[J-96-2020] 

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

PENNSYLVANIA DEMOCRATIC PARTY, 

NILOFER NINA AHMAD, DANILO

BURGOS, AUSTIN DAVIS, DWIGHT 

EVANS, ISABELLA FITZGERALD, 

EDWARD GAINEY, MANUEL M. GUZMAN, 

JR., JORDAN A. HARRIS, ARTHUR 

HAYWOOD, MALCOLM KENYATTA, 

PATTY H. KIM, STEPHEN KINSEY, PETER 

SCHWEYER, SHARIF STREET, AND 

ANTHONY H. WILLIAMS

v.

KATHY BOOCKVAR, IN HER CAPACITY 

AS SECRETARY OF THE 

COMMONWEALTH OF PENNSYLVANIA; 

ADAMS COUNTY BOARD OF ELECTIONS; 

ALLEGHENY COUNTY BOARD OF 

ELECTIONS; ARMSTRONG COUNTY 

BOARD OF ELECTIONS; BEAVER 

COUNTY BOARD OF ELECTIONS; 

BEDFORD COUNTY BOARD OF 

ELECTIONS; BERKS COUNTY BOARD OF 

ELECTIONS; BLAIR COUNTY BOARD OF 

ELECTIONS; BRADFORD COUNTY 

BOARD OF ELECTIONS; BUCKS COUNTY 

BOARD OF ELECTIONS; BUTLER 

COUNTY BOARD OF ELECTIONS; 

CAMBRIA COUNTY BOARD OF 

ELECTIONS; CAMERON COUNTY BOARD 

OF ELECTIONS; CARBON COUNTY 

BOARD OF ELECTIONS; CENTRE 

COUNTY BOARD OF ELECTIONS; 

CHESTER COUNTY BOARD OF 

ELECTIONS; CLARION COUNTY BOARD 

OF ELECTIONS; CLEARFIELD COUNTY 

BOARD OF ELECTIONS; CLINTON 

COUNTY BOARD OF ELECTIONS; 

COLUMBIA COUNTY BOARD OF 

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No. 133 MM 2020

Emergency Applications to Stay
[J-96-2020, 133 MM 2020] - 2

ELECTIONS; CRAWFORD COUNTY 

BOARD OF ELECTIONS; CUMBERLAND 

COUNTY BOARD OF ELECTIONS; 

DAUPHIN COUNTY BOARD OF 

ELECTIONS; DELAWARE COUNTY 

BOARD OF ELECTIONS; ELK COUNTY 

BOARD OF ELECTIONS; ERIE COUNTY 

BOARD OF ELECTIONS; FAYETTE 

COUNTY BOARD OF ELECTIONS; 

FOREST COUNTY BOARD OF 

ELECTIONS; FRANKLIN COUNTY BOARD 

OF ELECTIONS; FULTON COUNTY 

BOARD OF ELECTIONS; GREENE 

COUNTY BOARD OF ELECTIONS; 

HUNTINGDON COUNTY BOARD OF 

ELECTIONS; INDIANA COUNTY BOARD 

OF ELECTIONS; JEFFERSON COUNTY 

BOARD OF ELECTIONS; JUNIATA 

COUNTY BOARD OF ELECTIONS; 

LACKAWANNA COUNTY BOARD OF 

ELECTIONS; LANCASTER COUNTY 

BOARD OF ELECTIONS; LAWRENCE 

COUNTY BOARD OF ELECTIONS; 

LEBANON COUNTY BOARD OF 

ELECTIONS; LEHIGH COUNTY BOARD 

OF ELECTIONS; LUZERNE COUNTY 

BOARD OF ELECTIONS; LYCOMING 

COUNTY BOARD OF ELECTIONS; 

MCKEAN COUNTY BOARD OF 

ELECTIONS; MERCER COUNTY BOARD 

OF ELECTIONS; MIFFLIN COUNTY 

BOARD OF ELECTIONS; MONROE 

COUNTY BOARD OF ELECTIONS; 

MONTGOMERY COUNTY BOARD OF 

ELECTIONS; MONTOUR COUNTY BOARD 

OF ELECTIONS; NORTHAMPTON 

COUNTY BOARD OF ELECTIONS; 

NORTHUMBERLAND COUNTY BOARD OF 

ELECTIONS; PERRY COUNTY BOARD OF 

ELECTIONS; PHILADELPHIA COUNTY 

BOARD OF ELECTIONS; PIKE COUNTY 

BOARD OF ELECTIONS; POTTER 

COUNTY BOARD OF ELECTIONS; 

SCHUYLKILL COUNTY BOARD OF 

ELECTIONS; SNYDER COUNTY BOARD 

OF ELECTIONS; SOMERSET COUNTY 

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[J-96-2020, 133 MM 2020] - 3

BOARD OF ELECTIONS; SULLIVAN 

COUNTY BOARD OF ELECTIONS; 

SUSQUEHANNA COUNTY BOARD OF 

ELECTIONS; TIOGA COUNTY BOARD OF 

ELECTIONS; UNION COUNTY BOARD OF 

ELECTIONS; VENANGO COUNTY BOARD 

OF ELECTIONS; WARREN COUNTY 

BOARD OF ELECTIONS; WASHINGTON 

COUNTY BOARD OF ELECTIONS; 

WAYNE COUNTY BOARD OF 

ELECTIONS; WESTMORELAND COUNTY 

BOARD OF ELECTIONS; WYOMING 

COUNTY BOARD OF ELECTIONS; AND 

YORK COUNTY BOARD OF ELECTIONS

PETITION OF: KATHY BOOCKVAR, IN 

HER CAPACITY AS SECRETARY OF THE 

COMMONWEALTH OF PENNSYLVANIA

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DISSENTING STATEMENT

JUSTICE MUNDY FILED: September 24, 2020

In my view, Intervenors1 make a substantial case on the merits that this Court 

should stay the portion of our opinion extending the deadline for receipt of mail-in ballots 

past 8:00 p.m. on November 3, 2020, Election Day.

2

 In Pennsylvania Democratic Party 

v. Boockvar, ___ A.3d ___, 2020 WL 5554644 (Pa. 2020), a majority of this Court held 

that all mail-in ballots postmarked by 8:00 on Election Day, and received by 5:00 p.m.

 

1

Intervenors refers to the Republican Party of Pennsylvania and Joseph B. Scarnati III, 

President Pro Tempore, Jake Corman, Majority Leader of the Pennsylvania Senate, 

Bryan Cutler, Speaker of the Pennsylvania House of Representatives, and Kerry 

Benninghoff, Majority Leader of the Pennsylvania House of Representatives.

2 A stay may be granted where Petitioners, “make a substantial case on the merits and 

show that without the stay, irreparable injury will be suffered. Additionally, before granting 

a request for a stay, the court must be satisfied the issuance of the stay will not 

substantially harm other interested parties in the proceedings and will not adversely affect 

the public interest.” Maritrans G.P., Inc. v. Pepper, Hamilton & Scheetz, 573 A.2d 1001, 

1003 (1990).
[J-96-2020, 133 MM 2020] - 4

November 6, 2020, even those lacking a postmark or bearing an illegible postmark, would 

be counted. Id. at *37. Without further explanation, the majority qualified that such ballots 

“will be presumed to have been mailed by Election Day unless a preponderance of the 

evidence demonstrates that it was mailed after Election Day.” Id. The Republican Party 

of Pennsylvania Intervenors argue that virtually no evidence exists to overcome such a 

presumption, and “the Court’s presumption opens the door to illegally and untimely cast 

or mailed ballots being counted in, and tainting the results of, the imminent general 

election in which millions of Pennsylvanians will exercise their right to vote.” Republican 

Party of Pennsylvania Application for Partial Stay at 4. 

Intervenors assert that there is a substantial likelihood that they will be successful 

on the merits of the stay application and writ of certiorari to be filed in the United States 

Supreme Court. Citing to Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 

1205 (2020), Intervenors note that the United States Supreme Court stayed a Wisconsin 

Supreme Court judgment and held that “[e]xtending the date by which ballots may be cast 

by voters after the scheduled election day fundamentally alters the nature of the election.” 

Id. at 1207. It is reasonable that the United States Supreme Court may view this Court’s 

presumption regarding ballots lacking a postmark or bearing an illegible postmark in the 

same light. As a result, I would grant a stay to preserve the public confidence in the 

integrity of the upcoming election.