IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Doug McLinko, : CASES CONSOLIDATED

Petitioner :

:

v. : No. 244 M.D. 2021

: Commonwealth of Pennsylvania, : Department of State; and : Veronica Degraffenreid, in her : official capacity as Acting Secretary : of the Commonwealth of Pennsylvania, :

Respondents :

Timothy R. Bonner, P. Michael Jones, : David H. Zimmerman, Barry J. Jozwiak, : Kathy L. Rapp, David Maloney, : Barbara Gleim, Robert Brooks, : Aaron J. Bernstine, Timothy F. : Twardzik, Dawn W. Keefer, : Dan Moul, Francis X. Ryan, and : Donald “Bud” Cook, :

Petitioners :

:

v. : No. 293 M.D. 2021

: Argued: November 17, 2021 Veronica Degraffenreid, in her official : capacity as Acting Sec retary of the : Commonwealth of Pennsylvania, and : Commonwealth of Pennsylvania, : Department of State, :

Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ELLEN CEISLER, Judge2

OPINION
BY JUDGE LEAVITT 1 FILED: January 28, 2022

In this companion opinion to McLinko v. Commonwealth

, __ A.3d __

(Pa. Cmwlt h., No. 244 M.D. 2021, filed January 28, 2022 ), Representative Timothy

R. Bonner and 13 members of the Pennsylvania House of Representatives

(collectively, Petitioners ) have f iled a petition for review seeking a declaration that

Act 77 of 2019, 2 which est ablished that any qualified elector may vote by mail for

any reason , violates the Pennsylvania Constitution and is, therefore, void.

Petitioners also assert that Act 77 violat es the United States Constitution

. U.S.

C ONST

. art. I, §§2, 4 and art. II, §1; U

. S. C ONST

. amend s

. XIV and XVII

. Finally,

Petitioners seek an injunction prohibiting the distribution, collection

, and counting

of no

- excuse mail

- in ballots in future state and federal elections

.

Respondents , the Acting Secretary of the Commonwealth, Veronica

Degraffenreid , and the Department of State (collectively, Acting Secretary) , have

filed preliminary objections to Petitioners’ challenge to Act 77’s system of no

excuse mail

- in voting

. 3 The Acting Secretary also raises procedural challenges to

the petition for review, i.e. , it was untimely filed, and Petitioners l ack standing to

challenge the constitutionality of Act 77. As in McLinko , the parties have filed cross

applications for summ ary relief , which are now before the Court for disposition

.

1 This matter was assigned to the panel before January 3, 2022, when President Judge Emerita Leavitt became a senior judge on the Court. Because the vote of the commissioned judges was evenly divided on the constitutional analysis in this opinion, the opinion is filed “as circulated” pursuant to Section 256(b) of the Court’s Internal Operating Procedures, 210 Pa. Code §69.256(b).

2 Act of October 31, 2019, P.L. 552, No. 77 (Act 77).

3 The Democratic National Committee and the Pennsylvania Democratic Party (collectively, Democratic Intervenors), and the Butler County Republican Committee, the York County Republican Committee, and the Washington County Republican Committee (collectively, Republican Intervenors) sought intervention in these consolidated matters. The Court granted

them intervention.3 On the merits, Petitioners’ claims under the Pennsylvania Constitution

are identical to those raised by McLinko in the companion case. 4 The Court

thoroughly addressed those claims in the McLin ko opinion, which we incorporate

here by reference. For all the reasons set forth in McLinko , we hold that Petitioners

are entitled to summary relief on their request for declaratory judgment

. 5

Additionally, Petitioners seek to enjoin the Acting Secretary from

enforcing Act 77 , which motion for summary relief will be denied as unnecessary.
The declaration has the “force and effect of a final judgment or decree.” 42 Pa. C.S.

§7532.

We turn next to the Acting Secretary’s procedural objections. A s in

McLinko , she contends that Petitioners’ petition for review was untimely filed

because it is barred by the doctrine of laches or, alternatively, because it was filed

after the so

- called statute of limitations in Section 13 of Act 77

. The Court

consid ered, and rejected, these arguments in McLinko , and we incorporate that

analysis here. See McLinko

, __ A.3d at __

- __, slip op. at 40

- 4 8

. Accordingly , we
hold that Petitioners’ petition for review was timely filed.

Finally, we consider the Acting Secretary ’s challenge to Petitioners’

standing. A party seeking judicial resolution of a controversy must establish a

“substantial, direct, and immediate interest ” in the outcome of the litigation to have

standing

. Markham v. Wolf , 136 A.3d 134 , 140 (Pa. 2016). An interest is

“substantial” if the party’s interest “surpasses the common interest of all citizens

in procuring obedience to the law.” Firearm Owners Against Crime v. City of

4 The cases have been consolidated because they raise identical issues under the Pennsylvania Constitution. A separate opinion is filed in each case to address the differences in standing and requested relief.

5 In light of our holding that Act 77 violate s the Pennsylvania Constitution, we need not address

Petitioners’ claims under the United States Constitution

.4

Harrisburg , 218 A.3d 497, 506 (Pa. Cmwlth. 2019) (quotation omitt ed) . A

“direct” interest requires a causal connection between the matter complained of

and the party’s interest. Id

. A n “immediate” interest requires a causal connection

that is neither remote nor speculative. Id . The key is that the petitioner must b e
“negatively impacted in some real and direct fashion.” Pittsburgh Palisades Park,

LLC v. Commonwealth , 888 A.2d 655, 660 (Pa. 2005).

Petitioners argue that they meet the above standards either as

candidates for office or as registered voters. A s r egistered voters, Petitioners ha ve

a right to vote on a constitutional amendment prior to the implementation of no

excuse mail

- in voting in Pennsylvania

. A s past and likely future candidates for

office, Petitioners have been or will be impacted by dilutio n of votes in every

election in which improper mail

- in ballots are counted. As candidates, Petitioners

argue that they will have to adapt their campaign strategies to an unconstitutional

law

. The Acting Secretary responds that Petitioners’ interest as r egistered

electors does not confer standing. 6 She argues that courts have repeatedly rejected

the “vote dilution” theory of injury advanced by Petitioners and , further, Petitioners

have not explain ed how mail

- in voting injures them as pas t and future candidates for

office.

T his Court has recognized that voting members of a political party have

a substantial interest in assuring compliance with the Election Code 7 in that party’s

primary election. I

n re Pasquay , 525 A.2d at 14. Likewise, a political party has

6 Notably, this Court has observed that “any person who is registered to vote in a particular election has a substantial interest in obtaining compliance with the election laws by any candidate for whom that elector may vote in that election.” In re Williams , 625 A.2d 1279, 1281 (Pa. Cmwlt h. 1993) (quoting In re Pasquay , 525 A.2d 13, 14 (Pa. Cmwlth. 1987)).

7 Act of June 3, 1937, P.L. 1333, as amended , 25 P.S. §§2600

- 3591.5

standing to challenge the nomination of a party candidate who has failed to comply

with election laws. In re Barlip , 428 A.2d 1058 (Pa. Cmwlth. 1981). 8 In In re Shuli

,

525 A.2d 6 , 9 (Pa. Cmwlth. 1987), this Court concluded that a candidate for district

ju stice had standing to challenge his opponent’s nominating petition because his

status as a candidate for the same office gave him a substantial interest in the action.

See also In r e General Election

– 1985 , 531 A.2d 836 , 838 (Pa. Cmwlth. 1987)

(candidate in general election had standing to challenge judicial deferment and

resumption of election because it could have jeopardized the outcome of the election,

a possibility sufficient t o show “ direct and substantial harm”)

. 9 In sum, a candidate

has an interest beyond the interest of other citizens and voters in election matters.

Because Petitioners have been and will be future candidates

, they have a cognizable

interest in the consti tutionality of Act 77

.

Nevertheless, the Acting Secretary directs the Court to In re General

Election 2014 (Pa. Cmwlth., No. 2047 C.D. 2014, filed March 11, 2015)

. 10 In that

case, the manager of a rehabilitation center in the City of Philadelphia filed an

emergency application for absentee ballots for five patients who had been admitted

to the facility just before the 2014 General Election. The trial court granted t he

8 In In re Barlip , this Court held that a county Republican Committee had standing to challenge

the nomination of a Republican candidate who failed to comply with election laws. We explained that “a political party, by statutory definition, [] is an organization representing qualified electors, [thus] it maintains the same interest as do its members in o btaining compliance with the election laws so as to effect the purpose of those laws in preventing fraudulent or unfair elections.” In re Barlip , 428 A.2d at 1060. “Moreover, a political party may suffer a direct and practical harm to

itself from the vio lation of the election laws by its candidates, for such noncompliance or fraud will ultimately harm the reputation of party and impair its effectiveness.” Id

. 9 Notably, in Barbieri v. Shapp , 383 A.2d 218, 221 (Pa. 1978), the State Court Administrator h ad standing to seek a declaration that four judicial offices be filled by an election, as required by

statute.

10 Under Section 414(a) of this Court’s Internal Operating Procedures, an unreported opinion may be cited for its persuasive value. 210 Pa. Code §69.414(a).6

emergency application over the objections of attorneys for the Republican State

Committee and the Republican City Committee. T wo registered electors (objectors)

, who had not participated in the hearing on the emergency application, appeal ed the

trial c ourt’s order and raised the same objections as the Republican committees

, which were no longer participating. The trial court determined that the objectors

lacked standing

.

On appeal, the objectors argued that the trial court erred , asserting that

as registered electors in the City of Philadelphia, they had “ a substantial, immediate

and pecuniary interest that the Election Code be obeyed. ” In re General Election

2014

, slip op. at 12

. The objectors claimed that the disputed absentee ballots affected

the outcome of the General Election in which they had voted.

In quashing the objectors’ appeal of the trial court’s order , this Court

held, inter alia , that the objectors were not “aggrieved” because they could not

establish a “substantial, direct and im mediate” interest

. Id. , slip op. at 11 (citing

William Penn Parking Garage, Inc. v. City of Pittsburgh , 346 A.2d 269, 286 (Pa.

1975) )

. In so holding, we relied upon Kauffman v. Osser , 271 A.2d 236 (Pa. 1970), 11

where our Pennsylvania Supreme Court rejected a challenge to absentee ballots that

was premised on a speculative theory of vote dilution:

Basic in appellants ’ position is the [a] ssumption that those who obtain absentee ballots, by virtue of statutory provisions w hich they deem invalid, will vote for candidates at the November election other than those for whom the appellants will vote and
thus will cause a dilution of appellants ’ votes

. This assumption, unsupported factually, is unwarranted and cannot afford a so und

11 In Kauffman , registered Democratic electors filed a declaratory judgment action against the Philadelphia Board of Elections and its chief clerk to challenge a section of the Election Code that permitted electors and their spouses on vacation to vote by absentee ballo t. The objecting electors argued that they would have their votes diluted by the absentee ballots.7 basis upon which to afford appellants a standing to maintain this
action.

Kauffman , 271 A.2d at 239

- 40

. We concluded that , as in Kauffman

, the objectors’

interest was common to all qualified electors . Further, the objectors offered no

support for their claim that the five absentee ballots they challenged would impact

the outcome of the e lection.

In contrast to In re General Election 2014

, Petitioners have pleaded an

interest as candidates

, as well as electors , and th is matter extends far beyond five

absentee ballots

. I n the 2020 general election, 2.7 million ballots were cast as mail

in or absentee ballots ; m ore than 1.38 million Pennsylvania electors have request ed

to be placed on a permanent mail

- in ballot list. Affidavit of Jonathan Marks ¶25.

Given the se number s , it is obvious that no

- excuse mail

- in voting impacts a

candidate’s campaign strateg y . We conclude that Petitioners have standing.

Even so, this case presents the special circumstances where taxpayer

standing may be invoked to challenge the constitutionality of governmental action.

The Pennsylvania Supreme Court has established that a grant of taxpayer standing

is appropriate where (1 ) governmental action would otherwise go unchallenged; (2)

those directly affected are beneficially affected; (3) judicial relief is appropriate; (4)

redress through other channels is not appropriate; and (5) no one else is better

positioned to assert the claim. Application of Biester , 409 A.2d 848 , 852 (Pa. 1979).

Petitioners meet all five requirements. Because the Acting Secretary has not

challenged the constitutionality of Act 77, it may go unchallenged if Petitioners are

denied standing

.

In Sprague v . Casey , 550 A.2d 184 (Pa. 19 8 8), a taxpayer challenged

the special election to fill one seat on the Supreme Court and one seat on the Superior

Court scheduled for the General Election of November 19 8 8. The respondents8

argued that the taxpayer lacked standing because the governmental action he

challenged did not substantially or directly impact him. The Supreme Court

determined that taxpayer standing under Biester was warranted because the “election

would otherwise go u nchallenged because respondents are directly and beneficially

affected” and chose not to initiate legal a ction. Sprague , 550 A.2d at 187. The Court

explained that “[j]udicial relief is appropriate because the determination of the

constitutionality of the election is a function of the courts ... and redress through

other channels is unavailable.” Id . (citation omitted).

We reject the challenge of the Acting Secretary and the Democratic

Intervenors to Petitioners’ standing to initiate an action to challeng e the

constitutionality of Act 77’s system of no

- excuse mail

- in voting

.

Conclusion

For all of the above reasons, we grant Petitioners’ application for

summary relief , in part, and, in accordance with our analysis in McLinko

, declare

Act 77 to violate A rticle VII, Section 1 of the Pennsylvania Constitution

, 12 P A

.

C ONST . art

. VII

, §1.

____________________________________________ MARY HANNAH LEAVITT, President Judge Emerita

Former President Judge Brobson, Judge Covey, and former Judge Crompton did not participate in the decision in this case.

12 Given our grant of declaratory relief to Petitioners

, we need not address the federal claim s

. Additionally, Petitioners’ request for nominal damages, attorneys’ fees and costs is denied.IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Doug McLinko, : CASES CONSOLIDATED

Petitioner :

:

v. : No. 244 M.D. 2021

: Commonwealth of Pennsylvania, : Department of State; and : Veronica Degraffenreid, in her : official capacity as Acting Secretary : of the Commonwealth of Pennsylvania, : Respondents :

Timothy R. Bonner, P. Michael Jones, : David H. Zimmerman, Barry J. Jozwiak, : Kathy L. Rapp, David Maloney, : Barbara Gleim, Robert Brooks, : Aaron J. Bernstine, Timothy F. : Twardzik, Dawn W. Keefer, : Dan Moul, Francis X. Ryan, and : Donald “Bud” Cook, : Petitioners :

:

v. : No. 293 M.D. 2021

: Veronica Degraffenreid, in her official : capacity as Acting Secretary of the : Commonwealth of Pennsylvania, and : Commonwealth of Pennsylvania, : Department of State, : Respondents :

O R D E R

AND NOW, this 28 th day of January , 202 2

, it is ORDERED that the

application for summary relief filed by Petitioners Timothy R. Bonner and 13 othermembers of the Pennsylvania House of Representatives in the above

- captioned

matter is GRANTED , in part

. Act 77 is declared unconstitutional and void ab initio

.

Petitione r s’ request for injunctive relief, nominal damages and reasonable costs and

expenses , including attorneys’ fees, is DENIED.

The application for summary relief filed by Respondent s Veronica

Degraffenreid, in her official capacity a s Acting Secretary of the Commonwealth of

Pennsylvania , and the Department of State is DENIED.

____________________________________________ MARY HANNAH LEAVITT, President Judge EmeritaIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Doug McLinko, :

: Petitioner :

:

v. : No. 244 M.D. 2021

: Commonwealth of Pennsylvania, : Department of State; and : Veronica Degraffenreid, in her : official capacity as Acting Secretary : of the Commonwealth of Pennsylvania, :

: Respondents :

Timothy R. Bonner, P. Michael Jones, : David H. Zimmerman, Barry J. : Jozwiak, Kathy L. Rapp, David : Maloney, Barbara Gleim, Robert : Brooks , Aaron J. Bernstine, Timothy F. : Twardzik, Dawn W. Keefer, Dan : Moul, Francis X. Ryan, and Donald : "Bud" Cook, :

: Petitioners :

:

v. : No. 293 M.D. 2021

: Argued: November 17, 2021 Veronica Degraffenreid , in her official : capacity as Acting Secretary of the : Commonwealth of Pennsylvania, and : Commonwealth of Pennsylvania, : Department of State, :

: Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, Judge

HONORABLE PATRICIA A. McCULL OUGH, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE CHRISTINE FIZZANO CANNON, Judge HONORABLE ELLEN CEISLER, JudgeMHW

- 2

CONCURRING AND DISSENTING OPINION
BY JUDGE WOJCIK FILED: January 28, 2002

I concur in the Majority’s disposition of the proced ural objections in

this matter. I dissent from the Majority’s disposition of the substantive claims

regarding the constitutionality of the Act of October 31, 2019, P.L. 552, No. 77 (Act

77)

, for the reasons expressed in my Concurring and Dissenting Opinio n in the

companion case, McLinko v. Commonwealth , __ A.3d __ (Pa. Cmwlth., No. 244

M.D. 2021, filed January 28, 2022 ). I only add that Petitioners’ federal

constitutional claims are without merit as they are based on the purported violation

of the Pennsylvania Constitution, which claims are meritless for the reasons outlined

therein.

Accordingly, unlike the Majority, I would grant Respondents’

A pplication for S ummary R elief with respect to the substantive claims of the

constitutionality of Act 77

, and dismiss Petitioner s ’ petition s for review with

prejudice.

MICHAEL H. WOJCIK, Judge

Judge Ceisler joins in this Concurring/Dissenting Opinion.