It's election season, folks, and the docket shows it.  In terms of opinions and other dispositions, mail-in ballots are the star this month.  For those who have been residing under a rock for the last five years, Act 77 of 2020 was a bipartisan (or, rather, bipartisan compromise) bill that made a number of changes to our Election Code.  Chief among the compromise positions were an end to straight-party-ticket voting, a longtime Republican goal which they view as helpful in breaking machine politics, and the advent of no-excuse mail-in voting, a longtime Democratic goal which they view as helpful in increasing turnout, which has historically benefited them.  (Act 77 did have some truly bipartisan provisions, such as precluding those voting for write-in candidates, which effectively gives each party more control and makes write-in candidacy even harder than it already is, and nonpartisan provisions such as funding, recordkeeping, and other provisions.)  And during the 2020 election, which was campaigned, conducted, and counted at the height of the coronavirus pandemic, mail-in ballots became politicized.  Republicans, largely fueled by then-President Trump, not only more frequently accepted conspiratorial narratives about the pandemic and viewed it as less serious, and therefore were less inclined to avoid in-person voting, but also viewed mail-in balloting as susceptible to fraud by political actors over-voting and election officials under-counting (albeit many states have had mail-in balloting, even exclusively mail-in balloting, for decades, and there has never been any evidence of widespread fraud, and the vast majority of individual instances of fraud actually favored Republicans).  Democrats, more concerned about the pandemic, saw no problem.  Thus, in 2020 and in subsequent elections, there has been a gap: Republicans are far more likely to vote in-person, and Democrats are more likely to vote by mail, albeit that gap is decreasing as Democrats feel more comfortable returning to the polls in light of the waning pandemic and Republicans feel more comfortable voting by mail in light of party and candidate reassurance and, one imagines, experience.

Against this backdrop, the Court has been attempting to clarify the interstices of what is, regardless of all the hue and cry, a new law with gaps that need to be filled.  There are numerous requirements for mail-in ballots that are designed to prevent fraud, while others are perfunctory, and the law is unclear as to which are which.  For example, the requirement that a voter place his or her ballot in a security envelope is the former: it is designed to ensure that those in the chain of custody do not inspect the ballot's contents and interfere.  But others, like the requirement to use an outer, return envelope, or to date a declaration on that envelope, seem to have little to do with election integrity.  The task is made all the more difficult by the fact that the statute is not the end of the inquiry: administrative deference to state and local election authorities, federal voting-rights legislation, the Pennsylvania Constitution, and the United States Constitution must all be brought to bear.  And politics being what it is, parties to litigation have something of a wider scope of what they are willing to argue as compared to other areas of litigation.

The pressure could not be higher, either.  The 2024 presidential election is perhaps the most acrimonious and consequential one in recent history, and Pennsylvania appears to be poised to be the keystone not only for whoever wins the Presidency, but also potentially for control of the Senate. Polling indicates a statistical tie between former President Trump and Vice-President Harris and a close race between Senator Bob Casey and candidate Dave McCormick, and, in the 2024 primary, 1.22% of mail-in ballots were rejected.

The big questions are whether and which of these requirements, in the final accounting of all the legal questions, require rejection of a ballot, whether and to what degree counties must, or may, advise voters ahead of time that their ballots have been rejected, and whether and to what degree a voter can do anything about it.

This month gives us an answer, at least, to the last question, at least for purposes of this election.  In Genser, the Court held that once a voter learns that his or her ballot has been rejected, he or she is eligible to cast a provisional ballot.  (Republicans have appealed the issue to the United States Supreme Court under the mostly-discredited independent-state-legislature theory, and are unlikely to prevail).  The Court's decision in this regard does not upset any ongoing election procedures because, whatever voters thought before, they can show up to the polls next Tuesday and cast a provisional ballot.

And there would seem to be an answer to part of the second question forthcoming, albeit perhaps not by this election.  In Center for Coalfield Justice, the Court has taken up a Washington County judge's order requiring certain notice-and-cure procedures as a state constitutional matter.  (The Republican National Committee case sought King's Bench jurisdiction over a similar issue, but was dismissed on the basis of laches).  But even if the Court issues its opinion today, it seems highly unlikely that it could, as a purely practical matter, ensure that every county elections board that doesn't have notice-and-cure procedures notify roughly 1% of voters in a Presidential election to come cure their ballots before Tuesday, or, contrariwise, find out which voters cured ballots and invalidate those ballots.

But the first question has been elusive.  Earlier this year, two Commonwealth Court cases invalidated several of the requirements as illegal and unconstitutional, but the Court dismissed them on jurisdictional grounds based on the petitioners' failure to join necessary parties.  Perhaps because of this, the petitioners in New PA Project sought King's Bench review to answer it, but the Court refused to intervene in an extraordinary fashion.  Although the Court's stated rationale in its per curiam order is that there is an election ongoing, several other Justices identified the then-pendency of Genser and Center for Coalfield Justice, the complexity of the question, and the petitioners' allegedly untimely advancement of their claims as informative of their decision.  Chief Justice Todd authored a dissenting statement emphasizing the importance of the franchise and, put bluntly, democracy.

The Court's reticence on this question is somewhat perplexing.  As a preliminary matter, like Genser, its addressing the issue now would not have had a disruptive effect on the election.  Indeed, all of the primary conduct under its sweep has already occurred: voters are going to complete and mail in their ballots, whatever defects there are.  If they are not arguably defective, they can be counted.  If they are arguably defective, they, and any Genser provisional ballots with them, can be sequestered, with the valid ballot determined and counted.  Additionally, the Court has significant experience addressing highly complex questions of election law in a tight timeframe, most notably its 2018 decision in League of Women Voters v. Commonwealth, addressing the issue of highly partisan gerrymandering, a question so difficult that the United States Supreme Court has determined is too difficult for it to answer at all.  Indeed, that the issue was briefed and decided by the Commonwealth Court months ago, albeit the Court did not review it at that time due to jurisdictional defects, adds to the point: although the petition sought King's Bench jurisdiction, the Court has the benefit of two robust decisions of lower courts that have exhaustively addressed the issue.  And suffice it to say that the petitioners' attempts to resurrect the issue after the jurisdictional problems came to light do not exactly scream out for application of laches.

What's more, the decision could only serve to simplify the law and the administration of the election.  If the requirements are unconstitutional, more mail-in ballots would be counted, fewer notices to cure would be necessary, and fewer provisional ballots would be necessary. And in the end, Chief Justice Todd's dissenting statement capably underscores proverbial forest notwithstanding the trees: the Court can resolve the issue in time to protect Pennsylvanians' right to vote, if it is implicated, and the democratic legitimacy of the upcoming election, now.  Although it is true that the question is a thorny one, about 1 in 100 Pennsylvanians' right to vote, and, with them, the Presidency, the Senate, and myriad downballot races are in the balance.

Apart from the election docket, I want to highlight a Rules Change that may be important for most practicing attorneys: the Court has amended numerous Rules of Professional Conduct that attempt to conform the ethics rules governing misleading statements, advertising and solicitation, and similar matters to the modern era, including more specific rules regarding firm name and structure, specialization, advertising and solicitation on the Internet, and so on.  Some are merely illustrations of earlier rules, or codifications of caselaw or informal guidance, but some are unexpected.  Since Halloween is over, read them at the link below to keep the scary prospect of a call from the Disciplinary Board at bay.    

Precedential Opinions

In Re: The 30th County Investigating Grand Jury, 15 EM 2022 (Majority Opinion by Mundy, J.) (holding a supervising judge of an investigating grand jury erred in releasing a report, rejecting an argument that it related to unlawful activity under color of law on the ground that it did not explain the unlawfulness of the activity, rejecting an argument it made policy recommendations because as a whole it was not public-policy focused, and further holding that any named, unindicted person criticized in an investigating grand jury report has a constitutional right to reputation that requires he or she be afforded notice and an opportunity to respond prior to the release)

• See also Concurring Opinion by McCaffery, J.
• See also Dissenting Opinion by Donohue, J.

Commonwealth v. Jones, M., 31 EAP 2021 (Majority Opinion by Donohue, J.) (holding that the admission of a non-testifying co-defendant's "redacted" confession that nevertheless clearly identified the defendant as a co-actor violated the defendant's Confrontation Clause rights notwithstanding recent United States Supreme Court precedent narrowing the right)

• See also Concurring Opinion by Wecht, J.
• See also Dissenting Opinion by Todd, C.J.

Commonwealth v. Strunk, 96 MAP 2023 (Majority Opinion by McCaffery, J.) (holding that contact for purposes of the offense of unlawful contact with a minor must be communicative in nature)

• See also Concurring Opinion by Wecht, J.
• See also Dissenting Opinion by Mundy, J.

Commonwealth v. Lear, 90-92 MAP 2023 (Majority Opinion by Dougherty, J.) (holding that delays caused by judicial emergency operations during the initial phase of the coronavirus pandemic do not constitute "judicial" delay for purposes of a criminal defendant's right to a speedy trial)

• See also Dissenting Opinion by Wecht, J.

Commonwealth v. Smith, 92 MAP 2021 (Majority Opinion by Todd, C.J.) (holding that the admission of a non-testifying co-defendant's "redacted" confession that did not clearly identify the defendant as a co-actor did not violate the defendant's Confrontation Clause Rights)

• See also Concurring Opinion by Wecht, J.

ODC v. Pisanchyn, 2914 DD3 (Majority Opinion by Donohue, J.) (holding that an attorney's filing of an allegedly excessive petition for fees in a fee-shifting context does not violate ethics rules prohibiting charging excessive fees to clients or engaging in conduct prejudicial to the administration of justice)

Martin v. Donegal Twp., 24 WAP 2023 (Majority Opinion by Dougherty, J.) (holding that a statute permitting the reorganization of second-class township boards of supervisors to boards with fewer supervisors does not violate constitutional provisions permitting the General Assembly to remove civil officers from office)

• See also Concurring Opinion by McCaffery, J.

Genser v. Butler Brd. of Elec., 26 & 27 WAP 2024 (Majority Opinion by Donohue, J.) (holding that a voter who learns his or her mail-in ballot has not been counted due to defects may cast a provisional ballot)

• See also Concurring Opinion by Dougherty, J.
• See also Dissenting Opinion by Mundy, J.
• See also Dissenting Opinion by Brobson, J.

Commonwealth v. Rivera, 800 CAP (Majority Opinion by Brobson, J.) (vacating an order denying postconviction relief and remanding for timeliness analysis on the ground that the trial court's analysis was conclusory)

Allocatur Grants

Precht v. UCBR, 35 MAL 2024 (granting review to consider the validity of the "positive steps" test for self-employment for purposes of unemployment compensation)

State College Area SD v. DHS, 580 MAL 2023 (granting review to consider the Department of Human Services' jurisdiction over the State College Area School District's Community Education Extended Learning Program)

Commonwealth v. Belgrave, 154 WAL 2024 (granting review to consider whether a trial court erred in permitting the Commonwealth's questioning of an alleged co-conspirator with foreknowledge that he would invoke his privilege against self-incrimination) 

Commonwealth v. Harrison, 111 MAL 2024 (granting review to consider whether the Superior Court misapprehended and/or misapplied the standard of review of a motion for nolle prosequi)

Commonwealth v. Steadly, 154 EAL 2024 (granting review to consider whether the validity of an arrest warrant must be proven to establish resisting arrest where the arrest is predicated on the warrant)

T.M.H. v. J.&K.L., 221 WAL 2024 (granting review to consider grandparent standing in custody actions)

Commonwealth v. Osman, 189 MAL 2024 (granting review to consider whether a defendant convicted of sex offenses must be sentenced to mandatory reentry supervision)

Honey v. Lycoming Co. Voter Svcs., 163 MAL 2024 (granting review to consider several issues relating to cast-vote records and their disclosure under the Right-to-Know-Law)

Ctr. for Coalfield Justice v. Wash. Co., 259 WAL 2024 (granting review to consider whether county boards of elections must notify voters that their mail-in ballots are defective and provide them an opportunity to cast a provisional ballot)

Other

Bass Pro Outdoor World, LLC v. Harrisburg Mall L.P., 8 MAP 2024 (per curiam) (dismissing appeal as improvidently granted)

• See also Dissenting Statement by Wecht, J. (opining against purely discretionary dismissals of appeals as improvidently granted)

Samsung Fire and Marine Ins. Co. v. RI Settlement Trust, 49 EM 2024 (granting review to consider whether and under what circumstances an insurer's duty to defend and/or indemnify is abrogated in the context of the insured's alleged sex-trafficking)

New PA Project Educ. Fund v. Schmidt, 112 MM 2024 (refusing to exercise King's Bench jurisdiction over claims challenging date requirements on mail-in ballots as violative of the right to free and equal elections on the ground that the election is ongoing)

• See also Concurring Statement by Brobson, J. (emphasizing the petitioners' delay in bringing the petition)
• See also Concurring Statement by Donohue, J. (emphasizing pending cases about the requirements and circumspection about resolving the constitutional question prior to their disposition)
• See also Dissenting Statement by Todd, C.J. (emphasizing the importance of the issue to the right to vote and the proper conduct of the upcoming election)

Republican National Cmte. v. Schmidt, 108 MM 2024 (refusing to exercise King's Bench or Extraordinary Jurisdiction over claims challenging some counties' notice-and-cure procedures for defective mail-in ballots on the ground of laches)

• See also Concurring Statement by Brobson (reiterating that the election is ongoing but suggesting litigation prior to the next election)

In re: Amendment of Rules 5.5, 7.1, 7.2, 7.3, 7.4, 7.5, and 7.7 of the Pennsylvania Rules of Professional Conduct, 252 Disciplinary Rules Docket (per curiam) (amending numerous ethics rules relating to misleading statements in the areas of firm names and structure, specialization, endorsements, advertising, social media, and the like)