IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

NEW PA PROJECT EDUCATION FUND, 

NAACP PENNSYLVANIA STATE 

CONFERENCE, COMMON CAUSE 

PENNSYLVANIA, LEAGUE OF WOMEN 

VOTERS OF PENNSYLVANIA, BLACK 

POLITICAL EMPOWERMENT PROJECT, 

POWER INTERFAITH, MAKE THE ROAD 

PENNSYLVANIA, ONE PA ACTIVISTS 

UNITED, CASA SAN JOSE, AND 

PITTSBURGH UNITED,

Petitioners

v.

AL SCHMIDT, IN HIS OFFICIAL CAPACITY 

AS SECRETARY OF THE 

COMMONWEALTH, AND ALL 67 COUNTY 

BOARDS OF ELECTIONS (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 

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No. 112 MM 2024
[112 MM 2024] - 2

COUNTY BOARD OF ELECTIONS; 

COLUMBIA COUNTY BOARD OF 

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 

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[112 MM 2024] - 3 

ELECTIONS; SNYDER COUNTY BOARD 

OF ELECTIONS; SOMERSET COUNTY 

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),

Respondents

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CONCURRING STATEMENT

JUSTICE BROBSON FILED: October 5, 2024

I join the per curiam disposition of this matter. In Republican National Committee 

v. Schmidt, (Pa., No. 108 MM 2024, filed Oct. 5, 2024) (RNC) (PCO), we denied the 

application for King’s Bench in that matter expressly invoking the equitable doctrine of 

laches. In my respectful view, that same conclusion is warranted here with respect to 

Petitioners’ Application for Exercise of King’s Bench or Extraordinary Jurisdiction 

(“Application”).

This Court issued its opinion on undated and incorrectly dated ballot envelopes in 

Ball v. Chapman, 289 A.3d 1 (Pa. 2023), in February 2023, definitively concluding: “The 

Election Code commands absentee and mail-in electors to date the declaration that 

appears upon ballot return envelopes, and failure to comply with that command renders 

a ballot invalid as a matter of Pennsylvania law.” Ball, 289 A.3d at 28 (emphasis added). 

Petitioners then, inexplicably, waited over a year—during which time the Commonwealth 

conducted a municipal primary, municipal election, and general primary election—to 
[112 MM 2024] - 4

challenge the envelope dating requirement, as interpreted by this Court in Ball, as 

unconstitutional under the Free and Equal Elections Clause in Article I, Section 5 of the 

Pennsylvania Constitution. They first did so in a jurisdictionally deficient petition for 

review filed in the Commonwealth Court on May 28, 2024. See Black Political 

Empowerment Project v. Schmidt (Pa., No. 283 M.D. 2024, filed Sept. 19, 2024) (PCO). 

When that failed, they filed the instant application with this Court on September 25,2024—

one week after the petitioners filed their King’s Bench application in RNC. Under these 

circumstances, Petitioners belated requests in their defective petition in the 

Commonwealth Court and their Application created the very exigency that they now 

invoke in their Application. For this reason, I agree that the Application should be denied.

In response to the Chief Justice’s dissenting statement, I note that 

Sections 1306(a) and 1306-D(a) of the Election Code, 25 P.S. §§ 3146.6(a) 

and 3150.16(a), as recently interpreted by this Court in Ball, “are strongly presumed to be 

constitutional.” Pa. State Ass’n of Jury Comm’rs v. Commonwealth, 64 A.3d 611, 618 

(Pa. 2013). The fact that someone or some entity raises a constitutional question about 

a statute, in light of this strong presumption, does not, in my respectful view, create 

uncertainty. See Commonwealth v. Rollins, 292 A.3d 873, 879 (Pa. 2023) (“[L]egislative 

exactments are presumed constitutional, and the party challenging the constitutionality of 

a statute bears a heavy burden of persuasion.”). To the contrary, it is what has become 

an all-too-common practice of litigants who postpone seeking judicial relief on 

election-related matters until the election is underway that creates uncertainty. Moreover, 

the ability to develop a record upon which this matter could be decided would be difficult 

on the compressed timeframe engineered by Petitioners. 
[112 MM 2024] - 5

This Court’s disposition of the King’s Bench applications in this matter and in RNC

should discourage all who look to the courts of the Commonwealth to change the rules in 

the middle of an ongoing election. 

Justice Mundy joins this concurring statement.