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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 ELECTI ONS; 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

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ELECTIONS; CRAWFORD COUNTY BOARD OF ELECTIONS; CU MBERLAND 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 B OARD 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
ELECTI ONS; 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
ELECT IONS; 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

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BOARD OF ELECTIONS; SUL LIVAN 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 COUNT Y 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, Intervenors 1 make a substantial case on the merits that this Court

should stay the portion of our opinion ext ending 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
substan tially 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)

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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 preponder ance of the

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

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

presumption, and “ the Court’s presumption opens the door to illegall y 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 Com m ., 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.