(HARRISBURG) – In light of Secretary of State Kathy Boockvar’s numerous actions to undermine public confidence in Pennsylvania’s elections, Senate President Pro Tempore Joe Scarnati (R-25) and Majority Leader Jake Corman (R-34) today called for her immediate resignation.
The Senators issued the following statement:
“Twice in the last two days, the Secretary of State has fundamentally altered the manner in which Pennsylvania’s election is being conducted. The constantly changing guidance she has delivered to counties not only directly contradicts the Election Code language she is sworn to uphold, but also conflicts her own litigation statements and decisions of both the Pennsylvania Supreme Court and the United States Supreme Court.
“Secretary Boockvar told the U.S. Supreme Court on October 28 that ballots received after 8 p.m. on November 3 would be segregated, but she changed the rules on November 1 and directed counties to canvass those ballots as soon as possible upon receipt. In some counties, it is not possible to both segregate and canvass ballots as directed. This directive leaves open the possibility that timely votes will be commingled with votes received after 8 p.m. on Election Day, despite the fact that these votes remain the subject of litigation before the United States Supreme Court.
“The Department changed the rules again on November 2 when they provided last-second guidance directing counties to provide information to help voters whose mail-in or absentee ballots were incorrectly completed so those voters could vote on a provisional ballot. The late release of this “guidance” resulted in inconsistent application across the counties – some of whom contacted voters as directed and some who did not. There is no basis for this guidance in current law. The Secretary created this new process out of thin air.
“This scattershot approach to Pennsylvania’s elections is wholly inappropriate and a direct breach of the positions she is on record of supporting in litigation – a position that Justice Baer specifically said is best left to the legislative branch of Pennsylvania’s government.
“As leaders, we simply cannot stand by and allow Kathy Boockvar’s blatant disregard for the legislative process and the law to continue. In order for trust to be restored to the Pennsylvania election system, Kathy Boockvar must resign as Secretary of State in Pennsylvania following these most recent efforts to weaken the state’s voting system and damage the integrity and confidence in our elections.”
Background:
Twice in the last two days leading up to today’s election, formal and informal guidance from the Secretary of State has fundamentally altered the manner in which Pennsylvania’s election is being conducted in ways that were not provided for either in the Election Code or the numerous legal cases that have been decided leading up to today. This “guidance” is not only directly contrary to the Election Code language she is sworn to uphold, but is also in direct conflict to her own litigation statements and decisions of both the Pennsylvania Supreme Court and the United States Supreme Court.
First, despite representing to the United States Supreme Court on October 28 that her guidance to the counties regarding ballots received after 8 p.m. on Nov. 3 would be that those ballots would be segregated, Kathy Boockvar changed the rules on the evening of Sunday, November 1 – about thirty-six hours before the polls were to open – and directed the counties to canvass those ballots “as soon as possible upon receipt of the ballots.” In at least some counties, because of their machines, it’s not possible to both segregate and canvass ballots as directed, and this late-issued directive leaves open the possibility that timely votes will be commingled with votes received after 8 p.m. on Election Day despite the fact that these later-returned votes remain the subject of litigation before the United States Supreme Court.
Second, at 8:38 p.m. on Monday, November 2 – less than 12 hours before the polls were to open – the Department issued an email to counties directing them to provide information to political party and candidate representatives regarding mail-in and absentee ballots which had been set aside because they failed to comply with the requirements of the Election Code in order to be counted, so that voters could come in and vote provisionally at the polls. The late release of this “guidance” resulted in inconsistent application across the counties, some of whom contacted voters as directed and some who did not; such differential treatment is wholly inappropriate and a direct result of Boockvar’s scattershot approach to Pennsylvania’s elections.
More importantly, though, this guidance is in direct contravention to both case law and Kathy Boockvar’s own litigation position. For instance, the Pennsylvania Supreme Court in the Pa. Democratic Party v. Boockvar case recognized that there is no procedure in the Election Code that provides for any “notice and opportunity to cure” for mail-in electors. Even Kathy Boockvar herself, the Court further acknowledged, “claim(ed) that, while it may be good policy to implement a procedure that entails notice of defective ballots and an opportunity to cure them, logistical policy decisions like the(se) ones….are more properly addressed to the Legislature…” Indeed, Justice Baer specifically said: “We express this agreement particularly in light of the open policy questions attendant to that decision, including what the precise contours of the procedure would be, how the concomitant burdens would be addressed, and how the procedure would impact the confidentiality and counting of ballots, all of which are best left to the legislative branch of Pennsylvania’s government.”
Pennsylvania Supreme Court Justice Max Baer’s September 8, 2020, Majority Opinion:
“Unlike the other claims asserted herein, the Secretary opposes Petitioner’s request for relief in this regard. She counters that there is no statutory or constitutional basis for requiring the Boards to contact voters when faced with a defective ballot and afford them an opportunity to cure defects. The Secretary further notes that, while Petitioner relies upon the Free and Equal Elections Clause, that Clause cannot create statutory language that the General Assembly chose not to provide.”
“Emphasizing that Petitioner presents no explanation as to how the Boards would notify voters or how the voters would correct the errors, the Secretary further claims that, while it may be good policy to implement a procedure that entails notice of defective ballots and an opportunity to cure them, logistical policy decisions like the ones implicated herein are more properly addressed by the Legislature, not the courts.”
“Upon review, we conclude that the Boards are not required to implement a “notice and opportunity to cure” procedure for mail-in and absentee ballots that voters have filled out incompletely or incorrectly. Put simply, as argued by the parties in opposition to the requested relief, Petitioner has cited no constitutional or statutory basis that would countenance imposing the procedure Petitioner seeks to require (i.e., having the Boards contact those individuals whose ballots the Boards have reviewed and identified as including “minor” or “facial” defects—and for whom the Boards have contact information— and then afford those individuals the opportunity to cure defects until the UOCAVA deadline).”
“While the Pennsylvania Constitution mandates that elections be “free and equal,” it leaves the task of effectuating that mandate to the Legislature. Winston, 91 A. at 522. As noted herein, although the Election Code provides the procedures for casting and counting a vote by mail, it does not provide for the “notice and opportunity to cure” procedure sought by Petitioner. To the extent that a voter is at risk for having his or her ballot rejected due to minor errors made in contravention of those requirements, we agree that the decision to provide a “notice and opportunity to cure” procedure to alleviate that risk is one best suited for the Legislature. We express this agreement particularly in light of the open policy questions attendant to that decision, including what the precise contours of the procedure would be, how the concomitant burdens would be addressed, and how the procedure would impact the confidentiality and counting of ballots, all of which are best left to the legislative branch of Pennsylvania’s government.”
From the U.S. Supreme Court statement (LINK) by Justice Alito, joined by Justice Thomas and Justice Gorsuch, dated October 28, 2020:
“…the Court’s denial of the motion to expedite is not a denial of a request for this Court to order that ballots received after election day be segregated so that if the State Supreme Court’s decision is ultimately overturned, a targeted remedy will be available. Petitioner represents that it will apply to this Court to obtain that modest relief…and Respondent DPP agrees that such relief is appropriate…Although the Pennsylvania Supreme Court rejected Petitioner’s request for that relief, we have been informed by the Pennsylvania Attorney General that the Secretary of the Commonwealth issued guidance today directing county boards of elections to segregate ballots received between November 3, 2020, and 5:00 p.m. on November 6, 2020. Nothing in the Court’s order today precludes Petitioner from applying to this Court for relief if, for some reason, it is not satisfied with the Secretary’s guidance.” (emphasis added)
Contact: Kate Flessner – kflessner@pasen.gov
Jenn Kocher – jkocher@pasen.gov