[J-118A-F-2020] [OAJC: Donohue, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

IN RE: CANVASS OF ABSENTEE AND 

MAIL-IN BALLOTS OF NOVEMBER 3, 

2020 GENERAL ELECTION

APPEAL OF: DONALD J. TRUMP FOR 

PRESIDENT, INC.

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No. 31 EAP 2020

SUBMITTED: November 18, 2020

IN RE: CANVASS OF ABSENTEE AND 

MAIL-IN BALLOTS OF NOVEMBER 3, 

2020 GENERAL ELECTION

APPEAL OF: DONALD J. TRUMP FOR 

PRESIDENT, INC.

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No. 32 EAP 2020

SUBMITTED: November 18, 2020

IN RE: CANVASS OF ABSENTEE AND 

MAIL-IN BALLOTS OF NOVEMBER 3, 

2020 GENERAL ELECTION

APPEAL OF: DONALD J. TRUMP FOR 

PRESIDENT, INC.

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No. 33 EAP 2020

SUBMITTED: November 18, 2020

IN RE: CANVASS OF ABSENTEE AND 

MAIL-IN BALLOTS OF NOVEMBER 3, 

2020 GENERAL ELECTION

APPEAL OF: DONALD J. TRUMP FOR 

PRESIDENT, INC.

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No. 34 EAP 2020

SUBMITTED: November 18, 2020

IN RE: CANVASS OF ABSENTEE AND 

MAIL-IN BALLOTS OF NOVEMBER 3, 

2020 GENERAL ELECTION

APPEAL OF: DONALD J. TRUMP FOR 

PRESIDENT, INC.

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No. 35 EAP 2020

SUBMITTED: November 18, 2020

IN RE: 2,349 BALLOTS IN THE 2020 

GENERAL ELECTION

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No. 29 WAP 2020
[J-118A-F-2020] [OAJC: Donohue, J.] - 2

APPEAL OF: ALLEGHENY COUNTY 

BOARD OF ELECTIONS

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Appeal from the Order of the 

Commonwealth Court entered 

November 19, 2020 at No. 1162 CD 

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

CONCURRING AND DISSENTING OPINION

JUSTICE WECHT DECIDED: November 23, 2020

I agree with the conclusion that no mail-in or absentee ballot should be set aside 

solely because the voter failed to hand print his or her name and/or address on the 

declaration form on the ballot mailing envelope. These items are prescribed not by statute 

but by the Secretary of the Commonwealth under legislatively delegated authority. 

Absent evidence of legislative intent that what in context amounts to redundant 

information must be furnished to validate a mail ballot, their omission alone should not 

deny an elector his or her vote. But I part ways with the conclusion reflected in the Opinion 

Announcing the Judgment of the Court (“OAJC”) that a voter’s failure to comply with the 

statutory requirement that voters date the voter declaration should be overlooked as a 

“minor irregularity.” This requirement is stated in unambiguously mandatory terms, and 

nothing in the Election Code1 suggests that the legislature intended that courts should 

 

1 Act of June 3, 1937, P.L. 1333, art. I, § 101, codified as amended at 25 P.S. 

§§ 2601, et seq.
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construe its mandatory language as directory. Thus, in future elections, I would treat the 

date and sign requirement as mandatory in both particulars, with the omission of either 

item sufficient without more to invalidate the ballot in question.2 However, under the 

circumstances in which the issue has arisen, I would apply my interpretation only 

prospectively. So despite my reservations about the OAJC’s analysis, I concur in its 

disposition of these consolidated cases.

Concurring in this Court’s recent decision in Pennsylvania Democratic Party v. 

Boockvar, I expressed my increasing discomfort with this Court’s willingness to peer 

behind the curtain of mandatory statutory language in search of some unspoken directory 

intent.

[If this Court is] to maintain a principled approach to statutory interpretation 

that comports with the mandate of our Statutory Construction Act,[3]if we 

are to maximize the likelihood that we interpret statutes faithfully to the 

drafters’ intended effect, we must read mandatory language as it appears, 

and we must recognize that a mandate without consequence is no mandate 

at all.4 

There, I wrote separately in support of this Court’s ruling requiring the invalidation of mailin ballots that were returned to boards of elections not sealed in their secrecy envelopes 

as required by statutory language. The secrecy envelope requirement at issue in that 

case was no less ambiguous than the “fill out, date and sign” mandate at issue in this 

 

2 None of the parties or courts involved in these consolidated cases dispute that a 

voter’s failure to sign a mail-in or absentee ballot’s declaration requires invalidation.

3 Act of Dec. 6, 1972, No. 290, § 3, codified as amended at 1 Pa.C.S. §§ 1501, et 

seq.

4 238 A.3d 345, 391 (Pa. 2020) (Wecht, J., concurring) (hereinafter “PDP”).
[J-118A-F-2020] [OAJC: Donohue, J.] - 4

case.5 Nonetheless, departing from that holding for reasons that do not bear close 

scrutiny, the OAJC concludes that invalidation should not follow for failure to comply with 

the Election Code provisions requiring that “the elector shall . . . fill out, date and sign the 

declaration printed on” the ballot mailing envelope, even though this requirement appears 

in precisely the same statutory provisions as were at issue in PDP. 

Section 3150.16 of the Election Code, governing “[v]oting by mail-in electors”—

and its counterpart for absentee ballots, which employs the same operative language6—

provides:

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 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.7

 

5 Specifically, 25 P.S. § 3150.16(a) provides that the mail-in ballot 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.’”

6 Compare 25 P.S. § 3150.16(a) (“Voting by mail-in electors”) with 25 P.S. 

§ 3146.6(a) (“Voting by absentee electors”). Each provision governing the form of mailin ballots and the voter’s obligations in preparing and transmitting them has its verbatim 

equivalent for absentee ballots, and the issue presented applies equally to both. 

Hereinafter, for simplicity’s sake, I refer exclusively to mail-in ballots and cite and quote 

only the provisions that apply to mail-in ballots, but my analysis applies identically to both. 

The OAJC reproduces the relevant sections at length. See OAJC at 5-7.

7 25 P.S. § 3150.16(a) (emphasis added). 
[J-118A-F-2020] [OAJC: Donohue, J.] - 5

While this Court has not reviewed every constituent step this provision prescribes, we 

have addressed several of the requirements, taking it upon ourselves to weigh in each 

instance whether to interpret the mandatory statutory language as being mandatory in 

fact. The law those cases now comprise is so muddled as to defy consistent application, 

an inevitable consequence of well-meaning judicial efforts to embody a given view of what 

is faithful to the spirit of the law, with the unfortunate consequence that it is no longer 

clear what “shall” even means.

Nearly fifty years ago, this Court considered whether a ballot completed in red or 

green ink should be counted given that the statute provided by its terms only for the 

canvassing of ballots completed in blue/black ink.8 Then-applicable Section 3063 of the 

Election Code provided that “[a]ny ballot that is marked in blue, black or blue-black ink, in 

fountain pen or ball point pen, or black lead pencil or indelible pencil, shall be valid and 

counted.”9 The Court determined that the Code did not require the invalidation of ballots 

completed in other colors, holding that the mandatory language was merely directory in 

effect:

[T]he power to throw out a ballot for minor irregularities should be sparingly 

used. It should be done only for very compelling reasons. Marking a ballot 

in voting is a matter not of precision engineering but of an unmistakable 

registration of the voter’s will in substantial conformity to statutory 

requirements. In construing election laws[,] while we must strictly enforce 

all provisions to prevent fraud over overriding concern at all times must be 

to be flexible in order to favor the right to vote. Our goal must be to 

enfranchise and not to disenfranchise. This section of the code merely 

assures the validity of ballots marked in blue, black or blue-black ink. It 

does not . . . specify that any other type of marking will necessarily be void. 

We have noted in other cases that the dominant theme of this section is to 

prevent ballots from being identifiable. A ballot should not be invalidated 

 

8 Appeal of Weiskerger, 290 A.2d 108 (Pa. 1972).

9 25 P.S. § 3063 (applicable through October 30, 2019).
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under [25 P.S. § 3063] unless the voter purposely makes a mark thereon or 

commits some other act in connection with this ballot to distinguish and 

identify it. The proper interpretation of this portion of the statute considering 

the occasion for its enactment, the mischief to be remedied, and the policy 

to liberally construe voting laws in the absence of fraud, is that the ballot is 

valid unless there is a clear showing that the ink used was for the purpose 

of making the ballot identifiable.10

As this Court later stressed in Appeal of Pierce, Weiskerger “was decided before 

the enactment of the Statutory Construction Act [(“SCA”)], which dictates that legislative 

intent is to be considered only when a statute is ambiguous.”11 Thus, while Pierce focused 

on distinguishing Weiskerger, it nonetheless implicitly called into question the Weiskerger

Court’s casual dismissal of the language of the statute there at issue because the various 

factors the Weiskerger Court cited as relevant to its decision not to give “shall” mandatory 

effect are relevant under the SCA only when the statute is susceptible of two or more 

reasonable interpretations.12 

In insisting that a court’s goal should be to “enfranchise and not to disenfranchise” 

and to be “flexible” in furtherance of that goal, the Weiskerger Court found itself awash in 

 

10 Weiskerger, 290 A.2d at 109 (cleaned up).

11 Appeal of Pierce, 843 A.2d 1223, 1231 (Pa. 2004); see 1 Pa.C.S. 1921(b) (“When 

the words of a statute are clear and free from all ambiguity, the letter of it is not to be 

disregarded under the pretext of pursuing its spirit.”); see also Oberneder v. Link 

Computer Corp., 696 A.2d 148, 150 n.2 (Pa. 1997) (rejecting a party’s reliance upon a 

1965 case because it was at odds with the ambiguity-first, reliance-upon-rules-ofconstruction-later approach to statutory construction required by the SCA). 

12 Without suggesting that the ink color language at issue in that case was ambiguous 

on its face, the Weiskerger Court suggested that interpreting the language required it to 

consider, inter alia, “the occasion for its enactment” and “the mischief to be remedied.” 

Weiskerger, 290 A.2d at 109. Section 1921 of the SCA similarly provides that courts may 

consider “[t]he occasion and necessity for the statute” and “[t]he mischief to be 

remedied”—but only “[w]hen the words of the statute are not explicit.” 1 Pa.C.S. 

§ 1921(c). 
[J-118A-F-2020] [OAJC: Donohue, J.] - 7

language so slippery as to defy consistent application. The Court posited the existence 

of “minor irregularities,” a term we repeat often but have yet to define with suitable rigor,

13

and posited that ballots should be invalidated only for “very compelling reasons.”14 It also 

blessed “substantial conformity,” and directed courts to “be flexible in order to favor the 

right to vote”—evidently even when doing so runs counter to statutory directives stated in 

mandatory terms.15 

Perhaps most troublingly, the Court posited that its “goal must be to enfranchise 

and not to disenfranchise.”16 A court’s only “goal” should be to remain faithful to the terms 

of the statute that the General Assembly enacted, employing only one juridical 

presumption when faced with unambiguous language: that the legislature meant what it 

said. And even where the legislature’s goal, however objectionable, is to impose a 

requirement that appears to have a disenfranchising effect, it may do so to any extent 

that steers clear of constitutional protections. In any event, even if the Weiskerger Court 

 

13 See, e.g., Appeal of Norwood, 116 A.2d 552, 555 (Pa. 1955); Appeal of Gallagher, 

41 A.2d 630, 632 (Pa. 1945).

14 Weiskerger, 290 A.2d at 109 (quoting In re Petitions to Open Ballot Boxes, 188 

A.2d 254, 256 (Pa. 1963)).

15 In contrast to Weiskerger’s capacious understanding of this principle, the Court 

adopted a more measured tone in Appeal of Urbano, 190 A.2d 719 (Pa. 1963). There, 

citing the presumption in favor of counting votes, it allowed for relief from the apparent 

consequences of failing to satisfy mandatory statutory language, but did so specifically 

because the common-law presumption was in keeping with additional statutory language 

expressly granting the court discretion to permit amendments to cure even “material 

errors or defects.” Id. 

16 Weiskerger, 290 A.2d at 109 (emphasis added).
[J-118A-F-2020] [OAJC: Donohue, J.] - 8

faithfully applied the common-law principles it cited, it did so inconsistently with the SCA’s 

contrary guidance, which issued later the same year and binds us today.17

But the advent of the SCA did not prevent this Court from repeating the same 

mistake even decades later. In Shambach v. Bickhart,

18 a voter wrote in a candidate for 

office despite the fact that the candidate appeared on the official ballot for that office. This 

facially violated the Election Code, which provided that the voter shall, in the designated 

area, “write the identification of the office in question and the name of any person not 

already printed on the ballot for that office, and such mark and written insertion shall count 

as a vote for that person for such office.”19 Echoing Weiskerger, the Shambach Court 

observed that, “although election laws must be strictly construed to prevent fraud, they 

 

17 To be clear, Weiskerger was by no means our original sin in this area. In one 

earlier example cited by the OAJC, this Court discerned reason to disregard the 

mandatory connotation of “shall” in Appeal of James, 105 A.2d 64 (Pa. 1954). Indeed, 

one can detect aspects of the same open-ended analysis in, e.g., our 1922 decision in In 

re Fish’s Election, 117 A. 85, 87 (Pa. 1922) (quoting Knight v. Borough of Coudersport, 

92 A. 299, 300 (Pa. 1914)) (“If the law declares a specified irregularity to be fatal, the 

court will follow that command, irrespective of their views of the importance of the 

requirement. In the absence of such declaration the judiciary endeavor, as best they 

may, to discern whether the deviation from the prescribed forms of law had or had not so 

vital an influence on the proceedings as probably prevented a full and free expression of 

the popular will. . . . [If not], it is considered immaterial.”). Our willingness to substitute 

our judgment for that of the legislature perhaps reached its nadir in Norwood, where we 

held that “[e]very rationalization within the realm of common sense should aim at saving 

[a] ballot rather than void it,” 116 A.2d at 554-55, an expression that the OAJC embraces 

as a “well-settled principle of Pennsylvania election law.” OAJC at 19. Perhaps no 

passage better illustrates the liberties this Court has taken when probing for reasons to 

treat mandatory language as anything but mandatory.

18 845 A.2d 793 (Pa. 2004). 

19 25 P.S. § 3031.12(b)(3) (emphasis added). The language in question has been 

amended in the intervening years.
[J-118A-F-2020] [OAJC: Donohue, J.] - 9

ordinarily will be construed liberally in favor of the right to vote.”20 Thus, the Court “[has] 

held that ballots containing mere irregularities should only be stricken for compelling 

reasons.”21 In support of this particular proposition, though, the Court cited only decisions

that predated the SCA.22 Much as in Weiskerger, the Court held that the absence of 

statutory language requiring the invalidation of a ballot completed in violation of the 

mandatory language of Section 3031.12(b)(3), combined with the amorphous principles 

it drew from the Court’s prior cases, precluded the invalidation of a nonconforming ballot, 

effectively writing unambiguous language out of the Election Code entirely. 

We restored a greater degree of rigor in Pierce. In that case, we considered 

whether absentee ballots delivered by third persons on behalf of non-disabled voters were 

invalid under the Election Code, which provided that “the elector shall send [the absentee 

ballot] by mail, postage prepaid, except where franked, or deliver it in person to said 

county board of election.”23 There, in a step the Shambach Court tacitly bypassed, the 

Court underscored the SCA’s direction that a court’s sole objective in construing a statute 

is to “ascertain and effectuate the intention of the General Assembly,” and that, 

“[g]enerally speaking, the best indication of legislative intent is the plain language of a 

 

20 Shambach, 845 A.2d at 798 (quoting James, 105 A.2d at 65). 

21 Id. at 798.

22 See Appeal of Mellody, 296 A.2d 782, 784 (Pa. 1972); Reading Defense 

Committee, 188 A.2d at 256; Gallagher, 41 A.2d at 632. The OAJC similarly relies 

substantially for these principles on pre-SCA case law. See, e.g., OAJC at 3 (quoting 

James, 105 A.2d at 65-66 (Pa. 1954)); id. at 19 (quoting Urbano, 190 A.2d at 719, and 

Norwood, 116 A.2d at 554). 

23 25 P.S. § 3146.6(a) (emphasis added); see Pierce, 843 A.2d at 1231.
[J-118A-F-2020] [OAJC: Donohue, J.] - 10

statute.”24 “[I]t is only when the words of a statute ‘are not explicit’ that a court may resort 

to other considerations, such as the statute’s perceived ‘purpose,’ in order to ascertain 

legislative intent.”25 In this light, the Court turned to the legislature’s use of the word 

“shall.” “Although some contexts may leave the precise meaning of the word ‘shall’ in 

doubt,” the Court opined, “this Court has repeatedly recognized the unambiguous 

meaning of the word in most contexts.”26 As noted supra, this Court in Pierce declined to 

treat Weiskerger as controlling in part because it was decided before the enactment of 

the SCA. While we did not assert Weiskerger’s abrogation, we certainly cast doubt upon 

its probity, as well, by extension, as all similarly permissive Election Code case law relying 

upon the presumption to count votes that violated the Code’s unambiguous directives.

In In re Scroggin,

27 too, we applied the relevant statutory language strictly in 

conformity with its terms, despite colorable arguments that doing so would deny ballot 

access to a candidate who had “substantially complied” with the statutory requirements. 

And at issue in that case was not merely the votes of a small percentage of otherwise 

qualified voters, but whether a political body’s Presidential candidate would appear on the 

ballot at all in the wake of a placeholder nominee’s failure to satisfy the Code’s mandatory 

affidavit requirement. “[T]he provisions of the election laws relating to the form of 

nominating petitions and the accompanying affidavits are not mere technicalities,” we 

 

24 Pierce, 843 A.2d at 1230 (citations omitted). 

25 Id.

26 Id. at 1231-32 (citing, inter alia, BRYAN GARNER, DICTIONARY OF MODERN LEGAL 

USAGE 939 (2d ed. 1995)).

27 237 A.3d 1006 (Pa. 2020). 
[J-118A-F-2020] [OAJC: Donohue, J.] - 11

explained, “but are necessary measures to prevent fraud and to preserve the integrity of 

the election process. . . . Thus, the policy of the liberal reading of the Election Code 

cannot be distorted to emasculate those requirements necessary to assure the probity of 

the process.”28 

Finally, in PDP, we held that the failure strictly to comply with the Election Code’s 

mandatory requirement that mail-in ballots be sealed in the provided “Official Election 

Ballot” envelope required invalidation. Again, we specifically rejected the appellants’ 

reliance upon Weiskerger and Shambach, relying instead upon Pierce. As in Pierce, we 

found that to interpret “shall” as directory rather than mandatory would render the Code’s 

requirements “meaningless and, ultimately, absurd,” notwithstanding the absence of an 

express, statutorily-prescribed sanction for non-compliance.29 While we did not go out 

of our way to express as jaundiced a view of our cases holding that “minor 

irregularities” might be overlooked, the gravamen of our decision in that case, as in 

Pierce, was clear: shall means shall.

30

 

Although I joined the Majority in that case, I wrote separately to underscore the 

difficulties endemic to judicial efforts to discern ulterior meanings ostensibly obscured by 

the legislature’s use of mandatory language. I observed that relying upon such 

unbounded investigations invited courts “to bend unclear texts toward whatever ends that 

28 Id. at 1019 (quoting Appeal of Cubbage, 359 A.2d 383, 384 (Pa. 1976)).

29 PDP, 238 A.3d at 379 (quoting Pierce, 843 A.2d at 1232).

30 Id. at 380 (“[Pierce] leads to the inescapable conclusion that a mail-in ballot that is 

not enclosed in the statutorily-mandated secrecy envelope must be disqualified. . . . 

Accordingly, we hold that the secrecy [envelope] language in Section 3150.16(a) is 

mandatory and the mail-in elector’s failure to comply . . . renders the ballot invalid.”).
[J-118A-F-2020] [OAJC: Donohue, J.] - 12

they believe to be consonant with legislative intent, but with little or no contemporaneous 

insight into whether they have done so successfully.”31 Acknowledging that legislation is 

sometimes less than a model of clarity, and that this Court consequently will continue to 

face invitations to treat mandatory language as something less, I wrote: “[I]f we are to 

maintain a principled approach to statutory interpretation that comports with the mandate 

of [the SCA], if we are to maximize the likelihood that we interpret statutes faithfully to the 

drafters’ intended effect, we must read mandatory language as it appears, and we must 

recognize that a mandate without consequence is no mandate at all.”32 

It is against this case law, and particularly the views I expressed in PDP, that I 

review the question now before us, briefly addressing the Secretary-imposed name and 

address requirement first, before proceeding to consider the statutory requirement that 

the voter date and sign the voter declaration. 

As to the former question, I agree with the OAJC’s conclusion, although I subscribe 

to the narrower approach briefly set forth by Justice Dougherty in his Concurring and 

Dissenting Opinion and developed variously in the OAJC’s analysis. But while the OAJC 

acknowledges the reasons that Justice Dougherty cites as militating against invalidation, 

it supplements them with the minor-irregularity analysis familiar from Weiskerger and 

Shambach, which is neither necessary nor advisable. Justice Dougherty’s approach 

requires no reliance upon cases that Pierce and PDP rightly have called into question. 

Rather, the fact that the name and address requirement does not stem from mandatory 

31 Id. at 391 (Wecht, J., concurring).

32 Id.
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statutory language,33 as well as questions about the Secretary’s authority to compel 

county boards of elections to conform with whatever guidance the Secretary offers,

34

combined with our presumption in favor of treating qualified voters’ ballots as valid absent 

clear legal mandates to the contrary where statutory language is less than clear,35

collectively recommend against invalidating ballots for this omission alone.36 That is 

enough for me.

The same cannot be said about the date and sign requirement, which derives from 

an unmistakable statutory directive. Drawing upon our less rigorous case law, and relying 

heavily upon the interpretive latitude this Court has arrogated to itself sporadically for 

generations, the OAJC assumes that our mission is to determine whether the apparent 

mandate is in fact directory, hanging the entire inquiry upon the question of mandatory 

versus directory effect. That reading, in turn, must rely upon the “minor 

33 See Conc. & Diss. Op. at 2 (Dougherty, J.).

34 See OAJC at 32-33 n.6.

35 See PDP, 238 A.3d at 356 (“[T]he Election Code should be liberally construed so 

as not to deprive, inter alia, electors of their right to elect a candidate of their choice.”). 

Notably, the OAJC cites PDP for the same proposition, correctly qualifying the principle 

by noting that liberal construction comes into play only “[w]here an election statute is 

ambiguous.” OAJC at 25 n.4 (emphasis added).

36 I also find cause for concern in the absence of clear instruction on the ballot 

materials indicating that a ballot lacking a name or address will be disqualified, a concern 

that informs my preference for prospective application of the statutory date requirement. 

Cf. Reading, 188 A.2d at 256 (declining to invalidate ballots upon which voters did not 

signal their intended votes strictly with the X or check mark mandated by statute for 

various reasons—including a “minor irregularity” approach I reject—especially where the 

printed instruction on the ballot did not specify that only those two methods of signaling 

one’s vote would be recognized).
[J-118A-F-2020] [OAJC: Donohue, J.] - 14

irregularity” / “weighty interest” dichotomy underlying the cases that Pierce and PDP have 

called into question.

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[s] “weighty interests” . . . that the General 

Assembly considered to be critical to the integrity of the election.37

To be clear, the OAJC offers a commendably thorough analysis, but its length and 

involution is necessary only because of the open-ended inquiry it embarks upon. And it 

is no surprise that, like the cases upon which it relies, the OAJC involves protean

characterizations of voting requirements as “technicalities,”38 “minor irregularities,”39 and 

37 OAJC at 23. 

38 See id. at 3 (quoting James, 105 A.2d at 66 (“Technicalities should not be used to 

make the right of the voter insecure.”)). James’s tendentious resort to the word 

“technicalities,” which seldom is used constructively when invoked in connection with the 

law, is contradicted at least in tenor by subsequent pronouncements. See Pierce, 843 

A.2d at 1234 (“[S]o-called technicalities of the Election Code are necessary for the

preservation of secrecy and the sanctity of the ballot and must therefore be

observed . . . .”); Appeal of Weber, 159 A.2d 901, 905 (Pa. 1960) (“The technicalities of

the Election Law (and they are many) are necessary for the preservation of the secrecy

and purity of the ballot and must, therefore, be meticulously observed.”).

39 See OAJC at 22-23 (counterposing “minor irregularities” and “weighty interests” as 

the framework for decision). Notably, the question as to which we granted review quite 

confused the meaning of “irregularity.” We proposed to answer the question whether “the 

Election Code require[s] 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?” Id. at 15. But this formulation is irreconcilable with the question whether 

failing to date a ballot declaration is, itself, a “minor irregularity” and, as such, not subject 

to the sanction of ballot invalidation—the very crux of the case, as the OAJC defines it. I 

raise this discrepancy because it illustrates how these constructs lend themselves to 

confusion, complicating what should be simple questions by engrafting unenumerated 

considerations upon plainly worded statutes.
[J-118A-F-2020] [OAJC: Donohue, J.] - 15

even “superfluous.”40 As illustrated in my review of earlier case law, the OAJC does not 

conjure this terminology from the ether—all but the last of these terms have been central 

to this Court’s decisional law going back decades. But properly understood, all of these 

terms signal (and implicitly bless) the substitution of judicial appraisals for legislative 

judgments. 

The OAJC's approach ultimately requires that in any case requiring interpretation 

of the Election Code to determine the validity of votes nonconforming with facially 

mandatory requirements, the Court must assess the effect of that language de novo

before deciding whether the legislature intended for it to be interpreted as mandatory or 

merely directory.41 Thus, while a court embracing that test might take it as obvious, 

e.g., that the signature requirement should be construed as mandatory, it could not 

merely have taken its mandatory effect as a given by virtue of the statutory 

language alone. If the mandatory/directory inquiry is ever appropriately applied to 

mandatory language, then the Court can only conclude that mandatory language must 

be applied as such after applying its balancing test, with cases that seem obvious 

merely reflecting that the Court deemed the “interest” to be protected so “weighty” that 

its omission clearly cannot be viewed as a “minor irregularity.” 

40 See id. at 30 (“The date stamp and the SURE system provide a clear and objective 

indicator of timeliness, making any handwritten date unnecessary and, indeed, 

superfluous.”); cf. id. at 23 (characterizing the handwritten name and address requirement 

as, “at best, a ‘minor irregularity’ and, at worst, entirely immaterial”).

41 See id. at 30 (“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 direct[ory] in nature.” (emphasis added)).
[J-118A-F-2020] [OAJC: Donohue, J.] - 16

The only practical and principled alternative is to read “shall” as mandatory. Only 

by doing so may we restore to the legislature the onus for making policy judgments about 

what requirements are necessary to ensure the security of our elections against fraud 

and avoid inconsistent application of the law, especially given the certainty of disparate 

views of what constitute “minor irregularities” and countervailing “weighty interests.” 

I do not dispute that colorable arguments may be mounted to challenge the 

necessity of the date requirement, and the OAJC recites just such arguments.42 But 

colorable arguments also suggest its importance, as detailed in Judge Brobson’s opinion

as well as Justice Dougherty’s Concurring and Dissenting Opinion.

43

 And even to indulge

these arguments requires the court to referee a tug of war in which unambiguous statutory 

language serves as the rope. That reasonable arguments may be mounted for and 

against a mandatory reading only illustrates precisely why we have no business doing so.

Ultimately, I agree with Judge Brobson’s description of the greatest risk that arises 

from questioning the intended effect of mandatory language on a case-by-case basis:

While we realize that our decision in this case means that some votes will 

not be counted, the decision is grounded in law. It ensures that the votes 

will not be counted because the votes are invalid as a matter of law. Such 

adherence to the law ensures equal elections throughout the 

Commonwealth, on terms set by the General Assembly. The danger to our 

democracy is not that electors who failed to follow the law in casting their 

ballots will have their ballots set aside due to their own error; rather, the real 

danger is leaving it to each county board of election to decide what laws 

must be followed (mandatory) and what laws are optional (directory), 

providing a patchwork of unwritten and arbitrary rules that will have some 

defective ballots counted and others discarded, depending on the county in 

which a voter resides. Such a patchwork system does not guarantee voters 

42 See id. at 30-32.

43 See In re 2,349 Ballots in the 2020 General Election, 1162 C.D. 2020, slip op. at 12 

(Pa. Cmwlth. Nov. 19., 2020) (memorandum); Conc. & Diss. Op. at 3 (Dougherty, J.).
[J-118A-F-2020] [OAJC: Donohue, J.] - 17

an “equal” election, particularly where the election involves inter-county and 

statewide offices. We do not enfranchise voters by absolving them of their 

responsibility to execute their ballots in accordance with law.44

We must prefer the sometimes-unsatisfying clarity of interpreting mandatory language as 

such over the burden of seeking The Good in its subtext. Substantive perfection is the 

ever-elusive concern of the legislature. Ours must be consistency of interpretive method 

without fear or favor, a goal that recedes each time a court takes liberties with statutory 

language in furtherance of salutary abstractions. Because the OAJC favors a more 

intrusive and ambitious inquiry, I respectfully dissent.

But just because I disagree with the OAJC’s interpretation of the date and sign 

requirement does not inexorably lead me to the conclusion that the votes at issue in this 

case must be disqualified. While it is axiomatic that ignorantia legis neminem excusat

(ignorance of the law excuses no one), this Court may elect to apply only prospectively a 

ruling that overturns pre-existing law or issues a ruling of first impression not 

foreshadowed by existing law. Indeed, we have done so in at least one case under the 

Election Code. In Appeal of Zentner,

45 we confronted a statute governing candidates’ 

obligation to submit statements of financial interests by a time certain that had been 

revised specifically to correct our previously fluid interpretations of the predecessor 

statute. We were forced to consider whether our newly strict construal of the revised 

statute should result in the invalidation of entire ballots already cast because they 

included one or more candidates who had failed to satisfy the statutory disclosures. We 

44 In re 2,349 Ballots, slip op. at 12-13.

45 626 A.2d 146 (Pa. 1993)
[J-118A-F-2020] [OAJC: Donohue, J.] - 18

held, as the legislature clearly intended, that a candidate’s “failure to file the requisite 

financial interests statement within the prescribed time shall be fatal to a candidacy.”

46

But we also concluded that to “void the results of an election where all candidates were 

submitted to the voters, with late but nonetheless filed financial statements which left 

adequate time for study by the electorate, would be an unnecessary 

disenfranchisement.”47 Thus we determined that our holding should apply prospectively 

but not to the election at issue.48

It goes without saying that 2020 has been an historically tumultuous year. In 

October of 2019, the legislature enacted Act 77,

49 introducing no-excuse mail-in voting 

with no inkling that a looming pandemic would motivate millions of people to avail 

themselves of the opportunity to cast their ballots from home in the very first year that the 

law applied. Soon thereafter, Act 12,50 introduced and enacted with unprecedented 

46 Id. at 149.

47 Id.

48 Cf. Andino v. Middleton, No. 20A55, ___ U.S. ___, 2020 WL 5887393, *1 (Oct. 5, 

2020) (staying the district court’s injunction of an absentee ballot witness requirement, 

“except to the extent that any ballots cast before this stay issues and received within two 

days of this order may not be rejected for failing to comply with the witness requirement”

in light of the fact that voters cast nonconforming absentee ballots in reliance upon the 

guidance of state elections officials during the pendency of the injunction); In re Beyer, 

115 A.3d 835, 843-44 (Pa. 2015) (Baer, J., dissenting) (finding it “reasonable for this 

Court to rule prospectively that a candidate may only designate his occupation or 

profession as ‘lawyer’ on nomination papers after he or she has graduated from law 

school, passed the bar exam, and is in good standing as an active member of the 

Pennsylvania Bar,” but dissenting because, “at the time Candidate Beyer filed his 

nomination papers, neither a majority of this Court nor the Commonwealth Court had ever 

made such an express declaration”).

49 See Act of Oct. 31, 2019, P.L. 552, No. 77.

50 See Act of March 27, 2020, P.L. 41, No. 12.
[J-118A-F-2020] [OAJC: Donohue, J.] - 19

alacrity in response to the pandemic, further amended the Election Code to address 

emergent concerns prompted by the looming public health crisis. While aspects of the 

new provisions that are relevant to this case were not wholly novel to the Code, as such—

for example, the provisions that authorized no-excuse mail-in voting by and large just 

expanded the pool of voters to whom the rules that long had governed absentee balloting 

applied—the massive expansion of mail-in voting nonetheless presented tremendous

challenges to everyone involved in the administration of elections, from local poll workers 

to the Secretary of the Commonwealth. Importantly, it transformed the incentives of 

probing the mail-in balloting provisions for vulnerabilities in furtherance of invalidating 

votes. For the first time, a successful challenge arising from a given technical violation of 

statutory requirements might result in the invalidation of many thousands of no-excuse 

mail-in ballots rather than scores or hundreds of absentee ballots. 

In advance of the 2020 election, neither this Court nor the Commonwealth Court 

had occasion to issue a precedential ruling directly implicating the fill out, date and sign 

requirement. Moreover, as the OAJC highlights in multiple connections, the Secretary 

issued confusing, even contradictory guidance on the subject.

51

 Thus, local election 

officials and voters alike lacked clear information regarding the consequence of, e.g., 

failing to handwrite one’s address on an envelope that already contained preprinted text 

with that exact address or record the date beside the voter’s declaration signature.

I have returned throughout this opinion to our decision in PDP, and I do so once 

more. I maintained in that case that the Election Code should be interpreted with 

51 See OAJC at 24 n.3, 32-33 n.6; see also id. at 8-10 (reproducing all relevant 

aspects of the guidance documents pertaining to the issues presented).
[J-118A-F-2020] [OAJC: Donohue, J.] - 20

unstinting fidelity to its terms, and that election officials should disqualify ballots that do 

not comply with unambiguous statutory requirements, when determining noncompliance 

requires no exercise of subjective judgment by election officials.

52

 The date requirement 

here presents such a case. But I also emphasized that disqualification is appropriate “[s]o 

long as the Secretary and county boards of elections provide electors with adequate 

instructions for completing the declaration of the elector—including conspicuous warnings 

regarding the consequences for failing strictly to adhere” to those requirements.53 I 

cannot say with any confidence that even diligent electors were adequately informed as 

to what was required to avoid the consequence of disqualification in this case. As in 

Zentner, it would be unfair to punish voters for the incidents of systemic growing pains. 

In case after case involving the Election Code, especially this year, we have been 

reminded how important it is that the General Assembly provide unambiguous guidance 

for the administration of the election process. But it is imperative that we recognize when 

the legislature has done precisely that, and resolve not to question the legislature’s 

chosen language when it has done so. And perhaps it is a silver lining that many of the 

problems that we have encountered this year, in which a substantially overhauled 

electoral system has been forced to make its maiden run in stormy seas, are now clear 

enough that the legislature and Department of State have notice of what statutory 

refinements are most needful. It is my sincere hope that the General Assembly sees fit 

to refine and clarify the Election Code scrupulously in the light of lived experience. In 

particular, because this is the second time this Court has been called upon to address the 

52 See PDP, 238 A.3d at 389 (Wecht, J., concurring).

53 See id. (emphasis added).
declaration requirement, it seems clear that the General Assembly might clarify and 

streamline the form and function of the declaration, perhaps prescribing its form to 

advance clarity and uniformity across the Commonwealth.

54

 

54 In this regard, the OAJC observes that the Democratic National Committee 

“argues, with some persuasive force, that the Campaign’s requested interpretation of 

Pennsylvania’s Election Code could lead to a violation of [the federal Voting Rights Act] 

by asking the state to deny the right to vote for immaterial reasons.” OAJC at 26 n.5; 

see 52 U.S.C. § 10101(a)(2) ("No person acting under color of law shall . . . (B) deny the 

right of any individual 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 . . . .”). The OAJC does not pursue this 

argument, except to acknowledge a handful of cases that might be read to suggest that 

the name and address, and perhaps even the date requirement could qualify as “not 

material in determining whether such individual is qualified under State law to vote.” 

Given the complexity of the question, I would not reach it without the benefit of 

thorough advocacy. But I certainly would expect the General Assembly to bear that 

binding provision in mind when it reviews our Election Code. It is inconsistent with 

protecting the right to vote to insert more impediments to its exercise than 

considerations of fraud, election security, and voter qualifications require. 

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