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Senate Republican Caucus JONATHAN P No. ___ 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. ———— On Application to Stay the Mandate of the Supreme Court of Pennsylvania ———— EMERGENCY APPLICATION FOR A STAY PENDING THE FILING AND DISPOSITION OF A PETITION FOR A WRIT OF CERTIORARI ———— CRYSTAL H. CLARK, ESQ. JASON B. TORCHINSKY General Counsel, Counsel of Record Senate Republican Caucus JONATHAN P. LIENHARD B-51 Main Capitol SHAWN T. SHEEHY Harrisburg, PA 17120 DENNIS W. POLIO (717) 787-6259 HOLTZMAN VOGEL [email protected] JOSEFIAK TORCHINSKY PLLC 15405 John Marshall Hwy LAWRENCE J. TABAS Haymarket, VA 20169 Centre Square West (540) 341-8808 1515 Market St., Suite 3400 (540) 341-8809 Philadelphia, PA 19102 [email protected] Counsel for Applicants Joseph B. Scarnati III, President Pro Tempore, and Jake Corman, Majority Leader of the Pennsylvania Senate September 28, 2020 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................................................................... iv DECISIONS UNDER REVIEW .................................................................................... 3 BACKGROUND ............................................................................................................. 4 A. Crossey v. Boockvar ............................................................................................. 5 B. Pennsylvania Democratic Party v. Boockvar ..................................................... 6 REASONS FOR GRANTING THE APPLICATION .................................................... 8 I. THE SUPREME COURT OF PENNSYLVANIA’S RULING VIOLATES FEDERAL LAW MANDATING ONE FEDERAL ELECTION DAY ............................................................................................... 11 A. Federal Law Establishes One Day For The Election ............................... 11 B. The Supreme Court Of Pennsylvania’s Ruling Allows For The Counting Of Ballots After Election Day In Violation Of Federal Law ............................................................................................................. 15 C. Early Voting Is Distinct From Voting After Election Day ....................... 16 II. THE SUPREME COURT OF PENNSYLVANIA VIOLATED ARTICLE I, SECTION 4 OF THE U.S. CONSTITUTION WHEN IT ALTERED THE BALLOT RECEIPT DEADLINE ............................................................. 18 A. The Elections Clause: Article I, Section 4 ................................................. 18 B. Pennsylvania’s General Assembly Has Exercised This Power To Establish Ballot Receipt Deadlines For Mail-In Ballots .......................... 22 ii TABLE OF CONTENTS—Continued Page C. The Supreme Court Of Pennsylvania Does Not Possess Legislative Power Pursuant To The Elections Clause ................................................ 23 D. The Supreme Court of Pennsylvania’s Extension Of The Ballot Receipt Deadline Violates The Elections Clause ...................................... 25 E. This Court Has Stayed Or Overturned Other Challenges To States’ COVID-19 Responses ..................................................................... 28 F. Denying The Requested Stay Will Have A Cascading Effect On This Court’s Docket .................................................................................... 31 III. ABSENT THE GRANT OF THE REQUESTED STAY, PENNSYLVANIA WILL SUFFER IRREPARABLE HARM .......................... 33 CONCLUSION ............................................................................................................. 36 APPENDIX APPENDIX A: OPINION, Supreme Court of Pennsylvania (September 17, 2020) ......................... 1 CONCURRING OPINION, Supreme Court of Pennsylvania (September 17, 2020) ......................................................................................................................... 64 CONCURRING AND DISSENTING OPINION, Supreme Court of Pennsylvania (September 17, 2020) ........................................................................ 76 CONCURRING AND DISSENTING OPINION, Supreme Court of Pennsylvania (September 17, 2020) ........................................................................ 88 iii TABLE OF CONTENTS—Continued Page APPENDIX B: ORDER, Supreme Court of Pennsylvania (September 24, 2020) .......................... 92 DISSENTING STATEMENT, Supreme Court of Pennsylvania (September 24, 2020) ................................................................................................................... 95 APPENDIX C: AMENDMENT ORDER, Crossey, et al. v. Boockvar, No. 266 M.D. 2020, Commonwealth Court of Pennsylvania (September 7, 2020) ................................. 99 RECOMMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW, Crossey, et al. v. Boockvar, No. 266 M.D. 2020, Commonwealth Court of Pennsylvania (September 4, 2020) ........................................................................ 101 APPENDIX D: APPLICATION FOR STAY OF COURT’S OPINION AND ORDER OF SEPTEMBER 17TH, 2020, Supreme Court of Pennsylvania (September 22, 2020) ....................................................................................................................... 141 APPENDIX E: [PROPOSED] ORDER GRANTING APPLICATION FOR STAY OF THIS COURT’S OPINION AND ORDER OF SEPTEMBER 17TH, 2020, Supreme Court of Pennsylvania (September___, 2020) ....................................................... 168 APPENDIX F: PENNSYLVANIA ELECTION CODE – OMNIBUS AMENDMENTS, Act of Oct. 31, 2019, P.L. 552, No. 77 (SB 421) ............................................................... 169 APPENDIX G: PENNSYLVANIA ELECTION CODE – OMNIBUS AMENDMENTS, Act of Mar. 27, 2020, P.L. 41, No. 12 (SB 422) ................................................................ 222 iv TABLE OF AUTHORITIES CASES Page(s) Ariz. State Legis. v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787 (2015) .................................................................................................. 25 Blum v. Stenson, 465 U.S. 886 (1984) .................................................................................................. 12 Busbee v. Smith, 549 F. Supp. 494 (D.D.C. 1982), aff'd, 459 U.S. 1166 (1983) .......................................................................................... 12, 16 Bush v. Gore, 531 U.S. 98 (2000) .............................................................................................. 21, 28 Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000) .............................................................................................. 28, 33 Calvary Chapel Dayton Valley v. Sisolak, No. 19A1070 (July 24, 2020) .................................................................................... 30 Chase v. Miller, 41 Pa. 403 (1862) ...................................................................................................... 24 Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013) .................................................................................................. 21 Clarno v. People Not Politicians, No. 20A21 (Aug. 11, 2020) ....................................................................................... 29 Coalition v. Raffensperger, No. 1:20-cv-1677-TCB, 2020 U.S. Dist. LEXIS 86996 (N.D. Ga. May 14, 2020) ........................................................................................... 21 v TABLE OF AUTHORITIES—Continued Page(s) Cook v. Gralike, 531 U.S. 510 (2001) .................................................................................................. 19 Crossey et al. v. Boockvar, No. 266 MD 2020 (Pa. Comm. Ct. Sept. 4, 2020) ...................................................... 5 Crossey, et al. v. Boockvar, et al., No. 266 M.D. 2020 (Pa. Comm. Ct. Sept. 7, 2020) ................ 2, 4, 5, 6, 27, 28, 34, 35 DCCC v. Ziriax, 2020 U.S. Dist. LEXIS 170427 (D. Ok., Sept. 17, 2020) ......................................... 33 Democratic National Committee v. Bostelmann, No. 20-cv-00249 (D. Wis. Sept. 21, 2020), appeal filed No. 20-2844 (7th Cir. Sept. 24, 2020) .............................................................. 32 Driscoll v. Stapleton, Montana Supreme Court, Case No. 20-0295 (filed May 26, 2020) .................................................................... 32 Driscoll v. Stapleton, No. DV 20-408 (Mont. 13th Jud. Dis., Yellowstone Cty., Sept. 25, 2020) (available at https://bloxim ages.newyork1.vip.townnews.com/kulr8.com/ content/tncms/assets/v3/editorial/1/81/181225 6c-ff85-11ea-aa54-2f21ed82c7a1/5f6e7ac229f2a. pdf.pdf) ...................................................................................................................... 32 Ex Parte Yarbrough, 110 U.S. 651 (1884) ............................................................................................ 12, 16 Eu v. San Francisco County Democratic Central Comm., 489 U.S. 214 (1989) .................................................................................................. 34 vi TABLE OF AUTHORITIES—Continued Page(s) Fladell v. Elections Canvassing Comm'n of Fla., CL 00-10965 AB, CL 00-10970 AB, CL 00-10988 AB, CL 00-10992 AB, CL 00-11000 AB, 2000 Fla. Cir. LEXIS 768 (Fla. 15th Jud. Cir. 2000) .............................................................. 15 Foster v. Love, 522 U.S. 67 (1997) ............................................................................ 12, 14, 15, 16, 17 Friedman v. Snipes, 345 F.Supp.2d 1356 (S.D.
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