IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

MELINDA DELISLE, JACQUES DELISLE, ADAM DELISLE, BRYAN IRVIN, CHARLES CELLA, DEBORAH CELLA, MARY CAY CURRAN, ELIZA HARDY JONES, KRISTA NELSON, EILEEN MCGOVERN, CEDRIC

HARDY

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Petitioners

v.

KATHY BOOCKVAR, IN HER CAPACITY

AS SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA; AND JESSICA MATHIS, IN HER CAPACITY

AS DIRECTOR OF THE BUREAU OF

ELECTION SERVICES AND NOTARIES OF

THE PENNSYLVANIA DEPARTMENT OF STATE,

Respondents :

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: No. 95 MM 2020

CONCURRING STATEMENT

JUSTICE WECHT

I join the Court’s decision to transfer the Petition for Review to the Commonwealth

Court for disposition

. The statute that conferred exclusive original jurisdiction upon this

Court to hear constitutional challenges revoked that jurisdiction at the expiration of 180

days, and there is no question that Petitioners herein filed their petition outsid e that time

limit. Moreover, Petitioners fail to assert a compelling basis for exercising our oft

- invoked,

seldom

- g ranted King’s Bench authority. FILED May 29, 2020Petitioners raise valid and serious concerns, but they elected to pursue relief under

fact-intensive constitutional theories requiring a great deal of speculation that generally

lie outside this Court ’s purview

, particularly when the time allotted for a satisfactory

resolution is vanishingly brief, which was the basis of our recent rejection of a very similar

challenge. See Disability Rights Pennsylvania v. Boockvar

, ___ A.3d ___, 83 MM 2020

,

2020 WL 2507661 (Pa. May 15, 2020) (Wecht, J., concurring). But while speculative,

under the current extraordinary circumstances, the potential for impairment of the ability

of voters to cast a valid ballot by mail is real and substantial, and the stakes are high. The

unlikely event of a tragic and unfortunately timed global pandemic undoubtedly has

strained the local bureaucracies tasked with ensuring the timely processing of absentee

and mail-in ballots and foisted unanticipated burdens upon a beleaguered United States

Postal Service. Moreover, it cannot be gainsaid that there is no post hoc remedy sufficient

to cure the arbitrary deprivation of the “right of suffrage,” which “is a fundamental matter

in a free and democratic society.” Reynolds v. Sims

, 377 U.S. 533, 561-62 (1964).

Nonetheless, this Court must be cautious to avoid overstepping its bounds imprudently

and in defiance of legislative intent, as reflected in Point 1 of the per curiam order that this

statement accompanies. Of necessity, then, the Commonwealth Court ’s ruling upon

remand necessarily will be limited to the vicissitudes of the moment.

And this is only the primary. Given the stakes of a quadrennial presidential

election, in the event that present hardships persist as November’s general election

approaches, it would be incumbent upon the courts to entertain anew any and all claims

that are raised in due course. Not only may variations upon the present challenges find

more purchase as circumstances evolve; other challenges could emerge. Consideration

of any such challenges must await another day.

[ 95 MM 2020] - 2