IN THE SUPREME COURT OF PENNSYLVANIA

Received 10/23/2020 10:17:38 PM Supreme Court Middle District

IN THE SUPREME COURT OF PENNSYLVANIA

__________________________________________________________________

No. 133 MM 2020

________________________________________________________________

PENNSYLVANIA DEMOCRATIC PARTY et al.,

Petitioners,

v.

KATHY BOOCKVAR, IN HER OFFICIAL CAPACITY AS ACTING

SECRETARY OF THE COMMONWEALTH OF PENNSYLVANIA et al.,

Respondents.

__________________________________________________________________

REPUBLICAN PARTY OF PENNSYLVANIA¡¯S APPLICATION

FOR PARTIAL STAY AND MODIFICATION

OF SEPTEMBER 17, 2020 JUDGMENT

__________________________________________________________________

PORTER WRIGHT MORRIS

& ARTHUR LLP

Kathleen A. Gallagher

PA I.D. #37950

Russell D. Giancola

PA I.D. #200058

6 PPG Place, Third Floor

Pittsburgh, PA 15222

Phone: (412) 235-4500

JONES DAY

John M. Gore *

E. Stewart Crosland *

51 Louisiana Avenue, N.W.

Washington, DC 20001

Phone: (202) 879-3939

*Pro hac vice application forthcoming

Counsel for Intervenor-Respondent The Republican Party of Pennsylvania

Intervenor-Respondent the Republican Party of Pennsylvania (¡°RPP¡±)

supports and seeks to uphold free and fair elections on behalf of all Pennsylvanians.

For that reason, RPP respectfully asks the Court for a partial stay and

modification of its September 17, 2020 judgment, pending disposition of the

attached petition for writ of certiorari to the U.S. Supreme Court that RPP filed

today. See Pet. (Ex. A). Four Justices of the U.S. Supreme Court already have

determined that there is ¡°¡®a reasonable probability¡¯ that¡± the U.S. Supreme Court

¡°will grant certiorari¡± and ¡°¡®a fair prospect¡¯ that¡± it ¡°will then reverse the¡± Court¡¯s

judgment. Maryland v. King, 133 S. Ct. 1, 2 (2012) (Roberts, C.J., in chambers)

(citations omitted). Those Justices therefore voted to stay this Court¡¯s judgment

extending the General Assembly¡¯s Election Day received-by deadline and

mandating a judicially crafted presumption of timeliness for non-postmarked ballots

that arrive by the extended receipt deadline. See Republican Party of Pa. v.

Boockvar, No. 20A-54 (U.S. Sup. Ct. Oct. 19, 2020); Scarnati v. Boockvar, No. 20A53 (U.S. Sup. Ct. Oct. 19, 2020). For their part, the Pennsylvania Democratic Party

and Secretary of State Boockvar acknowledged that the questions RPP has presented

to the U.S. Supreme Court are ¡°of overwhelming importance for States and voters

across the country¡± because numerous courts are addressing ¡°state election-law

provisions . . . similar to¡± those at issue here. Pa. Dems. Br. 9, No. 20A-54 (U.S.

Sup. Ct. Oct. 5, 2020); see also Sec¡¯y Br. 2¨C3, No. 20A-54 (U.S. Sup. Ct. Oct. 5,

2020). Thus, the Pennsylvania Democratic Party and Secretary Boockvar also have

asked the U.S. Supreme Court to resolve the questions presented in this case without

further briefing. See Pa. Dems. Br. 9 (asking the U.S. Supreme Court to ¡°grant

certiorari and summarily decide the case¡±); Sec¡¯y Br. 2¨C3.

RPP¡¯s petition for a writ of certiorari seeks review of this Court¡¯s judgment

to the extent that it extends the General Assembly¡¯s received-by deadline and

mandates a judicially crafted presumption that non-postmarked ballots were timely

cast and mailed. See Pet. i (Ex. A). As the petition lays out, the extension of the

received-by deadline and the presumption violate the Electors and Elections Clauses

of the U.S. Constitution and are preempted by the trio of federal statutes that

establish a uniform nationwide federal Election Day. See id. at 18¨C33. RPP has

requested expedited review and decision from the U.S. Supreme Court. See id. at

3¨C4. The votes of only four Justices are sufficient to grant certiorari. See, e.g.,

Ferguson v. Moore-McCormack, 352 U.S. 521, 528¨C29 (1957) (Frankfurter, J.,

dissenting); id at 559 (Harlan, J., concurring in part).

RPP therefore has a ¡°substantial case on the merits¡± that the U.S. Supreme

Court will grant certiorari, review the important questions presented under the U.S.

Constitution and federal law, and reverse this Court¡¯s judgment. Com. v. Melvin,

79 A.3d 1195, 1200 (Pa. 2013). In order to preserve the U.S. Supreme Court¡¯s

jurisdiction to resolve those questions and to grant an appropriate remedy, RPP seeks

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a partial stay and modification of this Court¡¯s judgment. In particular, RPP requests

that the Court (i) stay any portion of its judgment that requires county election

officials to include ballots received after the General Assembly¡¯s received-by

deadline in the tally of official votes, see Maj. Op. 33¨C38, 62¨C63; and (ii) order

county boards of elections to segregate any such late-arriving ballots form ballots

received before the General Assembly¡¯s deadline of 8 o¡¯clock P.M. on November 3,

2020, see 25 Pa. Stat. ¡ì 3150.16(c).

RPP faces the threat of ¡°irreparable injury¡± absent this relief. Melvin, 79 A.3d

at 1200. First, if county election boards do not segregate the vote tally of latearriving ballots, RPP could be left without an effective remedy if the U.S. Supreme

Court reverses this Court¡¯s judgment. Indeed, in that scenario, it could be impossible

for the U.S. Supreme Court to repair election results tainted by illegally and untimely

cast or mailed ballots. This potential loss of appellate review and remedies for this

election is classic irreparable harm and ¡°¡®perhaps the most compelling justification¡¯¡±

for the requested relief. John Doe Agency v. John Doe Corp., 488 U.S. 1306, 1309

(1989) (Marshall, J., in chambers); accord Chafin v. Chafin, 568 U.S. 165, 178

(2013) (¡°When . . . the normal course of appellate review might otherwise cause the

case to become moot, issuance of a stay is warranted.¡±).1

1

This does not mean, however, that if the Court denies this Application that

the case becomes moot. The issues presented in this appeal are capable of

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Second, the ¡°issue[]¡± presented is ¡°precisely whether the votes that have been

ordered to be counted¡± under the Court¡¯s extension and non-postmarked ballot

presumption are ¡°legally cast vote[s]¡± under federal law and the U.S. Constitution.

Bush v. Gore, 531 U.S. 1046, 1046 (2000) (Scalia, J., concurring). ¡°The counting

of votes that are of questionable legality . . . threaten[s] irreparable harm¡± not only

to RPP, its voters, and its supported candidates, but also to all Pennsylvanians and

even ¡°the country, by casting a cloud upon . . . the legitimacy of the election.¡± Id.

The requested relief should be ¡°granted¡± for this reason alone. Id. (per curiam op.).

Third, more generally, barring the State ¡°from conducting this year¡¯s elections

pursuant to . . . statute[s] enacted by the Legislature¡±¡ªwhere no party has shown

those statutes to be constitutional¡ª¡°would seriously and irreparably harm the

State,¡± the General Assembly, and its voters. Abbott v. Perez, 138 S. Ct. 2305, 2324

(2018). Indeed, in other words, it ¡°serves the public interest¡± to ¡°giv[e] effect to the

will of the people by enforcing the laws that they and their representatives enact.¡±

Thompson v. DeWine, 959 F.3d 804, 812 (2020).

Fourth, no party would be ¡°substantially harmed¡± by the grant of a stay.

Melvin, 79 A.3d at 1200. There is no evidence in the record of any voter who will

be unable to vote if the statutory received-by deadline remains in place. Moreover,

repetition yet evading review. See FEC v. Wis. Right to Life, Inc., 551 U.S. 449,

462 (2007).

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