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;
BEDFO RD 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
O F 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 ELECTI ONS; 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 C OUNTY 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 Commonw ealth

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, 2 024

—

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. Se e 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 diffic ult

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.