambiguous, the language shall be controlling. 1 Pa.C.S. §
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1921(b). In the case of ambiguity, we look to ascertain the legislative intent, and in
election cases, we adhere to the overarching principle that the Election Code should be
liberally construed so as to not deprive, inter alia, electors of their right to elect a candidate
of their choice. Pa. Democratic Party v. Boockvar, 238 A.3d 345, 356 (Pa. 2020). Stated
more fully:
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.
Appeal of James, 105 A.2d 64, 65-66 (Pa. 1954).
Guided by these principles and for the reasons discussed at length in this opinion,
we conclude that the Election Code does not require boards of elections to disqualify
mail-in or absentee ballots submitted by qualified electors who signed the declaration on
their ballot’s outer envelope but did not handwrite their name, their address, and/or date,
where no fraud or irregularity has been alleged.
***
In connection with five of these consolidated appeals, Petitioner Donald J. Trump
for President, Inc. (the “Campaign”) challenges the decision of the Philadelphia County
Board of Elections (the “Philadelphia Board”) to count 8,329 absentee and mail-in ballots.
The Campaign does not contest that these ballots were all timely received by the
Philadelphia Board prior to 8:00 p.m. on November 3, 2020 (election day); that they were
cast and signed by qualified electors; and that there is no evidence of fraud associated
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2020] - 3
with their casting. The Campaign instead contends that these votes should not be
counted because the voters who submitted them failed to handwrite their name, street
address or the date (or some combination of the three) on the ballot-return outer
envelope. The Philadelphia County Court of Common Pleas, per the Honorable James
Crumlish, upheld the Philadelphia Board’s decision to count the ballots, ruling that the
Election Code does not mandate the disqualification of ballots for a failure to include the
challenged information, stressing that the inclusion or exclusion of this information does
not prevent or promote fraud. The Campaign pursued an appeal to the Commonwealth
Court. This Court granted the Philadelphia Board’s application to exercise our
extraordinary jurisdiction, 42 Pa. C.S. § 726, over these cases then pending in the
Commonwealth Court.
At or around the same time that the matters were being litigated in Philadelphia,
across the state in Allegheny County, Nicole Ziccarelli, a candidate for the Pennsylvania
Senate in the 45th Senatorial District (Allegheny-Westmoreland counties) challenged the
November 10, 2020 decision of the Allegheny County Board of Elections (the “Allegheny
County Board”) to canvass 2,349 mail-in ballots that contained a signed – but undated –
declaration. Again, all of the outer envelopes were signed, they are conceded to be timely
and there are no allegations of fraud or illegality. On November 18, 2020, the Court of
Common Pleas of Allegheny County, per the Honorable Joseph James, upheld the
decision of the Allegheny County Board to count the ballots. Ziccarelli v. Allegheny
County Board of Elections, No. GD-20-011654 (Allegheny Cty. Ct. Com. Pl.). Ziccarelli
filed an appeal to the Commonwealth Court and an application in this Court requesting
that we exercise extraordinary jurisdiction over her appeal. During the pendency of the
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2020] - 4
request to this Court, on November 19, 2020, a three-judge panel of the Commonwealth
Court, with one judge dissenting, reversed the common pleas court decision.
On November 20, 2020, the Allegheny County Board filed an emergency petition
for allowance of appeal, which we granted, limited to whether the ballots contained in
undated outer envelopes should be invalidated. We stayed the order of the
Commonwealth Court pending the outcome of this appeal and consolidated it with the
Philadelphia Board cases.
In these appeals, we are called upon to interpret several provisions of the Election
Code. We set them forth at the outset since they guide the resolution of these appeals.
Section 3146.6(a) provides as follows with respect to absentee ballots:
(a) Except as provided in paragraphs (2) and (3), at any time
after receiving an official absentee ballot, but on or before
eight o'clock P.M. the day of the primary or election, the
elector shall, 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 envelope shall then 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 of election and the local
election district 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.
25 P.S. § 3146.6(a) (emphasis added).
Section 3150.16(a) sets forth the procedure for the submission of a mail-in ballot:
(a) General rule.--At any time after receiving an official mail-
in ballot, but on or before eight o'clock P.M. the day of the
primary or election, the mail-in elector shall, in secret,
proceed to mark the ballot only in black lead pencil, indelible
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2020] - 5
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 envelope shall then
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 of election and the local election district 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.
25 P.S. § 3150.16(a) (emphasis added).
Sections 3146.4 and 3150.14(b) delegate to the Secretary of the Commonwealth
the responsibility to prescribe the form of the elector’s declaration on the outer envelope
used to mail the absentee and mail-in ballots:
§ 3146.4. Envelopes for official absentee ballots
The county boards of election shall provide two additional
envelopes for each official absentee ballot of such size and
shape as shall be prescribed by the Secretary of the
Commonwealth, in order to permit the placing of one within
the other and both within the mailing envelope. On the
smaller of the two envelopes to be enclosed in the mailing
envelope shall be printed, stamped or endorsed the words
“Official Election Ballot,” and nothing else. On the larger of
the two envelopes, to be enclosed within the mailing
envelope, shall be printed the form of the declaration of
the elector, and the name and address of the county
board of election of the proper county. The larger
envelope shall also contain information indicating the local
election district of the absentee voter. Said form of
declaration and envelope shall be as prescribed by the
Secretary of the Commonwealth and shall contain
among other things a statement of the electors
qualifications, together with a statement that such
elector has not already voted in such primary or election.
The mailing envelope addressed to the elector shall contain
the two envelopes, the official absentee ballot, lists of
candidates, when authorized by section 1303 subsection (b)
of this act, the uniform instructions in form and substance as
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2020] - 6
prescribed by the Secretary of the Commonwealth and
nothing else.
25 P.S. § 3146.4 (emphasis added).
§ 3150.14. Envelopes for official mail-in ballots
* * *
(b) Form of declaration and envelope.--The form of
declaration and envelope shall be as prescribed by the
Secretary of the Commonwealth and shall contain,
among other things, a statement of the elector's
qualifications, together with a statement that the elector
has not already voted in the primary or election.
25 P.S. § 3150.14(b) (emphasis added).
The pre-canvassing or canvassing of absentee and mail-in ballots proceed in
accordance with the dictates of 25 P.S. § 3146.8(g)(3), as follows:
§ 3146.8. Canvassing of official absentee ballots and mail-in ballots
When the county board meets to pre-canvass or canvass
absentee ballots and mail-in ballots under paragraphs (1),
(1.1) and (2), the board shall examine the declaration on
the envelope of each ballot not set aside under
subsection (d) [a voter who dies before the election] and
shall compare the information thereon with that
contained in the "Registered Absentee and Mail-in Voters
File," the absentee voters' list and/or the "Military
Veterans and Emergency Civilians Absentee Voters File,"
whichever is applicable. If the county board has verified
the proof of identification as required under this act and
is satisfied that the declaration is sufficient and the
information contained in the "Registered Absentee and
Mail-in Voters File," the absentee voters' list and/or the
"Military Veterans and Emergency Civilians Absentee
Voters File" verifies his right to vote, the county board shall
provide a list of the names of electors whose absentee ballots
or mail-in ballots are to be pre-canvassed or canvassed.
25 P.S. § 3146.8(g)(3) (emphasis added).
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Pursuant to the authority granted in § 3150.14(b), the Secretary of the
Commonwealth developed the following declaration used in connection with the 2020
General Election:
I hereby declare that I am qualified to vote from the below
stated address at this election; that I have not already voted
in this election; and I further declare that I marked my ballot in
secret. I am qualified to vote the enclosed ballot. I understand
I am no longer eligible to vote at my polling place after I return
my voted ballot. However, if my ballot is not received by the
county, I understand I may only vote by provisional ballot at
my polling place, unless I surrender my balloting materials, to
be voided, to the judge of elections at my polling place.
[BAR CODE]
Voter, sign or mark here/Votante firme o margue aqui
X___________________________________
____________________________________
Date of signing (MM/DD/YYYY)/Fechade firme (MM/DD/YYYY)
_____________________________________
Voter, print name/Votante, nombre en letra de impreta
______________________________________
Voter, address (street)/Votante, dirreccion (calle)
[LABEL – Voters’ name and address]
In addition, the Secretary issued guidance to the county boards of elections with
respect to the examination of ballot return envelopes. First, on September 11, 2020, she
issued the following guidance:
3. EXAMINATION OF DECLARATION ON BALLOT RETURN
ENVELOPES:
The county board of elections is responsible for approving
ballots to be counted during pre-canvassing.
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To promote consistency across the 67 counties, the county
boards of elections should follow the following steps when
processing returned absentee and mail-in ballots.
After setting aside ballots of elector’s who died prior to the
opening of the polls, the county board of elections shall
examine the Voter’s Declaration on the outer envelope of
each returned ballot and compare the information on the
outer envelope, i.e., the voter’s name and address, with the
information contained in the “Registered Absentee and Mail-
in Voters File, the absentee voter’s list and/or the Military
Veterans’ and Emergency Civilians Absentee Voters File.”
If the Voter’s Declaration on the return envelope is blank,
that ballot return envelope must be set aside and not
counted. If the board determines that a ballot should not be
counted, the final ballot disposition should be noted in
SURE. The ballot return status (Resp Type) should be noted
using the appropriate drop-down selection.
If the Voter’s Declaration on the return envelope is signed and
the county board is satisfied that the declaration is sufficient,
the mail-in or absentee ballot should be approved for
canvassing unless challenged in accordance with the
Pennsylvania Election Code.
Guidance Concerning Examination of Absentee and Mail-in Ballot Return Envelopes,
9/11/2020, at 3. On September 28, 2020, the Secretary offered additional guidance on
the treatment of ballot return envelopes:
With regard to the outer ballot‐return envelope:
A ballot‐return envelope with a declaration that is filled out,
dated, and signed by an elector who was approved to receive
an absentee or mail‐in ballot is sufficient and counties should
continue to pre‐canvass and canvass these ballots.
A ballot‐return envelope with a declaration that is not filled out,
dated, and signed is not sufficient and must be set aside,
declared void and may not be counted. Ballot‐return
envelopes must be opened in such a manner as not to destroy
the declarations executed thereon.
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2020] - 9
All ballot‐return envelopes containing executed declarations
must be retained for a period of two years in accordance with
the Election Code.
***
Pre‐canvass and Canvass Procedures
At the pre‐canvass or canvass, as the case may be, the
county board of elections should:
 Segregate the unopened ballots of voters whose
applications were challenged by the challenge
deadline (5:00 PM on the Friday before the election).
o These ballots must be placed in a secure,
sealed container until the board of
elections holds a formal hearing on the
challenged ballots.
o Ballot applications can only be challenged
on the basis that the applicant is not
qualified to vote.
 Set aside the ballot of any voter who was deceased
before election day.
 Set aside any ballots without a filled out, dated and
signed declaration envelope.
 Set aside any ballots without the secrecy envelope
and any ballots in a secrecy envelope that include
text, mark, or symbol which reveals the identity of
the voter, the voter’s political affiliation (party), or the
voter’s candidate preference.
The Election Code does not permit county election officials to
reject applications or voted ballots based solely on signature
analysis.
No challenges may be made to mail‐in or absentee ballot
applications after 5:00 pm on the Friday before the election.
No challenges may be made to mail‐in and absentee ballots
at any time based on signature analysis.
NOTE: For more information about the examination of return
envelopes, please refer to the Department’s September 11,
2020 Guidance Concerning Examination of Absentee and
Mail‐in Ballot Return Envelopes.
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Guidance Concerning Civilian Absentee and Mail-in Ballot Procedures, 9/28/2020, at 5,
8-9.
I. FACTUAL AND PROCEDURAL BACKGROUND
Pursuant to the General Assembly’s passage of Act 77 of 2019, voters in
Pennsylvania may cast their ballots in elections by absentee or no-excuse mail-in ballots.
To do so, they must submit applications to county boards of elections, and in connection
therewith must provide the address at which they are registered to vote. They must also
sign a declaration affirming, among other things, that they are “eligible to vote by mail-in
[or absentee] ballot at the forthcoming primary or election,” and that “all of the information”
supplied in the mail-in or absentee ballot application is “true and correct.” 25 P.S. §§
3150.12, 3146.2. Upon receipt of the application, the county board of elections must
confirm the elector’s qualifications and verify that the elector’s address on the application
matches the elector’s registration. Upon the county board of elections’ approval of the
application, the elector is provided with a ballot, an inner “secrecy envelope” into which
the ballot is to be placed, and an outer envelope into which the secrecy envelope is to be
placed and returned to the board. The outer envelope has pre-printed on it (1) a voter’s
declaration, (2) a label containing the voter’s name and address, and (3) a unique nine-
digit bar code that links the outer envelope to the voter’s registration file contained in the
Statewide Uniform Registry of Electors (“SURE”) system. After receiving the outer
envelope, the board of elections stamps the date of receipt on it and then scans the
unique nine-digit bar code, which links the voter’s ballot to his or her registration file.
The pre-canvassing or canvassing of absentee and mail-in ballots then proceeds
in accordance with the dictates of 25 P.S. § 3146.8(g)(3):
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When the county board meets to pre-canvass or canvass
absentee ballots and mail-in ballots under paragraphs (1),
(1.1) and (2), the board shall examine the declaration on the
envelope of each ballot not set aside under subsection (d) [a
voter who dies before the election] and shall compare the
information thereon with that contained in the "Registered
Absentee and Mail-in Voters File," the absentee voters' list
and/or the "Military Veterans and Emergency Civilians
Absentee Voters File," whichever is applicable. If the county
board has verified the proof of identification as required under
this act and is satisfied that the declaration is sufficient and
the information contained in the "Registered Absentee and
Mail-in Voters File," the absentee voters' list and/or the
"Military Veterans and Emergency Civilians Absentee Voters
File" verifies his right to vote, the county board shall provide a
list of the names of electors whose absentee ballots or mail-
in ballots are to be pre-canvassed or canvassed.
25 P.S. § 3146.8(g)(3).
Pursuant to this section, on November 9, 2020, the Philadelphia Board met to
determine whether ballots separated into nine categories were “sufficient” to be pre-
canvassed or canvassed. It concluded that four categories were not sufficient to be pre-
canvassed or canvassed: (1) 472 ballots where the outer envelope lacked a signature
and any other handwritten information; (2) 225 ballots where the outer envelope was not
signed by the voter; (3) 112 ballots where the individual who completed the declaration
appeared to be different from the individual who had been assigned the ballot; and (4)
4,027 ballots that were not submitted in a secrecy envelope.
In contrast, the Philadelphia Board approved as sufficient to be pre-canvassed or
canvassed the ballots in five categories: (1) 1,211 ballots that lacked a handwritten date,
address, and printed name on the back of the outer envelope (but were signed); (2) 1,259
ballots that lacked only a handwritten date on the back of the outer envelope (but were
signed and contained a handwritten name and address); (3) 533 ballots that lack only a
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handwritten name on the back of the outer envelope (but were signed and dated and
contained a handwritten address); (4) 860 ballots that lack only a handwritten address on
the back of the outer envelope (but were signed and dated and contained a handwritten
name); (5) 4,466 ballots that lack only a handwritten name and address on the back of
the outer envelope (but were signed and dated).
On November 10, 2020, the Campaign filed five pleadings entitled “Notice of
Appeal via Petition for Review of Decision by the Philadelphia County Board of Elections,”
one for each of the five categories referenced above that the Philadelphia Board approved
as sufficient to be pre-canvassed or canvassed. In each petition for review, the Campaign
alleged that this Court, in Pa. Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020),
declared that absentee and mail-in ballots cast in violation of the Election Code’s
mandatory requirements are void and cannot be counted. Petition for Review,
11/10/2020, ¶ 14. The Campaign further alleged that failures to include hand-written
names, addresses and dates constituted violations of mandatory obligations under
Sections 3146.6(a) and/or 3150.16(a) of the Election Code. Id. at 15-16. Accordingly,
the Campaign alleged that the Board’s decisions with respect to the absentee and mail-
in ballots in the above-referenced five categories were based on a clear error of law and
must be reversed. Id. at 32.
On November 13, 2020, Judge Crumlish held oral argument on the issues raised
in the Petition for Review. In response to questions from Judge Crumlish, counsel for the
Campaign agreed that the Petition for Review was “not proceeding based on allegations
of fraud or misconduct.” Transcript, 11/13/2020, at 13-14. She further agreed that the
Campaign was not challenging the eligibility of the 8,329 voters in question and did not
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contest either that all of the ballots at issue were signed by the voters or that they had
been timely received by the Board. Id. at 30-31, 37. Instead, she indicated that the
Campaign was “alleging that the ballots were not filled out correctly.” Id. at 14. Counsel
for the DNC1 argued that the failures to handwrite names, addresses and dates “are, at
most, minor technical irregularities that the Supreme Court of Pennsylvania has
repeatedly said do not warrant disenfranchisement.” Id. at 14. Counsel for the
Philadelphia Board added that the Election Code includes no provision requiring “absolute
technical perfection” when filling out the declaration on the outer envelope containing an
absentee or mail-in ballot. Id. at 38.
Later that same day, Judge Crumlish entered five orders affirming the Philadelphia
Board’s decision to count the contested ballots. In his orders, Judge Crumlish noted that
while the declaration contained a specific directive to the voter to sign the declaration, it
made no mention of filling out the date or other information. Trial Court Orders,
11/13/2020, ¶ 2. He further found that while the Election Code provides that while the
voter shall “fill out” and date the declaration, the term “‘fill out’ is not a defined term and is
ambiguous.” Id. at ¶ 4. He indicated that the outer envelope already contains a pre-
printed statement of the voter’s name and address, and that “[n]either a date nor the
elector’s filling out of the printed name or of the address are requirements necessary to
prevent fraud.” Id. at ¶ 5-6. Concluding that “[t]he Election Code directs the Court of
Common Pleas in considering appeals from the County Board of Elections to make such
1 DNA Services Corp./Democratic National Committee (hereinafter “DNC”) intervened in
the proceedings before the trial court.
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decree as right and justice may require[,]” id. at ¶ 8 (quoting 25 P.S. § 3157), Judge
Crumlish upheld the decision of the Philadelphia Board.
The Campaign filed appeals from Judge Crumlish’s orders in the Commonwealth
Court on November 14, 2020, and the next day the Commonwealth Court issued an order
consolidating the five appeals and setting an expedited briefing schedule. On November
17, 2020, the Philadelphia Board filed an application with this Court to exercise its
extraordinary jurisdiction, 42 Pa.C.S. § 726, over the consolidated appeals, which we
granted by order dated November 18, 2020.
In our order granting the Philadelphia Board’s application for the exercise of
extraordinary jurisdiction, we stated the issue to be decided as follows:
Does the Election Code require county boards of elections to
disqualify mail-in or absentee ballots submitted by qualified
electors who signed their ballot’s outer envelopes but did not
handwrite their name, their address, and/or a date, where no
fraud or irregularity has been alleged?
On November 10, 2020, the Allegheny County Board decided to canvass 2,349
mail-in ballots that contained a signed but undated declaration. Ziccarelli challenged the
decision in an appeal to the court of common pleas ultimately heard and decided by the
Honorable Joseph James. It was not disputed that all 2,349 voters signed and printed
their name and address on the outer envelopes and returned the ballots to the Allegheny
County Board on time. Each of the ballots was processed in the Statewide Uniform
Registry of Electors (“SURE”) system and was time-stamped when it was delivered to the
Allegheny County Board on or before November 3, 2020. At a hearing, via Microsoft
Teams, on November 17, 2020, the Democratic Party and James Brewster (Ziccarelli’s
opponent in the 45th Senatorial District race) moved to intervene, which motion was
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granted. At the hearing, Ziccarelli stated that she was not claiming voter fraud regarding
the challenged ballots.
In an opinion and order dated November 18, 2020, Judge James affirmed the
Allegheny County Board’s decision to count the ballots. He concluded that the date
provision in Section 3150.16(a) is directory, not mandatory, and that “ballots containing
mere minor irregularities should only be stricken for compelling reasons,” citing
Shambach v. Shambach, 845 A.2d 793, 798 (Pa. 2004). Noting that the ballots were
processed in the SURE system and time-stamped when delivered to the Allegheny
County Board, he found that the technical omission of the handwritten date on a ballot
was a minor technical defect and did not render the ballot deficient.
Ziccarelli immediately appealed Judge James’ decision to the Commonwealth
Court and contemporaneously filed an application to this Court requesting our exercise
of extraordinary jurisdiction, noting that the issue presented was accepted by this Court
as part of the Philadelphia Board appeals. While the application was pending, the
Commonwealth Court ordered expedited briefing and on November 19, 2020, issued an
opinion and order reversing the Court of Common Pleas of Allegheny County and
remanded. In Re: 2,349 Ballots in the 2020 General Election; Appeal of: Nicole Ziccarelli,
__ A.3d __, 1162 C.D. 2020 (Commw. Ct. 2020). Ziccarelli then withdrew her application
for extraordinary jurisdiction.
On November 20, 2020, this Court granted the Allegheny County Board’s Petition
for Allowance of Appeal limited to the question of whether the ballots contained in undated
but signed outer envelopes should be invalidated. The opinion of the Commonwealth
[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-
2020] - 16
Court will be discussed, as necessary, in the analysis that follows. The order was stayed
pending our disposition of these consolidated cases.
The pertinent scope and standard of review follow: the Court of Common Pleas’
decision is reviewed on appeal “to determine whether the findings are supported by
competent evidence and to correct any conclusions of law erroneously made.” In re
Reading Sch. Bd. of Election, 634 A.2d 170, 171–72 (Pa. 1993). The Court of Common
Pleas, in turn, could reverse the Philadelphia Board’s decision only for an abuse of
discretion or error of law. See Appeal of McCracken, 88 A.2d 787, 788 (Pa. 1952). As
the issue involves the proper interpretation of the Election Code, it presents a question of
law and our standard of review is de novo and our scope of review is plenary. See, e.g.,
Banfield v. Cortés, 110 A.3d 155, 166 (Pa. 2015).
II. ARGUMENTS OF THE PARTIES
Although more fully developed in our analysis set forth later in this opinion, we here
briefly summarize the arguments of the parties and intervenors.
The Campaign argues that the General Assembly set forth in the Election Code
the requirements for how a qualified elector can cast a valid absentee or mail-in ballot.
Campaign’s Brief at 22. One of those requirements is for each elector to “fill out, date,
and sign” the declaration on the Outside Envelope. Id. (citing 25 P.S. §§ 3146.6(a) and
3150.16(a)). According to the Campaign, this Court has repeatedly ruled that the
requirements of the sections of Election Code relevant here impose mandatory
obligations, and that ballots cast in contravention of the these requirements are void and
cannot be counted. Id. at 23. As a result, the Campaign insists that the trial court erred
[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-
2020] - 17
in affirming the Board’s decision to count the 8,329 non-conforming absentee and mail-in
ballots. Id.
The Philadelphia Board, conversely, contends that the Election Code does not
require the Philadelphia Board to set aside timely-filed ballots by qualified electors that
are merely missing handwritten names, street addresses, and/or dates on the signed
voter declaration. Philadelphia Board’s Brief at 12. Contrary to the Campaign’s
contention that the provisions of the Election Code at issue here impose exclusively
mandatory requirements, the Philadelphia Board argues that Pennsylvania courts have
long held that minor errors or omissions should not result in disenfranchisement,
particularly in cases where the errors or omissions do not implicate the board’s ability to
ascertain the voter’s right to vote or the secrecy or sanctity of the ballot. Id. Here, the
Philadelphia Board notes that the Campaign does not allege that the voters at issue here
were not qualified to vote and have not asserted that any fraud or other impropriety has
occurred. Id. As such, it concludes that it acted properly and within its discretion in
determining that these omissions were not a basis for setting aside those ballots. Id.
The DNC largely concurs with the Philadelphia Board’s arguments, indicating that
there is no statutory requirement that voters print their full name or address on the outer
envelopes and that adding a date to the envelope serves no compelling purpose. DNC’s
Brief at 9-10.
Ziccarelli argues further that, in regard to outer envelopes not containing a voter-
supplied date, this Court’s opinion in In Re: Nov. 3, 2020 General Election, No. 149 MM
2020, 2020 WL 6252803 (Pa. Oct. 23, 2020) definitively speaks to the mandatory nature
of the date requirement and, without much extrapolation, requires that such ballots not be
[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-
2020] - 18
counted. The Allegheny County Board agrees with its Philadelphia counterpart. It
counters Ziccarelli’s reliance on In Re Nov. 3, 2020 General Election by noting that
Ziccarelli’s challenge to the ballots for lack of a date is based on the premise that the date
is essential to the validity of the signature. Allegheny County Board points out this is the
precise type of challenge that was disavowed in the case upon which Ziccarelli relies.
III. ANALYSIS
We begin by recognizing from the outset that it is the “longstanding and overriding
policy in this Commonwealth to protect the elective franchise.” Shambach v. Birkhart,
845 A.2d 793, 798 (Pa. 2004). “The Election Code must be liberally construed so as not
to deprive ... the voters of their right to elect a candidate of their choice.” Ross Nomination
Petition, 190 A.2d 719, 719 (Pa. 1963). It is therefore a well-settled principle of
Pennsylvania election law that “[e]very rationalization within the realm of common sense
should aim at saving the ballot rather than voiding it.” Appeal of Norwood, 116 A.2d 552,
554–55 (Pa. 1955). It is likewise settled that imbedded in the Election Code is the General
Assembly’s intent to protect voter privacy in her candidate choice based on Article VII,
Section 4 of the Pennsylvania Constitution and to prevent fraud and to otherwise ensure
the integrity of the voting process.
We agree with the Campaign’s observation that in Sections 3146.6(a) and
3150.16(a), the General Assembly set forth the requirements for how a qualified elector
may cast a valid absentee or mail-in ballot. Campaign’s Brief at 22. We further agree
that these sections of the Election Code specifically provide that each voter “shall fill out,
date, and sign” the declaration on the outside envelope. Id. We do not agree with the
Campaign’s contention, however, that because the General Assembly used the word
[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-
2020] - 19
“shall” in this context, it is of necessity that the directive is a mandatory one, such that a
failure to comply with any part of it requires a board of elections to declare the ballot void
and that it cannot be counted. It has long been part of the jurisprudence of this
Commonwealth that the use of “shall” in a statute is not always indicative of a mandatory
directive; in some instances, it is to be interpreted as merely directory. See, e.g.,
Commonwealth v. Baker, 690 A.2d 164, 167 (Pa. 1997) (citing Fishkin v. Hi–Acres, Inc.,
341 A.2d 95 (Pa. 1975)); see also Commonwealth ex rel. Bell v. Powell, 94 A. 746, 748
(Pa. 1915) (quoting Bladen v. Philadelphia, 60 Pa. 464, 466 (1869) (“It would not perhaps
be easy to lay down any general rule as to when the provisions of a statute are merely
directory, and when mandatory and imperative.”)). The Campaign’s reliance on this
Court’s recent decision in Pa. Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020) for
the proposition it asserts is misplaced.
In Pa. Democratic Party, we held that the requirement in Section 3150.16(a) that
a mail-in voter place his or her ballot in the inner secrecy envelope was a mandatory
requirement and thus a voter’s failure to comply rendered the ballot void. Pa. Democratic
Party, 238 A.3d at 380. In concluding that the use of the secrecy envelope was a
mandatory, rather than a discretionary directive, we reviewed our prior decisions on the
distinction between mandatory and discretionary provisions in the Election Code,
including Shambach v. Bickhart, 845 A.2d 793 (Pa. 2004), In re Luzerne County Return
Board, Appeal of Elmer B. Weiskerger, 290 A.2d 108 (Pa. 1972), and In re Canvass of
Absentee Ballots of Nov. 4, 2003 Gen. Election, Appeal of John Pierce, 843 A.2d 1223(Pa. 2004).
[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-
2020] - 20
In Shambach, the Court declined to invalidate a write-in vote cast for a candidate
who was named on the ballot, in direct violation of the Election Code’s instruction that a
voter could only write in a person’s name if the name of said individual was “not already
printed on the ballot for that office.” Shambach, 845 A.2d at 795. In reaching that
conclusion, the Court observed that “[m]arking a ballot is an imprecise process, the focus
of which is upon the unmistakable registration of the voter's will in substantial conformity
to the statutory requirements.” Id. at 799 (quoting Appeal of Gallagher, 41 A.2d 630, 632
(Pa 1945)).
In Weiskerger, this Court refused to invalidate a ballot based upon the “minor
irregularity” that it was completed in the wrong color of ink. The provision of the Election
Code in question provided that “‘[a]ny ballot that is marked in blue, black or blue-black ink
... shall be valid and counted.” Weiskerger, 290 A.2d at 109 (citing 25 P.S. § 3063). In
providing that ballots completed in the right color must be counted, we noted that the
General Assembly “neither stated nor implied that ballots completed in a different color
must not be counted.” Id. We thus treated the instruction to use blue, black or blue-black
ink as merely directory.
In Pa. Democratic Party, we compared these cases to our decision in In re
Canvass of Absentee Ballots of Nov. 4, 2003 Gen. Election, Appeal of John Pierce, 843
A.2d 1223 (Pa. 2004), where we held that the Election Code's “in-person” ballot delivery
requirement, see 25 P.S. § 3146.6, was mandatory, and that votes delivered by third
persons must not be counted. Appeal of Pierce, 843 A.2d at 1231. There, we recognized
that the in-person requirement served important purposes in the Election Code, including
“limit[ing] the number of third persons who unnecessarily come in contact with the ballot[,]
[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-
2020] - 21
... provid[ing] some safeguard that the ballot was filled out by the actual voter, ... and that
once the ballot has been marked by the actual voter in secret, no other person has the
opportunity to tamper with it.” Id. at 1232. We thus explained in Pa. Democratic Party
that “the clear thrust of Appeal of Pierce, … is that, even absent an express sanction,
where legislative intent is clear and supported by a weighty interest like fraud prevention,
it would be unreasonable to render such a concrete provision ineffective for want of
deterrent or enforcement mechanism.” Pa. Democratic Party, 238 A.3d at 380 (citing
Appeal of Pierce, 843 A.2d at 1232).
Based upon this comparison between Shambach, Weiskerger and Appeal of
Pierce, in Pa. Democratic Party we determined that the decision in Appeal of Pierce
provided the appropriate guidance for the analysis of the secrecy envelope requirement.
We held that “[i]t is clear that the Legislature believed that an orderly canvass of mail-in
ballots required the completion of two discrete steps before critical identifying information
on the ballot could be revealed. The omission of a secrecy envelope defeats this
intention.” Pa. Democratic Party, 238 A.3d at 380. Unlike in Shambach and Weiskerger
which involved “minor irregularities,” the use of a secrecy envelope implicated a “weighty
interest,” namely secrecy in voting protected expressly by Article VII, Section 4 of our
state charter. Id. As such, we recognized the use of a secrecy envelope as a mandatory
requirement and that failures to comply with the requirement required that the ballot must
be disqualified.” Id.; see also id. at 378 (quoting JPay, Inc. v. Dep’t of Corr. & Governor’s
Office of Admin., 89 A.3d 756, 763 (Pa. Commw. 2014) (“While both mandatory and
directory provisions of the Legislature are meant to be followed, the difference between
a mandatory and directory provision is the consequence for non-compliance: a failure to
[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-
2020] - 22
strictly adhere to the requirements of a directory statute will not nullify the validity of the
action involved.”)).
To determine whether the Election Code’s directive that the voter handwrite their
names, address and the date of signing the voter declaration on the back of the outer
envelope is a mandatory or directory instruction requires us to determine whether the
intent of the General Assembly was clear and whether the failure to handwrite the
information constitutes “minor irregularities” or instead represent “weighty interests,” like
fraud prevention or ballot secrecy that the General Assembly considered to be critical to
the integrity of the election.
(1) Failures to include handwritten names and addresses
Beginning with the Campaign’s contention that ballots may not be counted if a
voter fails to handwrite their name and/or address under the full paragraph of the
declaration on the back of the outer envelope, we conclude that given the factual record
in this case and the mechanics of the pre-canvassing and canvassing procedures
including the incorporation of reliance on the SURE system, this “requirement” is, at best,
a “minor irregularity” and, at worst, entirely immaterial. More to the point, the direction to
the voter to provide a handwritten name and/or address is not only not mandatory, it is
not a directive expressed in the Election Code. Thus, these directions do not meet the
first prong of the test used in Pa. Democratic Party: the clear intent of the General
Assembly.
The Election Code does not require that the outer envelope declaration include a
handwritten name or address at all. Instead, Sections 3146.4 (absentee) and 3150.14(b)
(mail-in) provide only that the declaration must include “a statement of the elector's
[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-
2020] - 23
qualifications, together with a statement that the elector has not already voted in the
primary or election.” 25 P.S. §§ 3146.4, 3150.14(b). Aside from this information (none
of which is relevant to the present issue), the General Assembly delegated to the
Secretary of the Commonwealth the obligation to prescribe the form of declaration and
envelope for absentee and mail-in ballots, presumably to allow the inclusion of information
that would be helpful for administrative or processing purposes. Id.2 As such, 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. Moreover, the
Campaign does not argue that the Secretary’s request for handwritten names and
addresses implicated any “weighty interests” that would compel a finding that the request
to provide them constituted a mandatory requirement.3
2 None of the parties have challenged whether these provisions constituted improper
delegations of legislative authority. Protz v. Workers’ Compensation Appeal Board (Derry
Area School District), 161 A.3d 827 (Pa. 2017).
3 Conversely, the Philadelphia Board and the DNC have both selectively relied upon
guidance provided by the Secretary to the county boards of election that indicated that a
voter’s failure to handwrite his/her name and address was not a ground to set the ballot
aside. Philadelphia Board’s Brief at 19; DNC’s Brief at 15. They have directed the Court
to the Guidance published on September 11, 2020, in which the Secretary advised that
“[i]f the Voter’s Declaration on the return envelope is signed and the county board is
satisfied that the declaration is sufficient, the mail-in or absentee ballot should be
approved for canvassing.” Guidance, 9/11/2020, at 3. As discussed infra at n.6, however,
on September 28, 2020 the Secretary issued arguably contrary guidance stating that “[a]
ballot‐return envelope with a declaration that is not filled out, dated, and signed is not
sufficient and must be set aside, declared void and may not be counted.” Guidance,
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2020] - 24
The Campaign argues that we should read the “handprinted name and address”
requirement into the directives in Section 3146.6(a) and 3150.16(a) that the voter “fill out”
the declaration. Campaign’s Brief at 30. Citing to dictionary definitions, the Campaign
contends that “fill out” means “to write or type information in spaces that are provided for
it.” Id. at 32. Because 8,349 voters did not “fill out” one or more spaces provided on the
outer envelope provided in the declaration (including the voter’s name and/or address),
the Campaign argues that those ballots were non-conforming and could not be counted.
Id. at 29. The directive to “fill out” does not give any legislative definition to the specific
information to be placed in the blank spaces. It is the weight of the information that must
be tested in the analysis. As stated, since the General Assembly did not choose the
information to be provided, its omission is merely a technical defect and does not
invalidate the ballot.
Further, as Judge Crumlish observed, the term “fill out” is ambiguous.4 Trial Court
Opinion, 11/13/2020, ¶ 4. As Judge Crumlish recognized, the term “fill out” is not a
defined term under the Election Code. Id. Moreover, and contrary to the Campaign’s
contention that no alternative understanding of the term “fill out” has been proffered, the
Campaign has failed to recognize, the voter’s name and address are already on the
back of the outer envelope on a pre-printed label affixed no more than one inch
9/28/20, at 9. Confusingly, she also incorporated by reference the September 11, 2020
Guidance. Both sets of Guidance are set forth on pages 8-10 supra.
4 Where an election statute is ambiguous, courts apply the interpretative principle that
that “election laws ... ordinarily will be construed liberally in favor of the right to vote.” Pa.
Democratic Party, 238 A.3d at 360–61.
[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-
2020] - 25
from the declaration itself. 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.5 To add further confusion,
the declaration itself can be read to refer to the label: “I hereby declare that I am qualified
to vote from the below stated address” can be read to mean the address as already stated
on the label.
The text of the Election Code provides additional evidence of the directory nature
of the provisions at issue. With regard to individuals who are not able to sign their name
due to illness or physical disability, the General Assembly imposed a requirement that the
declarant provide his or her “complete address.” 25 P.S. § 3146.6(a)(3); 25 P.S. §
5 The DNC argues, with some persuasive force, that the Campaign’s requested
interpretation of Pennsylvania’s Election Code could lead to a violation of federal law by
asking the state to deny the right to vote for immaterial reasons. Nobody acting under
color of state law may deny anyone the right to vote “in any election because of an error
or omission on any record or paper relating to any application, registration, or other act
requisite to voting, if such error or omission is not material in determining whether such
individual is qualified under State law to vote in such election.” 52 U.S.C. §
10101(a)(2)(B).
Under this section, the so-called “materiality provision” of the Voting Rights Act, federal
courts have barred the enforcement of similar administrative requirements to disqualify
electors. See, e.g., Schwier v. Cox, 340 F.3d 1284 (11th Cir. 2003) (disclosure of voter’s
social security number is not “material” in determining whether a person is qualified to
vote under Georgia law for purposes of the Voting Rights Act); Washington Ass'n of
Churches v. Reed, 492 F.Supp.2d 1264 (W.D. Wash. 2006) (enjoining enforcement of
“matching” statute, requiring state to match potential voter's name to Social Security
Administration or Department of Licensing database, because failure to match applicant's
information was not material to determining qualification to vote); Martin v. Crittenden,
347 F.Supp.3d 1302 (N.D. Ga. 2018), reconsideration denied, 1:18-CV-4776-LMM, 2018
WL 9943564 (N.D. Ga. Nov. 15, 2018) (voter’s ability to correctly recite his or her year of
birth on absentee ballot envelope was not material to determining said voter's
qualifications).
[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-
2020] - 26
3150.16(a.1). These provisions demonstrate that the General Assembly clearly knew
how to impose such a requirement when it wishes to do so. In re Nov. 3, 2020 Gen.
Election, __ A.3d __, 2020 WL 6252803, at *14 (Pa. 2020) (stating that the General
Assembly’s prior inclusion of a signature comparison requirement demonstrated that “it
understands how to craft language requiring signature comparisons at canvassing when
it chooses to do so”). Moreover, Sections 3146.6(a)(3) and 3150.16(a.1) contain a
precise form of declaration, crafted by the General Assembly, pertaining to voters with
disabilities evidencing the General Assembly’s understanding of how to mandate a
precise declaration without resort to delegating non-essential information to the
Secretary.
Finally, the text of the Election Code further demonstrates the lack of any need for
handwritten names and addresses. Section 3146.8(g)(3), which relates to the canvassing
of official absentee ballots and mail-in ballots, provides, in relevant part:
When the county board meets to pre-canvass or canvass
absentee ballots and mail-in ballots under paragraphs (1),
(1.1) and (2), the board shall examine the declaration on the
envelope of each ballot not set aside under subsection (d) [a
voter who dies before the election] and shall compare the
information thereon with that contained in the "Registered
Absentee and Mail-in Voters File," the absentee voters' list
and/or the "Military Veterans and Emergency Civilians
Absentee Voters File," whichever is applicable.
25 P.S. § 3146.8(g)(3). The county board of elections’ duty to keep a “Military Veterans
and Emergency Civilians Absentee Voters File," which is not relevant to the current
dispute, is governed by 25 P.S. § 3146.2c(b). Section 3146.2c(a) previously housed the
board’s duty to keep a "Registered Absentee and Mail-in Voters File." However, the
General Assembly recently eliminated this directive. See 2020, March 27, P.L. 41, No.
[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-
2020] - 27
12, § 8, imd. effective (deleting subsection (a), which required county board of elections
to maintain at its office “a file containing the duplicate absentee voter's temporary
registration cards of every registered elector to whom an absentee ballot has been sent”).
By virtue of this amendment, the General Assembly eliminated one of the reference points
that still appear in Section 3146.8(g)(3). The current Section 3146.2c(c) directs the
county board to maintain the “the absentee voters' list” referenced in Section 3146.8(g)(3).
The General Assembly also amended Section 3146.2c(c), which previously only directed
the chief clerk to “prepare a list for each election district showing the names and post
office addresses of all voting residents thereof to whom official absentee ballots shall have
been issued,” to include such voting residents who were issued mail-in ballots. See 2019,
Oct. 31, P.L. 552, No. 77, § 5.1, imd. effective (inserting “or mail-in” twice in subsection
(c)).
As such, as relevant for our purposes, Section 3146.8(g)(3) directs that “the board
shall examine the declaration on the envelope of each ballot not set aside under
subsection (d) [a voter who dies before the election] and shall compare the information
thereon with that contained in the … the absentee voters’ list,” which, pursuant to Section
3146.2c(c), now also contains voters who received mail-in ballots. A close reading of the
language chosen by the General Assembly here is telling. Section 3146.8(g)(3) directs
the board to “examine the declaration on the envelope” and “compare the information
thereon” to the absentee (and mail-in) voters’ list. 25 P.S. § 3146.8(g)(3) (emphasis
added). Reading these phrases together, it is clear that the General Assembly intended
that the information to be compared to the absentee (and mail-in) voters’ list is the
information on the outer envelope which includes the pre-printed name and address. If
[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-
2020] - 28
the General Assembly intended for the information written by the voter to be compared to
the absentee voters’ list, it would have used the term “therein,” thus directing the board
to compare the information contained “within” the declaration (the handwritten name and
address).
The following sentence in this section further suggests that the General Assembly
intended such bifurcation. Section 3146.8(g)(3) next states:
If the county board has verified the proof of identification as
required under this act and is satisfied that the declaration is
sufficient and the information contained in the … the absentee
voters' list … verifies his right to vote, the county board shall
provide a list of the names of electors whose absentee ballots
or mail-in ballots are to be pre-canvassed or canvassed.
25 P.S. § 3146.8(g)(3). Here, the board is directed to consider whether the declaration
is sufficient (i.e., the examination contained in the previous sentence) and also ensure
that the absentee voters' list confirms the voter’s right to vote (i.e., the comparison of the
printed information to the relevant list from the prior sentence).
(2) Failures to include dates
Both the Campaign and Ziccarelli argue that the requirement to state the date on
which declaration was signed is a mandatory obligation requiring disenfranchisement for
lack of compliance. We disagree, as we conclude that dating the declaration is a
directory, rather than a mandatory, instruction, and thus the inadvertent failure to comply
does not require that ballots lacking a date be excluded from counting. As reviewed
hereinabove, in our recent decision in Pa. Democratic Party, we reiterated that the
distinction between directory and mandatory instructions applies with respect to a voter’s
obligations under the Election Code, and that only failures to comply with mandatory
[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-
2020] - 29
obligations, which implicate both legislative intent and “weighty interests” in the election
process, like ballot confidentiality or fraud prevention, will require disqualification. Pa.
Democratic Party, 238 A.3d at 379-80.
The Commonwealth Court and Ziccarelli relied upon the Election Code’s use of
the of “shall … date” language in construing the date obligation as mandatory. In Re:
2,349 Ballots in the 2020 General Election, Appeal of: Nicole Ziccarelli, __ A.3d __, 1162
C.D. 2020, 10 (Pa. Comm. 2020). Although unlike the handwritten name and address,
which are not mentioned in the statute, the inclusion of the word “date” in the statute does
not change the analysis because the word “shall” is not determinative as to whether the
obligation is mandatory or directive in nature. That distinction turns on whether the
obligation carries “weighty interests.” 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. Every one of the 8,329 ballots challenged in Philadelphia County,
as well as all of the 2,349 ballots at issue in Allegheny County, were received by the
boards of elections by 8:00 p.m. on Election Day, so there is no danger that any of these
ballots was untimely or fraudulently back-dated. Moreover, in all cases, the receipt date
of the ballots is verifiable, as upon receipt of the ballot, the county board stamps the date
of receipt on the ballot-return and records the date the ballot is received in the SURE
system. The date stamp and the SURE system provide a clear and objective indicator of
timeliness, making any handwritten date unnecessary and, indeed, superflous.
Ziccarelli offers two alternative “weighty interests” for our consideration. She first
contends that the date on which the declaration was signed may reflect whether the
[J-118A-2020, J-118B-2020, J-118C-2020, J-118D-2020, J-118E-2020 and J-118F-
2020] - 30
person is a “qualified elector” entitled to vote in a particular election. Pursuant to Section
3150.12b (entitled “Approval of application for mail-in ballot”), a board of elections may
have determined that the person was a qualified elector and thus entitled to receive a
mail-in ballot. Pursuant to Section 2811, however, to be a qualified elector, “[h]e or she
shall have resided in the election district where he or she shall offer to vote at least thirty
days immediately preceding the election, except that if qualified to vote in an election
district prior to removal of residence, he or she may, if a resident of Pennsylvania, vote in
the election district from which he or she removed his or her residence within thirty days
preceding the election.” 25 P.S. § 2811. As a result, Ziccarelli contends that the person
may have been qualified to vote in a particular voting district at the time of applying for a
mail-in ballot, but no longer a qualified elector in that voting district on Election Day.
Ziccarelli’s Brief at 16.
This unlikely hypothetical scenario is not evidence of a “weighty interest” in the
date on the document for assuring the integrity of Pennsylvania’s system for administering
mail-in voting. Among other things, the canvassing statute, 25 P.S. § 3146.8(g)(3), directs
the board to examine the declaration on the envelope of each ballot and compare the
information thereon with that contained in the now defunct "Registered Absentee and
Mail-in Voters File." See discussion supra pp. 27-29. The date of signing the declaration
will not be of any benefit in performing this task, as the name of the voter at issue will be
on this list (as a result of his or her approval to receive a mail-in ballot), and the date of
signing will provide no information with respect to whether or not he or she has left the
voting district in the interim. Most critically, our current statutory framework includes no
requirement that a county board of elections investigate whether an individual who had
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been confirmed as a qualified elector at the time of approval to receive a mail-in ballot
remains as a qualified elector on Election Day. If the General Assembly had so intended,
it would certainly have expressly stated it, as opposed to nebulously tucking such an
unprecedented requirement into the instructions to the Secretary for designing the
declaration.
Second, Ziccarelli argues that the date of signature of the declaration will serve to
prevent double voting, as “whether an elector has already voted in the election for which
the ballot is issued, by its very nature, depends on the date on which the declaration was
signed.” Ziccarelli’s Brief at 16. Boards of elections do not use signatures or any
handwritten information to prevent double voting. Duplicate voting is detected by the use
of bar codes through the SURE system, and the board identifies the earlier cast vote by
referencing the date it received the ballot, not the date on which the declaration was
signed.
Ziccarelli and the Commonwealth Court insist that this Court “has already held that
mail-in ballots with undated declarations are not ‘sufficient’ and, thus, must be set aside.”
Ziccarelli’s Brief at 9; In Re: 2,349 Ballots in the 2020 General Election, 1162 C.D. 2020,
at 10. In support of this contention, they reference an observation in our recent decision
in In re November 3, 2020 General Election, __ A.3d __, 2020 WL 6252803 (Pa. 2020),
that when assessing the sufficiency of a voter’s declaration, “the county board is required
to ascertain whether the return envelope has been filled out, dated, and signed – and if it
fails to do so then the ballot cannot be designated as “sufficient” and must be set aside.6
6 In her brief, Ziccarelli cites to the Guidance distributed by the Secretary of the
Commonwealth on September 28, 2020 to the county boards of elections, advising that
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Id. at *12-13. This statement is being taken out of context. Our statement in 2020 General
Election was in reference to the limitations on what an election board is directed by the
statute to do when assessing the sufficiency of a voter’s declaration for the express
purpose of indicating what they were not to do, i.e., signature comparisons. The question
in In Re: Nov. 3, 2020 General Election was a narrow one. We did not address (as it was
not at issue) whether a county board of elections could find a declaration as sufficient
even though it was undated. That question requires an entirely different analysis that
“[a] ballot‐return envelope with a declaration that is not filled out, dated, and signed is not
sufficient and must be set aside, declared void and may not be counted.” As noted in
footnote 3 supra, however, the Secretary also issued Guidance on September 11, 2020,
which was cited with approval by the Philadelphia Board and the DNC. No party
referenced both sets of Guidance, however, even though the September 28 Guidance
incorporated the September 11 Guidance. See Guidance, 9/28/2020, at 9 (“For more
information about the examination of return envelopes, please refer to the Department’s
September 11, 2020 Guidance Concerning Examination of Absentee and Mail‐in Ballot
Return Envelopes.”).
In any event, we will not consider this Guidance in making our decision. Neither of the
parties explain how the potentially contradictory directives are to be understood. More
importantly, the Secretary has no authority to definitively interpret the provisions of the
Election Code, as that is the function, ultimately, of this Court. The Secretary also clearly
has no authority to declare ballots null and void. “[I]t is the Election Code's express terms
that control, not the written guidance provided by the Department and as this Court
repeatedly has cautioned, even erroneous guidance from the Department or county
boards of elections cannot nullify the express provisions of the Election Code.” In re
Scroggin, 237 A.3d 1006, 1021 (Pa. 2020). Moreover, the Secretary has no authority to
order the sixty-seven county boards of election to take any particular actions with respect
to the receipt of ballots. 25 P.S. § 2621(f.2).
Finally, with respect to the September 28 Guidance indicating that undated ballots must
be set aside, we note that in addition to the Philadelphia and Allegheny County Boards,
at least two other boards of elections also did not follow it. Donald J. Trump for President
Inc. v. Bucks Cnty. Bd. of Elections, No. 2020-05786 (Bucks Cty. Ct. Com. Pl.); Donald
J. Trump for President, Inc., et al. v. Montgomery Cnty. Bd. of Elections, No. 2020-18680
(Nov. 13, 2020). Both the Bucks County and Montgomery County Courts of Common
Pleas affirmed the counting of the ballots even though the declarations had not been filled
out in full. Each of the courts of common pleas appropriately applied this Court’s
precedent in doing so.
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depends in significant part on whether dating was a mandatory, as opposed to a directive,
requirement. We have conducted that analysis here and we hold that a signed but
undated declaration is sufficient and does not implicate any weighty interest. Hence, the
lack of a handwritten date cannot result in vote disqualification.
IV. CONCLUSION
As we recognized in Pa. Democratic Party, “while both mandatory and directory
provisions of the Legislature are meant to be followed, the difference between a
mandatory and directory provision is the consequence for non-compliance: a failure to
strictly adhere to the requirements of a directory statute will not nullify the validity of the
action involved.” Pa. Democratic Party, 238 A.3d at 378. Here we conclude that while
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.
As we acknowledged in Shambach, “ballots containing mere minor irregularities should
only be stricken for compelling reasons.” Shambach, 845 A.2d at 799; see also Appeal
of Gallagher, 41 A.2d 630, 632 (Pa. 1945) (“[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.”). Having found no compelling reasons to do so, we decline to
intercede in the counting of the votes at issue in these appeals.
The decision of the Philadelphia Court of Common Pleas is hereby affirmed. The
decision of the Commonwealth Court is hereby reversed and the decision of the
Allegheny County Court of Common Pleas is reinstated.
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Justices Baer and Todd join the opinion.
Justice Wecht concurs in the result and files a concurring and dissenting opinion.
Justice Dougherty files a concurring and dissenting opinion in which Chief Justice
Saylor and Justice Mundy join.
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