133 MM 2020 IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT PENNSYLVANIA DEMOCRATIC ) PARTY; et al., ) ) Petitioners, ) ) v. ) 133 MM 2020 ) ) KATHY BOOCKVAR; et al., ) ) Respondents. ) APPENDIX TO PETITIONERS’ BRIEF Exhibit Description of Document A Petitioners Omnibus Memorandum of Law in Opposition to Preliminary Objections of Various County Boards of Elections B Petitioners’ Answers to Various Boards of Elections and Secretary of the Commonwealth’s New Matters C Application for Mail-In Ballot D Declaration of Adam R. Roseman, Esq. E August 31, 2020 transcript of the evidentiary hearing in Crossey (“Crossey Transcript”). F August 1, 2020 Pennsylvania 2020 Primary Election Act 35 of 2020 Report G January 10, 2020 Department of State Mail-in and Absentee Ballots and Voter Registration Changes Guidance 1 ReceivedFiled 9/8/2020 4:43:554:43:00 PM Supreme Court Middle District H August 19, 2020 Department of State Absentee and Mail-in Ballot Return Guidance I May 28, 2020 email from the Deputy Secretary of State Jonathan Marks to county Boards of Election J August 19, 2020 Department of State Guidance for Missing Official Election Ballot Envelopes K Petitioners’ Exhibit 32 admitted into evidence during the Crossey hearing (“Stroman Report”). L Relevant portions of Philadelphia County Board of Elections’ Objections and Responses to Plaintiffs’ First Set of Interrogatories and Requests for Production in the case captioned Donald J. Trump for President, Inc., et al v. Boockvar, et al, No. 20-966 (W.D. Pa.) (“Federal Court Act”). M Relevant portions of Bucks, Chester, and Montgomery County Boards of Elections’ Objections and Responses to Plaintiffs’ First Set of Interrogatories and Request for Production in the Federal Court Action. N July 15, 2020 email string Bates labeled LAW-013648-51 produced by Lawrence County Board of Elections in the Federal Court Action. O Petition for Declaratory and Injunctive Relief P Bucks, Chester, Montgomery, and Philadelphia Response to Petition. Q Update on June the 2 Primary Election in Delaware County, Press Release, Delaware County Pennsylvania, www.delcopa.gov/publicrelations/releases/2020/june2primaryup date.html R June 2, 2020 Order from Court of Common Pleas of Delaware County, Pennsylvania in In re Extension of Time for Absentee 2 and Mail-In Ballots to be Received by Mail and Counted in the 2020 Primary Election, No. 2020-003416 S June 2, 2020 Order from Court of Common Pleas of Bucks County, Pennsylvania in In re: Extension of Time for Absentee and Mail-In Ballots to be Received by Mail and Counted in the 2020 Primary Election, No. 2020-02322-37. T Executive Order, Extension of Deadline for Receipt of Absentee and Mail-In Ballots in Certain Counties, 2020-02 (June 1, 2020). U Marc Levy, Grey Area of Mail-in Voting Law Up to Pennsylvania Court, TIMES LEADER (Aug. 25, 2020), https://www.timesleader.com/news/798226/gray-area-of-mail-in- voting-law-up-to-pennsylvania-court-3. V Respondents’ Ex. 2 admitted into evidence during the Crossey Hearing (“Chart of County Absentee or Mail-In Ballots”) W Joel Achenbach and Rachel Weiner titled Experts project autumn surge in coronavirus cases, with a peak after Election Day and published in the WASHINGTON POST, available at https://www.washingtonpost.com/health/coronavirus-fall- projections-second-wave/2020/09/04/6edb3392-ed61-11ea-99a1- 71343d03bc29_story.html. X Secretary of the Commonwealth’s Aug. 13, 2020 Praecipe to Withdraw Certain Respondents’ Preliminary Objections Based on United States Postal Service’s Announcement of Statewide Mail Delays Affecting General Election in Crossey. Y Petitioners’ Exhibit 28 admitted into evidence during the Crossey hearing (“Eastern AIM Service Update”) Z July 29, 2020 letter from USPS to Secretary Boockvar. AA July 30, 2020 letter from USPS to North Carolina Secretary of State Elaine Marshall. 3 BB Answer and New Matter of Secretary Boockvar in Response to Petition CC H.B. 2626, P.N. 4335, 219th Leg. Reg. Sess. (Pa. 2020) DD Emily Previti, Gov. Wolf plans to veto election code bill in its current form, available at www.witf.org/2020/09/02/gov-wolf- plans-to-veto-election-code-bill-in-its-current-form/ (last visited Sept. 7, 2020). EE Special Master Mary Hanna Leavitt’s September 4, 2020 Recommended Findings of Fact and Conclusions of Law in Crossey, et al v. Boockvar, et al, 266 M.D. 2020 FF S.B. 10, P.N. 1898, 219th Leg. Reg. Sess. (Pa. 2020) GG Union County Board of Elections’ Supplemental Responses to Plaintiffs’ Set of Written Interrogatories and Requests for Production of Documents to all Defendant County Boards of Elections in the Federal Court Action. HH September 8, 2020 Declaration of Gerald Lawrence Addendum Factual Summary 4 EXHIBIT “A” Received 8/27/2020 8:05:44 PM Commonwealth Court of Pennsylvania Filed 8/27/2020 8:05:00 PM Commonwealth Court of Pennsylvania 407 MD 2020 IN THE COMMONWEALTH COURT OF PENNSYLVANIA PENNSYLVANIA DEMOCRATIC ) PARTY; et al., ) ) Petitioners, ) ) v. ) 407 MD 2020 ) ) KATHY BOOCKVAR; et al., ) ) Respondents. ) OMNIBUS MEMORANDUM OF LAW IN OPPOSITION TO PRELIMINARY OBJECTIONS OF VARIOUS COUNTY BOARDS OF ELECTIONS This Petition raises issues that go to the very heart of the most fundamental principles underlying the “Free and Equal Protections Clause” in the state Constitution, and was filed to prevent the certain disenfranchisement of scores of Pennsylvania voters at a time of unprecedented and unanticipated national crisis. Petitioners here present specific, narrow questions arising from the interpretation of Act 77 of 2019 and its application during the upcoming General Election on November 3, when serious voter health concerns and safety restrictions caused by the novel coronavirus (“COVID-19”) will assuredly lead to an avalanche of mail-in and absentee ballot applications. This Court has the power and authority to resolve these issues in an expeditious manner to allow for an efficient and just administration of the General Election. 1 ACTIVE 52245842v1 Specifically, Petitioners have asked this Court to: (1) resolve pure questions of law related to the proper interpretation of the mail-in and absentee ballot provisions of Act 77 of 2019 (“Act 77”); (2) confirm the constitutionality of the Election Code’s poll watcher residency requirement; and (3) review and assess the 67 county Boards of Elections’ (“Boards” or “the Boards”) application of various provisions in the new Act 77 in this unique time precipitated by COVID-19 where millions of mail-in and absentee ballots have been and will be requested by Pennsylvania voters. On July 10, 2020, the Pennsylvania Democratic Party and several Democratic candidates (“Petitioners”) filed a Petition for Declaratory and Injunctive Relief (“Petition”) against the Secretary of the Commonwealth (“Secretary”) and all 67 county boards. Of the 68 respondents, just nine filed preliminary objections, asserting substantially similar issues in generally consistent language. Petitioners file this omnibus memorandum of law to address all parties’ preliminary objections. Collectively, the preliminary objections generally raise five issues: (1) allegations that the Petition violates the separation of powers doctrine and thus is non-justiciable; (2) allegations that the relief requested in the Petition is unripe or moot; (3) allegations–solely as to the injunctive relief requested–that it fails to state a claim for relief; (4) the Petition fails to state any specific claim of illegal conduct against certain Boards or, even if it does, the illegal conduct is alleged with 2 ACTIVE 52245842v1 insufficient specificity; and (5) the Petition includes impertinent and scandalous allegations. For the reasons explained below, this Court must deny all preliminary objections swiftly and move to the most efficient procedural mechanism for resolution.1 I. STATEMENT OF FACTS A. The General Assembly Passes Act 77. On October 31, 2019, Governor Wolf signed Act 77 into law, which was a bipartisan effort and made major changes to the Pennsylvania Election Code. Petition, ¶ 35. Significantly, Act 77 permits no excuse mail-in voting for all qualified electors. See 25 Pa. C.S. §§ 3150.11-3150.17. To vote by mail or absentee ballot, the process begins by applying for such a ballot. See 25 Pa. C.S. § 3150.12a(a). Applications for mail-in ballots must be received by county Boards not later than 1 Simultaneously, the Secretary has sought an exercise of extraordinary jurisdiction from the Pennsylvania Supreme Court arguing that a prompt resolution is required to ease the administration of the upcoming election. See Ex. 5. That application is pending and is, with a single exception, not opposed–and the one exception was an amicus filing which urged state courts to defer on these issues of state law to the United States District Court for the Western District of Pennsylvania, who, on Sunday, August 23, 2020, entered an order abstaining from handling this matter until it is resolved by Pennsylvania’s state courts. See Donald J. Trump Campaign for President, Inc., et al v. Boockvar, et al, No. 20-00966 (W.D. Pa. Aug. 23, 2020) (Dkt. 409-410). The General Election is now just 10 weeks away. Petitioners concur that a rapid resolution is appropriate and, if the Supreme Court does not exercise its King’s Bench power, urge an accelerated disposition of these preliminary objections and a rapid hearing on the merits. 3 ACTIVE 52245842v1 seven days before an election. Id. If a voter submits an application and the county board of elections determines that the voter meets the