BREAKING HUGE: Pennsylvania Judge Rules 2020 PA Election Likely Unconstitutional – Trump Case “Likelihood to Succeed” – Gives State Legislators Power to Choose Electors!
https://www.thegatewaypundit.com/202...oose-electors/
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Honorable Mike Kelly, Sean :Parnell, Thomas A. Frank, Nancy :Kierzek, Derek Magee, Robin :Sauter, Michael Kincaid, and Wanda :Logan, :Petitioners ::v. : No. 620 M.D. 2020:Commonwealth of Pennsylvania, :Pennsylvania General Assembly, :Honorable Thomas W. Wolf, :Kathy Boockvar, :Respondents :
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
OPINION NOT REPORTED
MEMORANDUM OPINIONBY JUDGE McCULLOUGH FILED: November 27, 2020
As th
is Court’s
November 25, 2020, Order of an EmergencyPreliminary Injunction has been appealed to the Pennsylvania Supreme Court, thisopinion shall set forth the basis for said Order and shall also satisfy the requirementsof Rule 1925 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925.The overarching consideration for the emergency preliminary injunction pending theevidentiary hearing scheduled for November 27, 2020 is the compelling exigenciesraised in this case which are of statewide and national concern. Petitioners raisematters that go to the core of the electoral process and involve the constitutionalityof how the citizens of this Commonwealth may cast their votes, not only for the
Filed 11/27/2020 Commonwealth Court
2offices sought by Petitioners, but also, for the office of president and vice presidentof the United States of America as well as statewide, regional and local offices.On November 21, 2020, the Honorable Mike Kelly, Sean Parnell,Thomas A. Frank, Nancy Kierzek, Derek Magee, Robin Sauter, Michael Kincaid,and Wanda Logan (collectively, Petitioners), filed a Complaint for Declaratory andInjunctive Relief in this Court against the Commonwealth of Pennsylvania, thePennsylvania General Assembly, the Honorable Thomas W. Wolf, and KathyBoockvar (collectively, Respondents), which this Court indicated it would treat as a
petition for review addressed to the Court’s original juris
diction (Petition). In thePetition, Petitioners allege that the Act of October 31, 2019, P.L. 552, No. 77 (Act77), which added and amended various absentee and mail-in voting provisions in thePennsylvania Election Code (Election Code),
1
is unconstitutional and void
ab initio
because it purportedly contravenes the requirements of the PennsylvaniaConstitution. Petitioners allege that Article VII, section 14 of the PennsylvaniaConstitution provides two exclusive mechanisms by which a qualified elector maycast his or her vote in an election: (1) by submitting his or her vote
in propria persona
at the polling place on election day; and (2) by submitting an absentee ballot, butonly if the qualified voter satisfies the conditions precedent to meet the requirementsof one of the four, limited exclusive circumstances under which absentee voting isauthorized under the Pennsylvania constitution. (Petition, Ά16.) Petitioners allegethat mail-in voting in the form implemented through Act 77 is an attempt by thelegislature to fundamentally overhaul the Pennsylvania voting system and permituniversal, no-excuse, mail-in voting absent any constitutional authority.
Id.
, Ά17.Petitioners argue that in order to amend the Constitution, mandatory procedural
1
Act of June 3, 1937, P.L. 1333,
as amended
, 25 P.S. §§ 2600-3591.
3requirements must be strictly followed. Specifically, pursuant to Article XI, Section1, a proposed constitutional amendment must be approved by a majority vote of themembers of both the Pennsylvania House of Representatives and Senate in twoconsecutive legislative sessions, then the proposed amendment must be publishedfor three months ahead of the next general election in two newspapers in eachcounty, and finally it must be submitted to the qualified electors as a ballot questionin the next general election and approved by a majority of those voting on theamendment. According to Petitioners, the legislature did not follow the necessary procedures for amending the Constitution before enacting Act 77 which created anew category of mail-in voting; therefore, the mail-in ballot scheme under Act 77 isunconstitutional on its face and must be struck down.
Id.
, ΆΆ27, 35-37. As relief,Petitioners seek,
inter alia
, a declaration and/or injunction that prohibitsRespondents from certifying the November 2020 General Election results, whichinclude mail-in ballots that are permitted on a statewide basis and are allegedlyimproper because Act 77 is unconstitutional.On November 22, 2020, Petitioners filed a Motion forEmergency/Special Prohibitory Injunction (Emergency Motion), and aMemorandum of Law in Support of the Emergency Motion. In the EmergencyMotion, Petitioners seek to enjoin Respondents from taking official action totabulate, compute, canvass, certify, or otherwise finalize the results of the November3, 2020 General Election. They submit that this Court must intervene immediatelyin order to prevent irreparable injury from the resulting wrongs of an electionconducted pursuant to an unconstitutional and invalid mail-in ballot voting scheme(Motion at 2.) They claim their right to relief is clear and they are likely to succeedon the merits because they have showed that a substantial legal question must be
4resolved to determine the rights of the parties. They contend that the PennsylvaniaConstitution requires voting to take place in person, subject only to specifiedabsentee voting exceptions. They point out that Article VII, Section 14 provides the
only
such exceptions to the
in propria persona
voting requirement of thePennsylvania Constitution, in four specific circumstances. It statesa) The Legislature shall, by general law, provide a mannerin which, and the time and place at which, qualifiedelectors who may, on the occurrence of any election, beabsent from the municipality of their residence, becausetheir duties, occupation or business require them to beelsewhere or who, on the occurrence of any election, areunable to attend at their proper polling places because ofillness or physical disability or who will not attend a polling place because of the observance of a religiousholiday or who cannot vote because of election day duties,in the case of a county employee, may vote, and for thereturn and canvass of their votes in the election district inwhich they respectively reside.(b) For purposes of this section,
“
municipality
”
means acity, borough, incorporated town, township or any similargeneral purpose unit of government which may be created by the General Assembly.P
A
.
C
ONST
. Art. VII, § 14.Petitioners argue that outside of the aforementioned prescribedsituations, the Constitution does not provide a mechanism for the legislature to allowfor expansion of absentee voting. Consequently, Act 77 is illegal and void
ab initio
because it attempts to expand the constitutionally-established exceptions to
in propria persona
voting requirements. (Motion at 30-31.) According to Petitioners,A
ct 77 did this by creating a false distinction between the existent “absentee voting”
5
and “mail
-
in voting” –
and “absentee voting” is
only constitutionally authorizedunder the four limited circumstances specifically delineated in Section 14.Petitioners contend that without an immediate temporary injunction,
Pennsylvania’s
electoral votes will be cast, electors will be appointed and this Courtwill lose any authority to provide relief to Petitioners.
Id.
at 22. Petitioners arguethat greater injury will result from allowing the certification of election results pursuant to an unconstitutional no excuse mail-in voting scheme than from prohibiting it. Specifically, they contend that no voters will be disenfranchised bythe result of a slight delay in certifying the results. Conversely, they argue, if thelimited injunction is not granted, the harm to all Pennsylvanians is irreparable because they will suffer the fruits of an unconstitutional election.
Id.
at 24.By order of November 22, 2020, this Court observed that Petitioners hadnot properly served the Petition upon the Respondents, directed service of thePetit
ion and the Court’s order in accordance with
Rule 1514 of the PennsylvaniaRules of Appellate Procedure, Pa.R.A.P. 1514, and further directed that Petitionersfile proof of service thereof with the Prothonotary by 10:00 a.m. Monday, November23, 2020. Upon the filing of the proof of service, the Court scheduled an expeditedtelephonic status conference with all counsel of record and unrepresented parties for November 23, 2020, at 3:00 p.m. when this status conference convened in the matter,the Secretary of the Commonwealth and the Governor had not certified the resultsof the November 5, 2020 general election. Indeed, during the course of the statusconference counsel for Respondents stated to this Court that the Secretary was onlyin the process of certifying the results of the election.
6Following the status conference with counsel, the Court entered an orderon November 23, 2020, directing Respondents to file Preliminary Objections,directing the DNC Services Corporation/Democratic National Committee (ProposedIntervenor)
2
to file an
amicus curiae
brief in support of its proposed PreliminaryObjections filed with the Court, and further directing Petitioners to file answers and briefs in opposition to the Preliminary Objections. The parties were askedspecifically to address the application of Section 13(1), (2) and (3) of Act 77, andwhether a party is permitted to challenge the constitutionality of Act 77 in any courtsubsequent to the expiration of the 180 days. (Per Curiam Order, November 23,2020 at 1.)
Pursuant to the Court’s November 23, 2020 order, the Pennsylvania
General Assembly filed its Preliminary Objections and a Memorandum of Law inSupport thereof, and Secretary Kathy Boockvar (Secretary), the Honorable ThomasW. Wolf, and the Commonwealth of Pennsylvania (collectively, ExecutiveRespondents), together filed Preliminary Objections and a brief in support thereof.Proposed Intervenor has filed an
amicus
brief in support of its PreliminaryObjections.By order of November 24, 2020, this Court, upon further consideration
of Petitioners’
Emergency Motion, ordered Respondents to file and serve answers to
Petitioners’ Emergency
Motion, and directed that Proposed Intervenor may file a brief as
amicus curiae
in opposition to Petitioners’
Emergency Motion, by 12:30 p.m. on the same date. Petitioners c
omplied with the Court’s order and filed answers
2
On November 23, 2020, the DNC Services Corporation/Democratic National Committee(Proposed Intervenor), sought leave to intervene in this matter. As of the filing of this
memorandum opinion, the Court has not yet ruled upon Proposed Intervenor’s motion f
or leave tointervene. The Court notes, however, that Proposed Intervenor filed proposed PreliminaryObjections to the Petition with this Court on November 23, 2020.
7
and briefs in opposition to the General Assembly’s and Executive Respondents’
Preliminary Objections. The General Assembly and Executive Respondents have
filed their respective answers to Petitioners’
Emergency Motion, and ExecutiveRespondents also filed a brief in opposition to the Emergency Motion. Finally,Proposed Intervenor filed an
amicus curiae
brief in op
position to Petitioners’
Motion.
3
The Petitioners’ Emergency Motion was thus ripe for disposition by order
and opinion.However, the very next morning after the status conference, on November 24, 2020, the Executive Respondents filed a brief with an appended PressRelease dated 11/24/20 from the Department of State (Executive Respondents
’
Br.in Op. to Motion for Emergency Injunction, Exhibit A.) The Press Release stated
that “Following certification of the presidential vote submitted by all 67 count
ieslate Monday, [the Secretary] today certified the results of the November 3 election
in Pennsylvania for president and vice president of the United States.”
Id.
The Press Release
as well as Respondents’ briefs
, assert thatcertification only occurred regarding the results for president and vice president.Based on this information in the Press Release, Respondents argue the entire disputeis moot. A review
of the Department’s website
did not contain any additionalinformation regarding the status of the certification process, nor the entry of anyformal public record of such certification. Also, nothing was entered regardingcertification of the election results.
3
The Court notes that proposed
amici curiae
Christine Todd Whitman, John Danforth,Lowell Weicker, Constance Morella, Christopher Shays, Carter Phillips, Stuart Gerson, DonaldAyer, John Bellinger III, Edward J. Larson, Michael Stokes Paulsen, Alan Charles Raul, PaulRosenzweig, Robert Shanks, Stanley Twardy, Keith E. Whittington, and Richard Bernstein(Proposed
Amici Curiae
), have filed an Application for Leave to File Amicus Brief in opposition
to Petitioners’ Motion (Application). Proposed
Amici Curiae
have attached a brief in opposition
to Petitioners’ Motion as Exhibit 1 to their Appli
cation.
8On November 25, 2020, Petitioners responded to Executive
Respondents’ Brief in Opposition to Motion for Emergency Injunction and Press
Release by filing a Supplemental Application for Emergency Relief, which raisesadditional compelling concerns and questions of fact in support of their underlyingPetition for Review regarding the formal requirements and status of the certification process, and whether Respondents might have short-circuited the certification process to purportedly avert
this Courts’ determination on the merits
by declaringvictories in the presidential and vice presidential elections, while leavingcertification of the elections for the other offices for another time.
Petitioners’
Supplemental Application for Emergency Relief also raise the issue of whether theresults of an election can be certified piecemeal. It is also noted Petitioners alleged
that notwithstanding Respondents’ Press Release,
the dispute was not moot becausethe certification process for the presidential and vice presidential elections had not been perfected because there were additional steps that need to be completed,including: issuance of commissions to persons elected, pursuant to 25 P.S. § 3160;issuance of certificates election, and transmission of such certificates to the Speakerof the House of Representatives of the United States, in the case of the election ofrepresentatives in Congress, pursuant to 25 P.S. § 3163; issuance of certificates ofelection to the persons elected members of the Senate and House of Representativesof the Commonwealth, and presentation of the several returns of the same elections before the senate and House of Representatives pursuant to 25 P.S. § 3164; deliveryof the returns of elections for Auditor General and State Treasurer to the Presidentof the Senate,
so that they be “declared elected thereto,” the making and filing of
certificates for all such elections, the issuance of commissions for all such elections,and the issuance of commissions for each election of Judge of every court, pursuant
9to 25 P.S. § 3165; issuance of certificates of election to successful candidates ofelections pursuant to 25 P.S. § 2621; delivery of certificates of election for each
presidential and vice presidential elector pursuant to 25 P.S. § 3166 (Petitioners’
Supplemental Application for Emergency Relief at 4.)Accordingly, in careful consideration of the exigencies and timeconstraints in this matter of statewide and national import, and the longstandingconstitutional mandate that every citizen of this Commonwealth is entitled to no lessthan a fair and free election, it was necessary to preliminarily enjoin, on anemergency and temporary basis, Executive Respondents from undertaking any otheractions with respect to the certification of the results of the presidential and vice presidential elections, if indeed anything else needs to be done, pending anevidentiary hearing to ascertain the facts of this matter and to determine if the disputeis moot.Inasmuch as the Secretary had not certified the remaining results of the2020 general election, it was also necessary to enjoin, on an emergency and preliminary basis, any attempt to certify these results as well. In light of the factual,constitutional and legal issues raised, it was incumbent upon the Court toimmediately enter such emergency preliminary injunction to maintain the status quoand ensure that all of the parties and the citizens of the Commonwealth ofPennsylvania were not denied their right to a fair and free election.Based upon the record before it, this Court has sufficient grounds toenjoin Respondents from further certification activities on an
emergency
preliminary basis
, pending the results of the evidentiary hearing it had scheduledfor this date, after which the Court would have determined if a preliminary injunction
10should issue.
4
Since the Court is sitting in equity it has the power to fashion suchrelief as it is vitally important that the status quo be preserved pending further judicial scrutiny.
Com. ex rel. Corbett v. Snyder
, 977 A.2d 28, 43 (Pa. Cmwlth.
2009). (“[t]he pu
rpose of preliminary injunctive relief is to maintain the status quo
until the case can be investigated and adjudicated.”)
There is no harm to Respondents by the relief fashioned by this Court.
The “Safe Harbor” provision of 3 U.S.
C. §5 does not expire until December 8, 2020,and the Electoral College does not vote for president and vice president untilDecember 14, 2020. Additionally, Petitioners appear to have established alikelihood to succeed on the merits because Petitioners have asserted theConstitution does not provide a mechanism for the legislature to allow for expansionof absentee voting without a constitutional amendment. Petitioners appear to havea viable claim that the mail-in ballot procedures set forth in Act 77 contravene Pa.
4
FNA preliminary injunction may issue only upon the showing of six
essential
prerequisites, described as follows:First, a party seeking a preliminary injunction must show that aninjunction is necessary to prevent immediate and irreparable harmthat cannot be adequately compensated by damages . . . . Second,the party must show that greater injury would result from refusingan injunction than from granting it, and, concomitantly, thatissuance of an injunction will not substantially harm other interested parties in the proceedings . . . . Third, the party must show that a preliminary injunction will properly restore the parties to their statusas it existed immediately prior to the alleged wrongful conduct . . . .Fourth, the party seeking an injunction must show that the activityit seeks to restrain is actionable, that its right to relief is clear, andthat the wrong is manifest, or, in other words, must show that it islikely to prevail on the merits . . . . Fifth, the party must show thatthe injunction it seeks is reasonably suited to abate the offendingactivity . . . . Sixth and finally, the party seeking an injunction mustshow that a preliminary injunction will not adversely affect the public interest.
Reed v. Harrisburg City Council
, 927 A.2d 698, 702-03 (Pa. Cmwlth. 2007).
11Const. Article VII Section 14 as the plain language of that constitutional provisionis at odds with the mail-in provisions of Act 77. Since this presents an issue of lawwhich has already been thoroughly briefed by the parties, this Court can state thatPetitioners have a likelihood of success on the merits of its PennsylvaniaConstitutional claim.Without the emergency relief ordered by this Court, there would be thelikelihood of irreparable harm to Petitioners. As to Petitioner Kelly, although itappears that he gained the most votes in the election for the office he seeks, thatresult has yet to be certified. Further, he may suffer irreparable harm prospectivelyshould he seek election to public office in the future. If what may be anunconstitutional mail-in voting process remains extant, such mail-in ballots maymake the difference as to whether he is successful or not.As to Petitioners Parnell and Logan, mail-in ballots may have made thedifference as to whether they have won or lost their respective elections. Hence, theirfates may well turn upon the constitutionality of Act 77. The other voters in this caseassert their constitutional voting rights as citizens of Pennsylvania would beirreparably harmed.Conversely, since the relief ordered by the Court is on an emergency basis, Respondents face no irreparable harm. In any event, the matter of irreparableharm would have been assessed at the evidentiary hearing.The relief ordered by this Court is also in the public interest. Anyclaim that the voters of this Commonwealth are disenfranchised by this Cou
rt’s order
are spurious. The Order at issue does nothing more than preserve the status quo pending further and immediate review. That being said, this Court is mindful thatone of the alternative reliefs noted by Petitioners would cause the
12disenfranchisement of the nearly seven million Pennsylvanians who voted in the2020 General Election. Specifically, Respondents claim that a temporary stay woulddisenfranchise voters as the legislature would appoint the electors to the ElectionCollege. However, as noted, the legislature is not authorized to appoint the electorsto the Electoral College until December 8, the
“F
ederal Safe Harbor
”
date forcertifying results for presidential electors. The Court agrees it would be
untenable
for the legislature to appoint the electors where an election has already occurred,
if
the majority of voters who did not vote by mail entered their votes in accord with aconstitutionally recognized method, as such action would result in thedisenfranchisement of every voter in the Commonwealth who voted in this election
–
not only those whose ballots are being challenged due to the constitutionality ofAct 77. However, this is not the only equitable remedy available in a matter whichhinges upon upholding a most basic constitutional right of the people to a fair andfree election. Hence, Respondents have not established that greater harm will resultin providing emergency relief, than the harm suffered by the public due to the resultsof a purportedly unconstitutional election.
5
5
The U.S. Supreme Court has addressed various circumstances concerningdisenfranchisement of votes. For instance, it has held the right to vote is foundational to our
Republic and this fundamental right “can be de
nied by a debasement or dilution of the weight of a
citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.”
Reynolds v. Sims
, 377 U.S. 533, 555 (1964).
Reynolds,
which established the “one person, onevote” doctrine, is the seminal case on voter dilution. Under this concept, a mail
-in voting processthat would exceed the limits of absentee voting prescribed in Pa. Const. Article VII sec 14 could be construed as v
iolating the “one person one vote.” In that event, the sheer magnitude of the
number of mail-in ballots would not be a basis to disregard not only this provision of the
Pennsylvania Constitution but also the “one person, one vote” doctrine established by
Reynolds
,one of the bedrock decisions of the U.S. Supreme Court.
13For all of the above reasons, the Court respectfully submits that theemergency preliminary injunction was properly issued and should be upheld pendingan expedited emergency evidentiary hearings/ Patricia A. McCulloughPATRICIA A. McCULLOUGH, Judge
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