Lawsuit filed by the Republican National Committee, National Republican Congressional Committee, National Republican Senatorial Committee, Republican Party of Pennsylvania and voters against Acting Secretary of the Commonwealth Leigh Chapman (D) challenging the authority of the county boards of elections to develop and implement mail-in ballot cure procedures (the process by which a voter may be notified of a technical mistake with their mail-in ballot and attempt to rectify that mistake). They allege that the Pennsylvania Election Code does not set a procedure for cure and the Legislature has not enacted “any law allowing for a cure procedure” and therefore county boards should not be allowed to implement any cure procedures. The plaintiffs allege that, because county boards vary in their adoption of cure procedures, this has “created an unequal playing field.” The plaintiffs also invoke the right-wing independent state legislature theory to claim that “neither Boards nor any other organ or instrumentality of the State government may regulate” cure procedures and ask that county boards are blocked from implementing or developing cure procedures. On Sept. 29, a Commonwealth Court judge denied the Republicans’ motion for a preliminary injunction. The Republicans appealed this decision to the Pennsylvania Supreme Court, which affirmed the lower court’s ruling in a 3-3 order on Oct. 21. (If the Pennsylvania Supreme Court’s decision is tied, the decision of the lower court is upheld.) This means many Pennsylvania voters will be able to cure minor errors on their mail-in ballots in the midterm elections. The case is back before the Commonwealth Court where litigation on the merits will continue.
On Sept. 22, the Commonwealth Court of Pennsylvania heard arguments regarding the RNC’s challenge to cure procedures in the Commonwealth. From the outset, the judge made the stakes of the case very clear — mail-in ballots are already being sent out and it’s possible that the Commonwealth Court’s decision regarding emergency relief will be appealed to the Pennsylvania Supreme Court. Thus, for voters and the involved parties, it is paramount that the case is decided quickly. After no objections, the applications of the intervenors (the DSCC, DCCC, Pennsylvania Democratic Party and Democratic National Committee) were all granted. The intervenors were then asked to respond to the laches issue (laches is a legal principle that plaintiffs have to make their claim within a reasonable time frame). Since the curing procedures the RNC is suing over existed during the 2020 election, there is a question about why this lawsuit was filed so close to the 2022 midterm elections.
The attorney representing the two Democratic committees, Uzoma Nkwonta, noted that the RNC had plenty of time to sue and now voters will be harmed as “the voting process is underway.” Both the respondents and intervenors argued that voters will be harmed if the court grants an injunction as voters could be disenfranchised after they already cast their ballots, even though they may have voted in a county that previously offered options to cure small defects.
Benjamin Field, an attorney representing Philadelphia County, noted that an injunction would harm election workers as well and reminded the judge that “it’s important to recognize that there is a large human apparatus that is doing this work to make sure that elections happen across all of Pennsylvania.”
Throughout the course of the day, counsel for the Democratic committees and Pennsylvania Department of State talked about how emergency relief in the RNC’s favor would impact voters. They argued that if the judge were to grant s preliminary injunction, the case would certainly be appealed, at which point the state Supreme Court could reverse the lower court’s decision. However, by the time the case is fully litigated, voters might already have been disenfranchised during the November 2022 elections and there would be no recourse; those voters would simply be “out of luck.”
Despite the notion that taking away cure procedures would likely result in voters who would have previously been able to cure their ballots being disenfranchised, the attorney representing the RNC, Kathleen Gallagher, argued that this is not about disenfranchising voters. She stated that “[t]here is no voter under this petition, where the franchise of voting has been removed from them. No one is disenfranchised.”
The discussion then moved on to discuss the six prongs that must be met for a preliminary injunction to be granted. Gallagher argued that voters who live in counties without cure procedures are harmed and that the petition for relief “is all about election integrity.” Gallagher then argued that the status quo harms voters depending on where they live. To this point, the attorney for the Pennsylvania Department of State rebutted: “What petitioners are trying to prevent through their injunction is from qualified electors who ultimately submit a timely ballot that is fully compliant with the election code in every respect, keeping that vote from being counted.”
When asked about trust in the electoral process, Nkwonta, the attorney representing the DSCC and DCCC, stated “What can erode public trust in elections is voters being disenfranchised, voters casting ballots that are ultimately not counted…And what can further erode that trust is when that decision not to count a ballot or reject it comes midway through or through the voting process or while the voting process is already underway.”
The judge noted that in her “65 years on earth” we have never had “this much public rancor and you know having entire blocks of population say they get the votes and the outcome or ally and they’re not going to accept those. These are different times.” The discussion then moved on to if the case would succeed on the merits. In response to this, the attorney for the RNC invoked a version of the radical independent state legislature theory and stated that the Pennsylvania Legislature is the only body that can create cure procedures. The hearing concluded with the judge stating that she is hopeful to render a decision by Wednesday, Sept. 28.
You can also read a Twitter thread of live tweets here.
Case Documents (Commonwealth court)
Case Documents (PA Supreme Court)