Senator Jay Costa, Pa. 43rd District v. Secretary Pedro A. Cortes

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Senator Jay Costa, Pa. 43rd District, :
Senator Daylin Leach, Pa. 17th District, :
in their Official Capacities, and :
Senator Christine M. Tartaglione, :
Pa. 2nd District, in her Official Capacity :
and individually on behalf of :
qualified electors in the :
Commonwealth of Pennsylvania, :
Petitioners :
:
v. : No. 251 M.D. 2016
: Heard: April 19, 2016
Secretary Pedro A. Cortes, :
Senator Joseph B. Scarnati, :
Pa. 25th District, and :
Senator Jacob Corman III, :
Pa. 34th District, each in their :
Official Capacities, :
Respondents :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION FILED: April 20, 2016
BY JUDGE BROBSON
Presently before the Court for disposition is the application of the
Honorable Jay Costa, the Honorable Daylin Leach, and the Honorable Christine M.
Tartaglione, duly-elected members of the Pennsylvania Senate (Petitioners), for
special relief in the nature of a preliminary injunction. In their application,
Petitioners ask that this Court enjoin preliminarily the Secretary of the
Commonwealth, the Honorable Pedro A. Cortes (Secretary), from implementing
House Resolution 783 (“H.R. 783”). H.R. 783 is a concurrent resolution adopted
by majority votes in both the Pennsylvania House of Representatives, on April 6,
2016, and the Pennsylvania Senate, on April 11, 2016. Among other things,
H.R. 783 purports to remove “Proposed Constitutional Amendment 1” from the
April 26, 2016 General Primary Election ballot (April 2016 Ballot) and place the
same on the November 8, 2016 General Election ballot (November 2016 Ballot).
Proposed Constitutional Amendment 1, if approved by electors, would amend
section 16(b) of Article V of the Pennsylvania Constitution to provide that
Pennsylvania justices, judges, and magisterial district judges be retired on the last
day of the calendar year in which they attain the age of 75.1
This case does not concern legal validity of the processes and
procedures followed by the General Assembly, the Secretary, and the Attorney
General of Pennsylvania in securing Proposed Constitutional Amendment 1’s place
on the April 2016 Ballot.2 Instead, Petitioners have commenced this action in this
Court’s original jurisdiction to challenge the legal validity of H.R. 783, the
operative clauses of which provide:
RESOLVED (the Senate concurring), That the
Secretary of the Commonwealth remove the ballot
question for Proposed Constitutional Amendment 1 from
the ballot certification for the primary election on
April 26, 2016; and it further
RESOLVED, That the county boards of election
remove, to the extent possible, the ballot question for
Proposed Constitutional Amendment 1 from the ballot;
and be it further
1
Section 16(b) of Article V of the Pennsylvania Constitution currently provides that
Pennsylvania justices, judges, and magisterial district judges be retired on the last day of the
calendar year in which they attain the age of 70.
2
“There is no question that all constitutional and statutory requirements for placing the
proposed amendment on the primary ballot were followed.” (Petition for Review at 2.)
2
RESOLVED, That the [S]ecretary disregard any
vote on Proposed Constitutional Amendment 1 in the
primary election on April 26, 2016, and the [S]ecretary
not make a tally of votes cast on Proposed Constitutional
Amendment 1, and be it further
RESOLVED, That the General Assembly direct
the [S]ecretary to place Proposed Constitutional
Amendment 1 on the ballot for the general election on
November 8, 2016, in the following form:
Shall the Pennsylvania Constitution be
amended to require that justices of the
Supreme Court, judges, and magisterial
district judges be retired on the last day of
the calendar year in which they attain the
age of 75 years?;
and be it further
RESOLVED, That, to ensure compliance with
section 1 of Article XI of the Constitution of
Pennsylvania, the General Assembly direct the secretary
to publish the ballot question for Proposed Constitutional
Amendment 1 as revised along with the proposed
amendment and the plain English statement previously
prepared by the Office of Attorney General, in each of
the three months prior to the general election on
November 8, 2016; and be it further
RESOLVED, That, upon passage by a majority of
both houses of the General Assembly, this concurrent
resolution be transmitted to the Secretary of the
Commonwealth for implementation.
In Count I of their Petition for Review, Petitioners contend that
H.R. 783 unconstitutionally infringes on the rights of qualified electors who have
or will cast their votes in the April 2016 General Primary Election by absentee
ballot. Petitioners contend the right infringed is the right to have one’s vote
counted: “Qualified electors who have so far cast absentee ballots are entitled to
have their votes counted no less than if they had voted at their polling location. . . .
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Absentee voters who have not yet cast their ballots should have the same rights.”
(Petition for Review ¶¶ 44, 45.)
In Count II, Petitioners contend that H.R. 783 violates Article III,
section 9 of the Pennsylvania Constitution, which provides:
Every order, resolution or vote, to which the concurrence
of both Houses may be necessary, except on the question
of adjournment, shall be presented to the Governor and
before it shall take effect be approved by him, or being
disapproved, shall be repassed by two-thirds of both
Houses according to the rules and limitations prescribed
in case of a bill.
It is undisputed that H.R. 783 was not presented to the Governor pursuant to this
provision of the Pennsylvania Constitution.
Count III of the Petition for Review includes a request for preliminary
injunctive relief, but also includes substantive challenges to H.R. 783 not found in
Counts I and II. Specifically, Petitioners contend that H.R. 783 compels the
Secretary to act contrary to his duties under Article XI, section 1 of the
Pennsylvania Constitution, relating to the process to amend the Pennsylvania
Constitution. Article XI, section 1 provides, in relevant part:
Amendments to this Constitution may be proposed in the
Senate or House of Representatives; and if the same shall
be agreed to by a majority of the members elected to each
House, such proposed amendment or amendments shall
be entered on their journals with the yeas and nays taken
thereon, and the Secretary of the Commonwealth shall
cause the same to be published three months before the
next general election, in at least two newspapers in every
county in which such newspapers shall be published; and
if, in the General Assembly next afterwards chosen, such
proposed amendment or amendments shall be agreed to
by a majority of the members elected to each House, the
Secretary of the Commonwealth shall cause the same
again to be published in the manner aforesaid; and such
proposed amendment or amendments shall be submitted
4
to the qualified electors of the State in such manner, and
at such time at least three months after being so agreed
to by the two Houses, as the General Assembly shall
prescribe; and, if such amendment or amendments shall
be approved by a majority of those voting thereon, such
amendment or amendments shall become a part of the
Constitution; but no amendment or amendments shall be
submitted oftener than once in five years. When two or
more amendments shall be submitted they shall be voted
upon separately.
(Emphasis added.) Petitioners contend that H.R. 783 purports to prohibit the
Secretary from complying with his duties under what is commonly known as the
Election Code,3 specifically Section 201(c) of the Election Code, 35 P.S.
§ 2621(c), relating to certification to county boards of election of “the form and
wording of constitutional amendments and other questions to be submitted to the
electors of the State at large” and Section 201(f) of the Election Code, 25 P.S.
§ 2621(f), which requires the Secretary to “canvass and compute the votes cast . . .
upon questions as required by the provisions of this act” and “to proclaim the
results of such primaries and elections.” Finally, Petitioners contend that under
Section 605 of the Election Code, 25 P.S. § 2755, the form of the ballot question is
to be determined by the Secretary and the Attorney General and not by the General
Assembly. With respect to each of these statutory provisions, Petitioners contend
that H.R. 783 affects a change to the law, which can only be done by bill and
through the procedures set forth in Article III of the Pennsylvania Constitution.
The merits of Petitioners’ claims are not before the Court. Instead, as
noted above, the Court now considers whether Petitioners are entitled to
preliminary injunctive relief in such form as would compel the Secretary, and by
extension the county board of elections, to present Proposed Constitutional
3
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. §§ 2600-3554.
5
Amendment 1 to the electors of the Commonwealth for their approval or rejection
on the April 2016 Ballot unabated by H.R. 783. Petitioners have the burden of
proving their entitlement to such interim relief. Warehime v. Warehime, 860 A.2d
41, 47 (Pa. 2004). To meet this burden, Petitioners must establish each of the
following “essential prerequisites”:
First, a party seeking a preliminary injunction must show
that an injunction is necessary to prevent immediate and
irreparable harm that cannot be adequately compensated
by damages. Second, the party must show that greater
injury would result from refusing an injunction than from
granting it, and, concomitantly, that issuance of an
injunction will not substantially harm other interested
parties in the proceedings. Third, the party must show
that a preliminary injunction will properly restore the
parties to their status as it existed immediately prior to
the alleged wrongful conduct. Fourth, the party seeking
an injunction must show that the activity it seeks to
restrain is actionable, that its right to relief is clear, and
that the wrong is manifest, or, in other words, must show
that it is likely to prevail on the merits. Fifth, the party
must show that the injunction it seeks is reasonably
suited to abate the offending activity. Sixth and finally,
the party seeking an injunction must show that a
preliminary injunction will not adversely affect the public
interest
Summit Towne Centre, Inc. v. Shoe Show of Rocky Mount, Inc., 828 A.2d 995,
1001 (Pa. 2003) (citations omitted). If this Court determines that any one of these
essential prerequisites is lacking, Petitioners have failed to meet their burden.
Warehime, 860 A.2d at 46.
In assessing whether Petitioners have met their burden in this case, the
Court has considered the evidence adduced by the parties during the preliminary
injunction hearing on April 19, 2016, as well as the parties’ written and oral
argument on the matter. Based on the evidence, the Court finds that
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implementation of the General Assembly’s will, as set forth in H.R. 783, at this
late date in the primary election season imposes substantial burdens on the
Secretary, his staff, and the people that work in county voter services and boards of
election throughout this Commonwealth. Moreover, the Court is not insensitive to
the fact that removing Proposed Constitutional Amendment 1 from the April 2016
Ballot and moving it to the November 2016 Ballot translates into a waste of over a
million dollars in taxpayer money spent to advertise a now nonexistent ballot
question.
Nonetheless, despite these undesirable consequences, of which the
General Assembly was no doubt aware when it considered and passed H.R. 783 by
bipartisan majorities in both houses, the General Assembly has determined that
Proposed Constitutional Amendment 1 shall be decided in November 2016, and
not in April 2016. Article XI, section 1 of the Pennsylvania Constitution vests
within the General Assembly the exclusive authority to determine the “time” and
“manner” amendments are to be submitted to qualified electors for approval.
Article XI, section 1 of the Pennsylvania Constitution provides the “complete and
detailed process for the amendment of that document.” Kremer v. Grant, 606 A.2d
433, 436 (Pa. 1992). As this Court noted in Mellow v. Pizzingrilli, 800 A.2d 350
(Pa. Cmwlth. 2002) (en banc):
Because a proposed constitutional amendment is
not a “law,” the provisions of Article III relating to the
enactment of legislation are inapplicable. . . . In this
respect, [amendment of the Pennsylvania Constitution] is
not a legislative act at all, but a separate and specific
power granted to the General Assembly, similar to the
impeachment and trial powers granted to the House of
Representatives and Senate, respectively, under Article
VI, Sections 4 and 5. As to the impeachment power, we
have held that the trial procedures are within the
exclusive power of the Senate and are not subject to
7
invasion by the Courts. Similarly, we believe that Article
XI has vested the power to propose amendments in the
General Assembly. Other than the express requirements
set forth in Article XI, the procedure to be used in
proposing such amendments is exclusively committed to
the legislature.
Mellow, 800 A.2d at 359 (citations omitted); see also Grimaud v. Commonwealth,
806 A.2d 923 (Pa. Cmwlth. 2002) (en banc) (following Mellow), aff’d, 865 A.2d
835 (Pa. 2005).
In Mellow, this Court considered several challenges to two
constitutional amendments approved by the electorate during the November 3,
1998 General Election. In one of the challenges, the petitioners in that case
contended that one of the amendments should be set aside because the joint
resolutions passed in 1998 and 2000 by the General Assembly did not contain
identical language. This Court rejected that argument, refusing to curb the General
Assembly’s power under Article XI, section 1 beyond the express limits set forth
in that constitutional provision. “Because Article XI does not require identical
language or content in the resolutions (as opposed to the proposed amendment
itself),” this Court opined, “there is no constitutional violation.” Mellow, 800 A.2d
at 359 (emphasis in original).
By its express terms, H.R. 783 sets the time at which and manner by
which Proposed Constitutional Amendment 1 is to be submitted to the electorate in
that it removes the question from the April 2016 Ballot and moves the question to
the November 2016 Ballot. Under Mellow, the power of the General Assembly to
set the time at which and manner by which amendments to the Pennsylvania
Constitution are to be submitted to the electorate is an Article XI, section 1 power.
The only express constitutional limitation on time is that it must be submitted at
least three months after final agreement by the two houses of the General
8
Assembly, which is not at issue here. Pa. Const. art. XI, § 1. In seeking to enjoin
H.R. 783, Petitioners ask this Court to place further limits on this power: a limit
that considers the burden placed on those charged by law to implement the General
Assembly’s exercise of its power; a limit that considers the waste of taxpayer
resources occasioned by the same; or a limit that would preclude the General
Assembly, once it chooses a particular election as the time for a vote, from
changing its collective, albeit by a majority, mind and moving the question to a
later election. Such limitations, reasonable as they may seem to some, are simply
untethered to the text of the Pennsylvania Constitution.
With this backdrop, the Court now considers whether Petitioners have
established all of the essential prerequisites to preliminary injunctive relief, looking
first to whether they have established a clear right to relief—i.e., likelihood of
success on the merits. “To establish a clear right to relief, the party seeking an
injunction need not prove the merits of the underlying claim, but need only
demonstrate that substantial legal questions must be resolved to determine the
rights of the parties.” SEIU Healthcare Pa. v. Commonwealth, 104 A.3d 495, 506
(Pa. 2014).
With respect to Count I of the Petition for Review, which alleges an
unconstitutional infringement of the rights of qualified electors, Petitioners have
not demonstrated a substantial legal question. Giving legal (constitutional) effect
to H.R. 783 means that Proposed Constitutional Amendment 1 will not be
considered part of the April 2016 Ballot. A fortiori, no elector has a right to vote
on that question or a right to have their vote on that question count as part of the
April General Primary election. In the absence of a right to vote, there cannot be
voter disenfranchisement.
9
With respect to Count II, which alleges a violation of Article III,
section 9 of the Pennsylvania Constitution for failure to present H.R. 783 to the
Governor, based on the Pennsylvania Supreme Court’s decision in Kremer and this
Court’s decision in Mellow, the Court concludes Petitioners have not demonstrated
a substantial legal question. The General Assembly’s power to dictate the time at
which and manner by which a proposed constitutional amendment will be
presented to the electorate derives from Article XI, section 1 of the Pennsylvania
Constitution. Article III of the Pennsylvania Constitution, relating to legislation, is
inapplicable. The gist of H.R. 783, as noted above, is the removal of Proposed
Constitutional Amendment 1 from the April 2016 Ballot and the placing of the
question before the electorate on the November 2016 Ballot. There is no
substantial legal question as to the General Assembly’s power and authority to
effect this change.
In Count III, Petitioners point to several operative provisions of
H.R. 783 that direct the Secretary and county boards of election on how to
implement the General Assembly’s decision to remove the question from the
April 2016 Ballot. Petitioners argue that these provisions conflict with or
otherwise eviscerate existing statutory and constitutional duties. The Court is not
convinced.
First, Petitioners contend that H.R. 783 compels the Secretary to act
contrary to his duties under Article XI, section 1 of the Pennsylvania Constitution,
relating to the process to amend the Pennsylvania Constitution. Two of the
Secretary’s constitutional duties under Article XI, section 1 relate to publication of
proposed amendments following each passage by the General Assembly. There is,
however, no contention in this case that the Secretary failed to comply with these
10
publication mandates with respect to Proposed Constitutional Amendment 1. The
third requires the Secretary to place a proposed constitutional amendment before
the electorate “in such manner, and at such time at least three months after being so
agreed to by the two Houses, as the General Assembly shall prescribe.” Pa. Const.
art. XI, § 1. As noted above, by H.R. 783, the General Assembly has set the
November 2016 General Election as the time that Proposed Constitutional
Amendment 1 should be placed before the electorate. Under Article XI, section 1
of the Pennsylvania Constitution, as well as Section 605 of the Election Code, the
Secretary must act consistent with the General Assembly’s wishes. The provisions
of H.R. 783 resolving that the Secretary remove the ballot question for Proposed
Constitutional Amendment 1 from the April 2016 Ballot and place the question on
the November 2016 Ballot does nothing more than recognize the Secretary’s
existing legal obligation.
Next, Petitioners contend that H.R. 783 purports to prohibit the
Secretary from complying with his duties under Sections 201(c) of the Election
Code. Section 201(c) of the Election Code requires the Secretary to do the
following:
To certify to county boards of elections for
primaries and elections the names of the candidates for
President and Vice-President of the United States,
presidential electors, United States senators,
representatives in Congress and all State offices,
including senators, representatives, and judges of all
courts of record, and delegates and alternate delegates to
national conventions, and members of State committees,
and the form and wording of constitutional amendments
or other questions to be submitted to the electors of the
State at large.
(Emphasis added.) On this issue, H.R. 783 provides that “the Secretary of the
Commonwealth remove the ballot question for Proposed Constitutional
11
Amendment 1 from the ballot certification for the primary election on
April 26, 2016.” As a result of H.R. 783, Proposed Constitutional Amendment 1
was, but is no longer, a question to be submitted to the electors of the State at large
on the April 2016 Ballot. Clearly, Section 201(c) of the Election Code does not
empower the Secretary to certify to the county boards of elections the form and
wording of a constitutional amendment that is not to be submitted to the electors of
the State at large. Again, then, H.R. 783 appears to do nothing more than echo
existing law with respect to the Secretary’s duties.4
Petitioners further contend that H.R. 783 purports to preclude the
Secretary from complying with his duty under Section 201(f) of the Election Code,
which requires the Secretary to “canvass and compute the votes cast . . . upon
questions as required by the provisions of this act” and “to proclaim the results of
such primaries and elections.” On this subject, H.R. 783 provides: “RESOLVED,
That the [S]ecretary disregard any vote on Proposed Constitutional Amendment 1
in the primary election on April 26, 2016, and the Secretary not make a tally of
votes cast on Proposed Constitutional Amendment 1.” (Emphasis added.) Like
our analyses above, we look to Section 201(f) of the Election Code and what it
does and does not require of the Secretary. By its terms, Section 201(f) of the
Election Code only requires the Secretary to canvass and compute the votes cast on
questions lawfully placed before the electorate—i.e., “questions as required by the”
Election Code. In light of H.R. 783, Proposed Constitutional Amendment 1 was,
but is no longer, a question before the electorate, regardless of its presence on a
ballot. Thus, the Secretary is under no legal obligation to “canvass and compute”
4
In his answer to the application for special relief, the Secretary acknowledges that the
official ballot certification to the county boards of elections can be modified to remove Proposed
Constitutional Amendment 1 from the certification. (Secretary’s Answer at 13, 16.)
12
votes cast on Proposed Constitutional Amendment 1 during the April 2016 Primary
Election. A corollary to this legal conclusion is that the Secretary has no authority
to canvass and compute votes cast on a question that is not before the electorate.
In his answer, the Secretary provides that he “would be able to comply with that
part of H.R. 783 that directs him to ‘disregard any vote on Proposed Constitutional
Amendment 1 in the primary election’ and to ‘NOT MAKE a tally of votes cast.’”
(Secretary Answer at 16.)
In his testimony during the preliminary injunction hearing, Jonathan
Marks, Commissioner for the Bureau of Commissions, Elections, and Legislation
with the Pennsylvania Department of State (Department), testified as to this
particular portion of H.R. 783. Mr. Marks also attested to the facts set forth in the
Secretary’s filed answer to Petitioners’ application for special relief. Based on
Mr. Marks’ testimony and the Court’s review of the relevant provisions of the
Election Code, the Court finds the language in H.R. 783 relating to canvassing,
computing, and tallying of votes ambiguous. The law, however, is not.
Section 1402(b) of the Election Code, 25 P.S. § 3152(b), requires each county
board of elections to submit returns received for state-level offices to the Secretary
by 3:00 a.m. on the day following the election. Nothing in Section 1402(b)
provides for the Secretary to “canvass,” “compute,” or “tally” the submissions
from the county board of elections pursuant to this section of the Election Code.
Based on the Secretary’s filing in this case, however, as well as
Mr. Marks’ testimony, to promote transparency and as a service to the public, the
Department, for years, has published these “unofficial” returns on the
Department’s web site as they are received from the counties. In essence, the
Department voluntarily makes public the returns reported by the counties before
13
those returns are actually “computed,” “canvassed,” or “tallied.” Under the
Election Code, the process of canvassing, computing, and tabulating return—i.e.,
counting—does not occur until days after the primary election.
Sections 1403-1405, 1409 of the Election Code, 25 P.S. §§ 3153-3155, 3159. The
Secretary’s affirmative obligation in this process is set forth in Section 1409 of the
Election Code, which provides:
Upon receiving the certified returns of any primary
or election from the various county boards, the Secretary
of the Commonwealth shall forthwith proceed to
tabulate, compute and canvass the votes cast for all
candidates enumerated in section 1408, and upon all
questions voted by the electors of the State at large, and
shall thereupon certify and file in his office the tabulation
thereof.
With respect to Section 1409, Mr. Marks testified credibly that if H.R. 783 were
not enjoined, the Department would not include Proposed Constitutional
Amendment 1 in this process. The Court sees no violation of law or dereliction in
constitutional duty should the Secretary exclude votes cast on Proposed
Constitutional Amendment 1 from the process in the Election Code for computing,
canvassing, and tabulating results of the April 2016 Primary Election. Indeed, as
noted above with respect to Section 201(f) of the Election Code, it appears to the
Court that the Secretary has no authority, and thus no duty, to canvas and compute
votes cast on a question that is not before the electorate. By virtue of the General
Assembly’s passage of H.R. 783, that question is no longer before the voters in the
April 2016 Primary Election.
The Court now returns to the Department’s practice of reporting
election night returns received from the counties. According to the Secretary, and
confirmed by Mr. Marks at the preliminary injunction hearing, to facilitate the
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counties’ compliance with Section 1402(b) of the Election Code and to provide the
public service of real-time access to election returns, the Department has
developed an election night return software system (ENR system). The ENR
system collects the election night returns reported by the counties under the
Election Code and maps them to the Department’s web site, where the public can
view those returns in real time. To ensure that the county data is received and
reported accurately on the Department’s web site, the Department extensively
stages and tests the ENR system in advance of election day. For the April 2016
Primary Election, the ENR system is staged to collect and report any returns
received by the counties and reported to the Department under Section 1402(b) of
the Election Code. Fifty-five out of sixty-four counties that use the Department’s
ENR system to comply with Section 1402(b) of the Election Code have
successfully tested the ENR system. Mr. Marks testified that the Department could
attempt, even at this late date, to change the coding of the ENR system to remove
from the Department’s web site returns reported by the counties with respect to
Proposed Constitutional Amendment 1.5 Doing so, however, will require over two
hundred hours and a total of two days to develop and test. It also comes at some
risk to the integrity of reporting all election night data on the Department’s web
site.
It is not at all clear to the Court that the portion of H.R. 783 resolving
that the Secretary “disregard” and “not make a tally” of votes cast on Proposed
Constitutional Amendment 1 relates to the ENR system, which is simply a device
5
According to the Secretary and Mr. Marks, however, it is “highly unlikely” that the
Department could, at this late date, alter the format of the ENR file the participating counties use
to report results to the Secretary in compliance with Section 1402(b) of the Election Code to
remove the returns on Proposed Constitutional Amendment 1.
15
to compile and publicly report each county’s compliance with Section 1402(b) of
the Election Code. Like other operative portions of H.R. 783 directed toward the
Secretary, one can reasonably read this portion to provide only that the Secretary
comply with the above-cited sections of the Election Code relating to tabulation,
computation, and canvassing. To the extent that the General Assembly intended
the provision to apply also to the ENR system, the Court sees no reason to enjoin
it, as it seems to the Court to be a purely advisory provision without the force and
effect of law. Article XI, section 1 of the Pennsylvania Constitution does not grant
the General Assembly the power to direct unilaterally an executive branch agency
to refrain from publicly reporting data transmitted to the agency by county boards
of election pursuant to statute. See, e.g., Jefferson Cnty. Court Appointed
Employees Ass’n v. Pa. Labor Relations Bd., 985 A.2d 697 (Pa. 2009) (discussing
separation of powers built into state government).
As the Court noted during the preliminary injunction hearing, given
the proximity to the primary election and already-cast absentee ballots, and
regardless of remedial measures that will be taken to advise the public that
Proposed Constitutional Amendment 1 is not before the electorate on the
April 2016 Ballot, votes have and will be cast in favor of and against the measure.
It is also invariably true that many voters will go to the polls on April 26, 2016,
and not vote on the measure. This means, then, that whatever data county boards
of election report to the Secretary pursuant to Section 1402(b) of the Election Code
with respect to Proposed Constitutional Amendment 1 will be both legally and
practically unreliable. As noted above, however, the act of publicly posting
Section 1402(b) election night returns from the counties on the Department’s
website is a voluntary one. The Court agrees with the Secretary that the primary
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goal is to ensure an orderly and lawful election process. At this point, and in light
of the foregoing, whether any changes should be made to the ENR system as a
result of H.R. 783 is best left to the discretion of the Secretary.
Petitioners’ final substantive challenge in Count III of the Petition for
Review is their contention that H.R. 783 violates Section 605 of the Election Code,
in that it dictates to the Secretary and the Attorney General the form of the ballot
question for Proposed Constitutional Amendment 1 on the November 2016 ballot.
Section 605 of the Election Code provides:
Unless the General Assembly shall prescribe
otherwise with respect to any particular proposed
amendment or amendments and the manner and time of
submitting to the qualified electors of the State any
proposed amendment or amendments to the Constitution
for the purpose of ascertaining whether the same shall be
approved by a majority of those voting thereon, the said
amendment or amendments which have heretofore, or
which may hereafter be proposed, and which have not
been submitted to the qualified electors of the State, shall
be submitted to the qualified electors of the State for the
purpose aforesaid, at the first municipal or general
election at which such amendment or amendments may
be legally submitted to the electors, which election shall
occur at least three months after the date upon which
such proposed amendment or amendments shall have
been agreed to for the second time by a majority of the
members elected to each house of the General Assembly,
as provided in Article Eighteen, section one of the
Constitution. Said election shall be conducted on said
election day in the manner prescribed by the provisions
of this act. Such proposed constitutional amendments
shall be printed on the ballots or ballot labels in brief
form to be determined by the Secretary of the
Commonwealth with the approval of the Attorney
General.
17
(Emphasis added.) Because this challenge relates to the November 2016 General
Election, no immediate or imminent harm is extant, such that the Court must
preliminarily enjoin enforcement of the portion of H.R. 783 in question.
Based on the foregoing analysis, the Court concludes that Petitioners
have failed to meet their burden of proving a clear right to relief/likelihood of
success on the merits with respect to the substantive challenges in their Petition for
Review or have failed to prove immediate or irreparable harm related thereto that
must be abated by preliminary injunctive relief. Accordingly, because Petitioners
had the burden of proving all essential elements to preliminary injunctive relief,
Petitioners’ application for special relief in the nature of a preliminary injunction
will be denied.
Although, in light of the foregoing, the Court need not analyze the
other essential elements to preliminary injunctive relief,6 some additional, albeit
brief, analysis is appropriate. As noted above, our Pennsylvania Constitution vests
broad power within the General Assembly to decide, by majority vote, the time and
manner a proposed constitutional amendment will be placed before the electors of
this Commonwealth. In this case, the General Assembly has exercised that power
through H.R. 783. There are clearly burdens and consequences that result from the
unfortunate timing of the General Assembly’s action. Such burdens and
consequences that flow from the constitutional actions of any branch of
government, however, are not “harms” that can be considered, let alone abated, by
enjoining the exercise of a constitutional prerogative. Treating them as such
invites this Court to second guess the wisdom of the General Assembly’s
decisions. The Court is not empowered to do so. See Sweeny v. Tucker, 375 A.2d
6
Allegheny Cnty. v. Commonwealth, 544 A.2d 1305, 1307 (Pa. 1988).
18
698 (Pa. 1977) (discussing political question doctrine); Grimaud v.
Commonwealth, 865 A.2d 835, 847 (Pa. 2005) (applying political question
doctrine in challenge to constitutional amendment). A critical role of this Court is
to save the public from unlawful or unconstitutional decisions by the other two
branches of government, but not unwise ones.7 When a coordinate branch of
government acts lawfully, it reaps what it sows.
In short, the Court is not convinced, at this preliminary stage of these
proceedings, that any person’s rights have been compromised by the General
Assembly’s passage of H.R. 783. Based on the evidence adduced during the
preliminary injunction hearing, the Court is satisfied that additional burdens,
consequences, and in some respect hardships will be borne by the Secretary, the
Department, the county boards of elections, and Pennsylvanians to effect the will
of the General Assembly reflected in H.R. 783. These, however, are not “harms”
that may be considered or abated where, as here, they flow from the exercise of a
constitutional prerogative of the General Assembly. Even if the Court were to
consider them harms for purpose of preliminary injunctive relief, greater harm of a
constitutional dimension would result if this Court were to enjoin enforcement of
the otherwise lawful action of a coordinate branch of government. Finally,
enjoining H.R. 783 would not be in the public interest as it would only foment
further uncertainty among the public as to whether they should vote on Proposed
Constitutional Amendment 1 and whether, if they do, their votes will be counted.
Less than one week before the Primary Election, the voters deserve certainty and
7
This is not to suggest that H.R. 783 is bereft of reasons supporting the General
Assembly’s action. The Court’s reference to “unwise” actions is to an undefined class of
government actions that, although lawful, some may complain are unwise and seek redress from
the courts on that basis alone. The courts simply are not the appropriate venue to remedy such
complaints.
19
finality. Finally, the public interest is best served by adhering to the text of the
Pennsylvania Constitution and respecting the power conferred by the electorate on
the General Assembly in Article XI, section 1 of that document.
As a final matter, the Secretary, in his answer to the application for
special relief as well as during oral argument, sought “guidance” from the Court as
to how he can or should aid and advise county boards of election in implementing
H.R. 783. The Court does not normally engage in the practice of providing this
type of advice, particularly in the absence of any formal request for such relief.
Nonetheless, the Court will remind the Secretary that during this primary election
cycle, the Court has issued at least two orders involving the removal/withdrawal of
candidates from the April 2016 Ballot, which included certain directives to the
Secretary and county boards of election, including the following language:
[]. If the Candidate’s name cannot be removed
from the ballot, the County Boards of Elections are
directed to post notice within each voting station that
Candidate has withdrawn from the election and that
casting a vote for Candidate, other than a write-in vote,
will not be counted.
[]. If after the date of this Order additional
absentee ballots are distributed, within those absentee
ballots shall be a notice that Candidate has withdrawn
from the election and that casting a vote for candidate,
other than a write-in vote, will not be counted.
See In re: Nomination Petition of Lindy Li, (Pa. Cmwlth., No. 105 M.D. 2016, filed
April 1, 2016) (Brobson, J.); In re: Nomination Petition of Steven B. Larchuck, (Pa.
Cmwlth., No. 221 M.D. 2016, filed March 31, 2016 (Pellegrini, S.J.). The
Secretary is certainly free to consider the Court’s prior orders touching on the
subject of the removal of candidates from the April 2016 Ballot in determining
how best to work with county boards of elections to advise voters, absentee and
20
otherwise, that Proposed Constitutional Amendment 1 is not on the April 2016
Ballot, regardless of what the actual ballot may say, and that any votes cast on that
question will not be canvassed, counted, or tabulated.
Accordingly, the Court denies Petitioners’ application for summary
relief in the nature of a preliminary injunction.
P. KEVIN BROBSON, Judge
21
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Senator Jay Costa, Pa. 43rd District, :
Senator Daylin Leach, Pa. 17th District, :
in their Official Capacities, and :
Senator Christine M. Tartaglione, :
Pa. 2nd District, in her Official Capacity :
and individually on behalf of :
qualified electors in the :
Commonwealth of Pennsylvania, :
Petitioners :
:
v. : No. 251 M.D. 2016
:
Secretary Pedro A. Cortes, :
Senator Joseph B. Scarnati, :
Pa. 25th District, and :
Senator Jacob Corman III, :
Pa. 34th District, each in their :
Official Capacities, :
Respondents :
ORDER
NOW, this 20th day of April, 2016, upon consideration of Petitioners’
application for special relief in the nature of a preliminary injunction, the
application is DENIED for the reasons set forth in the accompanying opinion.
P. KEVIN BROBSON, Judge