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 Secretary 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, Judge
2

OPINION

BY JUDGE LEAVITT1 FILED: January 28, 2022

In this companion opinion to McLinko v. Commonwealth, __ A.3d __ 

(Pa. Cmwlth., 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 filed a petition for review seeking a declaration that 

Act 77 of 2019,2 which established 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 violates the United States Constitution. U.S. 

CONST. art. I, §§2, 4 and art. II, §1; U.S. CONST. amends. 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 noexcuse mail-in voting.

3

 The Acting Secretary also raises procedural challenges to 

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

challenge the constitutionality of Act 77. As in McLinko, the parties have filed crossapplications for summary 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 McLinko 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. As 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 

considered, and rejected, these arguments in McLinko, and we incorporate that 

analysis here. See McLinko, __ A.3d at __- __, slip op. at 40-48. 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 violates 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 omitted). A 

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

and the party’s interest. Id. An “immediate” interest requires a causal connection 

that is neither remote nor speculative. Id. The key is that the petitioner must be 

“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. As registered voters, Petitioners have

a right to vote on a constitutional amendment prior to the implementation of noexcuse mail-in voting in Pennsylvania. As past and likely future candidates for 

office, Petitioners have been or will be impacted by dilution 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 registered

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 explained how mail-in voting injures them as past and future candidates for 

office.

This Court has recognized that voting members of a political party have 

a substantial interest in assuring compliance with the Election Code7in that party’s 

primary election. In 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. Cmwlth. 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 

justice 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 re 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 to 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 constitutionality 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 the 

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 obtaining 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 violation 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 had 

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. Two registered electors (objectors),

who had not participated in the hearing on the emergency application, appealed the 

trial court’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 immediate” 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 which 

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 sound 

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 ballot. 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 election.

In contrast to In re General Election 2014, Petitioners have pleaded an

interest as candidates, as well as electors, and this matter extends far beyond five 

absentee ballots. In the 2020 general election, 2.7 million ballots were cast as mailin or absentee ballots; more than 1.38 million Pennsylvania electors have requested

to be placed on a permanent mail-in ballot list. Affidavit of Jonathan Marks ¶25. 

Given these numbers, it is obvious that no-excuse mail-in voting impacts a 

candidate’s campaign strategy. 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. 1988), 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 1988. The respondents 
8

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 unchallenged because respondents are directly and beneficially 

affected” and chose not to initiate legal action. 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 challenge 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 Article VII, Section 1 of the Pennsylvania Constitution,

12 PA.

CONST. 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 claims. 

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 28th day of January, 2022, it is ORDERED that the 

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

matter is GRANTED, in part. Act 77 is declared unconstitutional and void ab initio. 

Petitioners’ request for injunctive relief, nominal damages and reasonable costs and 

expenses, including attorneys’ fees, is DENIED. 

The application for summary relief filed by Respondents Veronica 

Degraffenreid, in her official capacity as Acting Secretary of the Commonwealth of 

Pennsylvania, and the Department of State is DENIED.

 ____________________________________________

 MARY HANNAH LEAVITT, President Judge Emerita
IN 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. McCULLOUGH, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE CHRISTINE FIZZANO CANNON, Judge

HONORABLE ELLEN CEISLER, Judge
MHW-2

CONCURRING AND DISSENTING OPINION 

BY JUDGE WOJCIK FILED: January 28, 2002

I concur in the Majority’s disposition of the procedural 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 Opinion 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’ 

Application for Summary Relief with respect to the substantive claims of the 

constitutionality of Act 77, and dismiss Petitioners’ petitions for review with 

prejudice.

MICHAEL H. WOJCIK, Judge

Judge Ceisler joins in this Concurring/Dissenting Opinion.