Justice David N. Wecht and two Democratic counterparts proposed the extraordinary power in a dissent from the majority's order vacating a lower appellate court's decision that the state's Election Code's requirement for correct dates on mail-in and absentee ballots violates the Pennsylvania Constitution's Free and Equal Elections clause.
"A prompt and definitive ruling on the constitutional question presented in this appeal is of paramount public importance inasmuch as it will affect the counting of ballots in the upcoming general election," Wecht wrote, joined by Chief Justice Debra Todd and Justice Christine L. Donohue. "Therefore, I would exercise this court's King Bench authority over the instant dispute and order that the matter be submitted on the briefs."
The high court's majority said the failure of the voting rights groups to sue the election boards in all 67 counties stripped the lower appeals court — known as the Commonwealth Court, which accepts cases against state-level government agencies and officers — of subject-matter jurisdiction. Further, the addition of Commonwealth Secretary Al Schmidt as a defendant didn't confer original jurisdiction to the Commonwealth Court because Schmidt was not considered an indispensable party in the litigation, the majority concluded.
State and federal courts in Pennsylvania, a key battleground state in presidential races, are a hot spot for election law challenges. Voting rights groups have primarily mounted constitutional challenges, while conservative organizations and politicians have raised voter fraud concerns over the rise in mail-in and absentee ballot-casting amid the COVID-19 pandemic.
In the instant challenge, the Black Political Empowerment Project, League of Women Voters of Pennsylvania, Pittsburgh United and others sued Schmidt and Philadelphia and Allegheny counties, which they say have enforced the dating provision since the 2020 election. Their challenge is the first to test the dating provision under the Pennsylvania Constitution's Free and Equal Elections Clause, according to their May 28 petition.
The dating provision disqualified thousands of "plainly eligible" voters in every primary and general election since 2020 for neglecting to write a date or penning an incorrect date on the ballot-return envelope, the groups' petition said.
A divided Commonwealth Court struck the dating provision on Aug. 30, with the majority, led by Judge Ellen Ceisler, finding it imposes a significant burden on individuals' constitutional right to vote and lacks a compelling government interest.
Dissenting Commonwealth Court Judge Patrick A. McCollough opined that the dating provision has rightfully withstood challenges in state and federal courts, and falls squarely within state lawmakers' authority to establish neutral ballot-casting rules. He added that while there was a constitutional right to vote to cast absentee ballots, no such right existed for those wishing to vote by mail.
The Republican National Committee and the Republican Party of Pennsylvania, acting as intervenors, petitioned the state Supreme Court in a Sept. 3 brief calling out "multiple reversible errors" by the Commonwealth Court's majority. The intervenors warned that "chaos, uncertainty, and an erosion of public confidence" would ensue in the 2024 election if the ruling went undisturbed.
The voting rights groups countered in a brief the next day that the dating provision "plays no role in establishing a ballot's timeliness or voter eligibility and is not used to detect fraud."
Representatives of the parties didn't immediately respond to requests for comment.
The Black Political Empowerment Project, League of Women Voters of Pennsylvania, Make the Road Pennsylvania, OnePA Activists United, New PA Project Education Fund, Pittsburgh United, League of Women Voters of Pennsylvania and Common Cause Pennsylvania are represented by John A. Freedman, James F. Speyer and David B. Bergman of Arnold & Porter Kaye Scholer LLP, by Mary M. McKenzie and Benjamin Geffen of the Public Interest Law Center, by Stephen Loney, Witold J. Walczak, Marian K. Schneider and Kate Steiker-Ginzberg of the American Civil Liberties Union of Pennsylvania and by Ari J. Savitzky and Sophia Lin Lakin of the American Civil Liberties Union Voting Rights Project.
The Republican National Committee and the Republican Party of Pennsylvania are represented by Kathleen A. Gallagher of The Gallagher Firm LLC, by John M. Gore, E. Stewart Crosland and Louis J. Capozzi III of Jones Day and Thomas W. King III and Thomas E. Breth of Dillon McCandless King Coulter & Graham LLP.
The case is Black Political Empowerment Project et al. v. Al Schmidt et al., case number No. 68 MAP 2024, in the Pennsylvania Supreme Court.
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