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2020] [ OAJC ] 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. : : : : : : : : N o. 31 E AP 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. : : : : : : : : N o. 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. : : : : : : : : 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. : : : : : : : : 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. : : : : : : : : No. 35 EAP 2020

SUBMITTED: November 18, 2020[ J

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2020 ] [OAJC : Donohue , J. ]

- 2 IN RE: 2,349 BALLOTS IN THE 2020 GENERAL ELECTION
APPEAL OF: ALLEGHENY COUNTY BOARD OF ELECTIONS : : : : : : : : : : : : : No. 29 WAP 2020 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 O PINION

JUSTICE DOUGHERTY DECIDED: November 23, 2020 I concur in the decision to affirm the lower court s ’ orders pertaining to ballots where the qualified electors failed to print their name and/or address on the outer envelope containing their absentee or mail

- in ballots. However, I cannot agree that the obligation of electors to set forth the date the y si gned the declaration on that envelope does not carry “weighty interests.” Opinion Announcing the Judgment of the Court (OAJC) at 30. I therefore respectfully dissent from the holding at Section III(2) of the OAJC which provides that the undated ballots m ay be counted

. The applicable statute s require that electors “ shall [ ] fill out, date and sign ” the declaration printed on the ballot envelope

. 25 P.S. §§3146.6(a), 3150.16 (a)

. In my view, the term “fill out” is subject to interpretation

. Maybe it mea ns printing one’s name and address on the envelope, and maybe it does not. Given that our goal in interpreting the Election Code is to construe ambiguous provision s liberally, in order to avoid disenfranchisement where possible , I do not consider the failure of qualified electors to “fill out” their name and address, particularly where the name and address already appear[ J

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- 3 on the other side of the envelope, to require disqualification of the ballot

. I am further persuaded of this p osition by the fact that t he blank spaces on the envelope indicating
where the name and address should be “filled out” were designated by the Secretary, not the General Assembly. 25 P.S. §3146.4 (“Said form of decl aration and envelope shall be as prescrib ed by th e Secretary of the Commonwealth[.] ”) ; see also Concurring and Dissenting Opinion at 12

- 13 (Wecht, J.)

. But , the meaning of the terms “date” and “sign”

— which were included by the legislature

— are self

- evident , they are not subject to interpreta tion, and the statutory language expressly requires that the elector provide
them. See In re Canvass of Absentee Ballots of Nov. 4, 2003 General Election , 843 A.2d 1223, 1231 (Pa. 2004 ) (“[A]ll things being equal, the law will be construed liberally in fa vor of the right to vote but , at the same time , we cannot ignore the clear mandates of the Election Code.”) (citation omitted)

. Accordingly, I do not view the absence of a date as a mere technical insufficiency we may overlook. In my opinion, t here is a n unquestionable purpose behind requiring elector s to date and sign the declaration. As Judge Brobson observed below , the date on the ballot envelope provides proof of when the “ elector actually executed the ballot in full, ensuring
their desire to cast it in lieu of appearing in person at a polling place . The presence of the date also establishes a point in time against which to measure the elector’s eligibility to cast the ballot[.]” In R e : 2 , 349 Ballots in the 2020 General Election , 1162 C.D. 2020 ,
s lip op. at 12 ( Pa. Cmwlth. Nov. 19, 2020) (memorandum) . The date also ensures the
elector completed t he ballot within the proper time frame and prevents the tabulation of potentially fraudulent back

- dat ed votes. Cf. In re Canvass of Absentee Ballots of
N ovember 4, 2003 General Election , 843 A.2d at 1232

- 33 ( statutory requirement that
b allot be submitted by elector and not third

- party is mandatory safeguard against fraud). I recognize there is presently no dispute that all undated ballots at issue here arrived in a[ J

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- 4 timely manner

. But I am also cognizant that our interpretation of this relatively new statute will act as precedent ial guidance for future cases

.

Chief Justice Saylor and Justice Mundy join this concurring and dissenting opinion.