In re: General Election, 2024 ~ Appeal of: Republican National Committee

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In re: General Election, 2024 :
:
:
Appeal of: Republican National :
Committee and Donald J. Trump : No. 1520 C.D. 2024
2024, Inc. : Submitted: November 18, 2024
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MATTHEW S. WOLF, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WALLACE FILED: November 22, 2024
This is an appeal by the Republican National Committee and Donald J. Trump
2024, Inc. (Campaign) from the order of the Court of Common Pleas of Philadelphia
County (trial court), dated November 5, 2024, which denied the Campaign’s request
to prohibit certain badges worn by the Pennsylvania Democratic Party’s (Party) poll
watchers. The Campaign argues wearing the badges while inside polling places was
“electioneering” in violation of Section 1220(c) of the Pennsylvania Election Code
(Election Code).1 After careful review, we reverse.
BACKGROUND
On Election Day, November 5, 2024, counsel for the Campaign appeared at
Philadelphia’s Election Court and requested an order prohibiting badges worn by the
1
Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. § 3060(c).
Party’s poll watchers inside polling places. The Campaign presented testimony from
Robyn Lee Bird, a majority inspector for the 25th Ward, Division 3; Alicia Bogdon,
a poll watcher; and Lisa Peng, a poll watcher. Generally, the evidence indicated poll
watchers had entered polling places in Philadelphia wearing badges on lanyards with
the words: “PA DEMS VOTER PROTECTION.” Reproduced Record (R.R.) at 10a,
50a. The badges included a statement that they were “paid for by [the] Pennsylvania
Democratic Party.”2 Id. at 10a. The Campaign’s witnesses did not indicate any poll
watchers spoke to voters while inside polling places.
Counsel for the Campaign contended wearing the badges while inside polling
places was electioneering in violation of Section 1220(c), based on guidance by the
Pennsylvania Department of State (Department). R.R. at 13a-14a. Counsel asserted
she had asked the Party for a consent order prohibiting the badges in polling places,
but the Party declined. Id. at 13a. Additionally, counsel clarified she was not asking
the trial court to send law enforcement to make poll watchers remove the badges but
was merely requesting an order similar to one allegedly issued in Allegheny County,
“that says the poll watchers must remove any badges that have partisan materials on
them in the polling place.” Id. at 26a.
Counsel for the Party maintained wearing the poll watcher badges was not an
attempt to persuade voters and, therefore, was not electioneering. R.R. at 15a-16a.
Nonetheless, counsel explained the Party became aware of the dispute regarding the
badges that morning and already reminded poll watchers “that any badge . . . go[es]
inside of your shirt or out of view if you need to walk into the polling location.” Id.
2
A photograph depicting a man wearing one of the badges is attached to the order on appeal. The
photograph shows the words “VOTER PROTECTION” in the middle of the badge, with the words
“PA DEMS” written above in much smaller print. The statement that the Party paid for the badges
is not legible, but the photograph shows what appears to be blurry print at the bottom of the badge
that presumably includes this language.
2
at 16a. Counsel argued the order the Campaign was requesting would be disruptive
and difficult to enforce because it would “put an onus on poll watchers . . . having
to abide by a court order that we don’t even know who would serve them.” Id. at
18a, 28a-29a
Moreover, the Party presented testimony from Adam Bonin, Esquire (Bonin),
an attorney who was apparently assisting the Party with its election efforts. The trial
court limited Bonin’s testimony to the size of the print on the badges, reasoning this
question “might be dispositive.” R.R. at 35a. Bonin testified the words “PA DEMS”
were printed in a very small font, explaining: “It’s probably less than a quarter of an
inch. My index finger can’t be more than a third of an inch wide and it’s way smaller
than that.” Id. at 37a.
At the conclusion of the hearing, the trial court announced it would deny the
Campaign’s request. The trial court reasoned the Campaign had not objected to the
words “VOTER PROTECTION” on the poll watcher badges, and “PA DEMS” was
printed in small font, so that “no one, unless they are going up to the watcher, leaning
down and trying to read their badge is going to see what it says.” R.R. at 46a. The
statement indicating the Party paid for the badges was in smaller font, the trial court
observed, and would be illegible “even close up.” Id. Additionally, the trial court
reasoned it had not heard any evidence that a voter could see or saw the badges, or
that a poll watcher approached a voter in an “inappropriate way.” Id. at 47a. The
trial court concluded the badges were not causing harm and that issuing an order “at
this point in the evening . . . would itself cause harm.”3 Id. at 48a. The Campaign
timely appealed.
3
The trial court’s opinion includes substantively the same reasoning. The trial court contends the
Campaign failed to prove any voter inside a polling place could or did read the poll watcher badges.
(Footnote continued on next page…)
3
DISCUSSION
The Campaign’s appeal presents an issue of statutory interpretation. This is a
question of law for which our standard of review is de novo, and our scope of review
is plenary. In re Benkoski, 943 A.2d 212, 215 n.2 (Pa. 2007). In other words, we do
not defer to the trial court’s interpretation of the statute when reaching our decision,
and we may consider the entire record on appeal. Mercury Trucking, Inc. v. Pa. Pub.
Util. Comm’n, 55 A.3d 1056, 1082 (Pa. 2012). The Court focuses its analysis on the
plain language of the statute, with the goal of giving effect to the General Assembly’s
intent. Stadium Casino RE, LLC v. Pa. Gaming Control Bd., 318 A.3d 789, 798 (Pa.
2024).
A. Parties’ Arguments
According to the Campaign, wearing the Party’s badges while inside polling
places was electioneering in violation of Section 1220(c). The Campaign directs our
attention to guidance from the Department, issued about six weeks before Election
Day, which explained poll watchers should not wear apparel or accessories showing
support for a candidate or party. Moreover, the Campaign rejects the assertion that
the badges were permissible because the print on them was small and may not have
been legible to voters. The Department’s guidance created a bright-line rule against
electioneering, the Campaign argues, and focusing on print size and voter perception
would result in “uncertainty, chaos, confusion, and circular causality.” Campaign’s
Br. at 12, 17. The Campaign emphasizes the statement on the badges indicating the
Party paid for them. The Campaign contends this language is required for political
advertising, which demonstrates the purpose of the badges was to promote the Party.
Trial Ct. Op., 11/14/24, at 7-9. Further, the trial court contends the Campaign’s appeal should be
dismissed as moot. Id. at 4-5.
4
Finally, the Campaign maintains its appeal is not moot because the dispute is capable
of repetition in future elections.
The Party defends the badges by asserting they “did not contain any language
advocating for the [P]arty or any candidate” but merely identified those wearing the
badges as poll watchers. Party’s Br. at 4-5. The Party argues there was no evidence
any poll watchers approached voters or attempted to solicit votes. Further, the Party
argues the print on the badges was small, and there was no evidence the badges were
legible to voters. The Campaign did not seek to prohibit the badges until late in the
afternoon on Election Day, the Party maintains, which rendered its request untimely
and potentially disruptive. In addition, the Party argues this appeal is moot because
the polls are closed and the election is over. The Party contends there is no evidence
it intends to use the same or similar badges in future elections, and challenges to any
future badges can be brought in a timelier manner.4
B. Mootness
We first consider whether this appeal is moot. The Court cannot decide moot
or abstract questions. Battiste v. Borough of E. McKeesport, 94 A.3d 418, 424 (Pa.
Cmwlth. 2014). A case becomes moot if a “change in circumstances has eliminated
the controversy so that the court lacks the ability to issue a meaningful order, that is,
an order that can have any practical effect.” Burke ex rel. Burke v. Indep. Blue Cross,
103 A.3d 1267, 1271 (Pa. 2014). Even when a case is moot, we may still reach the
merits of the dispute if it is capable of repetition yet likely to evade judicial review.
Gray v. Phila. Dist. Att’y’s Off., 311 A.3d 1230, 1236 (Pa. Cmwlth. 2024). This
exception to the mootness doctrine applies when “there is a reasonable expectation
that the same complaining party will be subjected to the same action again” and “the
4
The Philadelphia County Board of Elections has informed the Court it will not be filing a brief
in this matter.
5
duration of the challenged action is too short to be fully litigated prior to its cessation
or expiration.” Id. at 1238.
The Campaign’s appeal is technically moot. Election Day is over, and we can
no longer enter an order permitting or prohibiting the poll watcher badges while they
are still in use. Nonetheless, this dispute is capable of repetition. It is reasonable to
expect a political party will provide poll watchers with the same or similar badges
in future elections. Any challenge to the badges is also likely to evade judicial
review because Election Day will always have ended by the time it reaches an
appellate court. Thus, this dispute falls within the exception to the mootness
doctrine, and we may consider the merits of the Campaign’s appeal.
C. Section 1220(c)
Section 1220 of the Election Code provides a series of regulations in force at
polling places on Election Day. These include Section 1220(c), which instructs that
“[n]o person, when within the polling place, shall electioneer or solicit votes for any
political party, political body or candidate, nor shall any written or printed matter be
posted up within the said room, except as required by this act.” 25 P.S. § 3060(c).
The Election Codes does not define the term “electioneer.” As a result, we may turn
to dictionaries to discern the statute’s meaning. Wright v. Lower Salford Twp. Mun.
Police Pension Fund, 136 A.3d 1085, 1090 (Pa. Cmwlth. 2016). “Electioneering”
means “[t]he practice or an instance of trying, us[ually] within established rules, to
influence the outcome of election by distributing pamphlets, making speeches, door-
to-door canvassing, etc.” Black’s Law Dictionary 655 (11th ed. 2019). Similarly,
to “electioneer” means “tak[ing] an active part in an election; [specifically,] to work
for the election of a candidate or party.” Merriam-Webster’s Collegiate Dictionary
371 (10th ed. 1997).
6
The poll watcher badges at issue included the Party’s nickname, “PA DEMS,”
the words “VOTER PROTECTION,” and language indicating the Party paid for the
badges. The Election Code provides poll watchers are identified by certificates they
receive from the county board of elections and does not contemplate poll watcher
badges. See Section 417(b) of the Election Code, 25 P.S. § 2687(b). By wearing
the badges while inside polling places, the Party’s poll watchers showed association
with, and encouraged voters to cast ballots for, the Party and its candidates. This
was impermissible electioneering under Section 1220(c).
Although we conclude that allowing poll watchers to wear a political party’s
name, such as “PA DEMS,” while inside a polling place is enough to violate Section
1220(c), two other factors weigh in favor of our decision. First, the badges included
language applicable to political advertising, indicating the Party paid for them. This
demonstrates the Party understood the badges to promote its interests and serve an
electioneering purpose. See Section 1638(a) of the Election Code,5 25 P.S. § 3258(a)
(generally, “any person [who] makes an expenditure for the purpose of financing
communications expressly advocating the election or defeat of a candidate” must
state the communications were authorized by the candidate or, if unauthorized, state
who paid for the communications).
Second, the badges did not describe individuals wearing them as poll watchers
but as “VOTER PROTECTION.” Protecting voters is an admirable objective, which
might persuade the public to vote for the Party and its candidates. Alternatively, the
badges could imply to voters that opposing political parties or candidates pose a risk
of harm that warrants the Party’s “protection.” This is a partisan message that serves
no purpose other than electioneering. Indeed, the Election Code does not depict poll
5
Added by the Act of Oct. 4, 1978, P.L. 893.
7
watchers as “protecting” voters but empowers them to challenge voter qualifications
and review records. 25 P.S. § 2687(b).
We reject the Party’s argument that the badges were permissible because there
was no evidence of poll watchers approaching voters. Section 1220(c) prohibits the
posting of “any written or printed matter,” 25 P.S. § 3060(c), which indicates the
General Assembly intended to prohibit all forms of electioneering, whether written
or verbal. Furthermore, we agree with the Campaign that the size of the print on the
badges is not determinative. The statutory language prohibits “any” such messaging
from being displayed in a polling place without reference to print size. Focusing on
how easily any given voter could read the message, when not all voters have the
same vision, would create a subjective standard without support in the Election
Code. The General Assembly understandably created a bright-line rule to govern
under these circumstances. This bright-line rule makes sense.6
There is no merit to the argument that the Campaign’s request to prohibit the
badges was untimely. The Party insists this request occurred “with the polls soon to
close . . . in the waning minutes of the election.” Party’s Br. at 2. However, the trial
court explains the Campaign made its request at approximately 5:00 p.m. Trial Ct.
Op., 11/14/24, at 1. Polls were not going to close until three hours later, at 8:00 p.m.,
and voters standing in line at 8:00 p.m. would be allowed to vote. Violations of the
Election Code are not permissible simply because they might continue for only three
6
The bright-line rule avoids the risk of overly subjective decisions which could trigger equal
protection concerns based on inconsistent treatment of voters. What influences or intimidates one
person may not have the same effect on someone else, and therefore, all political messaging is
simply forbidden. The rule also recognizes the need for a court to manage its docket on an
important, busy day so it is not resolving whether voters approached a poll worker and read the
electioneering message and whether, in the judge’s opinion, certain words were of small enough
font size. Whether a voter read the message and whether the font size is small simply are not
relevant.
8
more hours or impact a limited number of voters.7 See In re Canvass of Absentee
Ballots of Nov. 4, 2003 Gen. Election, 843 A.2d 1223, 1234 (Pa. 2004) (courts cannot
ignore “so-called technicalities of the Election Code” that are needed to preserve the
sanctity of the ballot).
As a final matter, to the extent Section 1220(c)’s prohibition on electioneering
in polling places is ambiguous, Section 1921(c)(8) of the Statutory Construction Act
of 1972, 1 Pa.C.S. § 1921(c)(8), allows us to consider administrative interpretations
when discerning the General Assembly’s intent. The Department issued “Guidance
on Rules in Effect at the Polling Place on Election Day” (Guidance)8 on September
23, 2024. Based on Section 1220, the Guidance states poll watchers should “refrain
from wearing partisan apparel or buttons.” Guidance at 7. In the same paragraph,
the Guidance states that “[n]o signs or other campaign material should be present in
the polling place.”9 Id. This further supports our conclusion that wearing the Party’s
poll watcher badges inside polling places was impermissible electioneering.
Because a poll watcher cannot wear a political button, then certainly a badge, which
7
It is noteworthy the Party’s counsel admitted being aware of the issue and attempting to remedy
it “this morning,” which indicates the Campaign did not delay in bringing the dispute to the Party’s
attention. R.R. at 16a-17a. Counsel for the Campaign indicated she had been working on the issue
“all day” and attempted to resolve it informally before seeking relief in the trial court. Id. at 25a-
26a.
8
Pennsylvania Department of State, Guidance on Rules in Effect at the Polling Place on Election
Day, Version 2.0, https://www.pa.gov/content/dam/copapwp-pagov/en/dos/resources/voting-and-
elections/directives-and-guidance/2024-dos-guidance-rules-atthepollingplace-on-electionday-2.0
.pdf (last visited Nov. 14, 2024).
9
The Guidance further includes a paragraph relying on Section 417, which indicates poll watchers
“may not engage in electioneering while inside the polling place, which includes wearing apparel
or accessories that signify support for a candidate or party.” Guidance at 5.
9
is more formal and carries a greater potential to influence or intimidate voters, should
be forbidden.
CONCLUSION
For the foregoing reasons, the Campaign’s appeal is technically moot but falls
within an exception to the mootness doctrine because it is capable of repetition but
likely to evade judicial review. Turning to the merits of the Campaign’s appeal, the
trial court erred by permitting poll watchers to wear the badges at issue inside polling
places. The presence of poll watchers wearing the badges violated Section 1220(c)’s
prohibition of electioneering. Thus, we reverse the trial court’s November 5, 2024
order.
______________________________
STACY WALLACE, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In re: General Election, 2024 :
:
:
Appeal of: Republican National :
Committee and Donald J. Trump : No. 1520 C.D. 2024
2024, Inc. :
ORDER
AND NOW, this 22nd day of November 2024, the order of the Court of
Common Pleas of Philadelphia County, dated November 5, 2024, is REVERSED.
______________________________
STACY WALLACE, Judge