00:01 - Good morning everyone.

00:03 - Welcome to the second day of our fall

00:06 - 2025 oral argument session here in Philadelphia.

00:10 - As you may know, the Pennsylvania Supreme Court

00:12 - is the oldest appellate court in North America.

00:16 - Our roots date back to William Penn's Provincial Court of 1684,

00:22 - and our Supreme Court was formally established

00:25 - pursuant to the Pennsylvania Judiciary Act of 1722.

00:31 - In May of 2022, our court

00:33 - celebrated its 300th anniversary here in Philadelphia.

00:38 - And, we are privileged to sit on this historic court

00:44 - and to sit in three historic courtrooms in Harrisburg,

00:48 - Pennsylvania, Harrisburg, Philadelphia and Pittsburgh.

00:52 - Here in City Hall, the facade of the bench is constructed of Mexican onyx,

00:58 - with each of the seven panels divided by bronze statuary

01:02 - representing the Greek figures of justice, law, and jurisprudence.

01:08 - To the right of the bench is an Italian marble bust of John Banister

01:12 - Gibson, Chief Justice of Pennsylvania

01:17 - from 1827 to 1851.

01:20 - To the left of the bench is a bronze bust of George Scott,

01:24 - Chief Justice of Pennsylvania from 1879 to 1882.

01:30 - Chief Justice Charles Wood was a well-respected member of the Philadelphia Bar.

01:36 - Directly behind the

01:37 - bench is a mural completed in 2002

01:41 - by two local artists, Michael Webb and Max Mason.

01:45 - The view is of Independence Hall's southern facade,

01:49 - with a historic Pennsylvania Supreme Court courtroom.

01:54 - To the left, the interior of both the courtroom

01:59 - and the justices conference room were designed by George Herzog,

02:04 - an American interior designer and decorative painter.

02:08 - While you are here, I hope you will take a moment to observe

02:11 - the majesty of our courtroom and its tributes to our system of justice.

02:17 - Before we hear the first case, I'd like to remind Council of a few things.

02:22 - Appellants.

02:22 - Counsel, please approach the podium when your case is called.

02:26 - I will then give a short summary of the case.

02:29 - Please begin by introducing yourself

02:32 - and your co-counsel and identifying the party.

02:35 - Represent.

02:36 - The justices are familiar with your cases.

02:39 - So we ask that you avoid any unnecessary recitation of facts or procedural history,

02:45 - and instead focus on the main issues that we granted review.

02:50 - Counsel as welcome to rely on their briefs for particular issues

02:54 - in cases in which there are multiple parties represented by separate counsel.

03:00 - Council should avoid repeating the same arguments as prior counsel.

03:05 - Please try not to interrupt the justices when they're asking you a question.

03:09 - A justice's question is not meant to trip you up.

03:12 - Rather, it indicates there are particular issues we would like to explore further.

03:18 - I remind you that we do not allow rebuttal.

03:21 - Finally, we have no set time limit for argument.

03:25 - I will advise counsel when the court is satisfied

03:28 - that all of its questions have been answered, and at that time,

03:32 - I will ask that you conclude your argument.

03:35 - Mr. Miller, please call the first case.

03:40 - All right.

03:40 - Next case I'm going to talk about in preview for the audience is Baxter

03:44 - versus the Philadelphia Board of Elections.

03:48 - This case is the next chapter in litigation

03:52 - involving validity of Mail-In ballots, something that we have seen litigated

03:58 - both in Pennsylvania state courts as well as the federal courts.

04:02 - I think largely since the 2020 election,

04:05 - going on five years now.

04:08 - I will speak about the issues, and then let's get into the argument

04:12 - and see what's going to be presented to this court, because it is a

04:16 - lot of material and a lot of nuance in the argument.

04:19 - You know, generally speaking, the issue that's going to be,

04:23 - argued before our court today

04:26 - involves a statute that requires

04:30 - Mail-In ballots to be dated in part, among other things,

04:35 - with a handwritten date on the outside of a return envelope.

04:39 - Now, what you'll

04:40 - hear argued is that the and this is actually not disputed.

04:44 - The handwritten date on the return envelope does not determine the timeline

04:48 - timeliness of the ballot.

04:49 - Rather, there's a time stamp.

04:51 - So what occurs in specifically with Baxter is there is an election.

04:55 - There are multiple mail in ballots, 60, some ballots, I believe 69.

05:01 - A number of them do not have any date handwritten on the outside.

05:05 - A number of them have the wrong date.

05:07 - Notwithstanding that these are ballots that have been submitted timely.

05:11 - They have a time stamp inside the ballot that shows they were mailed on time.

05:16 - Additionally, everybody here who's having,

05:19 - the ballots with an error on the written envelope or,

05:23 - otherwise registered to vote and capable of casting a vote in the election.

05:29 - So what has happened is that the

05:32 - the fight is whether or not these ballots should count or not.

05:37 - Count?

05:41 - It goes back

05:42 - and forth in the trial court and in the Commonwealth Court.

05:45 - Ultimately, the Supreme Court stays the Commonwealth court's ruling

05:49 - so that it can hear argument on this issue, and it can be the one

05:52 - to make the determination as to if the handwritten signature on the return

05:56 - envelope of the ballot should, if it's in error,

05:59 - should preclude the ballot, the vote from counting or not.

06:03 - A a high level summary of some of the argument

06:06 - you're going to hear is that the, ACLU and those,

06:11 - in favor of the votes counting are going to be arguing that the,

06:16 - handwritten exterior,

06:19 - the I'm sorry, excuse me, the handwritten date on the exterior of the envelope,

06:23 - has no significance and should not disenfranchize voters

06:27 - from having their votes counted in elections.

06:30 - A counter argument that you

06:31 - will hear from the RNC, from the Republican National Committee,

06:36 - who will argue here today is that the statute requires this to happen,

06:40 - and failure to comply with the statute should preclude the votes from counting.

06:44 - And it will be more complex than that and more, like I said, nuance, but

06:47 - high level.

06:48 - That's some of the argument we're going to hear.

06:51 - This is obviously a highly contested issue,

06:53 - and I don't think I need to, to, to

06:56 - I can't overstate the importance of the issue because,

07:00 - it impacts every election in the Commonwealth of Pennsylvania,

07:02 - and elections in the Commonwealth in Pennsylvania can have impact on,

07:06 - local, state and national elections.

07:09 - So we will all be watching this argument with great interest.

07:12 - Morning.

07:13 - Good morning.

07:14 - Chief Justice Todd and may it please the court.

07:16 - John Gore for appellants,

07:19 - Pennsylvania Republican party and Republican National Committee.

07:22 - I'm joined today by my co-counsel, Miss Kathleen Gallagher.

07:27 - We usually see Mr.

07:28 - King from Butler.

07:30 - I wish you were here as well, Your Honor.

07:34 - Please proceed.

07:35 - Thank you.

07:36 - Over a century ago in Winston, this court

07:39 - unanimously adopted a clear rule that it is adhered to.

07:43 - Ever since the General Assembly's neutral,

07:47 - generally applicable rules for how voters complete and cast their ballots

07:51 - do not violate the free and equal elections Clause

07:54 - unless they make voting so difficult as to amount to a denial of the franchise.

07:59 - That is a high standard, and this court

08:02 - has never invalidated a neutral ballot casting rule.

08:06 - Under it.

08:07 - A police in this case do not even meaningfully engage that standard.

08:11 - They do not argue their compliance with the declaration, mandate or state

08:16 - requirement component is so difficult as to amount to to know the franchise.

08:21 - Nor could they.

08:23 - There's nothing objectively difficult about completing the declaration

08:26 - or filling in the preprinted date boxes

08:30 - on the ballot return envelope.

08:32 - In fact, following the Secretary's redesign, the compliance rate

08:36 - with the date requirement hit 99.77%

08:41 - in the 2024 general election.

08:43 - The compliance rate has always been exceedingly high and exceeded 99%

08:48 - since the enactment of act 77.

08:51 - And for voters who do not want to comply

08:53 - with the date requirement, they can simply vote in person.

08:57 - The date requirement does not apply to in-person voting,

09:00 - which is the most popular method of voting in Pennsylvania.

09:03 - It's just to just to clarify, it's usually

09:06 - not a question of a voter not wanting to comply.

09:10 - It's usually a mistake.

09:13 - Certainly, Your Honor, but if a voter wants

09:14 - to avoid the requirement entirely, the voter can simply vote in person,

09:18 - which is the most popular method of voting here in Pennsylvania.

09:22 - That's the end of this case.

09:25 - A police free and equal elections claim fails.

09:29 - A police response to this is to ask the court

09:31 - to adopt a radical reinterpretation of the Free and Equal elections clause,

09:36 - and to turn the clause into a judicial blue pencil for rewriting

09:39 - the election code.

09:42 - Police would have this court extend strict scrutiny

09:45 - to every word, phrase and provision in the election code

09:49 - that bears on how voters complete and cast their ballots, no matter how mundane.

09:54 - This court has already rejected that approach in prior cases,

09:57 - and with good reason.

09:59 - It would turn that judicial,

10:02 - blue pencil into

10:03 - a virtually automatic revision of the election code

10:07 - and open the floodgates to litigation

10:10 - on every word and phrase in the election code.

10:13 - The General Assembly's legislative power to make

10:15 - the rules of elections would be transferred to the judiciary,

10:19 - and this court would sit as an election super legislature in a deluge of cases.

10:25 - And to top it all off, a police requested relief

10:29 - would trigger act 77 non severability provision

10:33 - and invalidate the grand political compromise

10:36 - that gave Pennsylvanians

10:38 - the convenience of universal mail voting in the first place.

10:42 - The court.

10:43 - That's well said, and I have no idea

10:46 - how we're going to ultimately view your argument,

10:49 - but the fact that the Pennsylvania Supreme Court is charged

10:54 - with the obligation to construe the provisions of our state constitution

11:00 - does not mean that we would be acting as a super legislature.

11:04 - I take your point, Your Honor.

11:06 - I think my point was that if the,

11:09 - if the court would adopt strict scrutiny,

11:12 - as the appellate is invited to do, it would be hearing a deluge of cases.

11:17 - And in that sense, would would be rewriting the election code all the time

11:22 - because where we witness is daily pages,

11:26 - we would be asked to decide if we.

11:31 - Take this case as an example.

11:33 - Just as Danny,

11:35 - litigated.

11:36 - Correct.

11:37 - Okay.

11:38 - The other thing I like

11:40 - there are going to be challenges to any provision

11:42 - or any phrased in the election code under strict scrutiny.

11:45 - So for example,

11:48 - requirements around the signature on the mail

11:50 - ballot, requirements for filling out the declaration requirements

11:54 - for, voting in person requirements around provisional voting,

11:58 - including signature required sets, including requirements around poll books.

12:03 - The election code sets out a detailed and reticulated scheme

12:07 - for how voters complete and cast their ballots.

12:10 - There could be challenges about polling place, locations, polling places, election,

12:16 - polling place hours.

12:18 - Anything that's in the election code that bears on how voters

12:21 - show up to the polls or receive a ballot completed and cast.

12:25 - It would be within the purview of the challenges here.

12:30 - The point is, it's applying strict scrutiny to the election code

12:33 - if something this court has already declined to do.

12:36 - It perhaps set it best in the bird case

12:39 - at 713 a second.

12:42 - 1107 where it said that, of course, voting

12:45 - is a fundamental significance in our constitutional order.

12:50 - But to extend strict scrutiny to every voting regulation

12:53 - would tie the hands of states seeking to assure that elections

12:57 - are operated equitably and efficiently.

13:00 - This court has never extended strict scrutiny, to a claim

13:04 - brought against a neutral ballot casting rule under the wall standard.

13:09 - It didn't do that in Winston.

13:11 - It didn't do that in Pennsylvania Democratic Party,

13:14 - even though it recognized that the right to vote is fundamental.

13:17 - It didn't do so in last year's case. And Walsh,

13:20 - in doing so,

13:21 - would again open up the floodgates and erode

13:25 - the General Assembly's legislative power to enact election laws.

13:29 - The Secretary attempts a variation on that theme.

13:32 - The Secretary argues

13:34 - for something resembling more along the lines of rational basis scrutiny.

13:38 - Again, that is not an approach this court has taken.

13:41 - This court has simply looked at the Winston Standard of

13:44 - whether the rule itself makes voting so difficult

13:48 - as to amount to a denial of the franchise.

13:52 - Rational basis.

13:52 - Scrutiny, again, would erode the General Assembly's authority in this area,

13:57 - and subjected to judicial review and potentially open this court,

14:02 - to hearing cases in cases about the election code.

14:07 - But even if this court were to adopt rational basis,

14:09 - the scrutiny, the date requirement would easily satisfy it.

14:13 - Look no further than the state's anti-fraud interest.

14:16 - The state doesn't even need to have evidence of fraud within its borders

14:21 - before it can act to enact measures to deter, detect and punish voter fraud.

14:26 - But here we have a live example from the Mahalia case.

14:30 - That was a case in which the date requirement

14:32 - was used to identify fraud when it happened.

14:36 - Now, their response is to point out that the ballot in that case

14:39 - wouldn't have been counted anyway, because the individual

14:43 - in whose name the ballot was returned had already passed away.

14:47 - And that's correct.

14:48 - But that alone did not give a basis to suspect fraud.

14:51 - It was only because the outer envelope had been dated with the date

14:56 - after the decedent had passed away, that there was a reason to suspect

15:00 - fraud and open the investigation.

15:02 - Fraud was discovered and the fraudster was criminally sentenced.

15:06 - That alone is sufficient to justify the date requirement and we don't need to.

15:13 - That is it.

15:15 - You're correct, Justice Donaghy, that they identified

15:18 - that the ballot was invalid and shouldn't be counted,

15:22 - and it was not counted?

15:24 - That's correct.

15:25 - But that would have happened regardless of whether there was fraud or not.

15:29 - It was only because the,

15:31 - the date requirement that the fraud element of the case was detected

15:35 - ultimately prosecuted and resulted in a criminal sentence.

15:40 - But all of that is beside the point, because what the court should do is adhere

15:44 - to its consistent precedent from Winston through Walsh,

15:48 - and simply examine whether the date requirement

15:51 - is so difficult to comply with that it amounts to a denial of the franchise

15:56 - that hasn't been seriously argued here, and it certainly hasn't been shown

16:00 - because the date requirement, like the broader declaration

16:03 - mandate, is not objectively difficult to comply with.

16:07 - It can be avoided through in-person voting

16:09 - and even among voters who choose the convenience of mail voting.

16:14 - The compliance rate is exceedingly high.

16:16 - As I said before now appellate also dispute that this court

16:21 - already decided to question in Pennsylvania Democratic Party.

16:25 - But they even recognize on page 42 of their brief

16:29 - that the question of the constitutional validity of the date

16:32 - requirement was antecedent to the remedial question

16:35 - that was presented in Pennsylvania Democratic Party.

16:38 - I'll also point out that what they're seeking in this case,

16:41 - or what they now say they're seeking in this case, is identical

16:44 - to what the petitioners sought in Pennsylvania Democratic Party.

16:48 - They say they don't want to strike the date requirement

16:51 - from the election code or remove the date field from the ballot.

16:55 - They just want relief from enforcement of it.

16:57 - They want the date requirement not to be enforced.

17:01 - That's exactly what the Pennsylvania Democratic Party petitioners wanted.

17:04 - They wanted a remedy of notice, ensuring from the date requirement.

17:09 - So Pennsylvania Democratic Party is on all fours with this case.

17:13 - Even if the court does not believe that

17:15 - the antecedent question was resolved there, as we've argued in our briefs.

17:20 - Ball.

17:21 - Ball also addressed,

17:23 - free and equal elections clause arguments with respect to the date requirement.

17:27 - Now, they've pointed to footnote 156 from the ball opinion,

17:32 - which was joined by three justices.

17:35 - But that footnote was addressing a different free

17:38 - and equal elections clause issue than the one we have here today

17:41 - that in that case, recall that there was a group of voter

17:45 - petitioners who argued that counting other voters, ballots

17:50 - that did not comply with the date requirement,

17:52 - would somehow violate the petitioners free and Equal

17:55 - Elections Clause rights.

17:58 - And this the three justices were simply expressing the view

18:01 - that that wasn't correct.

18:03 - So either this court in Pennsylvania Democratic Party involved did address

18:07 - and consider the free and equal elections clause clauses, application

18:11 - to the date requirement

18:12 - and resolved it in favor of the appellants or it didn't address it.

18:16 - And we still win because,

18:19 - of the Winston and Walsh standard,

18:22 - being the governing standard and this being a requirement,

18:25 - that's not so difficult to comply with as to amount to denial of the franchise.

18:30 - I would like to,

18:32 - address a couple more points on the first question, Your Honor.

18:35 - First,

18:37 - the appellants have argued

18:39 - our police have argued a couple of things.

18:42 - They've said that, the date requirement must be unconstitutional

18:47 - because it results in a certain number of ballots being rejected every election.

18:52 - But that's not the Winston test.

18:54 - The Winston test examines the burden or difficulty of complying with the rule.

18:58 - It doesn't address the consequences of noncompliance with the rule.

19:03 - It doesn't consider what happens when voters fail to comply with the rule.

19:06 - If it did, then every mandatory rule in the election code,

19:11 - would trigger scrutiny under the Free and Equal Elections clause.

19:15 - And that's not what this court's jurisprudence holds.

19:18 - They also argued that the right to vote is fundamental.

19:21 - We agree with that.

19:23 - But the right

19:23 - the fundamental right to vote is not a right to be exempt from the rules.

19:28 - It's not a right to an exemption from neutral, generally

19:31 - applicable rules for making a ballot effective.

19:34 - And as this court held in Burge and other cases, the fact that voting is

19:37 - a fundamental right does not mean that, strict scrutiny should apply here.

19:43 - I'd also like to briefly address the Third Circuit panel opinion in econ,

19:48 - which I know has been brought to this court's attention.

19:51 - That decision actually proves our point.

19:53 - It proves our position that the appellate free and equal elections, claim fails.

19:58 - Even the Third Circuit panel agreed

20:01 - that any burden imposed by the date requirement is minimal.

20:05 - So the Third Circuit panel has likewise confirmed

20:08 - that the rule does not make voting so difficult as to deny the franchise.

20:14 - The Third Circuit panel also recognized

20:16 - that the date requirement does advance Pennsylvania's anti-fraud interest.

20:21 - As evidenced by the Mahalia case.

20:24 - So if there's any doubt

20:26 - on that score, the Third Circuit panel decision actually supports our reading

20:30 - and our construction of the date requirement

20:33 - and the state's interests that are advanced by the.

20:36 - Are you going to discuss the holding of the Third Circuit?

20:39 - Yes, I'm getting to that now.

20:42 - If the court is interested in holding on a third circuit,

20:45 - there's no basis to follow that panel decision here for a couple of reasons.

20:49 - First, it's not final.

20:51 - We have a petition for rehearing en bloc just yesterday.

20:54 - So has the attorney general.

20:56 - We expect that the Third Circuit will rule on that at some point.

21:00 - And there may be further appellate proceedings, even in the United States

21:03 - Supreme Court.

21:05 - Even the Third Circuit panel, however, recognized that its decision

21:09 - implicates multiple circuit splits under the Anderson Burger framework.

21:14 - It implicates a split on whether rational basis of scrutiny applies.

21:17 - It implicates a split on whether states and defenders of election

21:22 - laws are required to adduce evidence in support of the state interests.

21:27 - It also implicates, split about the proper standard of review under

21:31 - Anderson verdict, and whether Anderson Burdick even applies to mail voting,

21:36 - and to regulations when there's an alternative method of voting.

21:42 - The appellate have also argued that the Anderson verdict framework is

21:45 - not the same as the standard under the Free and Equal Elections clause.

21:50 - We agree with that.

21:51 - The standard is the Winston Walsh standard.

21:54 - The standard is whether the rule makes voting

21:57 - so difficult as to amount to a denial of the franchise.

22:01 - They failed to show that here.

22:03 - The Third Circuit decision actually confirms that on the facts.

22:06 - And so there's no basis to follow the holding

22:10 - or outcome of the Third Circuit, which was

22:13 - which was that the date requirement violates the Anderson

22:16 - verdict, the federal constitution under the Anderson verdict framework.

22:19 - Thank you.

22:22 - Now, let me turn to the second question.

22:25 - Asked by the court.

22:27 - Act 77 non severability provision is clear

22:31 - and it is clearly applicable in this case.

22:34 - It states if any provision of this act

22:37 - or its application to any person or

22:40 - circumstance is held invalid, the remaining provisions

22:44 - of this application or applications of this act are void.

22:48 - The non severability provision covers section eight of act 77,

22:52 - which is what created mail voting and extended the date requirement to it.

22:57 - So any order holding invalid the application

23:01 - of the date requirement triggers the provision.

23:05 - That is what we have here in the Commonwealth Court

23:07 - and in the Court of Common Pleas.

23:09 - Was there any time limit to the

23:12 - applicability or enforcement of that provision?

23:15 - Not with respect to the non severability provision, your Honor,

23:18 - there was a special jurisdictional provision to bring certain challenges

23:21 - before this court on direct 180 day with 101.

23:25 - Why doesn't that apply as well to assertions of severability?

23:30 - Because there was no within that 180 day period.

23:33 - There was no act.

23:34 - There was no invalidation of the act or its application

23:38 - that would have triggered the non severability provision. Okay.

23:41 - So what happens then the act 77 is actually

23:46 - it becomes part of the election code

23:49 - at that point right.

23:51 - It it was it is an amendment to the election.

23:54 - That's correct.

23:55 - Right.

23:56 - It is now a part of the election code. Yes.

23:59 - That's correct. Right.

24:01 - And what is the general approach to severability?

24:05 - As to the election code,

24:07 - the general approach, which again, is consistent with what

24:10 - the General Assembly prescribed in the statutory Construction Act, is that

24:15 - provisions can be severable.

24:18 - If they can stand into the rest of the act, can stand it.

24:20 - So how do we square that with your position on severability?

24:24 - A couple of ways, Your Honor.

24:26 - First, the fact that it's an amendment or a merger

24:29 - under the cases we've cited in our brief,

24:32 - doesn't mean the non severability provision from act 77 disappeared.

24:36 - In fact, with the Statutory Construction Act directs.

24:39 - And what this court's cases have held, is that both a specific statutory

24:44 - provision prevails over a general one and that a later

24:47 - enacted statutory provision prevails over an earlier enacted.

24:51 - Does that conflict?

24:52 - I'm sorry to interrupt you.

24:54 - Does that specific provision actually survive after the 180 days

24:59 - and after the act 77 is just now part of the election code?

25:04 - Yes it does.

25:05 - There was nothing about the non severability provision

25:08 - that limited it to the 180 day period, or said that it would go away

25:13 - during the merger, after a merger or amendment into the election code.

25:17 - But after the merger, doesn't it, doesn't that provision conflict

25:21 - with the prevailing provision on non severability?

25:25 - I don't believe that it does, Your Honor, because it only applies to the act

25:28 - seven to act 77.

25:30 - So the general

25:32 - severability approach in the election code survives for everything else.

25:35 - And then we have a specific later enacted provision

25:38 - that governs the act 77 provisions.

25:43 - And so those two can actually be read in harmony with each other.

25:46 - But to the extent there were any conflict,

25:48 - it's hard for me

25:48 - to see how they can be read in harmony when they say opposite things.

25:52 - But maybe maybe you can explain that.

25:54 - Well, they can be read side by side because the general provision,

25:58 - as I mentioned, can apply to the rest of the election code as the default rule.

26:02 - And the General Assembly adopted a specific rule

26:05 - for just those provisions within act 77.

26:09 - If that weren't the case, then the general Assembly

26:11 - could never adopt an amendment specific non severability provision,

26:15 - which of course is exactly what it wanted to do and needed to do an act

26:18 - 77 as part of the political compromise

26:21 - that led to universal mail voting here in Pennsylvania.

26:25 - Let me let me ask another question about severability.

26:28 - Whose decision is it ultimately as to

26:32 - whether a provision is severable or non severable?

26:36 - I mean, the legislature has said in act 77 one thing

26:41 - does that compel the court to construe it that way?

26:45 - Or is this the court's decision as to whether severability applies or not?

26:50 - Well,

26:50 - I obviously we're here before the court asking the court to make a ruling on that.

26:55 - We believe that the down severability provision is binding

26:57 - and enforceable on the court, that the court should enforce it based on.

27:02 - Based on what do you believe a provision of the legislature,

27:06 - regarding severability or non severability is binding on the court.

27:10 - I think this court said still that as a general matter,

27:13 - non severability provisions are enforceable.

27:17 - It's consistent with the Statutory Construction Act

27:19 - to enforce this non severability provision here

27:22 - because the General Assembly's intent was clear from the language.

27:25 - There's no ambiguity as to what the General Assembly was trying to accomplish.

27:30 - And that's consistent with this court's case law, including in still where

27:33 - the court pointed out that non severability provisions can be informed.

27:39 - By political compromises and that's exactly what we have here in act 77.

27:44 - The non severability provision as we've shown, was integral

27:48 - to the political compromise that was brokered in the general Assembly.

27:52 - And that gave Pennsylvanians the convenience of universal mail voting.

27:56 - Okay.

27:56 - Can you distinguish for us?

28:02 - The difference that

28:03 - the, police are relying on the difference

28:07 - between the severability,

28:11 - sorry, the provision that we're you're seeking,

28:14 - the provision you're arguing about, in terms of it being severed

28:19 - by its language being severed or just the remedy or penalty.

28:23 - Is that still the same issue,

28:26 - or are those two, issues separate?

28:30 - That was an a very clear question.

28:32 - I'm sorry, but do you know, let me let me do my best, your honor.

28:36 - And I'm sure that you're correct. Me?

28:38 - The relief that they see

28:40 - here does trigger the non severability provision.

28:43 - They've said they're not seeking to strike the word.

28:46 - They're okay with

28:47 - the language, not severing the language but attacking the penalty.

28:52 - The enforcement. Other. Right.

28:53 - But the non severability provision covers that because it says

28:57 - if any application to any person or circumstance is held invalid,

29:02 - then the remaining provisions and applications of the act are void.

29:07 - And that's exactly what we'd have here.

29:09 - An injunction against enforcement of the date requirement is an injunction

29:13 - against its application to a particular ballot or circumstance or voter.

29:18 - Is that different, though, than applying a penalty?

29:20 - I mean, you can perhaps say the provision exists.

29:24 - And yes, we recognize it's enforceable,

29:27 - but we're not going to penalize the voter.

29:30 - Is there a way to distinguish those two things?

29:33 - I don't believe that there is, Your Honor.

29:35 - And I think in ball, this court already held

29:37 - that as a matter of the statute, the date requirement is mandatory.

29:40 - So to now come in and preclude

29:43 - or order or enjoin enforcement of that.

29:48 - Requirement is

29:49 - enjoining an application of acts 77 that triggers

29:53 - the clause, the question of can it be mandatory?

29:56 - And yet the penalty not be enforceable?

30:02 - I don't believe that it can.

30:03 - I think mandatory means mandatory and that there's an enforceable consequence,

30:08 - for noncompliance, always have an enforceable consequence.

30:13 - It's far as I understand, this court's, jurisprudence in the election code.

30:16 - Yes. That's correct.

30:19 - They make a couple of other arguments on the non

30:21 - severability provision as well that I'd like to briefly address.

30:25 - They argue that enforcement of the date requirement doesn't happen through act 77,

30:30 - but instead happens through the declaration sufficiency provision

30:34 - in section 3140 6.8.

30:37 - But this court already rejected a similar argument

30:40 - when the Secretary advanced it in ball, and it should do so again.

30:43 - Here.

30:45 - 3140 6.8 directs election officials to determine whether declaration

30:50 - is sufficient, but it does not say what makes the declarations sufficient.

30:55 - That comes from acts 77.

30:57 - So determining determining that a declaration is sufficient

31:00 - even though it doesn't comply with the date requirement, is again

31:05 - holding void the application of the date requirement to a particular ballot

31:08 - or circumstance.

31:10 - Moreover, their reading of 3140 6.8

31:13 - simply proves too much under that reading.

31:16 - Election officials making a sufficiency determination

31:20 - could ignore other of the General Assembly's

31:22 - requirements for declarations like the signature requirement

31:25 - or the requirement that the declaration be filled out,

31:29 - and appellate are also incorrect when they say

31:31 - that the declaration sufficiency provision is outside of act 77.

31:35 - Non severability clause.

31:37 - Act 77 specifically amended

31:40 - the declaration sufficiency provision to bring mail in ballots within its ambit.

31:44 - It had to because those ballots hadn't existed prior to 2019.

31:50 - I've addressed

31:51 - already their amendment and merger argument.

31:54 - They pointed to the stealth case as I mentioned,

31:57 - that case actually bolsters our position because it holds

32:02 - that non severability provisions are enforceable as a general matter.

32:06 - The reason the court did not enforce the non severability

32:09 - provision in still is that it was basically a poison pill.

32:13 - It eroded the independence of the judiciary

32:17 - and its institution interests by tying judicial compensation

32:21 - to unconstitutional expense reimbursements sought by the General Assembly.

32:26 - Doesn't your interpretation do the same thing?

32:29 - I mean, we have judicial elections in Pennsylvania and retention elections,

32:33 - certainly.

32:34 - But if that were the case,

32:34 - then the court would would be facing that all the time in these election cases.

32:39 - And it's not the same kind of, interim effect here

32:42 - because it's not the institutional independence of the judiciary.

32:46 - The judiciary still maintains its independence even under act 77.

32:50 - That was not the case.

32:51 - And still it was a poison pill, an attempt to force the judiciary,

32:55 - to approve an unconstitutional statute.

32:59 - House,

33:00 - how do we maintain our independence in terms

33:03 - of our exclusive authority to interpret the Constitution?

33:08 - If the legislature can tell us how to do that?

33:13 - I don't think the legislature is telling the court how to interpret

33:16 - the Constitution.

33:17 - I think the court has made clear how it should interpret the Constitution.

33:20 - So we agree the court shouldn't even have to reach the non severability provision

33:24 - because it said clearly in Winston,

33:25 - through Walsh, that rules like these are constitutional.

33:29 - But what the General Assembly has said is that

33:32 - if there is a determination that something is invalid,

33:36 - there's a consequence for that.

33:37 - This is the remedy.

33:38 - The remedy is if the entire act goes.

33:40 - And that was part of the political compromise.

33:43 - The General Assembly reached.

33:45 - If there's any interim effect here, it would be

33:48 - from not enforcing that non severability provision.

33:51 - The General Assembly would be chilled from adopting new election innovations,

33:55 - and it would be chilled from entering into political compromises

33:59 - and using these non severability provisions to do so.

34:03 - They also claim that it would be messy

34:06 - to invalidate act 77 and to take away the convenience of mail voting.

34:11 - We certainly agree that it could be

34:14 - there were later amendments to the to the act.

34:17 - The General Assembly could have addressed what to happen with what

34:20 - it wanted to happen with those things it was aware of.

34:22 - Act 77 non severability provision at the time.

34:25 - It did so but we agree

34:28 - that the court should not trigger the non severability provision.

34:32 - Because the court should uphold the date requirement

34:34 - as constitutional under the Free and Equal Elections clause,

34:38 - following its unbroken line of cases from Winston through Walsh.

34:42 - I'm happy to answer any further questions the court may.

34:44 - Any other questions for Mr. Gore?

34:47 - Well-argued. Thank you. We'll hear from.

34:50 - Let's see who is next.

34:52 - Mr. Graham, we asked the court to reverse.

34:55 - We we inferred that they think

34:58 - we figured it.

35:01 - Good morning.

35:17 - Madam Chief Justice, and may it please the court.

35:19 - My name is Brett Graham.

35:20 - I serve as a deputy attorney general, and I represent the Commonwealth

35:23 - in this appeal.

35:25 - I want to be very mindful of this court's instruction

35:27 - about not repeating argument made by Mr.

35:29 - Gore.

35:30 - But if I may offer a brief framing of the argument,

35:35 - there are slight differences between the way in which Mr.

35:38 - Gore and I have argued this case.

35:41 - Chiefly, we rely less upon the quote unquote, Winston Standard,

35:46 - and we ground our interpretation in the text

35:48 - and history of the Free and Equal Elections Clause.

35:51 - Act 77 requires a de minimis neutral,

35:56 - dating handwrite

35:57 - written date of, an outer return envelope.

36:00 - And as a result, elections are no less free and no less equal in Pennsylvania,

36:05 - we look to the text of the free

36:08 - and equal clause and this court's history with it.

36:11 - This court has offered a very robust interpretation of the clause,

36:15 - but it has been equally steadfast in recognizing

36:18 - that the task of effectuating the clauses mandate lies with the legislature,

36:24 - and specifically, over the course of the past several years,

36:27 - this court has reminded us the so-called

36:30 - technicalities of the election code must be strictly enforced

36:34 - when there is no ambiguous text within the election code.

36:38 - The interpretive canon offered by the free and equal clause has no relevance.

36:42 - That was this court's holding in Walsh.

36:44 - My friends on the other side sort of bypass,

36:48 - in Ray Scroggins and, the provisional ballots case in 2020 for Walsh

36:53 - because their view of how to treat this unambiguous mandatory election

36:58 - code language cannot be squared with those instructions.

37:03 - Indeed, in case after case, this court has been satisfied for free

37:07 - and equal purposes that the legislature is putting every voter

37:12 - in the same position, that each voter has the same opportunity to cast a ballot,

37:18 - and that they must satisfy the same conditions.

37:21 - That's this court's holding in Otten, in Winston and Shanky.

37:25 - And it continues on even in League of Women Voters.

37:29 - The crux of the matter was the opportunity to cast a ballot.

37:34 - Again, I would

37:35 - emphasize that the Commonwealth takes a bit of a broader view

37:39 - than, the, the RNC

37:42 - in this case, because election

37:45 - the way that we run elections is constantly changing.

37:49 - As this court has recently noted, the Australian ballot

37:52 - did not appear in Pennsylvania until 1892.

37:55 - The method by which everyone in this room is familiar

37:57 - with voting was foreign to Pennsylvanians at the time.

38:01 - The free and equal clause was adopted as a result, this is a much broader,

38:06 - and much more foundational guarantee.

38:08 - I'd also like to briefly address the facts of this case

38:11 - in which one of the voters, Kennedy specifically, was afforded an opportunity

38:16 - to cure a defect on her ballot, but did not do so, as the Commonwealth Court

38:21 - recognized in reliance on a now vacated Commonwealth Court decision.

38:27 - Elections.

38:29 - And the application of the election code.

38:31 - I'm sure this court would agree, benefits from very clear rules.

38:35 - And to the extent there has been confusion over the last several years, as Mr.

38:40 - Gore stated, that confusion has largely been ameliorated by clear directives

38:44 - from courts

38:45 - and by a redesign of the declaration form and the declaration requirement.

38:50 - The Commonwealth Court agreed by not only looking to these statutory

38:55 - construction cases, which are an app as it,

38:58 - but also by allowing the materiality provision case

39:02 - question that this court addressed in ball to sort of drive

39:05 - its analysis of government interests and burdens.

39:08 - I would reiterate, what Mr. Gore said.

39:11 - I know I said that I would avoid that.

39:13 - But the Commonwealth has sought,

39:16 - petition and has filed a petition for rehearing en banc in Aiken.

39:20 - And we believe that penalties decision to be contrary

39:23 - to a whole host of applications of the Anderson Burdick standard.

39:27 - And so is it your position that the free and equal election

39:31 - clause does not generally protect the franchise?

39:35 - Not at all, Your Honor.

39:36 - Our position we why are the cases,

39:40 - involving statutory

39:42 - interpretation irrelevant for our consideration?

39:46 - Because those cases are driven by protection of the franchise.

39:51 - They are driven by that, Your Honor.

39:52 - But then they they arrive at an ambiguity in the election code there to.

39:57 - Not necessarily.

39:58 - I mean, that those canons that we've applied for over

40:03 - well over 100 years are often or have been used in unambiguous statutes,

40:09 - situations, because the purpose of the construction

40:13 - is to determine whether the franchise is being infringed, applying.

40:18 - Your Honor, I'm not aware of cases,

40:20 - at least not those cited by the Commonwealth Court

40:23 - or by my friends on the other side where the interpretive canon that stems

40:27 - from the free and equal clause has been applied to unambiguous language.

40:31 - And as we go through it, pages.

40:33 - How about the statute that required the use of this

40:36 - specific colored pen in filling out a ballot?

40:39 - That was unambiguous?

40:41 - It was unambiguous.

40:42 - Well, one thing I would point out, Your Honor, is that that post stated

40:46 - the enactment of the Statutory Construction Act, which at least

40:50 - that's sort of an interesting point.

40:51 - The Statutory Construction Act has always, started

40:56 - with the proposition that we're driven by the text of the legislation.

41:00 - Then nothing new happened in the revision to the Statutory

41:03 - Construction Act to change that basic precept.

41:06 - No, but at least conceivably, Your Honor, the statutory Construction Act,

41:11 - should change how this court approaches those questions

41:14 - rather than looking to the intent, the purpose or whether or not

41:18 - something could be dismissed as a minor technicality.

41:22 - Even when the constitutional overlay,

41:26 - is intended to protect

41:28 - the franchise for the citizens of Pennsylvania,

41:32 - correct, your honor, because that constitutional overlay,

41:35 - if you go back to its origins and the way that it's been treated,

41:38 - has been about access and proportionality, it has been about

41:43 - is the General Assembly, when carrying out

41:46 - its constitutional prerogative to protect, to regulate the franchise.

41:50 - Excuse me.

41:51 - Is it interfering with the ability of any particular group, any particular,

41:57 - subsection of society to participate, or is it counting votes?

42:01 - Is it is it not giving the same return to the same political activity?

42:05 - We do not have that, in this case, indeed, if the Commonwealth Court

42:10 - is to be believed, the the real class of people at issue

42:14 - here is just people who are capable of forgetting things,

42:18 - which is quite a large class in both Aiken and in this case,

42:23 - there have been suggestions that the burden of the date requirement

42:27 - falls on certain populations, more so than others.

42:30 - And statistically that has not been borne out.

42:34 - Indeed, any voter can, comply

42:37 - with the, the date component and, and I think it's relevant here.

42:41 - Another way in which the Commonwealth Court heard is that

42:44 - we don't generally look at statutes or instructions in isolation.

42:49 - And so I think it is erroneous here

42:52 - to look at the specific command date as if it is independent and freestanding.

42:56 - When this court's guidance involved was clear,

42:58 - there is a phrase there fill out date and sign.

43:02 - It is a comprehensive process.

43:06 - The election code instructs voters to do it in secret.

43:10 - Counsel, isn't your argument premised on the, proposition that the date

43:16 - services

43:17 - some reason that there's a purpose for it?

43:20 - If we conclude otherwise?

43:23 - How can we

43:26 - then hold that the counties must

43:31 - enforce that provision by way of that sufficiency review,

43:36 - when we also conclude it serves no purpose?

43:40 - How does that protect the franchise?

43:42 - I'll take your question in two parts, if I may, just as Donahue first,

43:46 - the date component of the declaration requirement does serve state interests.

43:51 - It signals to voters when they have completed all necessary steps.

43:56 - Assume, assume.

43:57 - Just assume for the sake of my question that we conclude otherwise.

44:01 - I have no idea if that will be the case, but assume it is okay.

44:05 - Then what?

44:06 - Fair enough.

44:06 - Your honor, assuming that the date, component serves

44:10 - no purpose, I don't believe that's the end of this case.

44:13 - Largely because the Free and Equal Elections

44:16 - clause has never been understood to immediately skip to interest balancing.

44:22 - As I mentioned at the beginning

44:24 - of my presentation, this court has taken a very robust view of this clause.

44:28 - And if you read through free and equal,

44:31 - jurisprudence, at no point has the court said,

44:35 - it's okay that elections are slightly less free

44:38 - or slightly less equal in service of some government interest.

44:42 - The tiers of scrutiny, interest balancing

44:44 - equal protection paradigm that goes back to Caroline products.

44:47 - Footnote four is really sort of out of place when you talk about the free

44:53 - and equal elections clause, which is a narrow promise,

44:58 - in terms of whether or not it serves a purpose.

45:03 - Again, I would point to the the overarching function

45:06 - of the free and equal clause, which is who decides who decides

45:11 - what is mandatory, who decides what is a technicality?

45:15 - And time and again this court has said, this is the legislature's doing

45:20 - I would point to, as I do in, in, one of the articles cited in my brief,

45:26 - James Wilson, who authored this clause, at least arguably authored the clause,

45:31 - in a long and discursive, essay on the Pennsylvania

45:35 - Constitution of 1790, where he inserted this clause,

45:39 - and on the US Constitution, he comments on the unsuspicious,

45:44 - disposition of the federal, the new federal government towards

45:47 - state legislatures,

45:48 - and says that this is a generous and wise decision, that they have given

45:52 - such extensive power to the states to regulate their own franchise,

45:56 - because in regulating their own franchise, they regulate their own sovereignty.

46:00 - Here.

46:01 - I'm not sure what lesson the General Assembly could take

46:05 - if the Commonwealth Court and its disposition is affirmed,

46:10 - because if if there is no purpose to the requirement,

46:14 - I struggle with how an election can be free.

46:17 - If the legislature can insert a trick

46:21 - that later ends

46:23 - up in a ballot not being counted.

46:26 - Your honor, I would, push back on two elements.

46:30 - Once again,

46:31 - I will remind the court of our position that the state component serves a purpose.

46:35 - And I understand that.

46:36 - And as I said, I have no idea what the consensus of the court is on that.

46:40 - I'm just asking you to pursue this

46:43 - on the assumption that there is no purpose.

46:47 - Absolutely.

46:47 - And I would also separately push back Justice Donoghue on the idea

46:51 - that it is a trick.

46:52 - It is a very simple instruction.

46:56 - It's the it's today's date, something that every voter has access to.

47:00 - And indeed, one of the interesting parts of the Third

47:04 - Circuit panel's opinion in Aiken is that littered throughout

47:09 - Judge Smith's opinion is, he says they it might be discounted,

47:12 - a ballot might be thrown out, possibly could be thrown out because as

47:19 - Chief

47:19 - Justice Todd noticed and noted in introducing the case,

47:22 - there is an outstanding question about notice and care

47:25 - from this court's, pending disposition and coalfield justice.

47:30 - There are many other questions about how the Pennsylvania protects the franchise.

47:35 - I take your point, though, about let me follow through with that.

47:40 - It's clear that, someone who's ballot,

47:44 - is, at the moment that the sufficiency decision is made

47:49 - is voided, because the failure to comply

47:52 - with selection is a different, a different, example.

47:55 - Let's say there's no secrecy envelope. Sure.

47:58 - And if that voter knows that that has occurred,

48:01 - they can cast a provisional ballot.

48:04 - Correct answer.

48:05 - So, where does Coalfield justice

48:09 - take you from there?

48:12 - Coalfield justice?

48:13 - In terms of whether or not there is a procedural due process, right?

48:16 - Or a sure system, automatic email or anything else that might provide the voter

48:22 - another opportunity to cure a defect is certainly relevant in determining

48:27 - whether or not this is really a trick, as you're on or sort of alluded to.

48:33 - The idea that this is, you know, a stray pen mark, an accidental

48:36 - slip of the hand could result in a ballot not being counted.

48:40 - That at least factors in to the analysis I would submit to this court.

48:44 - But you would say again or plus

48:48 - a decision that you've alluded to, in Coalfield Justice would indicate

48:53 - that there is no, deprivation of the franchise.

48:58 - I would argue that it, it, it colors this case, and it makes even more clear

49:03 - that the date requirement is neutral, generally applicable, and that the

49:08 - it refocuses the inquiry, as this court had it in League of Women Voters.

49:13 - On the concept of opportunity.

49:16 - I, I referenced a little earlier the introduction of the Australian ballot.

49:19 - But the it bears mention that beforehand

49:23 - elections in this Commonwealth were run very differently.

49:27 - And our view of the free elections clause is that it

49:30 - is good for all eras, it is good for all systems.

49:33 - And so pinning it to a particular

49:37 - analysis under the federal materiality provision or understandings

49:41 - of how rational basis for very strict scrutiny apply is sort of odd.

49:47 - In our view from it would be an outlier.

49:50 - Let me put it that way.

49:51 - It would be an outlier in terms of this court's jurisprudence,

49:54 - but this would be a case of first impression, would it not

49:57 - include the free and equal elections clause?

49:59 - We agree that this would be a case of first impression,

50:02 - and we do not suggest, as the RNC does, that

50:06 - this case, that this question was already, you know, on all fours answered,

50:12 - and Boockvar was a good answer. Yes.

50:14 - Thanks very much.

50:17 - Candor.

50:20 - We don't

50:21 - we don't necessarily think that the court has answered

50:24 - this question, but really the there's sort of window

50:28 - dressing and puffery around it that make it fairly easy.

50:32 - Scroggins Walsh these are cases in which the court has clarified

50:36 - the relevance of the free and equal clause to statutory interpretation cases.

50:41 - And I'd like to comment briefly, if I may, on the burden analysis.

50:45 - Let's go back.

50:46 - And I'm sorry to I don't want to get you off track on your argument, but,

50:51 - when Justice Donohue ask you some question, she asked you to presume

50:55 - for purposes of her questioning that there was no purpose to the date clause.

51:00 - You seem to indicate earlier that you thought there was some purpose.

51:03 - Now, we know that Pennsylvania has, a system

51:08 - whereby the counties, the county election offices, date stamp

51:13 - the ballot as it's received by mail.

51:16 - They they date stamp the date it's received.

51:19 - We also know we have a statewide computerized system called sure you e

51:26 - which records the date and preserves that date.

51:31 - What is the purpose

51:34 - of an individual inserting a date?

51:37 - And, you know, from looking at the examples, sometimes people make mistakes.

51:42 - They see put the date and they put their birth date,

51:47 - or they have the wrong date, or

51:50 - they forget the date.

51:53 - They don't put any date.

51:54 - I mean, there are reasons why people do forget, and it's human nature.

51:58 - People forget or people misunderstand and put the wrong date.

52:02 - And it's pretty common for someone when asked for a date beside their name,

52:07 - apparently to put the birth date instead of the date.

52:10 - So given that we have those two procedures

52:15 - to determine the actual date

52:18 - that it was received,

52:20 - what purpose can it possibly achieve

52:25 - for the voter to, insert that date?

52:29 - Thank you for that question, chief Justice Todd.

52:31 - And I'll begin where you did with the sure system.

52:35 - I could

52:35 - have worn a belt and suspenders today to sort of give the court

52:39 - a demonstration of my next point, but I elected with just the belt.

52:43 - The system is this commonwealth's, you know, electoral scheme.

52:47 - It's the first line of defense as a Third Circuit judge,

52:52 - acknowledged, when the materiality

52:54 - provision question was up there, it could fail or freeze.

52:57 - Many a lawyer prefers a belt and suspenders approach.

53:00 - And that's not the only approach that we have.

53:03 - The, date stamping by the county board of elections.

53:06 - Sure.

53:06 - Perhaps belt and suspenders and then another pair of suspenders. Yes.

53:11 - But that would that is one of the government interests,

53:15 - as I alluded to previously, signing and dating something,

53:20 - Your Honor, is a very commonly understood act of finality.

53:23 - It has sort of a ceremonial importance.

53:26 - And to the extent the election code instructs voters to comply

53:29 - with several steps, one after the other after the other, signing

53:33 - and dating is sort of an act of finality that tells them, okay,

53:36 - I have completed all necessary steps and I can put this ballot in the mail.

53:41 - It is ready to go to the county board.

53:43 - Finally, something that this court has recognized

53:46 - and the Commonwealth Court has recognized with regard to the dating.

53:49 - Correct.

53:50 - And that's the sort of legislative judgment, Your Honor, that it's

53:54 - sort of hard to attack because it's based on.

53:56 - I guess my point is, it's

53:57 - a hard question for you to answer because you didn't vote on the legislation

54:00 - and you weren't the governor that signed it.

54:02 - So it's kind of difficult to put ourselves in the minds of the General Assembly

54:06 - and why they put something in, given there is a presumption

54:10 - of constitutionality that that attaches up front.

54:13 - But I'm curious, in response to your question from the chief justice, this idea

54:18 - that somehow the date requirement relates to the timeliness of the ballot?

54:23 - I'm not sure that's true.

54:25 - I know that's a big debate that has happened in these cases

54:29 - as they wound through the federal system.

54:31 - But we're not dating the ballot.

54:33 - This is not about establishing the date of receipt of the ballot.

54:36 - This is a verification.

54:38 - It's a verification like we all sign verifications, affidavits.

54:42 - What have you where someone is attesting to certain facts right.

54:48 - That this is an outside.

54:50 - It's on the outside envelope.

54:51 - It could have easily been a separate piece of paper,

54:53 - but it's on the outside envelope and it's saying I verify ABC

54:57 - and I forget how many paragraphs there are signed,

55:00 - blank, dated this date.

55:04 - What does that have to do with whether the ballot is

55:06 - timely received or not?

55:09 - Your honor, my

55:10 - my point and bring that up to this court is twofold.

55:14 - First,

55:15 - this is not the materiality provision question,

55:18 - and we are not limited to considering government interests

55:21 - in terms of timeliness, qualification and receipt.

55:24 - That was sort of the the narrow focus of the federal statutory question involved.

55:29 - We can look beyond that to, you know, beyond the

55:32 - do we count this vote on this particular day?

55:35 - We can look to the hypothetical possibility that A doesn't occur.

55:41 - And that I guess my point is, the question is and the question

55:45 - I think is what is the purpose of dating a verification?

55:50 - That's the question.

55:51 - And it would seem to me that one, again, trying to hypothesize

55:55 - what possibly was in the governor's mind and the legislature's mind

55:58 - when they did this one purpose would be, which I think is consistent

56:03 - with how we do affidavits, is

56:06 - because I am attesting to certain facts.

56:09 - I need to put the date down to show that it's as of that date

56:13 - that I am attesting to these facts, because those facts could change.

56:16 - They could change in the future.

56:17 - Something could happen.

56:18 - But on that date, I am attesting that these facts are correct.

56:23 - Correct.

56:24 - That that is a perfectly, succinct explanation.

56:28 - Justice Robson, that I would go

56:31 - merge a little over with the fraud

56:34 - interest, the interest in protecting against and prosecuting fraud.

56:38 - And I was trying to,

56:40 - you know, cab in my answer to

56:42 - this question about timely receipt of ballots,

56:44 - but I let me take this segue and talk a little bit about fraud.

56:49 - My friends on the other side

56:51 - sort of have a refrain that the date component serves no purpose.

56:56 - But if you then read, later on in in the brief,

57:01 - what they usually mean is it serves no purpose for the timely,

57:06 - reception of ballots, the counting of ballots on Election Day.

57:10 - You have to agree to that extent.

57:13 - They're correct to the extent that the Shaw system

57:17 - is functioning properly and there are no other emergencies

57:22 - statewide emergencies that would displace county boards, etc..

57:27 - Yes, I would agree.

57:28 - I would agree with that.

57:30 - Representation from my friends on the other side.

57:32 - The point being, though, that the Commonwealth's interest

57:35 - in protecting the election scheme extends beyond election day

57:40 - and the Mahalia case demonstrates that the, the handwritten date

57:45 - could be relevant to a fraud prosecution, the fraud prosecution.

57:50 - So if we had on, voting in Pennsylvania,

57:53 - not many, Your Honor, but the United States Supreme Court

57:57 - has been very clear, in this guidance, in terms

58:00 - of this guidance in Crawford, where it upheld a voter ID,

58:04 - statute, from the state of Indiana, absent

58:07 - any evidence of any voter fraud at any time in Indiana history.

58:13 - Because what the court said was the state does not have to wait

58:17 - for there to be injury to its electoral scheme in order for it

58:20 - to act to preemptively protect its scheme.

58:23 - And so where some may

58:26 - quibble with the HollyHock example, to suggest,

58:29 - well, how helpful was it really to the prosecution?

58:32 - Could it be you?

58:34 - These are all sort of hypotheticals.

58:36 - And going back to Justice Robson's point,

58:39 - sort of beyond our purview as lawyers and judges.

58:43 - Because we're now getting into

58:45 - the judgment of what could happen and what might happen.

58:48 - And again, another theme in this courts free and equal case law is that,

58:52 - you do not dismiss the legislative judgment

58:55 - because it is unwise or of doubtful expedience.

58:59 - Is the purpose to prevent fraud or prosecute fraud.

59:04 - Prosecute is probably the better word there.

59:07 - Justice Donohue it's I would not use

59:11 - the word detect, but, prevent.

59:14 - There is sort of a deterrent nature to prevention.

59:17 - Sure. System prevented fraud.

59:20 - The system prevented, fraudulent ballot from being counted.

59:25 - It did not.

59:27 - The jury system does not have any prosecutorial authority

59:30 - to go after the person who committed the fraud that rests with the sovereign.

59:36 - And in that case, without a handwritten date

59:40 - or, you know, without any evidence whatsoever.

59:43 - For instance, if this court were to say, you know,

59:47 - you don't have to date it, those prosecutions become at least

59:50 - conceivably more difficult for the Commonwealth,

59:54 - because we're not aware, really, of any of those prosecutions

59:57 - 131 that it took to go back in recent election years.

01:00 - 05.134 I can't recall all the specific cases, but

01:00 - 10.473 we certainly have had a lot of cases where this issue was raised

01:00 - 15.511 and the potential for fraud in Pennsylvania elections was argued,

01:00 - 21.351 and I don't recall there ever being any evidence that fraud was,

01:00 - 23.386 a problem or a

01:00 - 26.389 significant issue in Pennsylvania elections.

01:00 - 28.691 Well, I would submit wasn't a question.

01:00 - 30.093 I'm sorry. That was more of a statement.

01:00 - 30.727 No, that's okay.

01:00 - 32.528 Just a quick great question, Mark.

01:00 - 34.597 You do I agree.

01:00 - 37.500 I, Chief Justice Todd, I'm

01:00 - 39.002 not aware of any cases

01:00 - 42.672 in which the government interest in fraud was presented to this court,

01:00 - 48.511 and the law at issue was a neutral, de minimis, nondiscriminatory

01:00 - 53.116 ballot casting rule, rephrased by question, though my question was, do

01:00 - 58.721 you recall there ever being any evidence presented to this court where we opine

01:00 - 03.026 that there was indeed a problem with fraud in elections in Pennsylvania?

01:01 - 06.429 Because I don't recall that I don't recall that, Your Honor.

01:01 - 10.533 But what I'm suggesting is, if this court arrives at the conclusion

01:01 - 13.636 that this case turns on whether or not fraud is

01:01 - 18.641 legitimate interest, absent evidence that that question has been answered

01:01 - 21.644 and this court has essentially answered it,

01:01 - 25.682 by repeating over and over again that the task of divine

01:01 - 29.952 devising, an electoral scheme, falls with the legislature.

01:01 - 35.458 In summation,

01:01 - 39.228 the way you sum up sure is assuming, for the sake of argument, that this court

01:01 - 43.166 finds that dating requirement to be a burden, a minor burden.

01:01 - 45.768 What standard review do you think is applicable

01:01 - 48.971 to a free people Election Clause violation or claim?

01:01 - 51.974 I mean, do you think the Commonwealth got it right when it applied

01:01 - 55.745 strict scrutiny, or it should or should it be some kind of lesser standard?

01:01 - 00.416 I don't think that the Commonwealth Court got it right in applying strict scrutiny.

01:02 - 03.152 Justice McCaffery because,

01:02 - 05.154 as this court recognized in Berg

01:02 - 10.126 and again in Banfield versus Cortez, there is always this,

01:02 - 14.230 you know, push to get every election rule subject to strict scrutiny.

01:02 - 18.701 And, courts have recognized over and over again, to do so would tie

01:02 - 22.138 the hands of the legislature, would tie the hands of the General Assembly.

01:02 - 26.542 And I think drilling down on the

01:02 - 31.114 the theory of injury in a given case is essential,

01:02 - 34.951 because in this case, what we're dealing with

01:02 - 39.055 is not really the entitlement to vote or the qualification to vote.

01:02 - 42.992 It is compliance with the election rule and the manner of voting,

01:02 - 45.995 which is another theme from this court's case law.

01:02 - 49.298 So to the extent tiers of scrutiny apply at all,

01:02 - 56.239 I think we would have to begin from the premise that 99.77% of individuals

01:02 - 02.478 regularly comply with this requirement and, that the burden on the voter,

01:03 - 05.948 the effort required of the voter is really quite minimal.

01:03 - 10.253 Again, this is a there's a series of steps going on here

01:03 - 14.090 and the the nub, as Justice Robson would say,

01:03 - 17.193 the nub of this case actually I listened yesterday.

01:03 - 18.361 I mean catch on quickly.

01:03 - 21.297 The Robson Doctrine said that once

01:03 - 24.133 it once

01:03 - 28.104 I heard nub a couple of times yesterday, respectfully, more than once.

01:03 - 31.541 We got our first prob Ionian ism. Yeah,

01:03 - 35.878 but the nub of the case is really about, the simple effort

01:03 - 38.881 required of the voter to move the pen over to the date,

01:03 - 42.652 field. And,

01:03 - 46.155 just to color a bit, your question earlier, Chief Justice Todd,

01:03 - 49.959 about putting down your birthday or anything like that again, in the record

01:03 - 53.429 here, evidence from the state that they have redesigned it

01:03 - 56.432 and now starts with a year 20,

01:03 - 59.435 you know, two, two spots for the year.

01:03 - 02.438 But to finish, my answer to you, justice McCaffrey,

01:04 - 06.075 when you're dealing with a, a nondiscriminatory,

01:04 - 11.848 regulation that poses such a small amount of effort

01:04 - 15.785 for the voter to comply, rational basis seems like

01:04 - 19.622 it would be the most appropriate, because there's no evidence or indication

01:04 - 22.592 that a particular group is being disadvantaged.

01:04 - 26.128 And thus there is no interference with our electoral process.

01:04 - 28.731 All right.

01:04 - 31.901 Unless there are any other questions, I will thank the court

01:04 - 33.903 for its time and urge you to reverse.

01:04 - 35.571 Thank you, thank you, thank you.

01:04 - 37.106 Very well done.

01:04 - 39.775 We'll now turn to the appellate argument.

01:04 - 40.943 I'm surprised that Mr.

01:04 - 42.879 Levine isn't jumping from his seat.

01:04 - 46.282 And apparently I think he wants to, apparently,

01:04 - 48.584 for for a change, we don't have Mr.

01:04 - 50.019 King or Mr. Levine.

01:04 - 53.022 So we will go with Mr. Looney.

01:04 - 54.457 Welcome.

01:04 - 57.460 Apologies for that. But.

01:05 - 02.798 Good morning, Chief Justice.

01:05 - 04.200 And may please the court.

01:05 - 06.602 Stephen Loney of the ACLU of Pennsylvania.

01:05 - 10.139 I represent the voters in this case, Susan Kennedy and Brian Baxter.

01:05 - 13.242 And if I may, just a couple of quick notes before I begin.

01:05 - 15.077 One is I would like to acknowledge Mr.

01:05 - 18.047 Henry's presence in the courtroom front and center in the gallery.

01:05 - 20.349 And also note that Mr.

01:05 - 21.851 Baxter had planned to be here today,

01:05 - 24.854 but unfortunately passed away before the hearing.

01:05 - 29.425 Another quick bit of housekeeping, just to let you know how we've split up

01:05 - 32.428 the argument on this side of the room for efficiency sake.

01:05 - 36.866 Each one of us is going to address a different part of the merits of this case.

01:05 - 40.937 And I will address the second question presented on severability.

01:05 - 46.342 So I will first focus on the nature of the fundamental right and the standard

01:05 - 49.345 to be applied where there is an infringement on the right to vote.

01:05 - 52.682 Mr.. Vocal Chuck, on behalf of the intervenor,

01:05 - 54.550 please will address the application.

01:05 - 57.720 Specifically, the question of whether the enforcement of the date requirement

01:05 - 00.723 furthers any legitimate government interest.

01:06 - 03.159 He'll also address the question of whether this case

01:06 - 06.162 is indeed on all fours with any prior case of this court.

01:06 - 09.832 And then, counsel for the Philadelphia Board of Elections, Mr.

01:06 - 10.166 Stevens.

01:06 - 13.169 Larson is going to provide the board's perspective,

01:06 - 16.205 on the process for administering elections

01:06 - 20.576 and how mail ballots are processed with envelope dating errors.

01:06 - 22.511 So I'll address my part of the merits.

01:06 - 24.947 And then severability before handing off to anybody else.

01:06 - 29.752 In this case, the

01:06 - 33.889 nub of this case is interference with voters.

01:06 - 36.325 Exercise of the right of suffrage.

01:06 - 38.260 Two of those voters, Miss Kennedy and Mr.

01:06 - 42.932 Baxter, were eligible lifelong voters whose most fundamental rights

01:06 - 46.302 as Pennsylvania citizens are at stake here.

01:06 - 48.270 Our Constitution protects those rights.

01:06 - 52.541 It provides that no power shall at any time interfere with or interfere

01:06 - 55.945 to prevent the free exercise of the right of suffrage.

01:06 - 00.182 And however you try to slice it, a practice of disqualifying votes

01:07 - 03.786 for noncompliance with a meaningless handwritten date requirement

01:07 - 07.656 interferes with it, diminishes the right of suffrage,

01:07 - 10.426 and it's untied to any government interest.

01:07 - 11.394 As you hear from Mr.

01:07 - 15.898 Ball, chock, on that simple basis, we ask that this court affirm

01:07 - 17.566 the Commonwealth court's ruling,

01:07 - 20.403 which would not invalidate any provision of act 77

01:07 - 22.171 and therefore doesn't implicate severability,

01:07 - 25.941 as this court acknowledged in legal way in the voters,

01:07 - 28.978 which is the definitive case on free and equal elections clause, which

01:07 - 31.981 we've heard far too little about today,

01:07 - 36.218 the right of suffrage is among the article one Declaration of Rights,

01:07 - 40.122 article one, enumerating fundamental rights that are, quote,

01:07 - 43.526 specifically exempted from the powers of the government to diminish.

01:07 - 47.997 Again, we're here talking about a diminishment of the right

01:07 - 51.434 now, it's undisputed that the voters here were eligible

01:07 - 54.437 registered voters who timely submitted their ballots.

01:07 - 56.038 They signed the declaration.

01:07 - 58.240 There's no suggestion of fraud.

01:07 - 01.377 The only issue here is that they and thousands like them,

01:08 - 05.581 also did not handwrite the date next to their signature,

01:08 - 08.651 or they wrote some date that somebody deemed to be incorrect.

01:08 - 12.555 As a result, their votes were effectively screened out

01:08 - 15.991 based on what has become a disenfranchisement trap.

01:08 - 19.895 Disenfranchizing people, thousands of people in every statewide

01:08 - 21.797 election for the past five years.

01:08 - 24.667 Now, given this court's mandate in League of Women Voters,

01:08 - 28.270 that the Free and Equal Elections Clause be given the broadest interpretation,

01:08 - 32.174 of course, a rule that routinely disenfranchizes

01:08 - 35.344 people is subject to constitutional review.

01:08 - 37.046 Council.

01:08 - 37.980 How is it?

01:08 - 41.183 Oh, well, clearly all legislation is subject

01:08 - 44.253 to all government action, subject to constitutional review.

01:08 - 45.054 That's why we're here.

01:08 - 48.023 But how does,

01:08 - 51.026 how does this case

01:08 - 55.064 map on to the League of Women Voters,

01:08 - 58.100 League of Women Voters was a case

01:08 - 01.337 where a outrageously gerrymandered map

01:09 - 05.107 blatantly violated the Free and Equal Elections clause.

01:09 - 06.275 Here.

01:09 - 10.012 How can you argue that a neutral statue

01:09 - 13.916 is anything but free and equal?

01:09 - 17.286 And how, if this interferes

01:09 - 21.190 with the right to vote?

01:09 - 24.727 How can you

01:09 - 26.762 how can you say that any provision

01:09 - 30.132 of the election code can stand?

01:09 - 33.435 Because by definition,

01:09 - 35.171 under your argument, it would seem that

01:09 - 38.774 having an election code necessarily interferes

01:09 - 42.912 with this right to vote, which I take it

01:09 - 46.182 you would maintain,

01:09 - 49.585 cannot cannot be subject to any government

01:09 - 52.421 regulation whatsoever.

01:09 - 55.424 And how is that consistent with Winston

01:09 - 56.825 Turner?

01:09 - 00.229 I've heard a few questions in there, and I'll try to address them in turn.

01:10 - 03.966 So first, the first of which is that we're not arguing in any way

01:10 - 07.136 that legal women voters is on all fours with the facts of this case.

01:10 - 08.037 Certainly not.

01:10 - 11.941 But the broad pronouncement of this court is instructive and controlling

01:10 - 16.612 in that this court held the clause, the free and equal elections clause,

01:10 - 20.683 not just the equal part, but the free part shall be given the broadest

01:10 - 24.086 interpretation, one which governs all aspects of the electoral process.

01:10 - 28.490 And that's what I think the appellants are missing in their arguments that,

01:10 - 32.061 there's a suggestion here that there's no constitutional standard

01:10 - 35.097 to be applied if under Winston,

01:10 - 36.298 or at

01:10 - 39.301 least their interpretation of Winston, if the,

01:10 - 43.305 the restriction isn't so extreme as to make it

01:10 - 46.342 impossible to comply with and it's just impossible.

01:10 - 50.412 Well, it's there's less than 1% of the people who

01:10 - 54.750 who date their ballot or data correctly and their their ballots not counted.

01:10 - 57.586 Does that mean that it was impossible?

01:10 - 58.921 They just they messed up.

01:10 - 02.891 It's like somebody showing up at the polls at 801 and they blew it.

01:11 - 03.959 How is it?

01:11 - 06.195 How is it any different now, your honor?

01:11 - 08.864 My I was not suggesting that this requirement is impossible.

01:11 - 12.868 What I'm saying is that the suggestion that there be no constitutional review,

01:11 - 17.039 that the free elections clause does not apply at all unless

01:11 - 20.876 the legislature imposes an insurmountable burden,

01:11 - 22.544 cannot be squared with legal women voters.

01:11 - 24.580 It can't be squared with the text of the Free

01:11 - 28.751 and Equal Elections clause, or its intent to be radically democratic at the time,

01:11 - 31.920 suggesting League of Women Voters overruled Winston.

01:11 - 36.058 No, Your Honor, in fact, League of Women Voters, directly relied on and quoted

01:11 - 41.397 Winston, and it provided the full quote, not just the part about requirements

01:11 - 45.634 that are so difficult as to amount to, a denial of the franchise.

01:11 - 49.271 Both Winston and League of Women Voters.

01:11 - 52.741 The full quote stated that the free elections clause applies

01:11 - 56.712 to any regulations that deny the franchise itself or make it

01:11 - 02.685 so difficult to amount to a denial or subvert or deny the franchise.

01:12 - 05.587 We're dealing here, here with an outright denial

01:12 - 08.691 of the vote, disqualification of votes, which this court has never allowed

01:12 - 10.192 without compelling reasons.

01:12 - 11.493 And just Justice Week.

01:12 - 13.896 To go back to your question, I believe it was your opinion

01:12 - 17.466 and ball that for the purposes of the materiality provision, acknowledge

01:12 - 20.669 that this very rule is a denial of the right

01:12 - 23.672 to vote. Now,

01:12 - 27.009 this court's precedents.

01:12 - 29.311 Have always been clear that denial

01:12 - 32.581 of a fundamental article one right triggers strict scrutiny.

01:12 - 36.385 And I'd like to engage with that debate about strict scrutiny.

01:12 - 39.755 So before you get into that, before you get into that,

01:12 - 43.792 just as your opposing counsel's argument was based upon

01:12 - 49.064 the assumption that there was a purpose for the dating class,

01:12 - 54.770 your argument has to be based upon the, assumption that there is no purpose.

01:12 - 56.905 And, we're not here

01:12 - 00.008 arguing about secrecy envelopes, correct, Your honor.

01:13 - 03.011 Okay. I mean, the purpose is clear.

01:13 - 06.181 It's, driven.

01:13 - 10.285 There is a, you know, a reason for it that's bound

01:13 - 13.455 within various aspects of the election code.

01:13 - 15.391 That's not what we're talking about.

01:13 - 19.395 Your argument has to be based upon an underlying

01:13 - 21.930 view that there's no purpose to this.

01:13 - 24.333 It that is that is the argument in this case, your Honor.

01:13 - 27.903 And this this particular requirement, as you hear more from Mr.

01:13 - 30.639 Vol Chock is uniquely without purpose.

01:13 - 31.874 I mean, we're not here arguing

01:13 - 34.410 about the signature requirement or the envelope required.

01:13 - 38.647 Just trying to channel your argument because, there are certainly,

01:13 - 44.052 many requirements, that have a clear and important

01:13 - 47.923 and, articulable reason under the election code.

01:13 - 50.926 Your argument has to be,

01:13 - 54.062 skinny down to a situation where there is none of that.

01:13 - 55.831 Correct. There is no purpose.

01:13 - 58.867 And to put a finer point on it, because I do want to address

01:13 - 01.637 the standard to be applied in reaching that conclusion.

01:14 - 03.939 Our view is that there has to be a heightened level of scrutiny

01:14 - 06.408 under the free and equal elections clause that legal women voters.

01:14 - 08.744 And this gets back to Justice Wicks first question

01:14 - 11.313 how this maps on the League of Women Voters.

01:14 - 12.948 The court did the work in that case.

01:14 - 16.752 Did the Edmonds analysis, and concluded that in Pennsylvania,

01:14 - 18.387 the Free and Equal Elections clause provides

01:14 - 20.556 greater protection over the fundamental right to vote

01:14 - 22.291 than does the federal Constitution.

01:14 - 27.062 So the suggestion that you can somehow cut in favor of,

01:14 - 31.834 of overturning the Commonwealth Court here is a little hard to fathom.

01:14 - 35.971 The argument, as I understand it, is that because the Third Circuit

01:14 - 39.107 and you can deemed this a minimal burden,

01:14 - 43.312 then under Winston, that's not enough to say that it's impossible to meet.

01:14 - 46.048 And so there is no constitutional review.

01:14 - 49.051 League of Women Voters stands for exactly the opposite, which is

01:14 - 51.086 something that none of us are up here saying.

01:14 - 53.155 There is no constitutional review.

01:14 - 55.357 Well, there's one person here who is right with that.

01:14 - 58.460 There is one person here who is okay, I disagree with you.

01:14 - 59.995 I think what they're simply saying is

01:14 - 04.032 we have the power to conduct constitutional review of a state statute.

01:15 - 07.336 You're disagreeing as the standard we apply and whether it's been met.

01:15 - 09.738 But nobody's saying this isn't subject to constant.

01:15 - 12.574 We wouldn't be here if this was not subject to constitutional review.

01:15 - 16.011 Well, as I as I understand the appellant's argument, it's that,

01:15 - 19.648 Winston provides a sort of binary question.

01:15 - 19.915 Right.

01:15 - 22.951 Either the requirement is impossible to comply with,

01:15 - 27.289 and therefore invalid or it's not, and therefore you don't have to engage

01:15 - 28.423 in any other analysis.

01:15 - 31.560 And their point is that that is the constitutional review.

01:15 - 31.994 They're saying,

01:15 - 35.664 Winston, is the test of constitution, of passing constitutional review

01:15 - 37.366 and neutral ballot measure.

01:15 - 40.669 And that's what I'm disagreeing with, Your Honor, is that that is but I, I'm,

01:15 - 43.639 I'm I'm responding to your statement that there's somebody here

01:15 - 46.341 is taking the position that there's no constitutional review.

01:15 - 47.809 I mean, we put our best robes on.

01:15 - 48.343 I mean, we're,

01:15 - 51.947 you know, I don't think anybody on this bench has has enough of the problem.

01:15 - 53.382 I certainly.

01:15 - 54.349 Yeah. Fair enough.

01:15 - 57.252 Your Honor, I don't think anybody on this bench suggests otherwise.

01:15 - 00.255 But, in the courtroom is either we have an argument,

01:16 - 03.258 a good faith argument between the two sides.

01:16 - 05.027 Unconstitutionality.

01:16 - 07.629 I don't think anybody said it's. Well,

01:16 - 10.132 we fight about that.

01:16 - 14.636 Didn't didn't Winston set forth the court's understanding

01:16 - 18.140 of what the free and Equal Elections clause meant?

01:16 - 18.941 It did, Your Honor.

01:16 - 22.110 And it also went on to talk about the plenary authority

01:16 - 23.745 of the General Assembly in this area,

01:16 - 27.883 which we've subsequently recognized time and time again, is that correct?

01:16 - 29.251 Absolutely, Your Honor,

01:16 - 32.487 and I'm just asking the court to look at the full scope of what,

01:16 - 35.223 what the court said 100 years ago and Winston

01:16 - 37.426 and then reapplied in League of Women Voters,

01:16 - 41.163 which was it's not just a binary decision about whether a requirement

01:16 - 44.499 is so difficult to comply with as to make it impossible or not,

01:16 - 47.703 and that's period full stop, end of end of analysis.

01:16 - 48.870 That's no standard at all.

01:16 - 52.941 What is required by this court's precedents is a means ends analysis.

01:16 - 58.547 Any time a fundamental article one right is being infringed diminished.

01:16 - 59.982 I may just not to belabor it,

01:16 - 04.586 but I just on this league of women voters, this this attempt to map

01:17 - 08.390 perhaps the reason we haven't heard much about League of Women Voters is that

01:17 - 11.426 it's an imperfect mapping, because

01:17 - 15.030 League of Women Voters, with which Miss Gallagher is quite familiar.

01:17 - 20.702 Involve the opportunity,

01:17 - 25.140 the opportunity of each citizen equally to have his or her vote

01:17 - 28.377 heard, it to have the same

01:17 - 31.380 meaning, the same voting power as other citizens,

01:17 - 35.617 which was unconstitutionally diluted in that case.

01:17 - 39.655 How does that have any bearing

01:17 - 43.191 on the the application of a neutral,

01:17 - 47.095 nondiscriminatory statute such as the one at issue here?

01:17 - 49.931 It's the broad pronouncements, Your Honor.

01:17 - 52.901 Again, we're not suggesting here that the case is on all fours

01:17 - 55.737 and has already been resolved by the League of Women Voters.

01:17 - 59.474 What I'm relying on here is the broad pronouncements from legal women voters

01:17 - 03.445 about what the free and equal election clause requires,

01:18 - 07.616 and also addressing the point that Your Honor pointed me to,

01:18 - 11.486 which is the plenary power of the legislature to impose,

01:18 - 14.823 sort of

01:18 - 19.194 neutral process rules around voting, which nobody is questioning here.

01:18 - 20.495 But what we're, we're questioning

01:18 - 24.499 is when those rules result in the denial of the vote,

01:18 - 28.837 then they must be analyzed under means and test.

01:18 - 31.840 That's not talent assembly supposed to do

01:18 - 35.410 when they craft neutral ballot casting rules.

01:18 - 37.479 Are they supposed to put a footnote in there

01:18 - 41.717 that says the reason why we're putting this in is X and Y

01:18 - 46.221 and and all this other stuff, is that what they're supposed to do to do this?

01:18 - 48.724 If this is how we're going to apply this,

01:18 - 52.294 free and equal elections clause to every neutral ballot casting measure,

01:18 - 56.431 I'll take, for example, the requirement that not only the verification

01:18 - 59.534 on the outside envelope be dated, but that it also be signed.

01:18 - 03.472 This court has ruled that that there is no signature matching

01:19 - 07.476 requirement, which begs the question about why the signature is even required

01:19 - 10.946 is that the next challenge is because

01:19 - 13.148 there's no signature matching that goes on.

01:19 - 15.283 The signature serves no real purpose.

01:19 - 18.286 And people forget to sign,

01:19 - 22.390 and therefore it's a meaningless clause.

01:19 - 23.592 Is that the.

01:19 - 26.361 Is that the next step here?

01:19 - 28.830 To answer your second question first, no, Your Honor, that is not the next step.

01:19 - 31.600 I mean, we we are not here challenging.

01:19 - 34.102 What's your argument? Hold water in the same thing.

01:19 - 37.405 The court has said that you know, clearly says fill out date and sign right.

01:19 - 41.510 So we're talking about the date part of the verification.

01:19 - 44.513 This court has ruled that there is no signature

01:19 - 47.516 matching requirement when they go to do the canvass.

01:19 - 49.184 Right.

01:19 - 49.518 Correct.

01:19 - 52.621 Your honor, what purpose does a signature serve

01:19 - 56.825 if there's no signature matching requirement to ensure that the ballot

01:19 - 00.529 that is electronically connected to a particular voter matches the signature?

01:20 - 03.532 If it's and if it serves no purpose, then we should strike it

01:20 - 06.535 as unconstitutional under your means ends analysis.

01:20 - 09.738 Well, just to zoom out for a second, if I may, Your Honor, I just want to note

01:20 - 12.941 that I'm not in the position of the proponent of restriction on voting rights.

01:20 - 16.344 But to answer your question about why we're not filing cases

01:20 - 19.748 about the signature requirement is because it's meaningfully different

01:20 - 24.419 in terms of its ability to, to be tied to a government purpose.

01:20 - 26.354 And just to take one of the purposes

01:20 - 30.392 being argued here about the date requirement, solemnity, even without a,

01:20 - 33.361 just for the sake of argument,

01:20 - 36.565 I will accept that that is a valid,

01:20 - 39.267 a valid government interest.

01:20 - 43.905 But our issue here is with connection to that interest, whatever interest

01:20 - 47.108 the government has in ensuring solemnity in people and that people,

01:20 - 50.212 contemplate

01:20 - 53.014 what they're doing when they're filling out that declaration.

01:20 - 54.583 That interest is served by the signature.

01:20 - 58.353 I mean, the appellant's right to vote talk for the solemnity point.

01:20 - 00.155 And that is a signature case.

01:21 - 03.859 And so the date requirement adds nothing in that respect.

01:21 - 08.697 And no court is satisfied by any signature.

01:21 - 15.470 Asking people to sign the declaration is meaningful

01:21 - 17.439 for for the reasons that Your Honor has pointed out.

01:21 - 20.675 But again, I'm here talking about what standard is applied.

01:21 - 21.576 And when we're talking,

01:21 - 24.112 you agree that under our precedent, it could be any signature.

01:21 - 25.614 It doesn't have to be the signature because

01:21 - 26.982 because there's no way to match this.

01:21 - 27.983 This court has ruled that

01:21 - 31.653 that signature matching is not part of the sufficiency of determination

01:21 - 35.557 or solemnity of a scribble that doesn't match the signature of the voter.

01:21 - 38.560 What's the meaningful solemnity again, your honor, this is

01:21 - 40.128 I'm not the AG's office.

01:21 - 41.663 I'm not the Department of State. But.

01:21 - 45.500 But you're asking us to adopt this sort of means and test.

01:21 - 46.868 You're asking us to,

01:21 - 50.338 to, to basically,

01:21 - 55.143 if we can hypothesize some, some reason why the General Assembly might choose

01:21 - 58.980 to put this neutral ballot casting measure and why the governor might agree to it.

01:22 - 03.652 I'm asking you if we do if we do everything that you ask us to do,

01:22 - 04.286 I'm concerned

01:22 - 07.389 about what the next neutral ballot casting measure is in the election code.

01:22 - 11.192 That's going to be subject to whatever test we adopt that you're advocating for.

01:22 - 15.697 Respectfully, Your Honor, I think that that concern is present all of the time

01:22 - 19.434 when we're dealing with rules that impact a fundamental right.

01:22 - 22.470 We've never we've this court has never invalidated a neutral

01:22 - 25.440 ballot casting measure,

01:22 - 27.509 a neutral ballot.

01:22 - 30.812 First of all, there are examples of this court invalidating what the,

01:22 - 33.949 appellants have coined as ballot casting rules.

01:22 - 36.851 But before I get to those examples, what about the color of the ink?

01:22 - 38.753 Wasn't that a neutral?

01:22 - 41.222 Yes, I want the color of the ink.

01:22 - 46.328 Checkmarks instead of X is, the deadline and pa Dems, an apple white.

01:22 - 49.531 It was voter ID, and I understand that the ultimate conclusion in that case

01:22 - 50.432 came from the Commonwealth Court,

01:22 - 53.501 but they were following directions from this court to enjoin voter ID

01:22 - 56.604 unless it could be shown that there was no voter disenfranchisement.

01:22 - 57.572 These are all examples.

01:22 - 59.441 But I am compelled to point out

01:22 - 03.211 that ballot casting rules, that phrase is, is brand new.

01:23 - 03.878 It's made up.

01:23 - 06.982 It's not in the election code, it's not in the Constitution, it's

01:23 - 09.985 not in the 300 years of jurisprudence from this court.

01:23 - 14.556 So I'll also note that the appellants have, for their part,

01:23 - 18.827 not pointed to any cases involving neutral ballot casting rules.

01:23 - 23.031 So could we go back to a little bit of a different issue that appellate.

01:23 - 26.468 So pardon me appellants have raised concerning

01:23 - 31.106 the efforts on behalf of the Board of Elections

01:23 - 35.777 to make the ballots more mistake proof

01:23 - 41.616 by trying to instruct people how to to insert the dates, reminding them

01:23 - 45.387 that it's important to put the date and putting, you know,

01:23 - 48.690 the first two numbers of the date on to try to avoid them

01:23 - 53.361 putting, of the year to try to keep people from putting their birth dates on.

01:23 - 56.097 There are efforts that have been made and as,

01:23 - 59.701 pointed out by appellants,

01:23 - 05.607 those efforts in recent years have resulted in fewer mistakes.

01:24 - 10.612 Okay, maybe, you know, 5%, down to 4%

01:24 - 15.350 or down to 3%, whatever it is, it's it had been around 1%.

01:24 - 17.285 And in the last election it was under 1%.

01:24 - 21.289 To be fair, say that again, in the last election, 2024, it was under 1%.

01:24 - 25.193 It was still about 4500 votes just on the day for the date requirement alone.

01:24 - 26.227 So that's my point.

01:24 - 32.400 If you get down to, even 1% of the vote, that is still enough.

01:24 - 37.105 4500 votes, 4000 votes, 2000 votes, 1000 votes.

01:24 - 40.408 That is still enough to turn an election.

01:24 - 43.344 I know of a statewide election

01:24 - 47.816 where a candidate lost by 60 votes, not 60,000 votes.

01:24 - 49.150 60 votes.

01:24 - 53.388 So to me, it's great that there are efforts

01:24 - 57.659 being made to, you know, reduce the possibility of error.

01:24 - 03.531 But that doesn't get us to the ultimate answer here, in my view.

01:25 - 07.435 And I'd like you to, to opine on that, because what we're talking about

01:25 - 10.972 is people's votes, people's right to be heard,

01:25 - 14.242 people's right to influence the election through their vote.

01:25 - 15.877 Absolutely agree.

01:25 - 17.312 Your honor, the efforts

01:25 - 19.347 that the Department of State has made to redesign

01:25 - 21.015 the envelope has definitely limited

01:25 - 22.684 the bleeding, but it has not stopped the bleeding.

01:25 - 25.820 It was still several thousand votes in 2020 for whatever.

01:25 - 28.156 Well, could he finish answering this question?

01:25 - 30.358 If you don't mind, go ahead.

01:25 - 35.196 It's still several thousand votes in 2024, and the cases around

01:25 - 39.033 this very requirement have changed outcomes of elections.

01:25 - 42.871 And so the Toe mentioned township commissioner race that

01:25 - 47.509 that the appellants point to was separated by just a couple of votes.

01:25 - 51.246 And then after counting votes in light of the NAACP

01:25 - 55.116 decision in the district court, the candidates ended up drawing lots.

01:25 - 55.683 And the one who

01:25 - 57.418 flipped the result.

01:25 - 00.622 And so, you know, I'm reminded of Justice Wicks,

01:26 - 04.792 reference to constitutionally intolerable ratio of votes.

01:26 - 05.093 Right.

01:26 - 09.164 And in that opinion and otherwise, we haven't seen a case

01:26 - 10.932 that has really identified like what

01:26 - 13.334 the numerator denominator would be for that ratio.

01:26 - 15.303 And we we would suggest that that's,

01:26 - 18.306 that's not the relevant inquiry for what the ratio would be.

01:26 - 21.309 If anything it is sufficient number of votes

01:26 - 26.347 to impact the outcome of a race because it's really in those instances

01:26 - 30.451 where the right to vote is most pointedly at issue,

01:26 - 34.722 where somebody's ballot is, is thrown out, discarded because of the slip of a pen.

01:26 - 37.525 And in some of these cases, it is a slip of a pen.

01:26 - 39.227 It's not just that somebody wrote the wrong date.

01:26 - 41.963 They they wrote it in the wrong little block. Right.

01:26 - 46.201 And if that's the basis for disqualifying somebody's vote and the person they voted

01:26 - 51.639 for doesn't win by one vote, or because of the drawing of lots we've now

01:26 - 55.076 just directly

01:26 - 57.679 denied somebodies right to vote.

01:26 - 01.349 And this court, I mean, we're not asking for anything new.

01:27 - 05.486 Respectfully, the in Nixon, this court

01:27 - 10.792 clarified that the way to determine whether or not a legislative or government

01:27 - 14.562 action violates the Constitution is through a means and test.

01:27 - 16.931 This court has never. I'm sorry, Your Honor.

01:27 - 18.700 I see you wanting to interrupt you.

01:27 - 21.269 Go with Nixon again. Bowen. I'm.

01:27 - 24.205 Please walk right into it.

01:27 - 25.940 Sure. Well,

01:27 - 28.910 and I understand there's a debate following Nixon and Gamble

01:27 - 30.612 and in some of Your Honor's opinions, Justice Wecht,

01:27 - 34.482 about whether rational basis, is something different in Pennsylvania, but,

01:27 - 36.017 our point is

01:27 - 39.887 you don't even need to get there, because this court has already held that

01:27 - 43.458 the Pennsylvania Free and Equal Elections clause provides more protection

01:27 - 46.894 over the fundamental right to vote than does the federal Constitution.

01:27 - 48.863 Great opinion, if I recall.

01:27 - 51.933 Agreed.

01:27 - 54.936 My compliments to the author.

01:27 - 59.207 But we now have multiple examples

01:27 - 04.412 of federal courts finding that this very requirement

01:28 - 07.382 violates the federal constitution

01:28 - 10.385 under a minimal scrutiny standard.

01:28 - 12.453 That's not even the flaw in Pennsylvania.

01:28 - 15.456 Whatever the whatever the federal court is applying

01:28 - 18.459 in terms of its means and test, is the basement.

01:28 - 21.696 We can move in voter stands for the fact that under an Edmonds analysis,

01:28 - 25.800 the floor has to be higher than whatever the federal court is doing, not lower.

01:28 - 26.868 Right.

01:28 - 29.671 So whatever,

01:28 - 33.641 means ends test this court adopts in this case, and it has to be a means test.

01:28 - 36.811 It can't just be a binary is the is the requirement.

01:28 - 38.980 So it's so hard to comply with that.

01:28 - 41.115 It's essentially impossible.

01:28 - 43.685 It's an infringement. It's a diminishment.

01:28 - 47.989 Whatever synonym you want to pick from the long line of cases from this court

01:28 - 51.092 talking about when a constitutional analysis is triggered,

01:28 - 54.562 one must be triggered and it must be higher,

01:28 - 58.366 a higher level of scrutiny than what the federal court is applying.

01:28 - 00.601 That's how we square that.

01:29 - 03.604 That's sort of where the mapping is on legal women voters, Your Honor.

01:29 - 08.509 And I think I made you lose an opportunity to to ask a question.

01:29 - 09.577 I think it's very well put.

01:29 - 14.148 I by hypothesis, you're always going to have, some votes falling out.

01:29 - 17.352 I mean, I'm sure you would concede perfection is elusive

01:29 - 20.355 and and, of course, impossible.

01:29 - 24.459 There are going to be some people who are going to

01:29 - 28.563 unless it's, you know, like Katie bar the door and, and and,

01:29 - 31.532 you know, you just open, open

01:29 - 34.535 voting at some day and our

01:29 - 37.372 and then close it on some other day an hour.

01:29 - 40.308 And anybody who walked in just cast the vote,

01:29 - 43.711 assuming some system of regulation.

01:29 - 44.278 Right.

01:29 - 48.583 There are going to be some humans on the other side of that regulation.

01:29 - 51.452 Right. And therefore their votes are not counted.

01:29 - 54.422 So there's,

01:29 - 58.359 there's sort of an endless regression here where any standard

01:29 - 01.529 for which you argue is going to contain some arbitrariness.

01:30 - 04.832 So, you know, when you when you import this,

01:30 - 09.103 argument for tiered scrutiny or even a balancing test,

01:30 - 13.474 it's, it starts to look a lot like

01:30 - 17.311 you want us to tell the General Assembly,

01:30 - 21.482 start putting a statement of purpose into every one of your statutes.

01:30 - 27.088 Otherwise, you know, you're going to have a constitutional problem

01:30 - 30.091 because I think you'll agree, wouldn't you, that

01:30 - 33.961 the statute books are full of laws

01:30 - 37.999 that that put some restrictions

01:30 - 41.202 on a number of important constitutional rights?

01:30 - 42.970 Is that correct?

01:30 - 47.041 Absolutely, Your Honor, and anytime that happens, it's subject to a challenge

01:30 - 48.276 that when my rights are denied,

01:30 - 51.512 when my fundamental article one rights are denied based on a rule

01:30 - 55.450 imposed by the legislature or a practice imposed by a Board of elections,

01:30 - 57.385 I have the ability to

01:30 - 00.388 challenge that under the Constitution, and I may lose

01:31 - 03.357 if the proponent of that rule can demonstrate that there's a legitimate,

01:31 - 05.359 legitimate government interest to be served.

01:31 - 06.060 And that's why I answer

01:31 - 09.330 Justice Robson's question earlier, to say that this is always a danger

01:31 - 13.334 whenever we're dealing with article one rights, it's not even a danger.

01:31 - 15.303 It is baked into the system.

01:31 - 19.407 It is why we're all here that whenever there is a rule

01:31 - 22.443 that infringes on a fundamental article one right,

01:31 - 25.713 the person whose right has been denied has the ability

01:31 - 28.716 to challenge that and have a means and test applied.

01:31 - 30.351 It's not just a binary.

01:31 - 32.620 Is it impossible to comply with or not?

01:31 - 33.254 You know,

01:31 - 36.657 and I want to get back to one of Justice Donahue's earlier comments about,

01:31 - 39.694 a trap or a trick.

01:31 - 42.797 You know, even if this date requirement was not intended

01:31 - 48.236 as a disenfranchisement trap, we now know that that's what it has become.

01:31 - 50.071 And if we follow the road

01:31 - 53.908 that the appellants want you to go down in terms of what the standard is,

01:31 - 56.911 or I would say it's not a standard, but whatever their standard is,

01:31 - 58.613 it would not protect against

01:31 - 02.383 any other thing that is intended as a disenfranchisement trap.

01:32 - 05.786 I mean, there would be no difference in terms of what standard to apply

01:32 - 10.124 and how it applies between this rule and one that requires every mail ballot

01:32 - 14.161 voter to write the alphabet backwards with no mistakes in order for their vote

01:32 - 15.296 to be counted.

01:32 - 19.967 Under the appellant's view of constitutional analysis, free and Equal

01:32 - 23.004 elections clause has nothing to say about that kind of rule.

01:32 - 26.007 But that can't be the law under this clause in this Commonwealth.

01:32 - 27.542 In fact, it's not.

01:32 - 31.245 And this court has never allowed a vote to be discarded.

01:32 - 34.749 And in several cases, Gallagher,

01:32 - 38.419 the rest

01:32 - 39.120 in several cases.

01:32 - 42.456 This court has said that whether it's the loss of one vote or a group of votes,

01:32 - 45.826 they should not be disqualified except for compelling reasons.

01:32 - 49.597 Now, why do you call that a statutory analysis or constitutional analysis?

01:32 - 53.768 This court is well versed in looking at so-called ballot casting rules,

01:32 - 56.971 when they've been applied to deny the franchise and asking

01:32 - 59.941 the question, is there a compelling interest driving that?

01:32 - 02.977 Well, I guess the question, though, is, is is it denying the franchise

01:33 - 05.780 or is it is it? And there's going to be a debate about this.

01:33 - 07.148 Is it actually denying the franchise

01:33 - 10.418 because they exercise their franchise just as they did it imperfectly?

01:33 - 14.355 But I want to go back to my question.

01:33 - 20.461 There's another provision in on in the canvasing that discards a ballot.

01:33 - 23.397 If a secrecy envelope has a stray mark.

01:33 - 26.767 And I was taken, I was I was focusing on your slip of a pen.

01:33 - 30.438 A point that you raised

01:33 - 34.442 is, is that something is under your new test.

01:33 - 36.310 Would that fail?

01:33 - 38.379 Because it's just a slip of the pen.

01:33 - 39.513 It's a little stray mark,

01:33 - 43.050 but the statute expressly requires that that ballot not be counted.

01:33 - 45.853 Just to be clear, Your Honor, this is not my new test.

01:33 - 49.290 This is the test that this court said in nature applies any time

01:33 - 52.326 the precious freedoms such as voting is involved, a compelling state

01:33 - 53.461 interest must be demonstrated.

01:33 - 55.129 So I just want to have to push back on that.

01:33 - 57.798 Respectfully. Sorry.

01:33 - 02.303 And if if my client's vote

01:34 - 05.873 is disqualified based on a stray mark on the,

01:34 - 09.543 on the secrecy envelope,

01:34 - 12.213 I would think they have a claim.

01:34 - 15.583 And it's under an existing standard that this court has applied

01:34 - 17.184 time and time again.

01:34 - 21.188 And so, you know, we can debate whether one provision

01:34 - 26.761 or one requirement is more tied to a more compelling government interest.

01:34 - 29.063 This one, as you're hear more from Mr.

01:34 - 31.666 Ball, Chuck, just isn't.

01:34 - 34.769 And so I'm interested in hearing because as secretary I'm interested

01:34 - 39.106 in hearing must first of all, Chuck, because there is no record here

01:34 - 42.843 of testimony about that would support

01:34 - 46.213 the view of the Board of Elections

01:34 - 49.250 on what it does and how it does ballots and things like that.

01:34 - 52.687 So it'll be interesting to see if it's if it's arguing, it's going to be truly

01:34 - 55.690 a legal argument, or if he's going to be offering testimony.

01:34 - 58.059 Well, Your Honor, I'll let Mr.

01:34 - 59.026 Vole, Chuck, and Mr.

01:34 - 01.062 Fabens Larson address their parts of the argument.

01:35 - 02.063 But just very quickly.

01:35 - 06.934 I mean, I was in the courtroom with with the two voters at the 3157

01:35 - 11.806 here and hearing and their their testimony was submitted by declaration.

01:35 - 14.842 And the Philadelphia board agreed

01:35 - 18.679 that everything pled in the petition for review was correct.

01:35 - 22.183 And so that is all the record I would submit.

01:35 - 24.952 You need to make the legal determination.

01:35 - 27.588 There is no dispute here that the Philadelphia Board of Elections

01:35 - 32.426 does not use the envelope date for any reason, except for to disenfranchize.

01:35 - 35.463 And there's no other party or

01:35 - 38.933 intervener who can legitimately dispute that.

01:35 - 43.471 Especially given the record and all of the other cases were all of the same.

01:35 - 48.209 Mickey and the same Intervenors were party to that case,

01:35 - 52.680 participated in full lengthy discovery, had the opportunity to ask interrogatories

01:35 - 56.517 to participate in depositions of every board of elections.

01:35 - 00.054 Intervenors here have an opportunity to have a hearing and conduct crossover.

01:36 - 03.824 They were represented at the at the 3157 hearing.

01:36 - 05.192 In this case.

01:36 - 08.596 So there was a there was counsel for the intervenors in the room.

01:36 - 11.565 They had filed a motion to intervene. It had not been granted yet.

01:36 - 14.568 So they didn't have the opportunity to participate in evidentiary procedures.

01:36 - 18.405 Judge Crumley did turn to them and asked them if they had anything to add.

01:36 - 20.775 And we're talking about a 3157 hearing.

01:36 - 26.380 And I'm sure this court is very familiar with how cases percolate up from 3157.

01:36 - 26.947 Right.

01:36 - 30.951 They are, challenges to computation and canvasing decisions

01:36 - 33.954 that have to be filed within two days of the decision being made.

01:36 - 34.188 Right.

01:36 - 37.858 This is a rocket docket, like no other.

01:36 - 41.162 And so we're in court immediately we were in court

01:36 - 44.632 with our clients, and then the RNC counsel was there.

01:36 - 47.201 Appeared on the record, said

01:36 - 51.238 we filed a motion for intervention, and, Judge Crumley, hadn't ruled on it.

01:36 - 53.541 But he said, while we're here

01:36 - 56.143 in the context of this fast moving rocket docket case

01:36 - 58.045 while we're here, do you have anything to add?

01:36 - 01.048 After having observed the stipulations on the record made

01:37 - 06.120 and the Intervenors counsel did not add anything since then, I'll note

01:37 - 09.256 that, they've tried to make an issue of the absence of the record, but,

01:37 - 13.727 that issue was not granted as one of the questions presented today.

01:37 - 16.730 But while the matter that we could take judicial notice of,

01:37 - 21.001 given all the cases and all the evidence that we've had, to date.

01:37 - 24.471 Yes, Your Honor, especially given the fact that the parties

01:37 - 27.808 were also a party in those other cases where the evidence was developed.

01:37 - 32.146 We have decisions made based on those records by the federal courts,

01:37 - 36.050 judicial notice of a record and another proceeding as a record in this case.

01:37 - 36.617 Yes. Your honor,

01:37 - 37.651 where were the defendant

01:37 - 40.654 or the appellant was was also a party in that case and had the

01:37 - 43.724 the same issues and they had the same exact motivation to question.

01:37 - 48.095 And I'll note that in all of the argument about whether or not the,

01:37 - 50.998 intervenors should have had an opportunity to develop a record,

01:37 - 54.368 they haven't pointed to anything that would actually change the result here.

01:37 - 57.438 Right. They want to I think,

01:37 - 01.475 what they noted is as the things they wanted to explore,

01:38 - 05.579 if they had the opportunity, was the reasons why the petitioners

01:38 - 07.982 didn't put a date on their ballot. But that's that's a matter of record.

01:38 - 10.050 That's in their declaration. They thought they did.

01:38 - 12.453 They were surprised to learn that they didn't.

01:38 - 14.521 And that wouldn't change the outcome of this case anyway.

01:38 - 16.891 And then the other thing they would like to explore

01:38 - 20.895 is the thing that was the subject of multiple cases

01:38 - 24.465 over a period of years, including a fully developed discovery record,

01:38 - 28.802 which is what, if any, purpose does the date requirement serve?

01:38 - 33.841 This is a 3157 appeal of the Philadelphia Board of Elections decision.

01:38 - 36.810 The Philadelphia Board of Elections is here and is

01:38 - 41.015 told Judge Crumley and can answer questions

01:38 - 44.752 today, that it has no purpose for the date provision.

01:38 - 46.687 The interest and procedural posture of this case,

01:38 - 50.157 the Philadelphia Board of Elections, made the decision made based on our precedent

01:38 - 53.861 and then took a knee when it went in front of Judge Crum, which,

01:38 - 58.532 well, if it has no purpose, Your Honor, I don't I wouldn't say that.

01:38 - 00.301 That's that that's taking a knee.

01:39 - 01.669 It's just being truthful.

01:39 - 03.137 There was no adversary.

01:39 - 04.471 There was no adversarial party.

01:39 - 07.007 When you're in front of Judge Crum, which, again, Intervenors

01:39 - 09.810 counsel was there and declined to say anything on the record.

01:39 - 13.047 But also, you agree that there were not a party.

01:39 - 16.717 They were not a party, yet they were granted intervention after the party.

01:39 - 19.119 At the hearing in front of Judge Crumley,

01:39 - 22.456 there was an adversarial party who had not been granted intervention yet.

01:39 - 26.560 At the hearing, but the the underlying

01:39 - 31.799 thrust of your question as I hear it, Your Honor, is

01:39 - 34.969 that the, the Philadelphia Board of Elections

01:39 - 38.906 somehow took a knee by siding with us, but they confirmed what they had said

01:39 - 42.409 in full discovery with the opportunity to cross-examine

01:39 - 45.546 and impose interrogatories from the Intervenors here.

01:39 - 46.547 That's it. I'm not.

01:39 - 47.581 I want to apologize.

01:39 - 50.884 I'm not using taking a knee as some sort of a pejorative term.

01:39 - 52.219 They sided with you.

01:39 - 53.787 There was no you have to agree.

01:39 - 55.923 There was no adversarial party.

01:39 - 57.191 They were on the other side of the V,

01:39 - 59.994 and if they disagreed with anything we had to say, they could have done it.

01:39 - 03.630 But the truth of the matter was they had no they have no use for the day.

01:40 - 06.300 And that's consistent with what they've said every time

01:40 - 08.569 they've been a defendant in any one of these cases.

01:40 - 11.605 Well, and in

01:40 - 14.608 fact, no Board of elections. No.

01:40 - 18.946 Government entity has said there was a use for the date.

01:40 - 22.616 In this case. That's correct, Your Honor.

01:40 - 26.854 In NAACP and again, there were, I think, 2 or 3 boards of election

01:40 - 30.124 that, opposed the relief sought.

01:40 - 35.062 They were cross-examined, their witnesses, were deposed.

01:40 - 38.799 They submitted documentary and interrogatory evidence.

01:40 - 42.870 And the conclusion of the district court, which was upheld by the Third Circuit,

01:40 - 46.640 is that they also, despite their initial protests,

01:40 - 50.044 had no use for the envelope date recollection.

01:40 - 54.848 And now that we're here among all of the inmates and the intervenors,

01:40 - 58.052 none of them includes a Board of elections,

01:40 - 01.522 none of that is taking the side of the Intervenors here.

01:41 - 03.991 We have counsel. Are you going to,

01:41 - 05.526 have more to

01:41 - 08.529 say or your colleagues have more to say on

01:41 - 11.832 on what you think should happen

01:41 - 16.904 when you or a Board of election or some other group of people, quote,

01:41 - 20.941 have no use unquote, for something in the General Assembly

01:41 - 24.945 passed in the law and the governor signed because, I'd be interested

01:41 - 29.283 in knowing how far that stand reaches and in what circumstances.

01:41 - 33.687 I suppose you're going to,

01:41 - 37.324 tell us, that strict scrutiny

01:41 - 40.327 has to apply. And,

01:41 - 44.131 I, I want to know, I guess,

01:41 - 48.302 what the, what the basis for that is because I,

01:41 - 54.441 I'd like to know how far your have no use standard goes, because ultimately

01:41 - 57.544 it also bears on how many disputes and in

01:41 - 00.547 what context we're going to be asked to referee.

01:42 - 03.684 Disputes around voting rights or around, any,

01:42 - 07.354 rights people believe they have under our Constitution.

01:42 - 10.591 I understood, Your Honor, and I should note that

01:42 - 13.794 he's saying have no use as being a little colloquial, right?

01:42 - 15.696 That that's not this right.

01:42 - 18.866 It serves no purpose, serves no government purpose, is not narrowly

01:42 - 22.636 tailored to a compelling government interest, or is unrelated to an important

01:42 - 23.303 government interest.

01:42 - 28.442 Those are the well-heeled, familiar standards that this court said in, the,

01:42 - 33.046 William Penn School District case are familiar, identifiable and manageable.

01:42 - 33.780 Right.

01:42 - 34.882 That's all we're asking for

01:42 - 38.785 is to apply the same kind of analysis that's always applied when the denials.

01:42 - 40.320 Right. As of right is involved.

01:42 - 43.624 And I

01:42 - 45.692 intentionally said or as between

01:42 - 48.695 compelling government interest or,

01:42 - 51.965 important government interest because,

01:42 - 56.069 sensing some pushback on the notion that strict scrutiny

01:42 - 00.274 should be applied every time there is a procedural, neutral,

01:43 - 02.342 requirement.

01:43 - 04.978 And our position is

01:43 - 07.881 that's, that's what the standard is and what it's always been.

01:43 - 12.553 But if this court is inclined to adopt a standard that has more of a limiting

01:43 - 16.924 principle, again, I think that would be new law would be contrary to nature.

01:43 - 20.260 It would be contrary to all of the cases involving fundamental rights.

01:43 - 25.799 But there's a way to do this, and you can kind of more closely

01:43 - 28.702 adhere to what the court did. And we can accept, again,

01:43 - 32.039 with a floor that's higher than what he can did and what

01:43 - 34.975 and also,

01:43 - 35.342 you know,

01:43 - 38.278 would have more of a limiting principle without doing the type of violence

01:43 - 42.049 to the free elections clause that the appellant's position would do.

01:43 - 46.820 What some courts in other states that have free and equal elections

01:43 - 51.358 provisions following form to the original clause in Pennsylvania,

01:43 - 54.394 what some of those other courts have done

01:43 - 57.731 is to apply an analysis that's more balancing, more sliding scale.

01:43 - 01.835 Similar to what the third circuit just applied in Aiken.

01:44 - 04.338 But landing on more of an intermediate scrutiny

01:44 - 07.441 for the same reasons I've articulated that, however you cut

01:44 - 10.510 it, a free and equal elections clause provides more protection

01:44 - 13.680 than what is provided under the Anderson Burdick standard

01:44 - 16.283 with a James Wilson

01:44 - 17.985 choose

01:44 - 21.421 to adopt the standard that that fell on the wall back there.

01:44 - 25.926 Chief Justice Stern came up with in Gambon the, quote,

01:44 - 29.796 heightened, rational basis, unquote, standard.

01:44 - 33.300 No, Your Honor, because as this court has said, including

01:44 - 36.470 in interpreting, the Anderson verdict standard.

01:44 - 40.574 So in PA Dems, this court did describe its understanding

01:44 - 41.642 of the Anderson verdict standard.

01:44 - 45.579 And in so doing, said the rational basis is reserved for those cases

01:44 - 49.549 that do not involve a fundamental right, because we have a fundamental article

01:44 - 50.350 one right here.

01:44 - 53.720 Rational basis has no place in the court's analysis, whether it's,

01:44 - 56.623 more exacting, heightened rational basis.

01:44 - 57.124 However,

01:44 - 00.961 some of your colleagues and predecessors might have termed it.

01:45 - 03.964 I understand that that's not your favorite standard, Justice Wecht

01:45 - 06.166 but I don't even think you need to go there.

01:45 - 07.401 It's heightened scrutiny.

01:45 - 10.404 It's intermediate or better, we would say strict scrutiny,

01:45 - 13.173 under this court's precedents involving fundamental rights.

01:45 - 16.610 But again, if this if this court is troubled by sort of

01:45 - 20.147 the implications of that and the scope of that,

01:45 - 23.717 I think that that, ground has already been plowed.

01:45 - 28.655 But if the court is inclined to articulate a more limiting standard, it can do

01:45 - 32.059 so without doing the kind of violence to the free elections clause that

01:45 - 36.697 the binary standard, kind of gleaned out of a partial quote from Winston would do

01:45 - 40.701 it. Council counsel

01:45 - 43.003 two questions, one, not substantive,

01:45 - 47.641 but just for my information, when we talk about the,

01:45 - 53.780 percentage of votes, that are, not counted as a result of this failure,

01:45 - 57.184 has anyone taken into account

01:45 - 00.420 the number of, votes that have been

01:46 - 04.624 cured, as a result of the noticing cure process,

01:46 - 08.795 when the defect is the date or lack thereof?

01:46 - 12.132 Has any but there's definitely been analysis of,

01:46 - 15.502 the effectiveness of curing, and there's a, there's a cure.

01:46 - 19.473 And this sign is determined if we know what the actual scope of the problem

01:46 - 22.476 is with the missed data on dating.

01:46 - 23.810 We do.

01:46 - 26.646 It's knowable in every election, although we can't know it ahead of time.

01:46 - 26.913 Right.

01:46 - 31.084 So the trend is that there are fewer, fewer votes lost to this rule.

01:46 - 34.020 Talking about lost because some of them are cured.

01:46 - 35.389 Right. And the final.

01:46 - 36.990 Okay, I know I understand your question, Your Honor.

01:46 - 39.993 So the final count that, that I quoted for,

01:46 - 43.063 the 2024 general election, 4500, that's post curing.

01:46 - 45.031 Okay. And that accounts,

01:46 - 48.135 or that's after accounting

01:46 - 51.138 for the fact that different counties have different cure procedures.

01:46 - 54.841 Philadelphia does make a very, big effort to allow people to

01:46 - 58.612 counties have no cure for some counties have no cure procedures in some counties.

01:46 - 00.547 And that's a post cure number.

01:47 - 03.550 That is the post cure number.

01:47 - 05.986 That is,

01:47 - 09.122 I believe also the post provisional ballot number.

01:47 - 12.125 So for those that brings me to my next question.

01:47 - 14.761 Does the ability a voter,

01:47 - 17.731 a a voter to use a provisional ballot,

01:47 - 21.568 in a situation where they know

01:47 - 27.274 that their, vote has been set aside, does that change your argument at all?

01:47 - 30.811 Keeping in mind, we look at the election code as a whole.

01:47 - 33.780 So as the election close quote.

01:47 - 36.716 I take it away, but then give us,

01:47 - 39.719 what does

01:47 - 42.289 how does that impact your argument?

01:47 - 45.358 It doesn't really impact the argument, Your Honor, because we're still left with

01:47 - 50.363 the question of whether it's a single vote or a group of votes being disqualified.

01:47 - 52.566 Oh, well, without a compelling reason.

01:47 - 53.266 And there

01:47 - 57.871 there's no amount of curing the franchise is not lost in that circumstance.

01:47 - 00.841 If they can cast a provisional ballot.

01:48 - 03.243 Well, it's diminished, Your Honor.

01:48 - 05.111 And that's that's what this court held

01:48 - 08.315 shall not happen in League of Women Voters Institute of Management of the right.

01:48 - 11.852 How is it diminished by requiring additional steps?

01:48 - 12.118 Right.

01:48 - 12.752 So for Mr.

01:48 - 16.056 Baxter, who was in his 80s at the time, to have gone through the effort of

01:48 - 19.359 requesting the Mail-In ballot,

01:48 - 21.528 which well,

01:48 - 24.631 I won't it conveniently I won't assume.

01:48 - 24.931 Right.

01:48 - 28.068 I can only assume it was more convenient for him, but requesting the mail

01:48 - 31.171 in ballot, verifying his eligibility to vote by mail,

01:48 - 34.574 filling it out, signing the declaration, sending it in on time.

01:48 - 40.413 He's done all of these things, to exercise his right of franchise, and then,

01:48 - 44.918 to have to save the constitutionality of the date provision

01:48 - 48.221 by going down to the elections office in either curing

01:48 - 51.591 or voting a provisional on Election day is just adding these.

01:48 - 51.825 Whoops.

01:48 - 53.693 Adding this amount of friction

01:48 - 57.330 for no government purpose is the is the nub of this case.

01:48 - 00.600 The other part, the other reason why the availability.

01:49 - 03.436 You're saying a voter can't be inconvenienced?

01:49 - 06.773 No, Your Honor, we're we're saying that, a rule can't be used

01:49 - 10.143 to disenfranchize voters unless it's tied to a compelling government interest.

01:49 - 13.146 The other reason that, curing

01:49 - 16.082 and or provisional ballot options

01:49 - 19.286 do not change our argument is because no amount of curing or provisional

01:49 - 23.490 ballot options are the two different things, understood by the,

01:49 - 25.592 sort of net

01:49 - 28.595 result of the CCG case in Glanzer.

01:49 - 33.300 In some counties may mean that people at least get notice

01:49 - 36.636 that there's been an error and that their ballot has been set aside

01:49 - 39.472 so that they can either cure or go vote.

01:49 - 42.475 The provisional ballot on Election day.

01:49 - 45.512 No amount of rules along those lines is going to eliminate the issue

01:49 - 50.884 here, Your Honor, and bring that 4500 number down to something approaching

01:49 - 55.822 zero or something that's tolerable given the closeness of races in Pennsylvania.

01:49 - 00.827 And the reason for that is the deadline for receipt of the mail

01:50 - 03.830 ballot package is still on election day.

01:50 - 06.032 There will always be people who mail in their ballot

01:50 - 07.367 thinking they've done everything right.

01:50 - 09.069 They've missed the day. Or maybe they put,

01:50 - 11.004 the date in one

01:50 - 14.007 box instead of separating it into two, as we saw in some of these examples.

01:50 - 17.677 And the Election Office receives it on Election Day

01:50 - 21.047 and isn't even able to notify them.

01:50 - 23.750 And the method of notification is email, by the way.

01:50 - 26.953 So the email doesn't even get sent until late

01:50 - 30.523 in the day on Election Day, when it's too late to cure the problem.

01:50 - 32.292 And so in those circumstances,

01:50 - 35.161 you're still left with voters who are being disenfranchized

01:50 - 38.531 solely by application of a rule that has no government interest driving it.

01:50 - 41.635 You want to wrap up, Mr. Lunney?

01:50 - 45.038 I think we understand, Chief, I just oh, one brief.

01:50 - 45.772 Sure.

01:50 - 48.608 Council, you just refer to something that's come up repeatedly

01:50 - 51.945 and that's the historical or the reason perhaps

01:50 - 56.016 closeness of of many of some statewide elections.

01:50 - 57.717 I think clearly the case.

01:50 - 03.590 Can a constitutional analysis turn on,

01:51 - 09.195 anecdotal closeness of elections in a, in a particular period, given

01:51 - 13.933 how ephemeral that can be and unchangeable it can be trends can evolve.

01:51 - 17.303 And I mean, can it constitutional adjudication by this court

01:51 - 20.707 be premised even in part on, on,

01:51 - 24.110 you know,

01:51 - 27.747 either anecdote or evidence of, of of election margins?

01:51 - 28.381 Yeah.

01:51 - 31.384 It would never be anecdotal, but if we'd always have evidence.

01:51 - 34.587 Well, if it's in the record, we have evidence or we can find it.

01:51 - 37.190 That's it. That's immaterial. But you see my point. Yeah.

01:51 - 40.393 And the direct answer to your question, your honors, that is immaterial

01:51 - 44.064 to the constitutional analysis, material or immaterial.

01:51 - 47.400 And I'll note that this case, this is case in point.

01:51 - 50.503 We representing two voters who are among 69 who,

01:51 - 55.875 lost their vote in a September 2024 special election.

01:51 - 57.243 Those

01:51 - 01.081 69 ballots did not, could not have changed the outcome of the election,

01:52 - 04.884 but the right to vote must be vindicated nonetheless.

01:52 - 07.887 And so the relief that that we're asking for here, which the Commonwealth Court,

01:52 - 14.227 granted, is that those 69 voters votes be counted and added to the final count.

01:52 - 16.696 But the results of that that election have been certified.

01:52 - 21.301 But that doesn't make, the, the fundamental right

01:52 - 24.871 to exercise the franchise any less weighty under our Constitution.

01:52 - 28.141 It may be irrelevant, fact to consider,

01:52 - 31.578 in thinking about whether or not

01:52 - 35.782 a particular rule not this one, but a whether or not a particular

01:52 - 40.687 rule is indeed a burden on the franchise is indeed infringing on the franchise.

01:52 - 43.990 So if if you have a rule that only caught

01:52 - 47.894 one person in a ten year period, I could imagine that is an argument

01:52 - 51.331 that one could use to say that, well, this this really isn't denying the franchise.

01:52 - 55.902 We know that this rule is denying the franchise to thousands of people

01:52 - 57.036 in every statewide election.

01:52 - 00.874 I, I know I've been asked to conclude,

01:53 - 03.877 but I'm also assigned to the severability piece.

01:53 - 07.380 So you'll here, let's begin anew.

01:53 - 09.816 Yeah.

01:53 - 10.483 You'll hear from Mr..

01:53 - 14.988 Of Chuck more about the purported purposes of the date rule.

01:53 - 18.558 But I'll say just one thing about legislative purpose that that does

01:53 - 23.663 tie in with the RNC severability analysis, which is all indications

01:53 - 27.700 here are that the General Assembly didn't give much,

01:53 - 33.006 if any, credence to the importance of the word date

01:53 - 36.709 when it carried that language over from an old version of the election code

01:53 - 41.514 into the act 77 from the, absentee ballot.

01:53 - 42.348 Correct?

01:53 - 45.852 Your honor, this phrase shall fill out date and sign is a relic

01:53 - 49.322 from a 1963 absentee ballot provision.

01:53 - 51.224 And the

01:53 - 53.626 legislative leaders who submitted an amicus brief here

01:53 - 58.364 and in every other case, in their amicus brief and B pep actually acknowledge

01:53 - 02.335 that that that language is ported over, was copied and pasted.

01:54 - 03.136 Quote.

01:54 - 07.140 For the simplicity of legislative drafting that that's a 71 B of our record.

01:54 - 10.143 So not because anybody in the legislature made it, it's

01:54 - 13.146 considered decision that the handwritten date is needed. But,

01:54 - 16.983 it was for the simplicity of legislative drafting.

01:54 - 20.987 So from the perspective of a severability

01:54 - 24.924 analysis, I think it's safe to say that the word date is not integral

01:54 - 29.229 to is not inseparable from that grand compromise that was reached in acts 77.

01:54 - 32.298 That's a I mean, I didn't know we're going to severability already, but

01:54 - 35.768 isn't that that's a real thin read, isn't it?

01:54 - 40.473 Because now we're going an extra step and being asked to

01:54 - 44.911 parse and interpolate which words

01:54 - 49.082 in a provision the General Assembly enacted

01:54 - 51.851 which are sufficiently integral

01:54 - 54.854 or meaningful?

01:54 - 58.391 How is that a standard, upon which this court

01:54 - 01.527 can adjudicate severability questions?

01:55 - 05.365 I think that is the standard or part of it under,

01:55 - 07.734 the Statutory Construction Act, section 1925.

01:55 - 11.671 And under this court's opinion and still I do pick apart

01:55 - 17.944 the pick apart the the act 77 and determined that the

01:55 - 22.215 the sign part is integral, but the date part is not.

01:55 - 24.284 No, Your

01:55 - 28.121 Honor, that I mean, the analysis that this court engages in, whether or not

01:55 - 31.524 there's a severability or non severability clause in the statute

01:55 - 36.863 is whether the valid provisions are so essentially inseparably

01:55 - 40.800 connected with and depend upon the invalidated provisions.

01:55 - 41.801 Get that right.

01:55 - 45.872 That is a quote from section 1925 of the Statutory Construction Act.

01:55 - 47.240 It was also applied in still

01:55 - 50.143 but you out of you that you that you added a different qualifier.

01:55 - 53.713 Your qualifier was whether or not there's a severability clause.

01:55 - 55.982 We apply the Statutory Construction Act.

01:55 - 57.583 Why is that true?

01:55 - 58.918 That's true under this court's precedent.

01:55 - 01.921 And still and the reason is, you know, I think,

01:56 - 04.657 and I do want to get to our primary argument that this doesn't

01:56 - 06.626 actually invalidate any provision of the code.

01:56 - 09.929 But since we're here, you agree that you don't go to the statutory

01:56 - 12.932 construct an act unless the act is ambiguous?

01:56 - 15.601 No, Your Honor, this

01:56 - 19.138 when it comes to severability and the separation of powers, concerns

01:56 - 22.608 that are necessarily implicated when there's a severability provision.

01:56 - 24.510 What, again, you're throwing this out.

01:56 - 28.014 What separation of concerns are necessarily implicated by any

01:56 - 31.250 non severability I'm drawing this directly from this court's opinion

01:56 - 32.051 and still up Your Honor.

01:56 - 32.218 Okay.

01:56 - 35.455 So still was still up again was a different animal.

01:56 - 41.094 Still still it was a situation involving a pay statute applicable to judges

01:56 - 46.466 that they put a separate non severability clause in because in this court's view,

01:56 - 49.535 they were trying to tie the court's hands or influence

01:56 - 51.971 how the court would decide the constitutional question.

01:56 - 55.041 Meaning we had the judges had a stake in the outcome.

01:56 - 58.177 We have no stake in the outcome of this case.

01:56 - 02.682 There's nothing about the act 77 that is particular to the judiciary.

01:57 - 05.952 How we do our jobs, anything like that, this.

01:57 - 09.555 That's why stop is kind of on its own.

01:57 - 13.092 But still it doesn't say as a general rule.

01:57 - 15.128 In fact, I think it says the opposite,

01:57 - 18.765 that when the General Assembly expressly provides a

01:57 - 24.470 non severability clause in the statute, it's just like any other provision

01:57 - 27.740 of an unambiguous statute, we apply it with effect.

01:57 - 30.743 The intent of the General Assembly up.

01:57 - 33.880 Respectfully a disagree, Your Honor.

01:57 - 34.914 I do recognize that.

01:57 - 38.084 Still, it was a unique set of circumstances.

01:57 - 42.789 As justice McCaffery pointed out earlier, however, the voting rules do impact

01:57 - 44.791 elected officials on the bench.

01:57 - 46.426 But that's not the crux of our argument.

01:57 - 48.594 Still did actually

01:57 - 51.898 say, if there's any ambiguity, I want to just let's agree with this.

01:57 - 55.501 Is there any ambiguity in the General Assembly's non severability language here?

01:57 - 00.573 No, there isn't and there wasn't in stop either intended it to be non-separable.

01:58 - 02.008 There wasn't and still be there.

01:58 - 03.943 It's the exact same language that this court.

01:58 - 06.579 I understand yourself but you agree that it is.

01:58 - 08.714 It is clear that the General Assembly intended

01:58 - 11.451 the statute to be not the act to be non severable.

01:58 - 14.587 They wrote language that is unambiguous on its face.

01:58 - 17.590 Okay, so how do we then apply statutory construction principles.

01:58 - 20.660 So I'll quote from still up here, Your Honor the issue of enforceability

01:58 - 24.797 of non severability provision is not a question of legislative intent.

01:58 - 28.568 The provision itself makes clear the legislative desire

01:58 - 31.737 that no court invalidate a single provision of the act,

01:58 - 34.640 that that is the reasoning this court applied to stop that

01:58 - 38.311 reasoning was not dependent on the unique factual situations in fact.

01:58 - 42.048 And still this court went through a historical examination

01:58 - 45.218 of the common law around severability provisions

01:58 - 49.889 and articulated the separation of powers issues.

01:58 - 53.626 That may be I'm doing less of a good job articulating today, but

01:58 - 57.630 the separation of powers issues being that a severability provision, ambiguously

01:58 - 02.468 ambiguous or not, purports to limit the court's role

01:59 - 06.239 in determining the constitutionality of a statute.

01:59 - 09.442 And so that's the crux or the nub,

01:59 - 13.212 if you will, of the separation of powers analysis here.

01:59 - 15.281 It's not tied to stilts.

01:59 - 18.651 Focus on, the facts involving a,

01:59 - 22.722 pay raise to legislators and judges.

01:59 - 28.861 It's about the duty of the court, our bailiwick, to construe the constitution.

01:59 - 31.531 That's the separation of powers problem.

01:59 - 32.698 But it.

01:59 - 34.400 Let me let me get an answer if I could.

01:59 - 36.369 Is that is that correct?

01:59 - 37.336 That is correct, Your Honor.

01:59 - 40.339 I mean, you could do a control f within the scope,

01:59 - 44.010 within the scope opinion for the phrase separation of powers.

01:59 - 45.244 It's there.

01:59 - 48.714 But the separation of powers concern that's articulated by the appellants

01:59 - 51.284 is not the reason the case came out the way it did.

01:59 - 54.754 The separation of powers concern that drove the result in the case

01:59 - 58.024 was that the legislature,

01:59 - 02.195 can't usurp this court's ability to call balls and strikes on constitutionality.

02:00 - 03.362 Can I just follow up that?

02:00 - 04.830 How isn't that a red herring?

02:00 - 08.701 I mean, how are how does the General Assembly usurp

02:00 - 10.503 our authority by passing a law?

02:00 - 13.506 Basically, they tell you in this context, look,

02:00 - 16.209 we made this this side of the aisle, on this side of the aisle, we

02:00 - 20.846 we we for once came to an agreement, we made a deal and we've got this package.

02:00 - 24.317 And so we're going to give up slate voting and we'll give up our opposition

02:00 - 26.652 to mail in voting. And here you got act 77.

02:00 - 30.990 So because we got we made this deal and it's a quid pro quo.

02:00 - 33.993 We're having non severability now.

02:00 - 36.128 How does that

02:00 - 40.199 tie this court's hands when, when the General Assembly

02:00 - 44.570 could come back tomorrow and and strike out at 77.

02:00 - 47.573 It could be gone to today.

02:00 - 50.843 And, and we can come in and,

02:00 - 54.347 find a part of it unconstitutional today or not.

02:00 - 58.784 Or we can find more than one part, unconstitutional or not.

02:00 - 04.357 And the consequences of our action can be for the General Assembly.

02:01 - 06.993 How do how did they usurp our authority?

02:01 - 13.299 By saying, as a matter of law, what a consequence of their to their statute.

02:01 - 16.902 Our adjudication might have it?

02:01 - 18.771 Is that unclear? Do you want me to rephrase it?

02:01 - 20.239 I think I get it, Your Honor.

02:01 - 23.242 And and if I don't, that's on me, not you.

02:01 - 27.513 The issue is putting in this kind of poison

02:01 - 32.652 pill provision that discourages meaningful judicial review.

02:01 - 37.323 And actually, the, petition for Ambank review in Aiken filed yesterday

02:01 - 41.661 kind of demonstrates the point in the petition filed yesterday,

02:01 - 45.965 which I think, has been, sent to the court as supplemental authority.

02:01 - 48.167 They make the point

02:01 - 51.904 to the third Circuit that if you uphold this result, it's

02:01 - 55.741 going to have catastrophic implications because of severability.

02:01 - 57.877 It's it's tying this court's hand.

02:01 - 59.912 And that's my understanding of the of the opinion still.

02:01 - 03.215 But it's not just so I don't know how that I'm not discouraged.

02:02 - 06.819 I mean, I don't know, my job is to determine

02:02 - 10.289 whether a statute is constitutional or a statute is unconstitutional.

02:02 - 14.860 If if there's plenty of times where we rule statutes

02:02 - 17.863 unconstitutional, the entire statute falls.

02:02 - 18.331 Absolutely.

02:02 - 21.100 The consequence doesn't really matter to me what matters.

02:02 - 23.369 That's not going to drive my constitutional assessment.

02:02 - 25.438 The reason why I was so different

02:02 - 29.075 was because the general because because the non severability clause,

02:02 - 33.512 at least as this court in scope felt, was dealt with pay for judges

02:02 - 39.585 and that somehow some way that was going to implicate the inability

02:02 - 42.221 to reduce the salary of judges during their term

02:02 - 43.856 and things like that, there were a lot of other things,

02:02 - 47.159 particularly tied to judges that that was impacting.

02:02 - 51.564 And, and the idea that that would influence or somehow prevent us from,

02:02 - 55.134 from giving a fair view of the constitutional question,

02:02 - 58.938 how is this non severability clause prevent us from providing a fair

02:02 - 01.207 review of the constitutional question in front of us?

02:03 - 03.476 Yeah, I think you're absolutely right. Your Honor.

02:03 - 04.110 This court,

02:03 - 09.181 is very familiar with the task of calling balls and strikes

02:03 - 12.818 on constitutionality and then figuring out whether that has an impact,

02:03 - 16.989 whether the thing that's been invalidated is severable from the greater act.

02:03 - 21.260 But what still stands for, and I think it's not just still it's other.

02:03 - 24.063 It's it's, Commonwealth versus Hopkins. Right?

02:03 - 28.501 It's the premise being that in conducting that review,

02:03 - 33.005 this court will do an analysis of whether the thing being invalidated

02:03 - 35.307 is so inextricably intertwined

02:03 - 38.878 with the rest of the act that the whole act has to go away.

02:03 - 41.947 And what I've said is that the, the,

02:03 - 44.483 presence of a boilerplate non

02:03 - 48.754 severability clause, which tracks word for word to the non severability

02:03 - 52.324 clause here is not conclusive as to that analysis.

02:03 - 54.026 And that's our only point.

02:03 - 59.031 But I think before we even get there, I might have led you down this road

02:03 - 02.168 of debating still and application

02:04 - 05.504 where there's an invalidated provision,

02:04 - 09.241 but in this case, there is no invalidated provision for max 77.

02:04 - 14.680 This case boils down to a canvasing decision made about the sufficiency

02:04 - 19.285 of the declaration under section 3140 6.8 3140

02:04 - 23.155 6.8 predates act 77 by decades.

02:04 - 28.794 And just for context, I'll go back again to where we started

02:04 - 33.032 as a 3157 appeal under section 3157.

02:04 - 34.133 By definition,

02:04 - 38.370 the petitioner can challenge an order or decision

02:04 - 41.841 of any county board regarding computation or canvasing of returns.

02:04 - 44.944 That's what this case is by the very nature of this proceeding,

02:04 - 49.081 the relief granted, the relief sought, and the relief granted below

02:04 - 52.585 was for the Philadelphia Board of Elections to make a different

02:04 - 56.889 sufficiency, determination than the one it felt compelled to make in the moment.

02:04 - 00.426 But that is belied by your in

02:05 - 03.429 everything that's come before up to this point

02:05 - 06.599 in which you've made this grand constitutional argument,

02:05 - 10.402 and you want to you want to make that or and you make it.

02:05 - 14.173 Well, and if you convince a majority of this court

02:05 - 19.178 that that this dating required in the statute violates

02:05 - 22.948 the free elections clause, and you win that round,

02:05 - 27.086 then you want to turn around and say, for purposes of the severability

02:05 - 30.789 analysis, no, it's really not a grand constitutional adjudication.

02:05 - 34.994 It's just sort of a sufficiency housekeeping thing by the Philadelphia

02:05 - 35.794 Board of Elections.

02:05 - 40.499 So we're not really implicating the severability question entirely.

02:05 - 42.668 Is it that a disconnect?

02:05 - 44.537 No, Your Honor, and my apologies for smirking.

02:05 - 46.472 It was just you were doing a really good impression of me.

02:05 - 49.441 No, no, I

02:05 - 52.444 if if my wife does the same impression,

02:05 - 59.552 No, Your honor, these aren't inconsistent at all.

02:05 - 04.590 Our grand constitutional argument is not about trying to take the word date

02:06 - 09.662 out of act 77, or trying to take the word date out of section 31 50.16.

02:06 - 14.233 This is all about when the rubber meets the road, what decision

02:06 - 18.037 a county board of election makes as to whether or not to count a vote,

02:06 - 21.507 and not counting the votes

02:06 - 25.110 because of the reading of the word date as mandatory.

02:06 - 28.847 That consequence is the thing that's unconstitutional, right?

02:06 - 34.286 That's what require removing that provision from act 77.

02:06 - 37.389 Correct. And in fact, it hasn't. The.

02:06 - 39.925 I'm sorry. Thank you, Your Honor.

02:06 - 42.494 I'll correct we totally agree.

02:06 - 48.000 And it hasn't required invalidating the word date from section 31 50.16.

02:06 - 49.034 In fact,

02:06 - 51.870 the econ decision we've been talking about as a very recent development,

02:06 - 53.372 that's the Third Circuit development.

02:06 - 56.141 The district court decision happened before the primary.

02:06 - 59.645 And in the primary, everybody who voted by mail got an envelope

02:06 - 00.946 that had a date line in it.

02:07 - 03.315 They were instructed to fill in that date line.

02:07 - 05.484 They were required to fill in that date line.

02:07 - 08.988 And then when they didn't, because of the result in econ

02:07 - 10.422 pick,

02:07 - 13.492 because of the direction to county boards to count the votes,

02:07 - 15.461 not a direction to the Secretary of State

02:07 - 17.997 to change the envelope and take the date requirement out of it.

02:07 - 21.000 But a direction to the county boards.

02:07 - 24.136 Those votes counted

02:07 - 27.072 and did not require overturning of acts 77

02:07 - 31.744 did not require even invalidation of the rest of section eight of act 77.

02:07 - 35.247 So section eight is what is now 31 50.16.

02:07 - 38.851 Section eight is the provision that includes shall fill out date

02:07 - 44.056 and sign as applied to mail in ballots by the way, that section also includes

02:07 - 47.960 the blue or black ink language that hasn't been enforced since 1972.

02:07 - 52.765 And if we accept your analysis there, then severability is not even an issue.

02:07 - 55.267 It's not even a question you have to engage with, which is why I.

02:07 - 57.636 I apologize for taking us down the road in the beginning,

02:07 - 03.308 but I think we went under either analysis right at the primarily, what's happening

02:08 - 06.445 here is a new application of old language,

02:08 - 10.382 not new language, that came with act 77.

02:08 - 15.120 And because of that, there's nothing that needs to be severed out of act 77.

02:08 - 18.057 The instructions to the Board of Election can stand

02:08 - 20.592 to inquire on

02:08 - 24.430 that, because, I'm finding it I find it incomprehensible.

02:08 - 29.101 The the legislature wrote in act 77

02:08 - 33.305 that you'd get wholesale

02:08 - 36.308 invalidation in the event that, quote,

02:08 - 40.512 any provision of this act or its application

02:08 - 44.750 to any person or circumstance is held invalid,

02:08 - 48.420 unquote.

02:08 - 51.690 And I don't know how we can,

02:08 - 55.694 in some hyper lawyerly fashion, avoid that,

02:08 - 01.533 in a way that does not do violence to what the legislature told us it wanted.

02:09 - 03.268 And they make the laws. We don't.

02:09 - 06.872 And as opposed to the nub of it, they're in lies the rub of it.

02:09 - 10.008 That's that's a

02:09 - 13.011 that's an improvement on the Sony and formulation.

02:09 - 15.848 You'll never

02:09 - 18.851 I haven't been on this court long enough to take this abuse.

02:09 - 22.321 Yes. You have

02:09 - 22.955 nor have I.

02:09 - 28.093 Your honor,

02:09 - 31.263 one thing I'll point out is that that boilerplate provision

02:09 - 33.665 again, same provision that that was not followed

02:09 - 37.236 and still, would actually require invalidation

02:09 - 41.507 of that boilerplate provision if it were applied literally.

02:09 - 46.478 And so I hate to be hyper lawyerly here, but again, I think that's our job.

02:09 - 49.948 It's certainly my job as an advocate, to point out

02:09 - 53.318 when the statutory construction being advanced,

02:09 - 58.090 it both creates separation of powers problems

02:09 - 01.093 and doesn't make sense by its own terms.

02:10 - 02.895 And by the way, we don't even have to get there

02:10 - 07.599 because the application is not happening under section eight of act 77.

02:10 - 12.371 It's not happening in the invalidation of, the date provision.

02:10 - 16.475 It is happening at the canvasing stage, at the computation stage under

02:10 - 21.113 3140 6.8, which again predates act 77.

02:10 - 23.615 So, Council, could you,

02:10 - 26.585 how how are the how is the

02:10 - 30.422 discretion of the board directed?

02:10 - 34.459 Under 3146 eight?

02:10 - 39.131 I mean, doesn't it, doesn't that that provision,

02:10 - 42.067 enumerate,

02:10 - 47.206 the issues that would render a ballot insufficient?

02:10 - 52.277 It does, Your Honor, and it says this is under subsection G3,

02:10 - 56.849 that if the county board has verified the proof of identification as required

02:10 - 00.052 under this act and is satisfied that the declaration is sufficient

02:11 - 03.088 and the information contained

02:11 - 05.691 in the voter file

02:11 - 07.693 matches the list, right, that that's the

02:11 - 12.464 task at hand and following after ball something, I add it to that task,

02:11 - 15.467 which is checking for compliance with the date requirement.

02:11 - 20.439 That's the part that creates the constitutional problem.

02:11 - 24.076 And it's at that canvasing stage where the application happens

02:11 - 26.078 not in the requirement that,

02:11 - 30.649 that the Secretary of State ask for a date on the envelope.

02:11 - 34.753 And I do think it's instructive here how things played out a year ago.

02:11 - 40.025 A year ago, this court denied or vacated the result, in part

02:11 - 43.428 on the theory that the Secretary had

02:11 - 45.297 vacated the.

02:11 - 48.533 Sorry, Your honor, a little parched, vacated.

02:11 - 52.037 And you've been arguing for hours.

02:11 - 54.840 So I have,

02:11 - 56.575 and we're not in any hurry.

02:11 - 59.578 We're here all day.

02:12 - 04.449 I appreciate that, Your Honor.

02:12 - 07.786 A year ago, this court vacated the result in the BPA

02:12 - 10.389 case, the Black Political Empowerment Project case

02:12 - 13.392 on the theory that the secretary was not a necessary party.

02:12 - 16.528 But all 67 county boards were.

02:12 - 22.467 So if this were about what is required under 31, 50.16

02:12 - 27.606 for the Secretary to ask voters to do the Secretary would be a necessary party.

02:12 - 30.575 The natural outgrowth of how

02:12 - 34.046 BPA played out is that where the rubber meets the road,

02:12 - 37.482 where the constitutional violation is

02:12 - 40.485 happening, is at the board level.

02:12 - 44.389 So too, this matches with how the case arose.

02:12 - 45.791 Again, we,

02:12 - 48.994 as representatives of the voters whose votes were being discarded

02:12 - 53.865 at the board level under 3157, had to sue the board within two days.

02:12 - 55.267 That's what we did.

02:12 - 57.536 That's whose decision is being challenged here.

02:12 - 00.539 And that is not an act 77 decision,

02:13 - 06.078 by the way, this is something not just the provisions of 3140

02:13 - 09.081 6.8 pre-dates act 77.

02:13 - 12.351 The entire kind of structure and process

02:13 - 15.354 that we're advocating for predates the act 77.

02:13 - 19.124 The the exist.

02:13 - 24.663 67. Language.

02:13 - 33.105 It was.

02:13 - 34.272 Required.

02:13 - 37.275 It's up the passing of act 77

02:13 - 41.880 that that in 3146 we need to account for the canvasing that will give us.

02:13 - 45.317 That was the one and only amendment to 31,

02:13 - 49.721 46.8 in act 77 was to add the words mail in ballots.

02:13 - 54.693 But the phrase that I read into this issue will be that ability to go to the last

02:13 - 57.696 77 included in section seven

02:13 - 00.866 and amended section 31, 46

02:14 - 04.369 as one of this.

02:14 - 05.837 But the amendments

02:14 - 09.708 contained in section seven are not among those that were challenging here, right.

02:14 - 14.246 That the language that that, obligates the county boards

02:14 - 18.116 to make a sufficiency, determination, that language pre-dates act 77.

02:14 - 21.353 That is not part of section seven from act 77.

02:14 - 26.391 And by the way, this parsing of what is and is not part of act

02:14 - 32.097 77 gets to another problem with the RNC's non severability argument, which is that

02:14 - 37.502 what happened in act 77, as Chief Justice Todd pointed out, after 180 days,

02:14 - 40.539 the mandatory provisions became baked

02:14 - 43.542 into the broader election code.

02:14 - 47.913 Then in 2020, there's act 12, which further amend some of those provisions.

02:14 - 51.149 So now this thing's got tentacles all throughout the election code.

02:14 - 53.785 But aren't we to assume that the legislature,

02:14 - 56.521 since they wrote it, is aware of these tentacles?

02:14 - 59.791 In other words, they were aware, of the deal they made.

02:15 - 01.593 And at any point

02:15 - 04.496 by majority they could

02:15 - 07.132 undo the whole kit and caboodle.

02:15 - 10.836 So this idea, I guess this is the dead hand argument you're making now.

02:15 - 15.974 You know, the the subsequent enactments and you don't want it to carry forward,

02:15 - 19.945 doesn't that doesn't that ignore the fact

02:15 - 23.315 that it's always a creature of the legislative will?

02:15 - 24.182 Right.

02:15 - 27.786 But what the appellants are asking this court to do is to do the work

02:15 - 31.923 of the legislature in repealing words and bits and pieces

02:15 - 36.628 of what are now baked into the election code, leaving, kind of orphan

02:15 - 39.664 and mandatory provisions from 2020 in there.

02:15 - 44.669 Even though the word date does not seem to have been part of the grander deal

02:15 - 45.570 that's been reached, like

02:15 - 48.573 we'd be having a different conversation if Malenko came out a different way.

02:15 - 49.274 Right?

02:15 - 54.312 If if the challenge to all of mail ballot voting had been successful,

02:15 - 55.914 now we're talking about something

02:15 - 59.918 that is inextricably intertwined with the the whole act and

02:16 - 03.421 yeah, it's inextricably intertwined.

02:16 - 08.293 And yet tomorrow or today, the General Assembly could change the whole thing.

02:16 - 10.896 Assuming the governor concurs.

02:16 - 13.932 So this inextricable and entwined

02:16 - 17.235 tentacle argument, I think,

02:16 - 19.738 do you agree, fails

02:16 - 22.741 to fully account for the legislative,

02:16 - 26.211 will factor here?

02:16 - 27.812 I don't agree with that, Your Honor.

02:16 - 30.982 And in large part it's because the result of,

02:16 - 35.620 enforcing the non severability provision

02:16 - 39.524 in this case without any kind of evidence

02:16 - 42.794 that the legislature saw the word date

02:16 - 45.797 as critical to the deal,

02:16 - 48.867 would leave, would actually put more work on the legislature.

02:16 - 50.302 It would be the judiciary

02:16 - 53.905 putting more work in the legislature, because we'd only be invalidating act 77.

02:16 - 57.642 We'd only be pulling out those tentacles or trying to find them and pull them out

02:16 - 01.713 from the election code as to act 77, leaving later amended

02:17 - 03.915 and mandatory provisions

02:17 - 07.552 that don't make any sense, and requiring the legislature to fix the mess,

02:17 - 11.489 pulling out an act that is no longer out there as a separate act.

02:17 - 14.492 It is now baked into the election code.

02:17 - 17.495 Correct, your honor, it's I mean, it's baked into what was before

02:17 - 19.464 and what's come after. So what was before?

02:17 - 23.868 It was a code that starts off in article one of the election code,

02:17 - 29.474 with a severability provision, which was not amended at all by act 77.

02:17 - 32.310 The legislature is presumably aware of that provision.

02:17 - 35.880 The legislature was presumably aware of still been its progeny

02:17 - 41.052 and still inserted a boilerplate non severability

02:17 - 45.056 provision of the type that this court has already declined to enforce.

02:17 - 49.361 By the way, this court has also declined to enforce it in the case

02:17 - 51.363 when it at least temporarily invalidated it.

02:17 - 54.866 An application of something in act 77, the mail ballot deadline.

02:17 - 56.701 But that didn't result in severability.

02:17 - 00.972 And I think three justices on this court specifically noted in concurrence

02:18 - 04.142 that following still

02:18 - 06.945 this very non severability provision should not apply.

02:18 - 10.015 Are you are you telling this court that that

02:18 - 14.252 either the court or the General Assembly

02:18 - 18.223 is incapable of identifying what was enacted?

02:18 - 20.959 77 at this point in time?

02:18 - 24.462 No, Your Honor, what I'm saying is that once you identify those things

02:18 - 28.800 and extract them, then it leaves the code that doesn't make as much sense anymore.

02:18 - 31.870 And then it does put the work back on the legislature

02:18 - 36.541 to fix what it had subsequently amended to make it make sense.

02:18 - 39.811 It's not a bad thing if they do some work, is it?

02:18 - 42.647 An overhaul to the election code is something that I think

02:18 - 45.884 many people in this room would be okay with, depending on how it comes out.

02:18 - 51.656 Counsel, in a Democratic Party, the naked ballot case,

02:18 - 57.062 we actually applied, 3146 eight, correct?

02:18 - 57.796 Correct. Your honor.

02:18 - 02.400 And I mean, we didn't consider it as part of act 77.

02:19 - 05.870 We said it had to be read in Perry materia with.

02:19 - 07.672 Correct, your honor.

02:19 - 11.242 So it was not part of 77, just like the result that the Commonwealth Court,

02:19 - 13.378 issued here.

02:19 - 16.381 And the footnote conclusion,

02:19 - 20.552 from the concurrence is in PA Dems,

02:19 - 24.389 noting that severability was not this same severability

02:19 - 26.224 provision was not triggered.

02:19 - 27.325 Should carry over here.

02:19 - 30.328 And again, we don't think you even need to get there.

02:19 - 33.398 But what we said in the Democratic Party case

02:19 - 38.136 is that the county boards had to reject naked ballots.

02:19 - 40.705 They could not count them.

02:19 - 44.342 That was a direction to the county boards, correct, Your Honor.

02:19 - 47.612 And that was something they carried out at the canvasing phase.

02:19 - 48.179 Right.

02:19 - 50.448 So I'm sorry, I was kind of conflating that result

02:19 - 53.451 and the result on the deadline. Yes.

02:19 - 00.291 We've covered a lot of ground.

02:20 - 03.495 So I'm just going to wrap up going back to the first question presented

02:20 - 07.332 before handing off to me to issue CLE credits to the attorney.

02:20 - 13.538 Does that mean I get preparation credits for presenting

02:20 - 14.272 the numbers?

02:20 - 16.141 You have to have some new system.

02:20 - 18.510 You're being done this before.

02:20 - 20.812 Fair enough, Your Honor.

02:20 - 22.313 So before handing back to Mr.

02:20 - 23.415 Volokh to talk again

02:20 - 26.751 about the first question presented, I just want to return to the touchstone

02:20 - 30.755 of this court's analysis confirming that the protections

02:20 - 35.059 under the Free and Equal Elections clause are over and above

02:20 - 38.830 what is provided in federal courts under the federal Constitution.

02:20 - 42.634 And on that basis alone, we ask that you affirm

02:20 - 45.637 the Commonwealth Court's decision

02:20 - 47.972 and vindicate the voting rights of our clients.

02:20 - 49.374 Thank you.

02:20 - 50.775 Thank you, Mr. Loney.

02:20 - 52.710 Well said.

02:20 - 54.212 Let's hear from Mr.

02:20 - 55.880 Vole. Check.

02:20 - 00.285 Now if you want to say simply what he said.

02:21 - 01.953 We're okay with that.

02:21 - 04.989 I certainly endorse everything that Mr.

02:21 - 07.792 Modi said. But Chief Justice Todd and may it please the court.

02:21 - 10.795 Daniel Falchuk for the Pennsylvania Democratic Party,

02:21 - 13.832 joined by co-counsel Clifford Levine here in the courtroom.

02:21 - 15.867 Your honors, as Mr.

02:21 - 19.137 Loney indicated, I plan to principally address two issues.

02:21 - 23.041 That is our argument that it violates the free and equal Elections clause

02:21 - 27.111 to disqualify ballots for noncompliance with the date requirement,

02:21 - 31.015 because such disqualifications further no legitimate government interest.

02:21 - 35.420 And second, addressing appellant's argument that this court in Ames fall

02:21 - 39.190 versus Chapman has already rejected our constitutional challenge.

02:21 - 43.428 But if I could first quickly, close the loop, as it were, on,

02:21 - 47.365 what was discussed earlier with counsel, the so-called Winston Standard.

02:21 - 50.768 And the point I want to make there simply is that what appellants are referring to

02:21 - 56.007 as the Winston Standard is one of five requirements that this court in Winston

02:21 - 00.044 articulated in a single sentence for free and equal elections.

02:22 - 03.147 And appellants are saying implicitly, they don't come right out and say it,

02:22 - 06.918 but they are saying that only one of those five by itself

02:22 - 10.355 sets the constitutional standard for facially neutral

02:22 - 13.892 election regulations, and that the rest should be discarded.

02:22 - 16.160 And the reason I submit they are doing that

02:22 - 20.164 is that two of the other four are inconsistent with their position.

02:22 - 22.267 So this court in the same sentence in Winston,

02:22 - 24.602 which was quoted in full in League of Women Voters,

02:22 - 27.972 said that for free and equal elections, it also has to be the case

02:22 - 32.010 that every voter has the right to cast a ballot and have it honestly counted,

02:22 - 36.714 and that no constitutional right of a qualified elector shall be subverted.

02:22 - 39.951 So whereas they are saying that facially neutral election

02:22 - 42.954 regulations are valid under the clause, unless

02:22 - 46.624 they essentially deny the franchise, that's a so difficult standard.

02:22 - 50.461 This court made clear, I submit, that lesser infringements,

02:22 - 55.333 such as mere subversions, will also violate the clause version.

02:22 - 57.135 Because you read it faithfully.

02:22 - 02.273 Is is it suggestive

02:23 - 06.811 that over 99% of the people are are clearing this?

02:23 - 09.047 And so I heard

02:23 - 12.050 and then fewer than 1% are below that,

02:23 - 15.987 that this is perhaps not a subversion of the right,

02:23 - 19.691 but simply the human error which we all can pay for.

02:23 - 22.260 Might of this version.

02:23 - 25.663 So justice work by submission is that in determining whether this is

02:23 - 29.267 sufficiently serious to constitute a subversion.

02:23 - 30.735 And of course, that's a capacious term

02:23 - 33.137 that could be subject to all manner of interpretation.

02:23 - 34.806 And I'll get to why in just a moment.

02:23 - 37.909 I think League of Women Voters gave a very useful gloss on it.

02:23 - 39.844 But to answer your question, it was discussed

02:23 - 41.112 with some of the earlier council.

02:23 - 45.083 What we know is that in the 2022 election, 10,000

02:23 - 48.486 Pennsylvanians lost their right to vote, 4520 24.

02:23 - 49.687 You heard the numbers.

02:23 - 54.592 And as you pointed out in footnote 29, so the Third Circuit two weeks ago,

02:23 - 59.130 the RNC told the Third Circuit earlier this year

02:23 - 04.669 that three Republican candidates have lost their election since just 2020

02:24 - 08.506 solely because undated ballots were counted.

02:24 - 12.010 So we are talking about a requirement for enforcement of a requirement

02:24 - 16.381 that actually affects has actually affected numerous elections.

02:24 - 18.016 And that would I would,

02:24 - 21.819 just as I submit, yes, is a subversion of the right to vote.

02:24 - 24.756 Now, I mentioned the gloss that League of Women Voters put on it.

02:24 - 27.525 This is language that's in our brief, and I think it's very important.

02:24 - 32.730 The court said the text of the Free and Equal Elections clause indicates

02:24 - 37.135 the framers intent that all aspects of the electoral process

02:24 - 42.840 will to the greatest degree possible, remain open and unrestricted to the voter.

02:24 - 46.310 Now that, in our view, is entirely inconsistent

02:24 - 49.814 with, first of all, the notion that somehow the free and Equal elections

02:24 - 54.285 clause is only limited to neutral ballot regulations, but also the notion that,

02:24 - 57.555 there's any level of minimal judicial scrutiny here.

02:24 - 01.159 Because if you're saying that all aspects of the electoral process

02:25 - 04.195 have to be unrestricted, I read that to mean that

02:25 - 07.932 restrictions are permissible only when they are necessary.

02:25 - 11.469 And that is certainly not the language of rational basis review.

02:25 - 14.505 We heard some suggestion that if there is judicial scrutiny

02:25 - 17.709 at all under the Free and Equal Elections clause of what they call

02:25 - 21.579 a neutral ballot casting regulation, it would have to be rational basis review.

02:25 - 24.082 I submit that's inconsistent with League of Women Voters.

02:25 - 28.352 I'm also not aware of any case in which this court has applied

02:25 - 32.490 rational basis review to a fundamental article one right.

02:25 - 34.692 And if we were even looking to,

02:25 - 38.763 federal case law, I submit Crawford itself, the Crawford versus Marion County

02:25 - 43.534 that the appellants rely on repeatedly is inconsistent with the notion of rational

02:25 - 47.338 basis review, even for infringements of the federal right to vote, as Mr.

02:25 - 51.209 Loney articulated, that is not as robust as the Pennsylvania right to vote.

02:25 - 56.080 But Crawford said, however minimal the burdens on the right to vote,

02:25 - 59.717 they must be justified by sufficient state interest.

02:25 - 01.185 That is not rational. Basis review.

02:26 - 04.222 If you're talking about rational basis review, is there a state interest

02:26 - 07.325 is, you know, it just there's a disconnect between saying,

02:26 - 10.795 however minimal the burdens they have to be justified by sufficiently

02:26 - 14.966 weighty state interest and the extremely forgiving rational basis review.

02:26 - 18.402 So I submit rational basis could not possibly be the correct level of review

02:26 - 18.636 here.

02:26 - 21.506 But with that, I just jump for a second.

02:26 - 24.509 So I think people who look at this

02:26 - 27.545 can reasonably say,

02:26 - 29.814 really, we're dating something.

02:26 - 32.817 How hard is it to date something?

02:26 - 35.620 And we'd look at it and say, because dating

02:26 - 39.257 something is ubiquitous to common society.

02:26 - 41.626 We have verifications.

02:26 - 45.496 We sign all the time licensing applications, banks, bank thing,

02:26 - 47.431 application we date, everything

02:26 - 53.404 that by that nature, there's no burden here.

02:26 - 56.407 There's zero burden here.

02:26 - 02.246 What do you how do you respond to that that, that that asking for it.

02:27 - 04.849 If this is not like,

02:27 - 06.517 voter ID,

02:27 - 09.320 where people would have to literally go out,

02:27 - 12.957 get something new they'd have to get if they didn't have a driver's license,

02:27 - 15.526 they'd have to get an ID, and that was that would impose.

02:27 - 18.529 They'd have to apply for something and and that would impose a burden.

02:27 - 22.500 The voter is not required to take anything with them

02:27 - 25.503 where anything, purchase anything.

02:27 - 29.073 They simply have to as they have a pen in their hand

02:27 - 32.810 or date something that they presumably have already signed.

02:27 - 37.648 How does that even rise to a burden at all?

02:27 - 39.450 So a couple of responses.

02:27 - 43.855 Justice Robson, first of all, just let's bear in mind it has to be a correct date.

02:27 - 45.189 It has to be a date that is,

02:27 - 48.526 could potentially be when you actually filled out the ballot.

02:27 - 50.928 So we know, for example, as was alluded to earlier,

02:27 - 53.998 a significant number of people write down their birthday by mistake.

02:27 - 55.466 We also know the figures

02:27 - 59.337 that I've already alluded to, suggesting that thousands of people get this wrong.

02:27 - 02.073 So those are those are mistakes.

02:28 - 04.742 And people make mistakes as I think justice Work said.

02:28 - 06.844 I'm asking you, what did

02:28 - 09.680 what is the election code have to be written

02:28 - 13.618 in such a way to ameliorate the possibility of human mistake? No.

02:28 - 14.452 Okay.

02:28 - 17.488 So at what point in time is there accountability

02:28 - 21.792 for the mistake on the voter versus telling the legislature,

02:28 - 25.830 this is just a burden because these voters are making mistakes.

02:28 - 27.431 So the relevant burden is not simply

02:28 - 30.635 writing down a date, in our view, the proper analysis of the burden.

02:28 - 31.702 And he can agreed with us.

02:28 - 35.573 Two weeks ago, said that part of the burden is analyzing the consequence.

02:28 - 36.240 And here, of course,

02:28 - 40.044 the consequence is losing your article one fundamental right to vote.

02:28 - 43.047 That, to our mind, is a key part of the analysis.

02:28 - 45.182 Really. It's not really it's not really a burden issue.

02:28 - 47.351 Then the question is, if you make a mistake

02:28 - 51.455 in the consequence means

02:28 - 54.325 of that mistake is the statute says

02:28 - 57.628 your vote is going to get, not counted in the canvass.

02:28 - 02.533 That in your mind is something that triggers a constitutional infirmity

02:29 - 05.536 with the structure of the election that the General Assembly has put forth.

02:29 - 09.273 We are to be clear, essentially, yes, Justice Robson is the short answer.

02:29 - 10.775 But we are the longer answer.

02:29 - 13.744 We are talking about a burden on the right to vote.

02:29 - 17.515 And so the burden here, it is manifested in the requirement

02:29 - 20.184 to write down a date now, just a month in a year.

02:29 - 21.185 But the consequence,

02:29 - 25.623 which should be part of the analysis, is losing your, right to vote.

02:29 - 27.091 And if there is a sufficient reason.

02:29 - 29.727 So it's not a, it's not a loss of the right to vote.

02:29 - 31.796 It's a loss of the right to have your vote counted.

02:29 - 35.666 And that arises from this court's decision, if I may, because I didn't

02:29 - 38.669 sit here at the time and the ball versus Chapman case,

02:29 - 41.839 because we've talked about this before and this is a disqualification issue,

02:29 - 42.940 not a denial,

02:29 - 45.910 because we keep coming back to when we're we're dancing around the issue.

02:29 - 47.445 You keep using the word burden.

02:29 - 49.480 Justice Robson and other justices are going to say,

02:29 - 51.949 well, it's really not a burden to date something.

02:29 - 55.119 The constitutional infirmity arises because this court determined

02:29 - 56.520 involved was Chapman.

02:29 - 00.057 That shall mean shall it's mandatory and therefore if you don't date it,

02:30 - 01.892 it's disqualified.

02:30 - 03.060 I agree with you, justice McCaffrey.

02:30 - 04.895 We are using burden on the right,

02:30 - 06.831 you know, the right to vote as something of a shorthand.

02:30 - 09.000 But I agree to the right in question and justice.

02:30 - 09.867 Why have you made this clear?

02:30 - 12.803 One of your concurring opinions, the Supreme Court has repeatedly made it

02:30 - 16.841 clear, Westbury versus Sanders and elsewhere and more versus, excuse me,

02:30 - 19.777 Winston versus Moore made the same point I quoted a few minutes ago.

02:30 - 22.680 But the right to vote includes the right to have your vote counted.

02:30 - 26.283 We are talking about having a role in our participatory democracy.

02:30 - 29.387 Nobody fills out a ballot just because they like filling out a ballot.

02:30 - 33.624 They want to have a role in selecting those who will represent him,

02:30 - 36.861 or the process of choosing to elect those who will represent him.

02:30 - 40.965 Similarly, we use the shorthand for does the date requirement serve any purpose?

02:30 - 43.401 That's not actually, I submit the proper question.

02:30 - 47.338 Question is, does the disqualification of your ballot for failure

02:30 - 51.542 to comply with the date requirement actually serve any purpose?

02:30 - 55.846 And it's a very important distinction, because all of the purposes

02:30 - 00.284 that appellants have put forward so far as justifying the date requirement

02:31 - 02.453 or the disqualification of ballots for noncompliance

02:31 - 05.790 with our date requirement, to whatever extent the date

02:31 - 08.826 requirement and the handwritten date furthers those purposes.

02:31 - 09.527 And I can go through them.

02:31 - 11.862 I will go through them one by one with the courts indulgence.

02:31 - 15.032 They will likewise and can likewise be furthered,

02:31 - 18.002 even if this court were to affirm and say you cannot

02:31 - 21.739 disqualify ballots for failure to fill out the date requirement.

02:31 - 23.741 Now that leads directly into the question of, well,

02:31 - 24.341 how many people

02:31 - 27.478 are still going to write down the date if this court were to affirm

02:31 - 28.846 to which I have two answers,

02:31 - 32.283 can you can you disqualify about for failing to complete the verification,

02:31 - 37.154 if disqualifying those

02:31 - 40.191 ballots furthers a legitimate government interest?

02:31 - 41.926 And that is not an argument that we have brief.

02:31 - 44.195 So I'm not sure the PDP as well.

02:31 - 46.030 But we keep talking about dating, dating.

02:31 - 48.099 And it's we're talking about a verification.

02:31 - 49.700 We're not talking about dating the ballot.

02:31 - 53.270 We're talking about a verification that is to certain facts, requires

02:31 - 56.273 a signature, requires a date.

02:31 - 58.876 And the question is,

02:31 - 02.246 well, I guess I guess that that's my point is,

02:32 - 06.717 does that serve a particular purpose, requiring people

02:32 - 09.720 to verify those facts when they send their ballot? It?

02:32 - 14.859 I'm not aware of the government interest that is furthered by disqualifying

02:32 - 19.196 a ballot for failure to put a date alongside that verification.

02:32 - 20.764 Now what appellants have argued.

02:32 - 23.067 Of course, there are three different state interests.

02:32 - 23.734 The signature.

02:32 - 26.303 Justice Robson, against you.

02:32 - 29.773 The PDP has not taken a position in this litigation on the validity

02:32 - 30.774 of the signature requirement.

02:32 - 32.910 If that were to be challenged

02:32 - 36.013 under the standards that we are proposing, the framework that we are advancing,

02:32 - 39.250 the question would be the same one here, and I don't have the answer to it

02:32 - 40.351 because we have not briefed it.

02:32 - 42.319 But the question we've taken a position on that.

02:32 - 43.921 Have I justice?

02:32 - 44.889 What if

02:32 - 47.791 I hate to put questions to the court, but are we talking about the Walsh case?

02:32 - 48.692 We're talking about the court.

02:32 - 50.995 This court has taken a position on signature.

02:32 - 54.098 So in the Walsh case, this court, this court rejected

02:32 - 57.668 a challenge to the signature requirement for provisional ballots.

02:32 - 02.273 Now, I want to be very clear about that, because the vast majority of that opinion

02:33 - 05.743 was about statutory interpretation, the continuation of the discussion

02:33 - 09.413 the court has had within itself and about directory and shall mean, etc., etc.

02:33 - 12.650 but there was one paragraph at the end of the court's analysis

02:33 - 15.319 in which the court noted, that it did not agree

02:33 - 17.521 with the constitutional challenge that was presented there.

02:33 - 21.492 Now, it made clear the constitutional challenge that was presented.

02:33 - 24.361 There was only the so difficult standard.

02:33 - 28.032 Essentially, the board said Winston held that it is,

02:33 - 32.770 it is it violates a free and equal election clause to make a requirement

02:33 - 36.574 that is so difficult in this court, said the challenger has pointed to that

02:33 - 38.776 standard, but has not shown how that standard is met.

02:33 - 39.510 So the challenger

02:33 - 43.547 there was not remotely making the same argument that we are making here now.

02:33 - 45.115 Justice walk by saying all of that.

02:33 - 48.452 I am certainly not in any way asking this court to revisit its decision.

02:33 - 49.987 In Walsh, that issue was not presented here.

02:33 - 51.722 It's not implicated by this case.

02:33 - 56.961 All I am suggesting is in terms of the concern about a floodgate of challenges,

02:33 - 01.198 our submission is about disqualifying ballots

02:34 - 04.835 for failure to comply with a requirement that does not advance

02:34 - 08.439 a government interest violates the Free and Equal Elections clause.

02:34 - 11.742 We think that comes from League of Women Voters as well as Winston and well,

02:34 - 14.745 I and I'll go back to my question about the verification.

02:34 - 17.848 Does having an executed verification

02:34 - 21.418 on the outside of an envelope, purportedly by the voter

02:34 - 25.556 to whom that ballot was sent, serve a a governmental interest?

02:34 - 27.124 I don't know, Justice Robson.

02:34 - 29.827 I'm not here to defend the verification requirement.

02:34 - 33.163 You're taking the date part and you're extracting it from the verification.

02:34 - 36.367 The verification is that multiple paragraphs with signature and date.

02:34 - 39.236 But so the issue for us is the date.

02:34 - 41.739 So but the date is part of a verification.

02:34 - 42.940 It's not it's not.

02:34 - 45.843 In other words, I think it's interesting how a lot of the other cases

02:34 - 49.413 that have looked at this have talked about a dated or undated mail in ballot.

02:34 - 51.482 The ballots are not being dated.

02:34 - 55.886 What is being dated is a verification attesting to facts, an affidavit

02:34 - 57.121 under penalty of perjury.

02:34 - 59.890 That's what we're talking about.

02:34 - 03.394 And so I'm trying to figure out you're just you're saying

02:35 - 06.430 that it's the date component of that verification

02:35 - 11.268 that is unconstitutional, but the verification otherwise is okay.

02:35 - 15.205 I am taking this case just as props and as it was litigated

02:35 - 18.942 from the court of Common Pleas with the petition initially filed by the voters.

02:35 - 22.413 And I am taking that the the arguments that the appellants have put forward

02:35 - 27.451 in challenging the Commonwealth Court's decision as to why, the,

02:35 - 30.954 disqualifying ballots for noncompliance with the date requirement.

02:35 - 31.955 You say date requirement?

02:35 - 33.824 It's a verification requirement.

02:35 - 36.660 I don't mean to get hung up on, terminology.

02:35 - 39.797 The parties have brief the case using the term date requirement.

02:35 - 43.200 I'm happy to get more specific and say we are talking about the language

02:35 - 47.938 in the election code that says a mail or absentee ballot voter, after completing

02:35 - 51.475 all of the preceding steps, shall sign and date the verification absolute.

02:35 - 53.377 That is the requirement that we are talking about.

02:35 - 58.082 But what we are specifically challenging in this litigation is the requirement

02:35 - 01.485 to add a date, not to sign the ballot, not to do anything

02:36 - 04.521 else, include the secrecy envelope or anything along those lines.

02:36 - 06.290 Now, if you check, I'm sorry to interrupt you,

02:36 - 10.060 but you don't breathe between sentences, so it's hard to get in there.

02:36 - 12.529 My apologies. Just. No, no, you're just saying a lot.

02:36 - 13.630 It's it's good.

02:36 - 18.302 But, since you answer justice McCaffrey's question, you have said a great deal.

02:36 - 22.539 But you confused me with one thing you said in response to his question.

02:36 - 26.076 And I'm asking, are you conflating

02:36 - 29.480 burden with consequence

02:36 - 33.417 when you were defining what what is a burden in this context?

02:36 - 36.854 So I would not use the word conflating to define my own argument.

02:36 - 41.425 I would say that we view the consequence of not complying

02:36 - 45.462 with the date requirement as part of the proper burden analysis.

02:36 - 47.364 So a court there, how do you think?

02:36 - 51.769 Well, the Third Circuit did the same thing two weeks ago and said, look at prior,

02:36 - 53.937 Supreme Court decisions. Of course it was not.

02:36 - 55.406 It was looking at it through federal law.

02:36 - 58.442 But the Supreme Court, for example, in Anderson itself, the case from which

02:36 - 01.578 the Anderson part of Anderson verdict takes its name, the court

02:37 - 04.715 there was looking at a requirement that independent presidential candidates

02:37 - 07.885 had to declare sufficiently early in the season.

02:37 - 09.319 And the court, the Supreme Court,

02:37 - 13.290 in analyzing the constitutionality of that requirement, looked in part

02:37 - 17.194 to the consequence for independent voters and the fact that they might not make

02:37 - 17.795 their decision

02:37 - 21.098 early enough and would lose the right to vote for the candidate of their choice.

02:37 - 23.700 So the Third Circuit was suggesting, and I think it's certainly correct

02:37 - 27.871 under federal law, it is certainly proper to look at the consequence it also used.

02:37 - 29.873 I know it's proper to look at the consequence,

02:37 - 32.876 but what you're confusing me with is that you're

02:37 - 35.879 including that in the analysis of the burden.

02:37 - 38.382 And I'm not sure I looked at it that way.

02:37 - 42.186 Well, our overall submission is that any work,

02:37 - 46.390 a requirement or disqualification of of cast ballots

02:37 - 50.761 because of the failure to comply with the requirement is all part

02:37 - 51.695 and parcel of the burden,

02:37 - 56.800 and that is what needs to be justified by sufficiently strong state interest.

02:37 - 58.402 And what the appellants here have pointed to.

02:37 - 01.038 They pointed to three different possible state interests.

02:38 - 05.075 They started with the timeliness of ballots preventing voter fraud and,

02:38 - 08.445 promoting solemnity in voting.

02:38 - 12.516 Now, none of those three is an interest that is actually or adequately furthered

02:38 - 16.920 by disqualifying ballots for failure to comply with the date requirement.

02:38 - 19.623 Let me let me go through them quickly with the court's permission,

02:38 - 21.391 starting with timeliness.

02:38 - 23.694 As a matter of Pennsylvania law,

02:38 - 27.097 it is not permissible to the handwritten date on the outer

02:38 - 32.135 envelope of a mail ballot cannot be used to determine a ballots timeliness.

02:38 - 35.372 And that's because under the election code, a ballot mail ballots

02:38 - 38.375 timely if and only if it is received by 8 p.m.

02:38 - 41.411 on Election Day, and the handwritten date cannot tell you

02:38 - 43.680 when the ballot was received.

02:38 - 45.082 And that's because

02:38 - 48.519 two steps have to follow with the correct handwritten date tells you assuming.

02:38 - 49.653 Assuming it's correct,

02:38 - 52.422 it tells you the date on which the voter wrote down the handwritten date.

02:38 - 54.691 Two more things have to happen after that.

02:38 - 56.460 In order for the ballot to be received, the ballot

02:38 - 00.230 voter has to put the ballot in the mail, and the Postal service has to transport it

02:39 - 01.365 to the Board of Elections.

02:39 - 04.167 Handwritten date doesn't tell you how long it took for

02:39 - 07.538 either of those two steps to be completed, let alone both of them.

02:39 - 12.142 So it simply does not give any insight into when a ballot was received,

02:39 - 14.578 which is all that matters for timeliness.

02:39 - 17.548 Now, what appellants have said, and the AG addressed it again earlier

02:39 - 21.618 this morning, the scenario in which the Shaw system breaks down

02:39 - 25.889 and in which election officials violate their statutory obligation

02:39 - 30.093 to keep a record of when every mail or absentee ballot is received.

02:39 - 33.430 And they say in that circumstance, if both of those things occurred,

02:39 - 36.767 the handwritten day could be used to help evaluate timeliness.

02:39 - 39.903 Well, number one, I do want to underscore how implausible

02:39 - 43.507 I view that scenario as being, in part because, as I just said, it

02:39 - 47.544 requires assuming that election officials will violate, ignore, disregard

02:39 - 51.181 whatever verb you want to use their statutory obligation

02:39 - 55.252 to keep a record of when every mail ballot is received.

02:39 - 59.723 But even putting that aside, the argument just ignores everything that I said about

02:39 - 02.025 how under the code, it simply is not permissible

02:40 - 04.094 to use the handwritten date because it doesn't

02:40 - 07.965 give you information on the only thing that matters in terms of timeliness.

02:40 - 08.432 And I

02:40 - 10.601 you have the briefing from the Philadelphia

02:40 - 13.704 County Board of Elections here confirming that it does not use

02:40 - 16.807 and it does not believe it can use the handwritten date

02:40 - 20.544 in order to determine timeliness and to the extent this court deems

02:40 - 22.112 it appropriate to look beyond the record.

02:40 - 24.214 In this case, there are similar representations

02:40 - 27.918 from the other county Board of Elections in the two recent federal lawsuits,

02:40 - 31.054 and NAACP and Eakin similarly saying that

02:40 - 34.725 the handwritten date simply is not used to determine a ballots timeliness.

02:40 - 36.193 Now, my last point on timeliness.

02:40 - 39.029 I submit it's a little respect.

02:40 - 42.799 Hard to credit appellant's assertion that they would have no concerns,

02:40 - 45.802 no objections if, after a certain election,

02:40 - 49.006 a number of boards of elections took the position.

02:40 - 51.541 We've got this room full of mail and absentee ballots.

02:40 - 53.543 We don't know when they were received.

02:40 - 54.745 Our system broke down.

02:40 - 56.413 We didn't record when they came in.

02:40 - 57.881 We just don't know.

02:40 - 01.518 But we're going to take a look at the handwritten date on those ballots

02:41 - 02.519 and if they're early enough

02:41 - 04.688 before the election, far enough before the election,

02:41 - 06.957 we're just going to go ahead and count that room full of ballots.

02:41 - 08.492 I submit it's difficult to credit

02:41 - 10.861 that the appellants would have no concerns with that.

02:41 - 13.830 But the basic point, again, under the election code,

02:41 - 18.135 handwritten date simply plays no role in determining the timeliness of ballots.

02:41 - 19.836 There's been some

02:41 - 22.839 discussion about burdens and,

02:41 - 26.043 and also purpose as you just were marking,

02:41 - 29.112 one of one of the at least one of the,

02:41 - 33.083 a Mickey, referenced are quite onerous

02:41 - 36.086 petition requirements.

02:41 - 40.390 Both with respect to burden,

02:41 - 42.859 at least petition requirements or something

02:41 - 46.596 we're all familiar with, of course, since we're an elected judiciary,

02:41 - 51.334 both with respect to burden and purpose.

02:41 - 55.338 Assuming that that your side prevails

02:41 - 58.408 in this case, couldn't one foresee that the entire,

02:42 - 03.246 onerous petition rubric has to come crashing down?

02:42 - 06.383 And justice worked again, with apologies for directing a question

02:42 - 07.217 back at the court.

02:42 - 10.987 Are we talking about requirements to petition this court for review of a.

02:42 - 14.391 Sorry, I meant a petition to be a candidate on the ballot.

02:42 - 17.294 Yes. So there have been a number of cases about that.

02:42 - 18.261 And often the,

02:42 - 21.631 there was the, well, it doesn't matter.

02:42 - 23.200 There have been a number of cases about that.

02:42 - 24.534 And the court has been clear,

02:42 - 27.537 I think, in a number of cases in distinguishing between,

02:42 - 29.940 infringements of the right to cast a ballot

02:42 - 33.276 that will be counted and infringements of the right of candidates.

02:42 - 36.480 I mean, this was a this was the case in Winston versus more having

02:42 - 39.683 just the top two vote getters from the primary up here on the ballot.

02:42 - 43.687 And the, result in the analysis was that those are different

02:42 - 47.791 than restrictions on actually counting a ballot and casting a ballot.

02:42 - 50.861 So the analysis, I submit would likely be different, although, well,

02:42 - 54.264 it would be different in the sense of the standard of scrutiny applied.

02:42 - 55.966 But of course, I think the analysis would be

02:42 - 58.201 the same in terms of is there any legitimate burden

02:42 - 02.072 because this is typically how it works with all constitutional analysis.

02:43 - 03.540 I think that's a good, very good response.

02:43 - 05.909 The upshot of that, of that,

02:43 - 09.212 perspective or that

02:43 - 13.150 holding, I suppose, would would be that, in the,

02:43 - 16.153 in the it would have,

02:43 - 19.122 article one writes, the associate

02:43 - 24.928 of writing ought to be very colloquial, the right to stand as a candidate

02:43 - 28.398 to participate in government, is a beautiful,

02:43 - 31.401 artificial, inferior,

02:43 - 35.272 in the constellation of rights to the right to cast a vote.

02:43 - 37.374 So just as I was asking your last question,

02:43 - 39.409 perhaps I apologize for any confusion.

02:43 - 43.480 I was thinking of a challenge brought by a voter, not by the candidate,

02:43 - 44.247 him or herself.

02:43 - 47.250 The answer may well be that in terms of the associational

02:43 - 50.220 rights extent, that's a similar fundamental article one right.

02:43 - 53.123 The level of scrutiny would not be significantly lower because, again,

02:43 - 57.093 this court, to my knowledge, has never applied rational basis review.

02:43 - 57.727 And we can

02:43 - 01.231 I don't mean to be just ignoring the distinctions between various forms

02:44 - 03.900 of heightened scrutiny, but this court has never applied

02:44 - 07.103 a rational basis review to an article one fundamental right,

02:44 - 08.738 and I certainly don't think it should do so here

02:44 - 12.142 with what this court has called the most preservative of all rights.

02:44 - 16.079 I do want to if I can, turn to the second interest that the appellants

02:44 - 19.883 have put forward, which is voter fraud, they say the state's interest in detecting

02:44 - 23.720 prosecuting voter fraud suffices to justify disqualifying ballots.

02:44 - 27.524 Now, as you heard, the argument rests largely on the Mahalia case, the one case

02:44 - 30.093 they have been able to find in which the date requirement

02:44 - 33.196 of the handwritten date, rather, was used in connection with voter fraud.

02:44 - 36.533 I want to address why Mahalia doesn't provide as much support

02:44 - 40.203 as appellants submit, but but our fundamental submission

02:44 - 43.506 is that a single case

02:44 - 46.476 across the entire Commonwealth and through all the years

02:44 - 49.479 in which the date requirement has been on the ballot, on the books

02:44 - 53.183 and force a single case in which the handwritten date played

02:44 - 56.553 some role in furthering the state's interest in preventing voting fraud

02:44 - 00.924 is not remotely sufficient to justify disqualifying

02:45 - 04.728 thousands of ballots, denying thousands of Pennsylvanians in every election

02:45 - 08.298 their article one Fundamental right to vote, and that the can.

02:45 - 10.901 The in court made the same point two weeks ago.

02:45 - 13.970 Commonwealth court has made it previous in Burke County decision,

02:45 - 16.873 and even made the further point that it is particularly true.

02:45 - 20.610 What I just said, given that even if this court were to affirm

02:45 - 23.580 and I alluded to this point earlier, even if this court to affirm or to agree

02:45 - 26.283 with us, whatever role the date requirement,

02:45 - 29.619 the handwritten date plays in furthering combating voting fraud

02:45 - 33.657 and the other interests we've discussed, it could continue to play that role.

02:45 - 34.224 Now, let me that

02:45 - 38.395 gets into why I submit the Mahalia case does not provide as much support.

02:45 - 40.563 So let me give the details there.

02:45 - 42.933 Appellants agree in their reply brief. Mr.

02:45 - 46.403 Gore said it again this morning that even in that one case,

02:45 - 50.674 the handwritten handwritten date did not play a role

02:45 - 54.210 in preventing the ballot in question from being counted.

02:45 - 57.847 So, it is conceded, never been the case.

02:45 - 59.883 Or at least no one has found a case

02:45 - 02.852 that the date requirement has actually prevented.

02:46 - 06.790 Anyone from affecting the outcome of an election

02:46 - 09.793 or even the count of an election.

02:46 - 12.963 And that goes to my fundamental point that I made just a minute ago, about one case

02:46 - 16.399 not being enough to disenfranchize thousands of voters every election.

02:46 - 18.969 It's also consistent with the,

02:46 - 21.771 representations of the boards of elections in the federal cases

02:46 - 24.474 and of the Philadelphia County Board of Elections here, that it doesn't

02:46 - 28.411 use the date requirement to detect, prevent, etc., voter fraud. Now,

02:46 - 30.146 they made the point

02:46 - 33.717 in the one case in Byhalia it was used to prosecute the defendant.

02:46 - 36.953 And they say at the bottom of page 21 of their reply brief, appellant's

02:46 - 37.821 reply brief. And Mr.

02:46 - 41.057 Gore said it again this morning that in Mahalia act, the handwritten date

02:46 - 44.060 was the only evidence of voter fraud.

02:46 - 45.929 Okay, that is not correct.

02:46 - 48.098 What they call the charging document and they reply brief.

02:46 - 51.868 It's the affidavit of probable cause and it's page are 220

02:46 - 54.904 in the reproduced appendix in the affidavit.

02:46 - 00.210 The detective, in fact, points to five other pieces of evidence of voter fraud.

02:47 - 01.344 So the the,

02:47 - 06.182 the ballot arrived, the ballot of the deceased voter.

02:47 - 09.185 So the voter whose ballot was miscast,

02:47 - 13.023 that their ballot arrived two weeks after the voter had died.

02:47 - 15.492 So that gap in time is number one.

02:47 - 20.897 The ballot was received on the same day as, the defendant's ballot.

02:47 - 23.833 So that coincidence also noted in the affidavit of probable cause,

02:47 - 27.637 the defendant requested the ballot for the other voter who was her mother.

02:47 - 29.372 That's number three.

02:47 - 33.176 The two ballots, the defendants and the mothers were requested on the same day.

02:47 - 36.780 Number four, this is all on R 220, all in the affidavit of probable cause.

02:47 - 40.083 And number five, also on our 220, the defendant confessed.

02:47 - 45.121 So at most what we have is a single case across the Commonwealth, across the years

02:47 - 48.391 in which the handwritten date was at best, one of six pieces of evidence

02:47 - 50.827 that could have been used to prosecute the defendant.

02:47 - 53.063 Again, that is simply insufficient

02:47 - 56.633 to justify denying people their article one fundamental

02:47 - 59.002 right to vote, particularly given that it could still do that.

02:47 - 00.804 As I said earlier,

02:48 - 04.074 if this court were to affirm, people would still have to write down

02:48 - 05.775 the handwritten date as a matter of statute.

02:48 - 09.245 Under ball, and I submit they would continue to do so.

02:48 - 11.281 And it's not just my submission

02:48 - 14.250 in the Bonner case that we cited from the Commonwealth Court.

02:48 - 18.421 Commonwealth court noted that after migliori had invalidated

02:48 - 20.657 the requirement temporarily, as it turned out,

02:48 - 23.993 and after the Commonwealth Court itself had invalidated the date requirement

02:48 - 26.596 in Berks County temporarily.

02:48 - 29.232 As it turned out, Bonner said that after both of those,

02:48 - 32.235 a majority of voters continued to write down the handwritten date.

02:48 - 33.770 And I submit that makes perfect sense

02:48 - 38.074 because it is still going to say on the envelope required date and

02:48 - 39.843 perhaps they should.

02:48 - 41.010 But people may not keep up

02:48 - 44.013 with all of the constitutional decisions of this court may not understand

02:48 - 45.682 everything that this court has said.

02:48 - 47.584 What they will understand is what they see in front of them

02:48 - 50.753 on the mail ballot date required, but it's not required.

02:48 - 54.190 If you win, it would be required as a statutory matter.

02:48 - 57.961 What would not be permitted would be not to count their ballots.

02:48 - 59.729 So it may be something of an existential debate.

02:48 - 01.998 Is something required if there is no consequence. Right.

02:49 - 03.566 But it's meaningful here

02:49 - 05.568 because what we know is the question would be,

02:49 - 06.769 I mean, this part of my argument

02:49 - 08.905 is that the date requirement would continue

02:49 - 11.908 to serve its purpose, to whatever extent it does serve those purposes.

02:49 - 14.210 That's not even an essential part of my argument,

02:49 - 17.780 but that part of the argument, the existential difference does matter

02:49 - 20.583 because people will still see required.

02:49 - 22.752 I doubt very much that the Secretary of State

02:49 - 26.523 will start to write required, except under Baxter, your ballot.

02:49 - 30.527 Arguably it's a it's I mean arguably it's a misrepresentation of question

02:49 - 32.462 of whether it's required if you're notifying voters

02:49 - 34.831 that something is required when something isn't.

02:49 - 36.166 I don't think the fact that this goes back

02:49 - 39.669 to discussion, Chief Justice Todd was having several hours ago with Mr.

02:49 - 40.203 Gore.

02:49 - 43.173 But I don't think the fact that there's not a particular consequence

02:49 - 45.909 permissible means the requirement does not exist.

02:49 - 47.977 The language would still be in the election code,

02:49 - 51.781 and it would still, as a matter of statute under ball versus Chapman, be required.

02:49 - 55.285 It is true that the particular consequence could not be enforced.

02:49 - 57.153 Could the legislature put other consequences in?

02:49 - 00.423 Could it say if you don't date it next time you have to vote in person?

02:50 - 02.425 You know, I don't know. Those are all sorts of hypotheticals.

02:50 - 06.896 You agree that something's either required or not required to to use Mr.

02:50 - 09.399 Lowndes term, isn't that binary?

02:50 - 13.069 Either something is required or it's not required.

02:50 - 15.605 Are you going to try to back into the whole directory thing?

02:50 - 18.208 No, I'm certainly not going to do that with you. Justice work.

02:50 - 21.377 But I am going to agree that something is either required or not required.

02:50 - 25.682 But that is a different question from whether particular consequences

02:50 - 29.852 are permissible, whether there's a penalty to violating the requirement.

02:50 - 30.720 Exactly.

02:50 - 32.889 The question is just is the question here?

02:50 - 35.525 Certainly that is the entire way we have framed the case

02:50 - 39.429 is, is the particular consequence permissible in our submission?

02:50 - 40.496 Is the answer is no.

02:50 - 43.266 I want to touch very quickly unless there are further questions on fraud.

02:50 - 45.068 Oh, just one just one thing on that.

02:50 - 48.004 Would you agree that,

02:50 - 51.808 I mean, speaking of solemnity, would you, would you agree that at some point,

02:50 - 55.912 approaching something that is required by law as,

02:50 - 00.750 inconsequential, makes a mockery of the law?

02:51 - 06.623 I'm sorry, justice, could I ask you to, with apologies, could I ask you to repeat

02:51 - 10.126 if we're all required to obey the crosswalk sign?

02:51 - 15.265 But we all blow it off, and there are no consequences for anybody.

02:51 - 18.468 Eventually, it becomes a mockery. Right?

02:51 - 20.169 I don't know if that's true or not.

02:51 - 21.271 Justice work, but I would say

02:51 - 25.541 that is not the solemnity argument that appellants have put forward.

02:51 - 26.943 I mean, the solemnity argument,

02:51 - 31.714 of course, that they are putting forward, is that writing down the date now, it's

02:51 - 35.885 just a month in a year makes people take the act of voting more seriously.

02:51 - 38.921 Now, there is no case that has embraced that argument.

02:51 - 40.590 The Fifth Circuit case that they point to was,

02:51 - 42.225 number one about a signature requirement.

02:51 - 46.029 Number two didn't even endorse solemnity in its federal constitution.

02:51 - 49.432 That celebrity for a moment happy to forget some people talk and,

02:51 - 52.602 do you have a problem?

02:51 - 57.373 Do you have any do you see any problem, that we should note as the Supreme Court

02:51 - 02.345 of Pennsylvania with, some ruling which would,

02:52 - 06.215 tell people, that,

02:52 - 09.285 something is required, but but,

02:52 - 12.288 you know, it's not really required.

02:52 - 15.958 I would not urged the court to rule in those terms.

02:52 - 19.729 And those are certainly not the terms that we are presenting this case.

02:52 - 21.731 What we are saying is the court

02:52 - 25.301 could, should say we have previously held that it is required

02:52 - 27.370 as a statutory matter under the election code.

02:52 - 31.741 And that remains true, however, disqualifying a ballot for failure

02:52 - 34.911 to comply with that requirement is not a permissible consequence

02:52 - 37.814 because it violates the Free and Equal Elections clause.

02:52 - 41.250 That's basically a constitutional invalidation.

02:52 - 44.120 I, I, I would think that it would be,

02:52 - 45.855 it would be

02:52 - 49.792 less absurd to just strike it as unconstitutional rather

02:52 - 53.963 than to say it's required, but, never mind.

02:52 - 57.066 So that, I want to stick to

02:52 - 01.237 I want to stay with the arguments that we have presented to this court.

02:53 - 04.440 We have not presented to this court the argument that the date requirement

02:53 - 06.142 itself is invalid.

02:53 - 09.912 And this court, it's brought up only the question of whether

02:53 - 13.383 enforcing the date requirement violates the free and equal elections clause.

02:53 - 15.084 Our answer is no.

02:53 - 17.353 And again, it goes back to the somewhat existential

02:53 - 19.622 what I call the existential debate or difference

02:53 - 23.126 that I was discussing with Justice Robson about can something be required

02:53 - 24.293 if there's no consequence for it?

02:53 - 27.930 Again, in theory, the legislature could impose other consequences.

02:53 - 32.468 To me, it is not correct to say that it is not required at all,

02:53 - 35.805 because one particular consequence that the legislature has put in place,

02:53 - 39.041 even if for now, that is the only consequence,

02:53 - 41.544 cannot be enforced because of constitutional justice.

02:53 - 42.445 One follow up on that.

02:53 - 45.848 You're saying then that if I, if I take your point that the General

02:53 - 49.619 Assembly could impose consequences,

02:53 - 53.022 including something of a penalty nature.

02:53 - 59.462 For failing to comply with the statutory requirement.

02:53 - 02.932 But, the one thing they can't do

02:54 - 06.736 by reason of the free and equal elections clause is not count the vote.

02:54 - 08.404 Correct.

02:54 - 10.239 Now, other penalties that the legislature

02:54 - 13.476 might put in place would, in theory, be subject to constitutional challenge.

02:54 - 14.310 I don't know what they are.

02:54 - 17.046 So I'm not in a yeah I don't know what they are either.

02:54 - 22.118 Well you argue in in the alternative

02:54 - 28.024 asking us to overrule our prior case law, holding this to be mandatory.

02:54 - 31.194 So Chief Justice Todd, the Pennsylvania Democratic Party

02:54 - 35.131 included that in its request that this court take up the case.

02:54 - 36.599 This court declined to take that up.

02:54 - 40.436 There was a dissent from that part of it by two justices.

02:54 - 42.472 Obviously, it will not surprise anyone to here.

02:54 - 43.973 We agree the court should have taken up

02:54 - 45.341 the question that we put in front of the court.

02:54 - 49.679 But no, we are not given the questions of two limited questions

02:54 - 51.681 on which this court for review.

02:54 - 55.017 That is our understanding of how this court has brought the case to it

02:54 - 55.685 for decision.

02:54 - 57.720 Another way, the court has brought the case to it

02:54 - 00.790 for decision was after rejecting appellant's request

02:55 - 04.961 to reverse solely on the ground that factual development had not been required.

02:55 - 08.965 So back to the earlier we about what the record shows and doesn't show.

02:55 - 12.301 Our understanding is that this court has brought it the case to itself

02:55 - 15.271 based on the record that exists and again, to the extent

02:55 - 17.807 the court deems it appropriate to look beyond the case

02:55 - 21.177 to in light of the two federal cases, unless there are further questions,

02:55 - 24.213 I would turn very quickly to my second overarching issue,

02:55 - 27.850 which is this point about whether the court has already decided,

02:55 - 31.287 rejected our constitutional challenge in either

02:55 - 34.423 Pennsylvania Democratic Party versus Boockvar or Ball versus Chapman.

02:55 - 37.293 Our answer, of course, is no. The appellants have cited

02:55 - 40.129 no case suggesting that either either case ever did.

02:55 - 41.364 So either case did.

02:55 - 47.103 So the case which was, actually the the attorney general's petition

02:55 - 50.940 for rehearing to the Third Circuit yesterday quoted the language from Gensler

02:55 - 56.078 that rejected a similar overreaching of PDP, by appellants.

02:55 - 59.081 And it's very difficult to understand,

02:55 - 03.252 given that no one in PDP made the argument that we are making here, Mr.

02:56 - 04.887 Gore suggested it's the same argument.

02:56 - 06.322 It is not the same argument.

02:56 - 09.258 The argument that was made in PDP was that the government has to affirmatively help

02:56 - 13.029 you comply with the date requirement, not that the date requirement is invalid.

02:56 - 14.564 There is a meaningful difference.

02:56 - 16.866 If relief have been given in PDP,

02:56 - 19.135 people's ballots could have still not been counted

02:56 - 21.103 for failing to comply with the date requirement

02:56 - 23.205 if they were given notice and an opportunity to cure

02:56 - 24.540 and didn't take advantage of it.

02:56 - 26.676 So Mr. Gore said, we're seeking the same relief here.

02:56 - 27.577 We are not.

02:56 - 30.212 No case is held that either PDP or ball

02:56 - 32.381 previously rejected our constitutional challenge.

02:56 - 35.384 Asked this court to affirm, okay, thank you very much, Mr..

02:56 - 36.786 Baldrick. Let's hear from,

02:56 - 40.923 Mr. Fab INS Larsen.

02:56 - 48.898 Good afternoon, Your Honor.

02:56 - 51.834 It may please the court. Please.

02:56 - 54.337 Good afternoon, Your Honor, and may it please the court.

02:56 - 57.006 I'm Ben Fabian's last lasting here on behalf of the Philadelphia

02:56 - 00.443 County Board of Elections, which is the only election administrator

02:57 - 01.644 that's a party to this case.

02:57 - 04.113 You're going to have to pull the mic up further, please. Thank you.

02:57 - 05.581 It's better if you speak into the mic.

02:57 - 05.848 Thank you.

02:57 - 07.550 Chief Justice Todd,

02:57 - 12.188 the Philadelphia County Board is the only election administrator in this case.

02:57 - 15.992 The board does not rely on the handwritten date

02:57 - 19.095 on a mail ballot declaration period.

02:57 - 22.398 It does not and cannot use the date

02:57 - 25.334 for purposes of verifying the voters eligibility,

02:57 - 29.538 assessing the timeliness of a ballot, or detecting fraud in the electoral process.

02:57 - 32.608 And that's because the date on a declaration

02:57 - 35.978 simply reflects the date on which the declaration was signed.

02:57 - 38.014 That date

02:57 - 41.984 is not relevant to the question of timeliness or eligibility.

02:57 - 47.189 Eligibility is determined before a voter ever receives a mail ballot,

02:57 - 51.794 and timeliness is based on when the board receives the ballot,

02:57 - 55.064 not when it's filled out by the voter.

02:57 - 58.634 Instead of using the date on a declaration,

02:57 - 03.272 the board relies on time stamping of mail ballots

02:58 - 07.443 and separation of untimely ballots from timely ballots

02:58 - 10.646 to ensure that only timely ballots are counted.

02:58 - 13.783 Even though the completion date of a ballot

02:58 - 18.254 declaration is not relevant to the process, the board can know

02:58 - 22.091 with certainty that all ballots received by 8 p.m.

02:58 - 26.295 on Election Day have been completed during the proper time frame.

02:58 - 28.330 Council. I'm.

02:58 - 32.401 I'm curious, though, why is there any dispute in this case

02:58 - 34.570 that the the Board of election doesn't use the date

02:58 - 37.740 on the verification?

02:58 - 39.575 I, I don't think so, Your Honor.

02:58 - 43.279 Although there does seem to be a view that it serves some functional purpose.

02:58 - 44.747 Different question.

02:58 - 45.915 I mean, I think I,

02:58 - 49.885 I don't think anybody's arguing that the board does anything with the day.

02:58 - 51.320 The question is

02:58 - 55.057 whether the General Assembly intended that the date serve some purpose.

02:58 - 58.260 Now, that purpose could exclude any use by the board.

02:58 - 00.229 That's certainly true, Your Honor.

02:59 - 03.933 And our position is that the board does not use it for any purpose,

02:59 - 06.802 the governmental interest. I'm not sure it's in dispute.

02:59 - 09.672 It may not be in your dispute, your honor, but I do think it's an important

02:59 - 11.941 factual component of this case,

02:59 - 15.044 and it's important for the court to understand insofar as it affects

02:59 - 18.714 the government's interest analysis and even the severability argument,

02:59 - 22.885 insofar as that's important, to also don't use the signature for anything right.

02:59 - 26.088 You don't have a signature expert, right?

02:59 - 27.323 We we do not, Your Honor.

02:59 - 30.326 So you you use the,

02:59 - 32.828 you use the secrecy envelope for anything?

02:59 - 34.830 Well, Your Honor,

02:59 - 38.100 the board complies with the election code, so it does.

02:59 - 40.503 Do you just open.

02:59 - 43.372 We open it, and we ensure that the secrecy code is not or.

02:59 - 45.508 Sorry, the secrecy envelope has not been marked

02:59 - 48.778 and has, you know, any of the things that are required in the election code

02:59 - 51.781 as part of the canvasing process?

02:59 - 55.484 If if a ballot doesn't have a signature,

02:59 - 58.487 if verification doesn't have a signature at all, what do you do

02:59 - 02.191 if the ballot declaration did not have a signature?

03:00 - 03.959 We will set that aside and not count it.

03:00 - 06.328 And that's consistent with the law.

03:00 - 09.732 And that ties back to a broader point of this case that the the

03:00 - 12.868 the board's interest here is complying

03:00 - 16.005 with the law and understanding the certainty of its obligations.

03:00 - 19.408 Isn't it also consistent with the very same law and the very same provision

03:00 - 22.411 that if it's missing a date, you should set it aside?

03:00 - 23.345 That's correct, Your Honor.

03:00 - 25.981 So we do set it aside for a lack of a signature,

03:00 - 29.018 but you won't set it aside and you don't want to set it aside for lack of a date.

03:00 - 30.119 You just don't use it.

03:00 - 31.187 You don't use the signature.

03:00 - 33.989 You know, you date. But I will follow the law.

03:00 - 38.661 Set aside something like the signature will be what I was talking about.

03:00 - 42.665 I would respectfully push back on the idea that the board does or doesn't

03:00 - 46.001 want to do anything in this case, with the board wants to do is comply

03:00 - 49.004 with its statutory and constitutional obligations here.

03:00 - 52.608 And so with respect to the signature, with respect to the date,

03:00 - 56.312 if this court orders as a constitutional or statutory

03:00 - 59.515 matter for us to count those ballots, we're not looking count those ballots.

03:01 - 01.550 That's what we're going to do.

03:01 - 04.153 The point is that on the constitutional question,

03:01 - 06.722 both the state and federal constitutional question,

03:01 - 09.959 there has been a tremendous amount of uncertainty and change in law

03:01 - 11.927 over the course of the last four years.

03:01 - 16.198 And so I don't mean to be disrespectful to push back on the premise,

03:01 - 20.736 but it's not that we are asking this court not to enforce the date requirement

03:01 - 22.304 or to impose a particular remedy.

03:01 - 25.474 There's a reason we didn't take a position on the constitutional question,

03:01 - 27.843 balancing the governmental interests

03:01 - 31.413 and understanding how to take the fundamental vote

03:01 - 35.384 right to vote, and the inherent necessity in voting regulations,

03:01 - 38.454 and how those interplay in the context of the Constitution

03:01 - 40.890 is a challenging question that's left for this court.

03:01 - 44.460 We will comply with the court's guidance on those questions.

03:01 - 47.363 The point here is that we think that it is important

03:01 - 51.367 for the court to understand, however, that from a functional matter,

03:01 - 55.471 the state serves no purpose and it imposes significant

03:01 - 59.341 administrative burdens on the board to comply with or serve any purpose.

03:01 - 03.913 The signature does serve as an attestation of whether the voter

03:02 - 07.149 is qualified to vote, and whether they've kindly voted or sorry,

03:02 - 09.818 whether they previously voted in the election.

03:02 - 13.022 So by signing that, they're verifying that the person who signed it

03:02 - 15.991 is the person to whom the ballot was set.

03:02 - 16.492 Well.

03:02 - 20.462 So we do make sure that there is a signature on each of the ballots.

03:02 - 22.798 So so it does serve that functional purpose.

03:02 - 25.801 Once you know there is a signature on the ballot, you know, the

03:02 - 29.271 the voter has declared

03:02 - 32.875 that they are, you know, somewhat somewhat different.

03:02 - 35.077 You don't know if the voter will break.

03:02 - 37.980 And that's the the challenge with respect to all of this, your Honor.

03:02 - 42.651 For example, with respect to the dates, the board has no way of verifying

03:02 - 46.622 whether the date that's listed on a declaration is actually the date

03:02 - 48.390 on which it was completed.

03:02 - 51.160 It's part of why it doesn't have a third point.

03:02 - 53.429 I think from a factual perspective, your point makes sense.

03:02 - 56.131 You don't use the date, you don't use the signature.

03:02 - 57.299 I think that's true, Your Honor.

03:02 - 00.602 And insofar as it is part of the constitutional analysis,

03:03 - 03.872 we do think that is a important perspective for this board to understand.

03:03 - 07.176 Again, we don't take a position on how you balance that interest.

03:03 - 11.947 But certainly the fact that the board has set aside thousands of votes

03:03 - 15.417 based on a requirement of this court,

03:03 - 20.055 that we don't use for any functional, administrative or security purpose

03:03 - 21.991 is something that the board has

03:03 - 25.194 an interest in understanding, whether that is constitutional

03:03 - 27.730 and consistent with its constitutional obligations.

03:03 - 28.564 And then

03:03 - 32.101 we should focus not only on

03:03 - 35.604 burdens on the voter, but burdens on the Philadelphia Board of elections.

03:03 - 36.972 No, Your Honor,

03:03 - 39.241 we don't believe that that's part of the Constitution for analysis,

03:03 - 41.910 or at least we don't understand the parties who are taking a position

03:03 - 44.246 on that constitutional claim to be doing that.

03:03 - 47.816 And again, regardless of how this court rules,

03:03 - 51.153 we will comply with the election code full stop.

03:03 - 54.423 But we do think it is helpful for this court to understand

03:03 - 57.926 that the process, particularly in a county like Philadelphia

03:03 - 00.929 that receives hundreds of thousands of mail ballots,

03:04 - 04.666 is at times an onerous one of reviewing manually each ballot

03:04 - 07.803 to check a correct handwritten date on it, and again,

03:04 - 10.839 whether that has any bearing on the constitutional analysis

03:04 - 13.108 is for this court, in this court alone, to decide.

03:04 - 16.345 But we say that you don't want our job and we don't want yours.

03:04 - 18.480 I think that's fair to say.

03:04 - 24.019 Very fair to say, but but it is a it is a process of manually reviewing.

03:04 - 27.556 And so since ball was decided after ball was decided, at least up

03:04 - 30.692 until the injunction was issued in March of this year,

03:04 - 34.496 the board has implemented procedures to manually review

03:04 - 37.699 every ballot and ensure they have the correct handwritten date.

03:04 - 43.806 That is a time consuming process, but it is one where when we see an undated

03:04 - 46.809 ballot declaration or one that doesn't have the correct date,

03:04 - 49.945 we set that aside and deem it insufficient.

03:04 - 52.948 Under section 3140 6.8 of the code.

03:04 - 56.251 That is law under at least until

03:04 - 59.521 you can declared that that was a federal constitutional problem.

03:04 - 02.858 That's what we did, and that's what we will continue to do if the law changes.

03:05 - 07.162 I do want to point out, two things about,

03:05 - 11.033 oh, do you want to come back to the point that as a purely

03:05 - 16.271 factual matter that stems from the code, the board can be certain

03:05 - 19.374 that even undated ballots were completed

03:05 - 23.445 during the proper time period under the election code.

03:05 - 27.382 The board knows when it sends every ballot out to voters,

03:05 - 30.752 and it knows when it receives each ballot from voters.

03:05 - 34.656 Those are essentially the bookends of the mail voting process.

03:05 - 38.594 And so regardless of whether a ballot is in fact dated,

03:05 - 43.999 it's not possible for a timely ballot that comes in for 8 p.m.

03:05 - 47.903 on Election Day to have been filled out outside of that time frame,

03:05 - 51.840 I do want to briefly turn to two points that came up earlier

03:05 - 56.078 to Chief Justice Todd's point about stamping in the sure system there.

03:05 - 57.246 Certainly correct.

03:05 - 58.780 But I do want to flag one other part

03:05 - 01.783 that sometimes gets lost in the briefing and discussion on this issue,

03:06 - 06.355 and that's separation of timely and untimely ballots.

03:06 - 09.458 That is a part of our process that is, in some ways,

03:06 - 14.796 the best way of ensuring that no untimely ballot gets inadvertently counted.

03:06 - 18.500 We ensure that all of them are segregated.

03:06 - 21.069 Any ballot that comes in after 8 p.m.

03:06 - 25.040 is separated from those that are otherwise.

03:06 - 27.643 And we lock all the lock boxes at 8 p.m..

03:06 - 31.113 And so part of why that that's relevant is to understand the process.

03:06 - 32.881 But it also goes back to my friend

03:06 - 35.884 from the attorney General's office backdating point.

03:06 - 40.822 What's interesting is the share system actually is the backstop.

03:06 - 44.493 We're framing this as if the sure system fails the date is the backstop.

03:06 - 49.164 No, the share system is the backstop for what is an actual separate process

03:06 - 53.101 of stamping and segregating all ballots.

03:06 - 56.939 And if the system were to fail.

03:06 - 00.776 We would still do what we're doing.

03:07 - 02.377 We would be able to

03:07 - 06.315 look at whether the stamp reflects the timely ballot was received.

03:07 - 09.218 We could look at the barcode to match the date.

03:07 - 11.520 I would show the voters name.

03:07 - 12.721 And the barcode at least,

03:07 - 15.691 is based on information that gets uploaded to the share system.

03:07 - 20.462 And then what we couldn't do is look at the date on the handwritten ballot

03:07 - 24.166 or the declaration, and make any determination of timeliness.

03:07 - 28.637 The election code simply does not allow the board to use the date

03:07 - 32.174 a ballot was completed as a proxy for when it was received.

03:07 - 35.844 So in that unlikely instance of a sure system failure,

03:07 - 39.548 there simply is no way that the date would be used.

03:07 - 40.682 We would still use

03:07 - 44.686 what we always use in the first instance segregation and time stamping.

03:07 - 45.754 And I think that

03:07 - 49.324 kind of ties back to the metaphor that was used about Belton suspenders.

03:07 - 52.728 The idea is that the Belton suspenders would hold up the pants,

03:07 - 55.597 but the handwritten date doesn't do that.

03:07 - 57.633 In some ways, it's more like this tie.

03:07 - 00.902 It has no functional purpose, and it serves no purpose

03:08 - 02.204 in holding up my pants at all.

03:08 - 04.106 It does nothing.

03:08 - 06.541 And so I don't think the concern

03:08 - 10.879 about backstops or double voting, all of that comes back

03:08 - 14.082 to the fact that when you look at a date on a mail ballot,

03:08 - 18.720 it simply is the date that a voter represented when they completed that.

03:08 - 23.091 And there was really no factual scenario in which that date is

03:08 - 26.094 used or serves any purpose in the election code

03:08 - 31.099 used for a certain purpose or understood.

03:08 - 33.101 And I understand that there's a separate question of whether

03:08 - 36.838 the legislature wants to use that or has some other interest.

03:08 - 40.208 I do think that there's the arguments that

03:08 - 44.413 if it's not being used by the actual administrators of the election code,

03:08 - 48.450 that it's not fulfilling any other governmental interest

03:08 - 50.352 is a question for this court to decide.

03:08 - 54.523 But as a factual and procedural matter, in terms of how we comply

03:08 - 58.694 with the election code, it certainly does not include any aspect of that.

03:09 - 03.632 And so I do want to come back to the fact that from our perspective

03:09 - 05.167 and from the board's perspective,

03:09 - 08.637 at least based on the record in other cases, from all county boards perspective,

03:09 - 13.975 the date on a ballot declaration does not serve any purpose,

03:09 - 18.213 and it doesn't solve any hypothetical or actual problem.

03:09 - 20.982 In Pennsylvania's mail voting system.

03:09 - 24.553 That system has worked with resounding success since act 77.

03:09 - 26.621 Work. It works very well.

03:09 - 28.123 It's secure system.

03:09 - 31.259 It's an effective system, and it's one that's been carried out with

03:09 - 34.262 integrity and has led to accurate vote tallies.

03:09 - 37.933 Since act 77 was enacted, the board has worked in good faith

03:09 - 41.837 to implement those process to ensure that universal

03:09 - 45.307 mail ballots are available to hundreds of thousands of Philadelphians,

03:09 - 49.111 and to carry out the election code and elections with integrity.

03:09 - 50.946 What I'd say is that

03:09 - 55.050 although we believe that enforcing that date requirement

03:09 - 58.353 creates burdens on that process,

03:09 - 01.223 we will certainly continue to carry out

03:10 - 05.494 our statutory obligations in good faith, no matter how this court rules.

03:10 - 06.862 In this case.

03:10 - 10.599 But we would respectfully urge this court to resolve this case

03:10 - 13.802 in a way that protects universal mail voting in the Commonwealth.

03:10 - 15.003 Well said.

03:10 - 17.739 Thank you very much. And I would point out, Mr.

03:10 - 22.043 Fabens Larson, that in our three hour plus,

03:10 - 25.747 arguments here, you're the only counsel who made us laugh.

03:10 - 27.816 No, that's not true.

03:10 - 29.151 And yet you referred to his wife.

03:10 - 30.852 That was okay.

03:10 - 33.789 All right. That's that's quite the distinction.

03:10 - 35.524 Thank you, Chief Justice.

03:10 - 37.859 Tremendous arguments on all sides.

03:10 - 39.394 On all sides here.

03:10 - 42.330 And, sorry we didn't get to hear from Mr.

03:10 - 48.136 Levine or Attorney Gallagher, but, I want to compliment all of you.

03:10 - 50.605 You can tell your clients that,

03:10 - 54.042 you did the very best job possible and tremendous arguments.

03:10 - 55.110 And we thank you.

03:10 - 58.980 Mr. Miller, would you adjourn for lunch?

03:10 - 03.752 We will resume at, 145.

03:11 - 06.121 The court will be hearing

03:11 - 09.124 argument in the case of the Commonwealth versus Philip Shivers.

03:11 - 13.361 Mr. shivers was hanging out at a gas station in Philadelphia

03:11 - 17.666 that the police believed was a was an area of high crime activity.

03:11 - 18.700 They, in fact, believe

03:11 - 22.504 that this particular gas station was a hangout of the ozone gang.

03:11 - 25.540 So the police approached the scene.

03:11 - 26.741 They see, Mr.

03:11 - 30.312 Shivers sees the police, gets up, starts sprinting away.

03:11 - 32.481 The police chase him.

03:11 - 34.282 They pat him down.

03:11 - 37.285 They say that while he's running, he's pulling up his pants,

03:11 - 40.689 which the police say is often a sign that someone is carrying a firearm.

03:11 - 44.626 And in fact, when they pat him down in search him, they find a firearm that Mr.

03:11 - 47.629 Shivers is not, lawfully allowed to have.

03:11 - 51.533 Mr. shivers, seeks to suppress the evidence of that

03:11 - 55.270 firearm taken from him as being the product of an illegal search.

03:11 - 59.708 Now, under federal constitutional law, it's clear

03:12 - 04.179 that being in a high crime area is something that

03:12 - 07.816 that can qualify for providing reasonable suspicion

03:12 - 12.354 for the police officers to perform, you know, to perform this kind of risk.

03:12 - 17.058 You know, if if you sprint away like that, the argument that Mr.

03:12 - 19.961 Shivers is making is that the Pennsylvania Constitution,

03:12 - 20.795 which is separate

03:12 - 24.232 from the federal Constitution and often provides more robust protections

03:12 - 27.903 for, individual liberty and personal privacy,

03:12 - 32.474 that that under the Pennsylvania Constitution, it shouldn't be enough

03:12 - 37.546 to merely be in a high crime area to cause reasonable suspicion when you run.

03:12 - 40.715 One of the arguments that he makes is essentially

03:12 - 44.252 that the quality of your Fourth Amendment rights, the quality of an individual's

03:12 - 45.020 rights to be free

03:12 - 49.157 from unlawful searches and seizures, shouldn't depend on where you live.

03:12 - 51.026 It shouldn't depend on,

03:12 - 54.796 you know, living a, you know, in areas that that crimes occur.

03:12 - 58.166 That that has nothing to do with you and your personal rights.

03:12 - 01.469 So as happens with many of the cases before the court,

03:13 - 04.673 we know that the federal Constitution sets a floor for something.

03:13 - 07.776 But the question here is going to be whether the Pennsylvania Constitution

03:13 - 12.113 grants even more expanded individual rights to the defendant in this case.

03:13 - 14.082 Good afternoon.

03:13 - 15.016 Good afternoon.

03:13 - 15.550 Well, please.

03:13 - 17.852 The court, Leonard Song, is not for Mr.

03:13 - 19.120 Shivers.

03:13 - 22.357 So this argument, like the one this morning,

03:13 - 27.228 also involves a fundamental right under article one, under the Pennsylvania

03:13 - 30.432 does not have to take 3.5 hours like the one this morning.

03:13 - 33.101 I was going to say that's the first distinction.

03:13 - 35.337 There's

03:13 - 39.074 there are there are two more that I think actually have some importance.

03:13 - 42.544 As I sat there listening for three hours,

03:13 - 46.615 one was there is no statute here.

03:13 - 49.784 There's no deference of any kind.

03:13 - 52.787 There's no presumption of constitutionality.

03:13 - 55.957 So no separation of powers concerns.

03:13 - 59.060 This is just involves a core function of this court

03:13 - 02.197 interpreting article one, section eight of the Pennsylvania Constitution.

03:14 - 05.667 The other important distinction I heard over and over again this morning,

03:14 - 07.535 putting the date on the envelope.

03:14 - 09.904 That requirement is neutral.

03:14 - 13.408 Nondiscriminatory

03:14 - 16.411 doesn't hurt any subsection of society.

03:14 - 19.414 This case is the polar opposite.

03:14 - 21.716 The issue here is whether article

03:14 - 26.554 one, section eight, permits people to have less rights

03:14 - 29.524 than other people based solely on where they live.

03:14 - 32.394 Because this case,

03:14 - 36.831 this court, recognized way before the United States Supreme Court

03:14 - 41.169 that flight is not enough to to

03:14 - 44.406 establish reasonable suspicion

03:14 - 48.376 falls far short by itself because there's so many innocent explanations.

03:14 - 51.379 This court did it in 1973, and Jeffrey's

03:14 - 54.282 1979, and Barak

03:14 - 57.385 nine state Supreme Court didn't get to this issue until 2000.

03:14 - 00.555 In the Wardlow case, the Wardlow case

03:15 - 04.693 came to the same conclusion as this court that Jeffreys and Barrett,

03:15 - 09.230 that Barnett that flight

03:15 - 14.736 and a high crime area not knowing that fight night flight in general

03:15 - 19.374 is susceptible of so many possible innocent explanations.

03:15 - 22.143 It doesn't it doesn't establish reasonable suspicion.

03:15 - 25.380 It means if you live in a low crime area,

03:15 - 29.184 you live in a middle crime area, you live in a middle high crime area.

03:15 - 33.488 You can run away from the police and they cannot stop you.

03:15 - 35.390 They can't talk to you like Mr. Shivers.

03:15 - 37.459 They can't stop you at all.

03:15 - 41.629 Except they carved out a constitutional exception under the Fourth Amendment.

03:15 - 44.132 People that are in high crime areas.

03:15 - 46.568 Oh, that's reasonable suspicion.

03:15 - 49.571 And there are a couple things

03:15 - 52.307 before I get to general problems with high crime.

03:15 - 54.242 There are a couple of things about

03:15 - 57.946 the United States Supreme Court relying on high crime area

03:15 - 02.083 in this context, with flight that are unique and different,

03:16 - 06.121 and the other cases where high crime area is involved.

03:16 - 10.925 So sometimes courts consider a high crime area as a factor among many

03:16 - 12.660 here.

03:16 - 17.766 Only in this context where the person who lives where he flees

03:16 - 21.569 is defining all defining as to the rights,

03:16 - 25.206 if not in a high crime area.

03:16 - 26.508 No reasonable suspicion.

03:16 - 28.409 Police can't do anything.

03:16 - 31.412 If you are in a high crime area per se,

03:16 - 34.048 per se, it is reasonable suspicion

03:16 - 37.051 and you can stop somebody so that that's unique.

03:16 - 39.821 And it is. If they see my opponent argue.

03:16 - 42.824 So to tell you the circumstances, there is no totality.

03:16 - 44.859 It's high crime area.

03:16 - 45.894 It's all defining.

03:16 - 49.497 In fact, the judge a couple of years ago, a lower court judge

03:16 - 54.269 hearing testimony from the officer who stopped the individual

03:16 - 59.974 said, okay, I heard he ran away a high crime area.

03:17 - 03.478 I didn't hear anything else was suspicious about what he did.

03:17 - 05.013 There was no radio call.

03:17 - 09.017 There was there was no report of the of a disturbance.

03:17 - 10.084 There was nothing.

03:17 - 12.253 And you didn't know who the defendant was.

03:17 - 16.024 And he granted a motion to suppress the Commonwealth's appeal in that

03:17 - 20.395 in the Barnes case, which is on page 12, in my brief in the Barnes case,

03:17 - 23.097 the Superior Court reversed.

03:17 - 25.967 This has been well established ever since Jefferson

03:17 - 28.970 and his Superior Court in 2004.

03:17 - 32.507 If there's flight in a high crime area,

03:17 - 35.376 any reasonable suspicion.

03:17 - 38.379 Judge Katz, could I ask you if

03:17 - 44.786 if you found agreement in this court about the general,

03:17 - 49.324 the fallacy of the general presumption on a high crime area?

03:17 - 53.494 How would you feel about a more narrow, observation?

03:17 - 57.532 How about a building that was known for high crime

03:17 - 01.035 or a particular gas station parking

03:18 - 04.138 lot that was known for high crime?

03:18 - 07.175 So instead of an area or community,

03:18 - 10.111 you're talking about a particular high crime location.

03:18 - 12.080 Would you have any problem with that?

03:18 - 12.747 Yes I would.

03:18 - 15.683 I think high crime areas shouldn't be considered at all. It's not

03:18 - 17.318 exactly the

03:18 - 20.321 same thing is on the street, and it's certainly different from this issue.

03:18 - 22.190 I know, but I'm trying to narrow it.

03:18 - 25.493 I'm trying to understand is there some degree

03:18 - 29.230 that we could go to that you would be comfortable with? No.

03:18 - 30.064 What about it?

03:18 - 32.567 What about the court does not have to reach that issue, though,

03:18 - 33.801 whether I'm comfortable or not.

03:18 - 38.773 The narrow question here is high crime area with flight.

03:18 - 40.275 Well, what if the court.

03:18 - 42.310 What about that violated?

03:18 - 46.681 Whether you pardon me, what I meant was how do you feel about that argument?

03:18 - 47.315 Is that a

03:18 - 52.387 do you think that's a legitimate narrowing of the high crime exception? No.

03:18 - 55.857 And I'll answer that first rather than get back to why

03:18 - 59.928 high crime area plus flight shouldn't what is not a high crime area?

03:18 - 00.561 What if, for instance,

03:19 - 02.597 Rittenhouse Square in Center City Philadelphia

03:19 - 06.301 and you see a bunch of known gang members who are a violent gang,

03:19 - 08.136 and there's a person standing with them

03:19 - 09.938 who may or may not be part of the individual,

03:19 - 12.340 he sees a uniformed police officer approach.

03:19 - 13.975 He starts backing away, and then he starts

03:19 - 16.544 running down the street, holding onto something in front of them,

03:19 - 19.447 consistent with holding a heavy object which police have seen before.

03:19 - 24.052 Is that reasonable to assume that maybe this guy has some?

03:19 - 28.656 Give the reasons why high crime areas shouldn't be at a high crime area?

03:19 - 30.458 Pardon me, I didn't say high crime area.

03:19 - 32.160 I'm not at least officer.

03:19 - 33.461 And I'm in Rittenhouse Square.

03:19 - 35.196 Not a high crime area. It's beautiful.

03:19 - 37.865 Or Chestnut Hill. How about toney Chestnut Hill? Leafy.

03:19 - 39.100 Different question though.

03:19 - 43.805 Could I get an answer to my question first about can you narrow it down?

03:19 - 46.574 I know,

03:19 - 48.609 I thought you said no.

03:19 - 50.878 Did you say no? Yes, I said no.

03:19 - 51.980 It should never be a factor.

03:19 - 54.983 But the narrowest use case

03:19 - 57.218 is flight height primary bit.

03:19 - 57.885 So I'll answer.

03:19 - 00.455 Now explain why I think it should never be a factor.

03:20 - 01.889 All right. But then I do need

03:20 - 03.458 justice.

03:20 - 04.859 McCaffrey's question.

03:20 - 07.829 There are a lot of deficiencies in considering high crime areas.

03:20 - 09.497 They're pretty serious.

03:20 - 14.002 And one is that has nothing to do with the defendant.

03:20 - 17.772 The standard is well established.

03:20 - 20.375 Pardon me. Another.

03:20 - 24.946 That was another fix which I'm going to talk about this court's decision in Hicks.

03:20 - 29.317 It has nothing to do with the individual with some other people in the past.

03:20 - 31.753 It has nothing to do with the present.

03:20 - 35.223 This defendant, if you would buy that, pardon me.

03:20 - 38.493 Whether you're talking about the community

03:20 - 41.629 or whether you're talking about a building or a street corner

03:20 - 45.033 or a gas station parking lot, you think the arguments the same

03:20 - 49.103 as far as high crime area not to be considered as a factor.

03:20 - 53.508 There might be specific things from the officer's experience, possibly

03:20 - 57.078 that could be taken to account, but not the high crime area.

03:20 - 00.848 We'd have to talk this question then, if the

03:21 - 04.952 I kind of forget what it was at this point,

03:21 - 07.989 some real suspicious conduct in Rittenhouse Square.

03:21 - 10.058 Well, if you have enough suspicious conduct,

03:21 - 11.959 it can add up to reasonable suspicion.

03:21 - 13.594 Yeah. I was thinking to the facts of this case.

03:21 - 14.996 I mean, we're talking about a high crime area,

03:21 - 20.034 but the defendant was also seen standing with a known gang members, the ozone gang,

03:21 - 22.203 police officers. Uniform approach.

03:21 - 23.771 He starts backing away,

03:21 - 25.173 and then he starts running down the street,

03:21 - 27.442 holding something in front of him like he's holding the gun.

03:21 - 30.144 The police officer sees that and chases him.

03:21 - 31.546 The facts are a little different, though.

03:21 - 34.549 In our case, the facts are

03:21 - 37.919 that he was definitely not a member of the ozone gang.

03:21 - 38.886 You didn't say that.

03:21 - 40.388 They said he didn't recognize that he wasn't.

03:21 - 42.657 One of the individuals recognized as a member of the gang.

03:21 - 44.826 Backed away, starts running down the street,

03:21 - 46.928 and he's holding on to something in front of them

03:21 - 49.864 as if he's holding onto a heavy object, not.

03:21 - 50.898 Not exactly.

03:21 - 53.034 I have to disagree about the facts.

03:21 - 55.436 So first of all, there were no facts establishing

03:21 - 57.271 that he was a member of the ozone gang.

03:21 - 00.908 In fact the opposite, because the officer saw five guys to me.

03:22 - 03.578 Let me break it down because I'm a simple guy.

03:22 - 06.681 What facts

03:22 - 09.117 do you think would prove

03:22 - 12.353 or show he is a known member of the Ozone Gang?

03:22 - 16.691 Member well, one could be that he was recognized, but

03:22 - 20.828 you can't assume that every single person, somebody sitting near

03:22 - 24.098 somebody who's a member of the gang, is a member of the gang.

03:22 - 26.567 I mean, you have a right to go where you want in your neighborhood.

03:22 - 28.402 There are gangs to testify, testified.

03:22 - 31.672 You remember gangs in the area just because you're sitting

03:22 - 36.344 near somebody, because the officer said there were five guys sitting there.

03:22 - 39.680 I recognize two of them as members of the ozone gang.

03:22 - 43.818 Mr. shivers was sitting with Mr.

03:22 - 46.487 Berry, not with those guys.

03:22 - 48.489 And he said, I don't know, Mr.

03:22 - 49.991 Shivers from anywhere.

03:22 - 52.627 I never saw him before. I don't know anything about him.

03:22 - 56.764 So you can't infer that he's a member of the Ozone gang.

03:22 - 58.499 And in fact, the lower court did not,

03:22 - 01.602 nor did the Superior Court

03:23 - 04.005 and the business about his hands in front of him.

03:23 - 07.008 I'll just say the testimony was twice

03:23 - 10.178 his hands were in front of him,

03:23 - 13.181 which, and I could not see

03:23 - 16.184 anything other than his hands were in front of.

03:23 - 19.554 And that indicates to me my experience.

03:23 - 22.657 Either he had a firearm

03:23 - 25.660 or was trying to hold up his pants.

03:23 - 28.930 A lot of young men were baggy pants, and that's his experience.

03:23 - 33.201 So he didn't say, I guess from my experience or anything else.

03:23 - 36.971 So just an the lower court

03:23 - 40.274 did not rely on that testimony at all.

03:23 - 43.411 Now is the D.A. let's back up a little bit.

03:23 - 46.581 At the end of the suppression hearing, the Da argued

03:23 - 49.650 Judge. The defense

03:23 - 53.054 counsel argued they didn't establish reasonable suspicion, but not the

03:23 - 54.989 district attorney.

03:23 - 55.957 Very short argument.

03:23 - 59.160 Judge unprovoked flight in a high crime area.

03:23 - 01.729 Reasonable suspicion.

03:24 - 04.865 The judge's ruling and in her opinion

03:24 - 08.736 said you lose

03:24 - 11.272 unprovoked flight and a high crime area number.

03:24 - 14.275 She didn't find any suspicious facts about him

03:24 - 17.311 possibly being a member of the ozone gang,

03:24 - 20.314 or possibly, you know, holding a weapon.

03:24 - 23.584 Aren't all these factors in the totality of the circumstances analysis?

03:24 - 27.154 I mean, you're trying to isolate all of these particular issues, saying

03:24 - 30.458 he could have been holding his pants up, or he could have been holding the gun,

03:24 - 32.960 he could have been a gang member, or he could have been

03:24 - 35.429 just hanging out on the corner near the gang members.

03:24 - 37.732 It may or may not have been a high crime area,

03:24 - 41.135 but I mean, aren't what we're looking at here in the law

03:24 - 42.737 a totality of circumstances

03:24 - 45.940 that leads to a reasonable conclusion of reasonable suspicion?

03:24 - 46.707 I mean,

03:24 - 48.342 you're

03:24 - 51.345 you're prominent Philadelphia defense attorney.

03:24 - 55.082 If you're driving at 52nd Market Street and you see a guy look in your direction

03:24 - 59.620 standing there and he's standing with a bunch of your former clients

03:24 - 03.791 who were gang members, is it reasonable to assume maybe he's a gang member?

03:25 - 05.059 Maybe. Maybe not.

03:25 - 08.996 But if you parked your car and then he started backing away

03:25 - 11.532 and started running down the street, holding on to something,

03:25 - 12.900 what would you think?

03:25 - 14.869 So if it's a high crime area, you're right.

03:25 - 18.306 You're giving a hypo where it's a high, high crime area because people say

03:25 - 21.309 the ozone gang is committing a lot of crimes in this area,

03:25 - 24.211 and he's a member of the Ozone gang.

03:25 - 26.113 Okay, well, it's a violent area.

03:25 - 27.081 It's a violent gang.

03:25 - 28.749 West Philadelphia. Right.

03:25 - 31.752 So is it completely irrelevant?

03:25 - 33.688 High crime area in that context?

03:25 - 38.292 No, but it is a minimal, relevant high crime area.

03:25 - 42.530 And this is analyzing whether that should be used by this court.

03:25 - 44.332 In general, there are.

03:25 - 49.337 Sorry.

03:25 - 52.006 Why would it even have minimal significance?

03:25 - 54.909 What's the difference if he's in Rittenhouse Square

03:25 - 57.912 with three known gang members and then he runs?

03:25 - 02.483 What does being in a high crime area had to add to that equation?

03:26 - 06.587 It has a very minimal relevance statistically.

03:26 - 10.057 In other words, if you're if you're in an area

03:26 - 11.759 where there's a whole lot of crime

03:26 - 14.762 and I'm gonna explain why statistically it's pretty meaningless.

03:26 - 19.467 But if there's ten times more in general likelihood

03:26 - 23.270 of crime in that area, statistically it's not completely irrelevant.

03:26 - 24.538 That's my only concession.

03:26 - 27.074 It's not like, why would it be irrelevant?

03:26 - 32.613 We just say it's highly relevant for patrol, for police staffing decisions,

03:26 - 36.450 for for, all manner of command,

03:26 - 39.520 priorities and decisions by the police department.

03:26 - 42.390 Certainly very important for that.

03:26 - 45.192 But for purposes of building individualized suspicion

03:26 - 48.629 in court, it's not why don't wreck it that way.

03:26 - 49.563 That's exactly.

03:26 - 51.165 Well, that's exactly my position.

03:26 - 54.201 And I think Hit is the most relevant case

03:26 - 57.905 in Hicks the Superior Court had found before.

03:26 - 00.875 If police have information that's reliable, that a person

03:27 - 03.677 may have a gun,

03:27 - 05.579 they can stop the person.

03:27 - 08.582 That was a superior court holding for a number of years.

03:27 - 12.853 This court overturned Superior Court and said there are some

03:27 - 16.524 major problems with that

03:27 - 21.295 because many people carry guns lawfully.

03:27 - 24.331 A man that

03:27 - 27.334 the incident is at Kensington and Allegheny

03:27 - 32.940 Commonwealth asked me as a trial judge to take judicial notice

03:27 - 35.976 that Kensington and Allegheny is a known

03:27 - 40.114 Philadelphia drug location.

03:27 - 41.682 Do you agree?

03:27 - 45.786 And I accept judicial notice, an uncontested fact.

03:27 - 50.424 You can take judicial notice of a fact that should not be considered

03:27 - 54.595 in your evaluation, whether there's a reasonable suspicion why you're well,

03:27 - 59.633 okay, I'm about to give two more reasons besides the fact it's not conduct.

03:27 - 03.504 So, Hicks, the main thing was that Hicks over and over again,

03:28 - 07.374 the court said the standard is individualized ever since Terry.

03:28 - 11.612 So individual let's say court comes in and they allocate,

03:28 - 13.514 a white

03:28 - 17.017 male in a Lexus, parked in Allegheny.

03:28 - 20.254 And I see an individual leaning in.

03:28 - 24.158 I'm the officer, I see an individual leaning in my car window,

03:28 - 28.062 and there's allegations of a free exchange

03:28 - 31.065 of some green object for some something,

03:28 - 33.634 and then he rolls.

03:28 - 37.037 Okay, so the difference between that and what we're dealing with here

03:28 - 41.976 and and with Hicks is that you have two instances of conduct.

03:28 - 47.281 You have the flight and you have the hand-to-hand transaction

03:28 - 51.519 with the officer from knowing the area and knowing the location

03:28 - 55.456 knows that there's a good chance that you'll.

03:28 - 56.590 Let's use that.

03:28 - 59.593 I'm a white, middle aged male

03:28 - 02.897 and you see me there.

03:29 - 08.802 The offender will put people through your body.

03:29 - 13.040 The other four or Jeff can walk around.

03:29 - 17.011 There's obviously there's needles on the ground.

03:29 - 18.579 I turn

03:29 - 22.416 around, I'm wearing a tracksuit, I see a police officer,

03:29 - 26.420 and I run up right into my Mercedes and I drive away.

03:29 - 28.956 What's your possession?

03:29 - 31.825 My position is there's no reasonable suspicion,

03:29 - 35.296 but no reasonable suspicion based upon

03:29 - 38.899 the fact it's a high crime area where it's notorious that individuals

03:29 - 42.336 out in Philadelphia, purchased drugs from drug addicts.

03:29 - 46.707 I'm not arguing, actually, we know it's slight.

03:29 - 49.710 Let's start from the starting point. Slight.

03:29 - 52.212 And it's not evidence of.

03:29 - 53.914 It's far short of at this court.

03:29 - 55.015 It's far short.

03:29 - 58.018 So you're starting with the only conduct.

03:29 - 01.622 In my case, the only conduct is far

03:30 - 04.625 short of reasonable suspicion,

03:30 - 07.494 high crime area and a situation

03:30 - 12.333 where the conduct, the only conduct is far short of reasonable suspicion,

03:30 - 16.971 high crime area cannot bolster it to the point of reasonable suspicion.

03:30 - 19.006 Hicks, if I can get back to Hicks

03:30 - 21.108 and Hicks,

03:30 - 24.745 this court said you can't make individualized determinations

03:30 - 27.748 of reasonable suspicion as the Constitution requires,

03:30 - 32.353 based on generalities, and a lot of people

03:30 - 36.724 can't have them legally with a license.

03:30 - 40.628 And therefore, at this not add up

03:30 - 44.264 to reasonable suspicion, even though

03:30 - 50.037 even though the Commonwealth's argued this was 3 a.m.

03:30 - 51.138 in a high crime area.

03:30 - 53.340 Undisputed facts 3 a.m.

03:30 - 55.209 in a high crime area.

03:30 - 57.478 This court held high crime here.

03:30 - 01.115 It doesn't matter if you think that one instance of conduct

03:31 - 06.553 like flight high crime area can't bolster it to a reasonable suspicion.

03:31 - 10.024 And I'll cite bar, which also ended up

03:31 - 13.594 following the rationale of Hicks in bar.

03:31 - 16.597 They smelled marijuana and in a car.

03:31 - 19.433 Maybe the driver was smoking marijuana or whatever.

03:31 - 21.101 After that lawful traffic stop.

03:31 - 24.672 And the issue was whether they had probable cause,

03:31 - 28.142 reasonable suspicion to do anything with the driver,

03:31 - 31.779 because this is from our second decision in the.

03:31 - 35.983 Well, term.

03:31 - 38.185 I first of all, it's very distinguishable

03:31 - 41.188 because high crime area was not a factor in the.

03:31 - 43.057 No it wasn't.

03:31 - 45.793 Sorry I disagree.

03:31 - 48.395 We had to follow the word load right.

03:31 - 51.365 Well I that's

03:31 - 54.535 we have a whole pile of workloads that they bring you up here.

03:31 - 57.738 But the real concern was I tried to

03:31 - 01.375 I you couldn't tell me that wasn't in essence or low. No.

03:32 - 04.378 I'm asking this court under article once the third question.

03:32 - 07.047 So yeah it looks like our marriage issue award.

03:32 - 07.681 Yeah.

03:32 - 08.315 Where

03:32 - 12.853 why does work required to review the facts from the right to fix a problem for.

03:32 - 13.954 Yeah.

03:32 - 16.290 With the consideration of my time. Yes.

03:32 - 21.328 No matter if I'm honest enough facts of the high primary state.

03:32 - 24.631 Your your your credibility or your your position,

03:32 - 28.502 I'm just factually telling, your honor.

03:32 - 31.338 I'm factually correct. Version of the facts, but that's

03:32 - 33.140 okay.

03:32 - 35.776 I invite the court to look at that.

03:32 - 39.980 But if in fact held that it should be overruled,

03:32 - 45.719 the question as presented was if somebody flees and there was a report,

03:32 - 50.357 an anonymous report of that person being engaged in criminal activity,

03:32 - 53.360 does that add up to reasonable suspicion?

03:32 - 56.663 That was a question considered by the court and decided by the court.

03:32 - 58.832 Justice Robson has a question for you.

03:32 - 02.970 So I, I, I, I think I fully grasp your argument.

03:33 - 03.737 You were definitely

03:33 - 05.873 you are definitely advocating for a departure claim

03:33 - 08.342 under our Pennsylvania Constitution from the word load decision.

03:33 - 10.043 Correct? Yes.

03:33 - 13.947 We should not for words like but if we applied Wardlow game over.