Nos.

20A53, 20A54

IN THE
Supreme Court of the United States
————

JOSEPH B. SCARNATI III, PRESIDENT PRO TEMPORE, AND

JAKE CORMAN, MAJORITY LEADER OF THE PENNSYLVANIA SENATE,

Applicants,

v.

PENNSYLVANIA DEMOCRATIC PARTY, ET AL.,

Respondents.

————
REPUBLICAN PARTY OF PENNSYLVANIA,

Applicant,

v.

KATHY BOOCKVAR, SECRETARY

OF PENNSYLVANIA, et al.,

Respondents

————
On Application to Stay the Mandate of the
Supreme Court of Pennsylvania
————
RESPONSE OF LUZERNE COUNTY BOARD OF ELECTIONS
TO EMERGENCY APPLICATIONS FOR A STAY
————

JOSEPH M. COSGROVE
Counsel of Record
SELINGO GUAGLIARDO LLC
345 Market Street
Kingston, PA 18704
Phone: 570-287-3400
[email protected]
 TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .i

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT

I. EXTENSION OF DEADLINES FOR RECEIPT OF MAIL-IN BALLOTS

IN A TIME OF PUBLIC HEALTH EMERGENCY IS CONSISTENT WITH
THE STATUTORY SCHEME USED IN ANOTHER CONTEXT, I.E., TO
PROTECT THE RIGHT TO VOTE OF UNIFORMED AND OTHER
CITIZENS NOT IN COUNTRY AT THE TIME OF AN ELECTION . . . . . . . 2

II. ACCEPTING LATE MAIL-IN BALLOTS WITHOUT POSTMARK IS

CONSTITUTIONALLY VALID, CONSISTENT WITH IMPLEMENTATION
OF UOCAVA, AND EQUALLY APPLICABLE TO ALL BELATED MAIL-IN
BALLOTS IN A TIME OF PUBLIC HEALTH EMERGENCY . . . . . . . . . . . . 5

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

i
 TABLE OF AUTHORITIES

CASES:

Democratic Nat'l Comm. v. Bostelmann,

451 F. Supp. 3d 952 (W.D. Wis. 2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 8

Pennsylvania Democratic Party v. Boockvar, ---A.3d---, No. 133 MM 2020, 2020 WL

5554644, at *12, fn.19 (Pa. Sept. 17, 2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

United States v. Alabama, 857 F. Supp. 2d 1236, 1242 (M.D. Ala. 2012). . . . . . . . . . 5

United States v. Arizona, No. 18-CV-00505 PHX-DLR (D. Ariz. Feb. 15, 2018). . . . .3

United States v. Colorado, No. 90–C–1419 (D.Colo. Aug. 10, 1990). . . . . . . . . . . . . . 4

United States v. Cunningham, No. CIV. A. 3:08CV709, 2009 WL 3350028, at *10

fn.3 (E.D. Va. Oct. 15, 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 6

United States v. Georgia, No. 1:04–CV–2040–CAP (N.D.Ga. July 16, 2004). . . . . 4, 6

United States v. Idaho, No. 88–1187 (D. Idaho May 21, 1988;
entered May 23, 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

United States v. Michigan, No. L 88–208 CA5 (W.D.Mich. July 29, 1988). . . . . . . . . 4

United States v. Michigan, No. 1:92–CV–529 (W.D.Mich. Aug. 3, 1992). . . . . . . . . . .4

United States v. New Jersey, No. 90–2357(JCL) (D.N.J. June 5, 1990). . . . . . . . . . . 4

United States v. New Jersey, No. 92–4203 (D.N .J. June 2, 1992). . . . . . . . . . . . . . . 4

United States v. New York, 1:09–cv–335 (N.D .N.Y. Mar. 26, 2009). . . . . . . . . . . . . .4

United States v. Oklahoma, No. CIV–88–1444 P (W.D.Okla. Aug. 22, 1988). . . . . . .4

United States v. Pennsylvania, 04-CV-830 (M.D. Pa. 2004). . . . . . . . . . . . . . . . . . .3, 6

STATUTES

52 U.S.C. §§ 20301-20311. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .passim

52 U.S.C. § 20302(a)(8)(A). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ii
52 U.S.C.A. § 20304(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

52 U.S.C.A. § 20307(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

NV Rev.Stat. § 293.317(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

25 Pa.C.S. § 3511 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7

25 P.S. §§ 3150.11-3150.17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

WEB PAGES

https://www.justice.gov/crt/cases-raising-claims-under-uniformed-and-overseas-
citizen-absentee-voting-act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

iii
 INTRODUCTION

The Luzerne County Board of Elections (“Board”) is a named Respondent in

each of the matters captioned above, along with a host of others, including the

Secretary of the Commonwealth of Pennsylvania, and similar boards of election

throughout the State. While the Secretary will address the Emergency Applications

in full, the Board has an interest in drawing attention to an aspect of the pending

questions which has particular relevance to its work in assuring the execution of

free and fair elections within its jurisdiction, and protection of the franchise. In

addressing this issue, the Board opposes the requests for a stay and supports the

Secretary’s other arguments advanced, and resolution requested, which are likewise

in opposition to these requests.

In each of the above-captioned Applications, the Petitioners take great issue

with the decision of the state Supreme Court in addressing the COVID-19 pandemic

and its impact on the right to vote in Pennsylvania. Of particular interest to the

Board is Petitioners’ challenge to the Supreme Court’s order that mail-in ballots

received up to three days after Election Day (November 3, 2020) must nonetheless

be counted. According to Petitioners, this effort to protect the franchise is somehow

violative of federal law, particularly with regard to the issue of whether the ballots

are returned with legible postmarks indicating mailing on or before Election Day.

See, e.g., Scarnati Petitioners’ Application at 9; Republican Party Petitioners’

Application at 36. What each set of petitioners fails to recognize is that the judicial

remedy crafted by the Supreme Court is wholly consistent with federal law, and in

1
other contexts has been implemented by federal courts for years as a means to

protect the right to vote.

ARGUMENT

I. EXTENSION OF DEADLINES FOR RECEIPT OF MAIL-IN BALLOTS

IN A TIME OF PUBLIC HEALTH EMERGENCY IS CONSISTENT WITH
THE STATUTORY SCHEME USED IN ANOTHER CONTEXT, I.E., TO
PROTECT THE RIGHT TO VOTE OF UNIFORMED AND OTHER
CITIZENS NOT IN COUNTRY AT THE TIME OF AN ELECTION

As duly constituted governmental bodies tasked with conducting and

overseeing primary, municipal, special, and general elections in Pennsylvania,

election boards, such as the present Respondent, have for decades been responsible

for fulfilling the mandate imposed on them by Congress through the Uniformed and

Overseas Citizens Absentee Voting Act (UOCAVA). 52 U.S.C. §§ 20301-20311.

“The UOCAVA delineates, inter alia, the process and procedure in which overseas

voters and voters in the uniformed services receive absentee ballots for federal

elections.” Pennsylvania Democratic Party v. Boockvar, ---A.3d---, No. 133 MM

2020, 2020 WL 5554644, at *2, fn.5 (Pa. Sept. 17, 2020). This statute not only acts

to protect voting rights of those outside the geographic boundaries of the United

States, but also imposes strict duties on states to effectuate this protection. Among

the tasks which have devolved upon the states (and in Pennsylvania, upon the

relative boards of election) are requirements such as transmitting absentee ballots

in federal elections to oversees and military electors in a manner so as to receive

same in time that they may be counted. See, e.g., 52 U.S.C. § 20302(a)(8)(A);

2
20304(b)(1). “As adopted in Pennsylvania, the UOCAVA provides that military and

overseas ballots will be counted if received by the county board by ‘5:00 p.m. on the

seventh day following the election,’ which this year will be November 10, 2020. 25

Pa.C.S. § 3511.” Id., at 12, fn.19 (emphasis added).

In order to enforce the provisions of UOCAVA, “[t]he Attorney General [of the

United States] may bring a civil action in an appropriate district court for such

declaratory or injunctive relief as may be necessary … “ 52 U.S.C.A. § 20307(a).

Over the last two decades, the Department of Justice has taken such action in at

least three dozen cases brought against various states including those where state

mechanisms threatened to prevent late ballots from being counted.

https://www.justice.gov/crt/cases-raising-claims-under-uniformed-and-overseas-

citizen-absentee-voting-act (last visited Oct. 5, 2020).1 What is apparent in these

cases is the willingness of courts to fashion remedies to protect the ballot which

mirror the remedies at issue here.

For example, in United States v. Arizona, No. 18-CV-00505 PHX-DLR (D.

Ariz. Feb. 15, 2018), the state did not forward ballots to UOCAVA voters in time for

them to be returned by election day as was required by state law.2 In order to

prevent their disenfranchisement, the Court required ballots to be counted which

were received up to ten days after election day if they were executed and sent on or

before that day. In the above-cited United States v. Pennsylvania, supra, the Court

1
Pennsylvania has been subject to litigation pursuant UOCAVA in the past. See, e.g., United States
v. Pennsylvania, 04-CV-830 (M.D. Pa. 2004).
2
As noted, Pennsylvania provides a week-long “window” for receipt of UOCAVA ballots.

3
likewise ordered “[c]ounty boards of elections to accept absentee ballots cast for

federal office” in the primary election of 2004 twenty days after election day,

“notwithstanding the deadline prescribed by” statute, which at the time, was the

Friday before election day.

In fact, despite Petitioners’ disdain for the accommodation imposed by the

Pennsylvania Supreme Court in these matters, judicial extension of state deadlines

for receipt of validly cast ballots is not at all unusual:

Numerous courts have entered consent orders or decrees extending a State's

deadline for receipt of validly-cast absentee ballots. See, e.g., United States v.
New York, 1:09–cv–335 (N.D .N.Y. Mar. 26, 2009) (ordering 6–day extension
to ballot receipt deadline and corresponding adjustments to other state law
deadline); United States v. Michigan, No. L 88–208 CA5 (W.D.Mich. July 29,
1988) (10–day extension of ballot receipt deadline); United States v. Idaho,
No. 88–1187 (D. Idaho May 21, 1988; entered May 23, 1988) (10–day
extension of ballot receipt deadline); United States v. Oklahoma, No. CIV–
88–1444 P (W.D.Okla. Aug. 22, 1988) (10–day extension of ballot receipt
deadline); United States v. New Jersey, No. 90–2357(JCL) (D.N.J. June 5,
1990) (10–day extension of ballot receipt deadline); United States v. Colorado,
No. 90–C–1419 (D.Colo. Aug. 10, 1990) (10–day extension of ballot receipt
deadline); United States v. New Jersey, No. 92–4203 (D.N .J. June 2, 1992)
(14–day extension of ballot receipt deadline); United States v. Michigan, No.
1:92–CV–529 (W.D.Mich. Aug. 3, 1992) (20–day extension of ballot receipt
deadline); United States v. Georgia, No. 1:04–CV–2040–CAP (N.D.Ga. July
16, 2004) (3 business day-extension).

United States v. Cunningham, No. CIV. A. 3:08CV709, 2009 WL 3350028, at *10

fn.3 (E.D. Va. Oct. 15, 2009).

Consistent with these decisions and (similar to the present matters) in the

face of the COVID-19 pandemic’s impact on last spring’s primary election, the U.S.

District Court for the Western District of Wisconsin similarly extended the deadline

for receipt of absentee ballots for three days after election day. Democratic Nat'l

Comm. v. Bostelmann, 451 F. Supp. 3d 952 (W.D. Wis. 2020). In doing so, and

4
acknowledging the dramatic circumstance posed by COVID, the Court recognized

that the equities favored extension: “Finally, this relief is more generally in the

public interest, which favors permitting as many qualified voters to vote as

possible.” Id., at 977.

Against this backdrop, it is clear that not only were the remedies imposed by

the Supreme Court below appropriate, they were completely consistent with the role

of courts in protecting the cherished right to vote. “In some cases, and this is one, if

federally-guaranteed voting rights are to be protected, the court must act.” United

States v. Alabama, 857 F. Supp. 2d 1236, 1242 (M.D. Ala. 2012)(internal citations

omitted). This duty is no less incumbent on the state judiciary and was no less

carried out by the state Supreme Court than it was by the host of federal courts

cited above. While the ballots in question presently are not otherwise protected by

OACAVA, they are no less precious. Adding a modest three day extension for

receipt of mail-in ballots in the face of both a global pandemic and impediments to

postal delivery as recognized by the court below is not only valid, it is mandated.

II. ACCEPTING LATE MAIL-IN BALLOTS WITHOUT

POSTMARK IS CONSTITUTIONALLY VALID, CONSISTENT
WITH IMPLEMENTATION OF UOCAVA, AND EQUALLY
APPLICABLE TO ALL BELATED MAIL-IN BALLOTS IN A
TIME OF PUBLIC HEALTH EMERGENCY

Petitioners in both matters take further exception to the state Supreme

Court’s refusal to require that mail-in ballots received by 5:00 p.m. on November 6,

2020, three days after Election Day, have legible postmarks. While Petitioners’

5
argument seems to suggest that such a remedy is unheard of, it is in fact completely

consistent with the operation of UOCAVA, is part of Pennsylvania’s UOCAVA

statutory structure, and has been exacted as a franchise-protecting remedy by other

courts.

For example, in Cunningham, supra., in the face of a UOCAVA violation, the

court ordered an extension for receipt of mail-in ballots which was so lengthy as to

negate any issue relative to postmark. The same was true in United States v.

Pennsylvania, supra., where the time of the extension was such that postmarks

would be irrelevant. In a number of UOCAVA cases, such as United States v.

Georgia, supra, the courts make no mention at all of (nor show any concern with)

postmarks in extending ballot receipt deadlines.

Further, in Bostelmann, supra, one of the first COVID-related election cases,

the district court addressed the postmark issue squarely and rejected any effort to

ratify the legitimacy of a ballot through this postal service mechanism:

Similarly, the court will not add a postmarked-by date requirement; it is

simply moving the statutory absentee receipt deadline. No persuasive
evidence suggests that further altering statutory requirements will impose
tangible benefits or harms, and indeed the amicus briefs from various local
governments suggest that an extension of the deadline would be heartily
welcomed by many local officials.3

Bostelmann, supra, at 977 (emphasis in the original).

Nevada universalizes this element of voter protection, declaring:

If an absent ballot is received by mail not later than 5 p.m. on the third day
following the election and the date of the postmark cannot be determined, the

3
Just as the Wisconsin local officials supported the Bostelmann court’s remedy, so also does the
present Board “heartily welcome” the similar remedies fashioned by the Pennsylvania Supreme
Court.

6
 absent ballot shall be deemed to have been postmarked on or before the day
of the election.

NV Rev.Stat. § 293.317(2).

This is consistent with Pennsylvania’s scheme for implementing UOCAVA,

which states:

If, at the time of completing a military-overseas ballot and balloting

materials, the voter has declared under penalty of perjury that the ballot was
timely submitted, the ballot may not be rejected on the basis that it has a late
postmark, an unreadable postmark or no postmark.

25 Pa.C.S. § 3511(b).

This statute is Pennsylvania’s tool to capture the UOCAVA species of valid

ballots and accept them after election day, whether they do or do not have legible,

readable or coherent postmarks. This has been implemented for years without

insult to any constitutional or federal electoral statutory norm. To suggest that an

identical mechanism implemented by the state Supreme Court for the protection of

all mail-in ballots during a deadly pandemic is somehow constitutionally suspect

lacks all credibility, and only serves to further threaten the right to vote beyond

that imposed by COVID.

Through Act 77, 25 P.S. §§ 3150.11-3150.17, Pennsylvania broadened the

realm of mail-in voting. The model which Pennsylvania has employed in

implementing its responsibilities under UOCAVA is equally applicable to Act 77

mail-in ballots in the face of the current public health threat. COVID changes every

aspect of life, but it must not interfere with the franchise. Deadlines and postal

service markings cannot overtake the interest of Pennsylvania in protecting the

franchise. In balancing statutory requirements with the fundamental right to vote,

7
the Pennsylvania Supreme Court, as did the Bostelmann court, applied the

principle of “aequitas prima est,” and recognized that the equities substantially

favored the latter. In light of the present circumstances, this decision was

manifestly correct.

CONCLUSION

For the foregoing reasons, the applications for stay should be denied.

Respectfully submitted,

s/JOSEPH M. COSGROVE
Counsel of Record
SELINGO GUAGLIARDO LLC
345 Market Street
Kingston, PA 18704
Phone: 570-287-3400
[email protected]