Received 11/4/2020 5:33:14 PM Commonwealth Court of Pennsylvania

Filed 11/4/2020 5:33:00 PM Commonwealth Court of Pennsylvania

602 MD 2020

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

DONALD J. TRUMP FOR )

PRESIDENT, INC.; and )
REPUBLICAN NATIONAL )
COMMITTEE, )
)
Petitioners, )
)
v. )
)
KATHY BOOCKVAR, in her capacity ) No. ________ MD 2020
as Secretary of the Commonwealth of )
Pennsylvania; ADAMS COUNTY )
BOARD OF ELECTIONS; )
ALLEGHENY COUNTY BOARD OF )
ELECTIONS; ARMSTRONG )
COUNTY BOARD OF ELECTIONS; )
BEAVER COUNTY BOARD OF )
ELECTIONS; BEDFORD COUNTY )
BOARD OF ELECTIONS; BERKS )
COUNTY BOARD OF ELECTIONS; )
BLAIR COUNTY BOARD OF )
ELECTIONS; BRADFORD COUNTY )
BOARD OF ELECTIONS; BUCKS )
COUNTY BOARD OF ELECTIONS; )
BUTLER COUNTY BOARD OF )
ELECTIONS; CAMBRIA COUNTY )
BOARD OF ELECTIONS; CAMERON )
COUNTY BOARD OF ELECTIONS; )
CARBON COUNTY BOARD OF )
ELECTIONS; CENTRE COUNTY )
BOARD OF ELECTIONS; CHESTER )
COUNTY BOARD OF ELECTIONS; )
CLARION COUNTY BOARD OF )
ELECTIONS; CLEARFIELD )
COUNTY BOARD OF ELECTIONS; )
CLINTON COUNTY BOARD OF )
ELECTIONS; COLUMBIA COUNTY )
BOARD OF ELECTIONS; )
CRAWFORD COUNTY BOARD OF )
ELECTIONS; CUMBERLAND )
COUNTY BOARD OF ELECTIONS; )
DAUPHIN COUNTY BOARD OF )
ELECTIONS; DELAWARE COUNTY )
BOARD OF ELECTIONS; ELK )
COUNTY BOARD OF ELECTIONS; )
ERIE COUNTY BOARD OF )
ELECTIONS; FAYETTE COUNTY )
BOARD OF ELECTIONS; FOREST )
COUNTY BOARD OF ELECTIONS; )
FRANKLIN COUNTY BOARD OF )
ELECTIONS; FULTON COUNTY )
BOARD OF ELECTIONS; GREENE )
COUNTY BOARD OF ELECTIONS; )
HUNTINGDON COUNTY BOARD )
OF ELECTIONS; INDIANA COUNTY )
BOARD OF ELECTIONS; )
JEFFERSON COUNTY BOARD OF )
ELECTIONS; JUNIATA COUNTY )
BOARD OF ELECTIONS; )
LACKAWANNA COUNTY BOARD )
OF ELECTIONS; LANCASTER )
COUNTY BOARD OF ELECTIONS; )
LAWRENCE COUNTY BOARD OF )
ELECTIONS; LEBANON COUNTY )
BOARD OF ELECTIONS; LEHIGH )
COUNTY BOARD OF ELECTIONS; )
LUZERNE COUNTY BOARD OF )
ELECTIONS; LYCOMING COUNTY )
BOARD OF ELECTIONS; MCKEAN )
COUNTY BOARD OF ELECTIONS; )
MERCER COUNTY BOARD OF )
ELECTIONS; MIFFLIN COUNTY )
BOARD OF ELECTIONS; MONROE )
COUNTY BOARD OF ELECTIONS; )
MONTGOMERY COUNTY BOARD )
OF ELECTIONS; MONTOUR )
COUNTY BOARD OF ELECTIONS; )
NORTHAMPTON COUNTY BOARD )
 OF ELECTIONS; )
NORTHUMBERLAND COUNTY )
BOARD OF ELECTIONS; PERRY )
COUNTY BOARD OF ELECTIONS; )
PHILADELPHIA COUNTY BOARD )
OF ELECTIONS; PIKE COUNTY )
BOARD OF ELECTIONS; POTTER )
COUNTY BOARD OF ELECTIONS; )
SCHUYLKILL COUNTY BOARD OF )
ELECTIONS; SNYDER COUNTY )
BOARD OF ELECTIONS; )
SOMERSET COUNTY BOARD OF )
ELECTIONS; SULLIVAN COUNTY )
BOARD OF ELECTIONS; )
SUSQUEHANNA COUNTY BOARD )
OF ELECTIONS; TIOGA COUNTY )
BOARD OF ELECTIONS; UNION )
COUNTY BOARD OF ELECTIONS; )
VENANGO COUNTY BOARD OF )
ELECTIONS; WARREN COUNTY )
BOARD OF ELECTIONS; )
WASHINGTON COUNTY BOARD )
OF ELECTIONS; WAYNE COUNTY )
BOARD OF ELECTIONS; )
WESTMORELAND COUNTY )
BOARD OF ELECTIONS; WYOMING )
COUNTY BOARD OF ELECTIONS; )
and YORK COUNTY BOARD OF )
ELECTIONS, )
)
Respondents. )
)

NOTICE

YOU HAVE BEEN SUED IN COURT. If you wish to defend against the
claims set forth in the following pages, you must take action within twenty (20) days
after this Petition for Review and Notice are served, or within any other timeframe
as ordered by the Court, by entering a written appearance personally or by attorney
and filing in writing with the Court your defenses or objections to the claims set forth
against you. You are warned that if you fail to do so the case may proceed without
you and a judgment may be entered against you by the Court without further notice
for any money claimed in the Complaint or for any other claim or relief requested
by the Petitioners. You may lose money or property or other rights important to you.

YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF

YOU DO NOT HAVE A LAWYER, GO TO OR TELEPHONE THE OFFICE SET
FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION
ABOUT HIRING A LAWYER.

IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY

BE ABLE TO PROVIDE YOU WITH INFOMRATION ABOUT AGENCIES
THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A
REDUCED FEE OR NO FEE.

Dauphin County Lawyer Referral Service

213 North Front Street
Harrisburg, Pennsylvania 17101
(717) 232-7536
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

DONALD J. TRUMP FOR )

PRESIDENT, INC.; et al., )
)
Petitioners, )
)
v. ) No. ________ MD 2020
)
KATHY BOOCKVAR, et al., )
)
Respondents. )

PETITION FOR REVIEW

IN THE NATURE OF A COMPLAINT IN EQUITY

Petitioners, Donald J. Trump for President, Inc., and the Republican National

Committee (hereinafter collectively referred to as “Petitioners”), respectfully file

this Petition for Declaratory and Injunctive Relief against Respondent Kathy

Boockvar in her official capacity as Secretary of the Commonwealth of

Pennsylvania (hereinafter referred to as “Secretary Boockvar”), and each of the 67

Pennsylvania County Boards of Elections (hereinafter referred collectively with

Secretary Boockvar as “Respondents”), and in support thereof, aver as follows.

INTRODUCTION

1. On Sunday, November 1, 2020, two days before the date of the general

election on November 3, 2020 and before pre-canvassing was scheduled to begin in

each of the 67 Counties at 7:00 a.m. on Election Day on November 3, 2020

Respondent, Secretary Kathy Boockvar published and delivered yet one more
guidance letter contradicting the Election Code. This new flagrant attack on the

legislature’s authority was sent to every county in the Commonwealth of

Pennsylvania. See “CANVASSING SEGREGATED MAIL-IN AND CIVILIAN

ABSENTEE BALLOTS RECEIVED BY MAIL AFTER 8:00 P.M. ON

TUESDAY, NOVEMBER 3, 2020 AND BEFORE 5:00 P.M. ON FRIDAY,

NOVEMBER 6, 2020,” dated November 1, 2020, version 1.0 (available online at

https://www.dos.pa.gov/VotingElections/OtherServicesEvents/Documents/Canvass

ing-Segregated-Ballot-Guidance.pdf and hereinafter referred to as “November 1,

2020 Guidance”, a true and correct copy of which is attached hereto as Exhibit 1).

2. In this guidance, Secretary Boockvar re-writes the Election Code by

sua sponte resetting the deadline for absentee and mail-in voters to provide missing

proof of identification. She unilaterally extends it the “sixth day following the

canvassing, or on or before Thursday, November 12”. See Exhibit 1 at p. 3.

3. However, Section 1308(h) of Pennsylvania’s Election Code, codified

at 25 P.S. § 3146.8(h), requires that if a voter’s identification is not received and

verified “by the sixth day following the election”, those ballots “shall not be

counted.” See 25 P.S. § 3146.8(h)(2) & (3) (emphases added).

4. As it pertains to the November 3, 2020 General Election, this deadline

is Monday, November 9, 2020. The Secretary’s unlawful guidance seeks to extend

this by three days to November 12, 2020.

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 5. For these reasons, Petitioners seek declaratory relief that the November

1, 2020 guidance is in contravention of the clear requirements of Section 1308(h) of

the Election Code, and preliminary, special, and/or permanent injunctive relief

directing the County Boards of Elections to adhere to these provisions of the Election

Code Section 1308(h) and not count those absentee and mail-in ballots of voters

whose identification is not received and verified by November 9, 2020.

STATEMENT OF JURISDICTION

6. This Court has original jurisdiction over this action pursuant to 42

Pa.C.S. § 761(a)(1).

PARTIES SEEKING RELIEF

7. Petitioner, Donald J. Trump for President, Inc. (hereinafter, the “Trump

Campaign”), is the principal committee for the reelection campaign of Donald J.

Trump, the 45th President of the United States of America (hereinafter, “President

Trump”). President Trump is the Republican nominee for the office of the President

of the United States of America in the ongoing General Election. The Trump

Campaign brings this action for itself and on behalf of its candidate, President

Trump. President Trump is a “candidate” as that term is defined in Election Code

Section 102(a), codified at 25 P.S. §§ 2602(a). See Rowland v. Smith, 83 Pa. D. &

C. 99, 101-2 (Pa. Ct. Com. Pl. Dauphin 1952) (“candidate” under the Election Code

includes one who is a candidate for nomination for President of the United States).

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As a political committee for a federal candidate, the Trump Campaign has Article

III standing to bring this action. See, e.g., Orloski v. Davis, 564 F. Supp. 526, 530-

31 (M.D. Pa. 1983). See also Tex. Democratic Party v. Benkiser, 459 F.3d 582, 587-

588 (5th Cir. 2006) (“after the primary election, a candidate steps into the shoes of

his party, and their interests are identical.”); In re General Election-1985, 531 A.2d

836, 838 (Pa. Commw. Ct. 1987) (a candidate for office in the election at issue

suffers a direct and substantial harm sufficient for standing to contest the manner in

which an election will be conducted).

8. Petitioner, Republican National Committee (hereinafter, the “RNC”) is

a national political committee that leads the Republican Party of the United States

(hereinafter, the “Republican Party”). The RNC works to elect Republican

candidates to state and federal offices throughout the United States, including in the

Commonwealth of Pennsylvania, and it organizes and operates the Republican

National Convention through which its members nominate their candidates for

President and Vice President of the United States. The Republican Party includes

over thirty million (30,000,000) registered Republicans in all fifty (50) states, the

District of Columbia, and the U.S. territories, and constitutes a “political party” as

that term is defined in Election Code Section 801, 25 P.S. § 2831. The RNC brings

this action for itself, the Republican Party, all of its members, all registered

Republican voters, and all nominated Republican candidates in the November 3,

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2020 General Election in the Commonwealth of Pennsylvania. As a political

committee, the RNC has Article III standing to bring this action. See, e.g., Sandusky

County Democratic Party v. Blackwell, 387 F.3d 565, 573-74 (6th Cir. 2004); Pa.

Democratic Party v. Republican Party of Pa., 2016 U.S. Dist. LEXIS 153944, at *8-

9 (E.D. Pa. Nov. 7, 2016); Democratic Exec. Comm. v. Detzner, 347 F. Supp. 3d

1017, 1025 (N.D. Fl. 2018); Orloski, 564 F. Supp. at 530-31.

9. Respondent, Secretary Boockvar is the Secretary of the

Commonwealth. In this role, Secretary Boockvar leads the Pennsylvania

Department of State. As Secretary, she is Pennsylvania’s Chief Elections Officer

and a member of the Governor’s Executive Board. The Pennsylvania Constitution

vests no powers or duties in Secretary Boockvar as they relate to the administration

of elections. Perzel v. Cortes, 870 A.2d 759, 764 (Pa. 2005). Instead, her general

powers and duties concerning elections are set forth in Election Code Section 201,

codified at 25 P.S. § 2621. Under the Election Code, Secretary Boockvar acts

primarily in a ministerial capacity and has no power or authority to intrude upon the

province of the Pennsylvania General Assembly. Perzel, 870 A.2d at 764; Hamilton

v. Johnson, 141 A. 846, 847 (Pa. 1928). Secretary Boockvar is sued in her official

capacity.

10. Adams County Board of Elections, Allegheny County Board of

Elections, Armstrong County Board of Elections, Beaver County Board of Elections,

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Bedford County Board of Elections, Berks County Board of Elections, Blair County

Board of Elections, Bradford County Board of Elections, Bucks County Board of

Elections, Butler County Board of Elections, Cambria County Board of Elections,

Cameron County Board of Elections, Carbon County Board of Elections, Centre

County Board of Elections, Chester County Board of Elections, Clarion County

Board of Elections, Clearfield County Board of Elections, Clinton County Board of

Elections, Columbia County Board of Elections, Crawford County Board of

Elections, Cumberland County Board of Elections, Dauphin County Board of

Elections, Delaware County Board of Elections, Elk County Board of Elections, Erie

County Board of Elections, Fayette County Board of Elections, Forest County Board

of Elections, Franklin County Board of Elections, Fulton County Board of Elections,

Greene County Board of Elections, Huntingdon County Board of Elections, Indiana

County Board of Elections, Jefferson County Board of Elections, Juniata County

Board of Elections, Lackawanna County Board of Elections, Lancaster County

Board of Elections, Lawrence County Board of Elections, Lebanon County Board

of Elections, Lehigh County Board of Elections, Luzerne County Board of Elections,

Lycoming County Board of Elections, McKean County Board of Elections, Mercer

County Board of Elections, Mifflin County Board of Elections, Monroe County

Board of Elections, Montgomery County Board of Elections, Montour County Board

of Elections, Northampton County Board of Elections, Northumberland County

-6-
Board of Elections, Perry County Board of Elections, Philadelphia County Board of

Elections, Pike County Board of Elections, Potter County Board of Elections,

Schuylkill County Board of Elections, Snyder County Board of Elections, Somerset

County Board of Elections, Sullivan County Board of Elections, Susquehanna

County Board of Elections, Tioga County Board of Elections, Union County Board

of Elections, Venango County Board of Elections, Warren County Board of

Elections, Washington County Board of Elections, Wayne County Board of

Elections, Westmoreland County Board of Elections, Wyoming County Board of

Elections, and York County Board of Elections (collectively hereinafter, the

“County Election Boards”), are the county boards of elections in and for each county

of the Commonwealth of Pennsylvania as provided by Election Code Section 301,

codified at 25 P.S. § 2641. The County Election Boards “have jurisdiction over the

conduct of primaries and elections in such count[ies], in accordance with the

provision of [the Election Code.]” Id. at § 2641(a). The County Election Boards’

general powers and duties are set forth in Election Code Section 302, codified at 25

P.S. § 2642. The County Election Boards are executive agencies that carry out

legislative mandates, and their duties concerning the conduct of elections are purely

ministerial with no exercise of discretion

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 FACTUAL BACKGROUND

11. Yesterday, the November 3, 2020 General Election was held across the

United States, with many states having already declared the winners in their

jurisdictions.

12. However, in Pennsylvania, we are days away from being able to declare

the results of the election. This is largely the result of the fact that absentee and

mail-in ballots are still being pre-canvassed and counted. Once the pre-canvassing

process is completed for those ballots received by the County Boards of Election

prior to Election Day on November 3, 2020, the Counties will then begin their

canvassing process.

13. While the Counties continue their pre-canvass and canvassing

processes today and into the following days, absentee and mail-in ballots are still

currently being received and, under the Pennsylvania Supreme Court’s September

17, 2020 decision, issued in Pennsylvania Democratic Party v. Boockvar, No. 133

MM 2020, 2020 Pa. LEXIS 4872 (Pa., Sept. 17, 2020),1 and may be received until

5 p.m. on Friday, November 6, 2020, if postmarked by November 3, 2020.

1
The Pennsylvania Supreme Court’s decision as it relates to the 3-day extension of
the absentee and mail-in ballot return date is pending before the United States
Supreme Court via a petition for certiorari filed on October 23, 2020. See
Republican Party of Pennsylvania v. Kathy Boockvar, Secretary of Pennsylvania,
Case No. 20-542 (U.S.).
-8-
 14. Just two days before Election Day on Sunday, November 1, 2020,

Secretary Boockvar issued directions to each of the 67 County Boards of Elections

stating, in relevant part:

[I]f county board of elections should not open or count any

of the following specific types of ballots pending further
review as follows:
If proof of identification for an absentee or mail-in voter
was not received or could not be verified, the ballot should
not be counted unless the elector provides proof of
identification that can be verified by the county board by
the sixth calendar day following the canvassing, or on or
before Thursday, November 12.

See Exhibit 1, at p. 3 (emphasis added).

15. These instructions directing the Counties to afford absentee and mail-

in voters extra time – 3 days beyond November 9, 2020, – to cure their failure to

provide proof of identification is in direct contravention of Pennsylvania’s Election

Code.

16. Section 1308 of Pennsylvania’s Election Code, codified section 25 P.S.

§ 3146.8(h), clearly and mandatorily provides:

For those absentee ballots or mail-in ballots for which

proof of identification has not been received or could not
be verified:

(1) (Deleted by amendment).

(2) If the proof of identification is received and verified

prior to the sixth calendar day following the election,
then the county board of elections shall canvass the

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 absentee ballots and mail-in ballots under this subsection
in accordance with subsection (g)(2).

(3) If an elector fails to provide proof of identification that

can be verified by the county board of elections by the
sixth calendar day following the election, then the
absentee ballot or mail-in ballot shall not be counted.

25 P.S. § 3146.8(h) (emphases added).

17. Subparts (2) and (3) of Election Code Section 1308(h) provides for a

six calendar day statutory period in which voters may satisfy proof of their identity

and is triggered by and expressly tied to election day. See id. (stating “following the

election”). These provisions are clear, unequivocal and mandatory.

18. The word “election” “shall mean any general, municipal, special or

primary election, unless otherwise specified.” See Election Code Section 102(f), 25

P.S. § 2602(f).

19. The words “general election” “shall mean the election which the

Constitution of this Commonwealth requires to be held in even-numbered years.”

See Election Code Section 102(h), 25 P.S. § 2602(h).

20. There can be no dispute that the “election,” as defined by Election

Section 102(f) for the 2020 General Election was Tuesday, November 3, 2020.

21. Election Code Section 103(e), codified at 25 P.S. § 2603(e), states in

full:

In determining or reckoning any period of time mentioned

in this act, the day upon which the act is done, paper filed,
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 or notice given, shall be excluded from, and the date of the
primary, election, hearing or other subsequent event, as the
case may be, shall be included in the calculation or
reckoning: Provided, however, That if the last day upon
which any act may be done, paper filed, or notice given,
shall fall on a Sunday or a legal holiday, the next following
ordinary business day shall be considered as the last day
for said purpose.

25 P.S. § 2603(e)

22. Thus, the six calendar day statutory period “following the election”

ends on Monday, November 9, 2020.

23. However, Secretary Boockvar’s November 1, 2020 guidance illegally

extends the six calendar day statutory period by another three days (for a total of a

nine day period) until November 12 by tying the commencement of the period to

“following the canvassing” instead of “following the election.”

24. There is nothing in Pennsylvania’s Election Code or elsewhere under

Pennsylvania law that permits Secretary Boockvar to rewrite our laws in this fashion.

25. The November 1, 2020 guidance violates the canvassing provisions of

the Election Code, specifically Section 1308 codified at Section 3146.8(h).

26. If Secretary Boockvar’s guidance is allowed to continue, it will

undoubtedly create a high risk of jeopardizing the integrity of the November 3, 2020

General Election by allowing for the counting and canvassing of absentee and mail-

in ballots by electors who fail to provide by November 9, 2020, the requisite proof

of identification, as mandated by the General Assembly.

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 27. Critically, the November 1, 2020 guidance will further delay the 67

County Boards of Elections’ abilities to finish the canvassing process and tabulation

of votes and cause the tabulation of ballots which, under the electoral scheme

enacted by the General Assembly, are determined “shall not be counted.” See 25

P.S. § 3146.8(h)(3).

28. While the rest of the country will know which candidates won in each

of the other states, Pennsylvanians may be forced to wait yet another several days

for the outcome of the election – all because of guidance that directly violates the

Election Code.

COUNT I
DECLARATORY AND SPECIAL INJUNCTIVE RELIEF

29. Petitioners incorporate the foregoing paragraphs as if fully set forth at

length.

30. Respondents have a duty to comply with the laws of the

Commonwealth of Pennsylvania.

31. “The Commonwealth expects that all officials charged with the duty of

guarding and computing the votes of qualified electors will obey the letter and spirit

of the applicable law in respect to that duty; only by such obedience to the law will

the possibility of fraud be reduced to a minimum.” Appeal of Simon, 353 Pa. 14, 46

A.2d 243, 245 (1946). The failure of the Respondents to comply with the plain

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requirements of Pennsylvania’s Election Code entitles Petitioners to the relief they

seek herein.

32. Petitioners have no adequate remedy at law to redress the harm as a

result of Respondents’ violation of the Pennsylvania Election Code.

33. Injunctive relief is necessary to prevent the substantial injury and

immediate and irreparable harm that Petitioners would suffer if Respondents are

permitted to violate the laws of the Commonwealth of Pennsylvania, specifically

Section 1308 of the Election, codified at 25 P.S. § 3146.8(h), by extending the six

calendar statutory period three days to November 12.

34. A greater injury would occur in refusing the injunction than granting it

because the Respondents are illegally and unilaterally extending the General

Election in Pennsylvania by yet another 3 days until November 12, 2020 by allowing

absentee and mail-in voters additional time beyond the six calendar day statutory

period “following the election” to provide missing proof of identification.

35. Respondents’ actions increase the risk of jeopardizing the integrity of

the November 3, 2020 general election.

WHEREFORE, Petitioners respectfully request entry of declaratory and

special injunctive and/or preliminary injunctive relief in their favor and against

Respondents prohibiting Respondents from permitting absentee and mail-in voters

an opportunity to provide missing proof of identification on or after November 8,

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2020 in direct contravention of the Pennsylvania Election Code, and/or from

prohibiting the Respondents from counting any absentee and mail-in ballots of

voters whose proof of identification was not received and verified by November 9,

2020.

Respectfully Submitted,

Dated: November 4, 2020 /s/ Ronald L. Hicks, Jr.

Ronald L. Hicks, Jr. (PA #49520)
Jeremy A. Mercer (PA #86480)
Carolyn B. McGee (PA #208815)
Six PPG Place, Third Floor
Pittsburgh, PA 15222
(412) 235-4500 (Telephone)
(412) 235-4510 (Fax)
[email protected]
[email protected]
[email protected]

Counsel for Petitioners

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 ATTORNEY VERIFICATION

I, Ronald L. Hicks, Jr., am authorized to make this verification. I verify that

the statements made in the foregoing document are true and correct to the best of

my knowledge, information and belief. I understand that the statements herein are

made subject to the penalties of perjury of 18 Pa.C.S. § 4904 relating to unsworn

falsification to authorities.

/s/ Ronald L. Hicks, Jr.

Ronald L. Hicks, Jr.
 CERTIFICATE OF COMPLIANCE

I certify that this filing complies with the provisions of the Case Records

Public Access Policy of the Unified Judicial System of Pennsylvania that require

filing confidential information and documents differently than non-confidential

information and documents.

/s/ Ronald L. Hicks, Jr.

Ronald L. Hicks, Jr.
PA Supreme Court No. 49520
EXHIBIT 1
 TLP: WHITE

CANVASSING SEGREGATED MAIL-IN AND CIVILIAN

ABSENTEE BALLOTS RECEIVED BY MAIL AFTER 8:00 P.M. ON
TUESDAY, NOVEMBER 3, 2020 AND BEFORE 5:00 P.M. ON
FRIDAY, NOVEMBER 6, 2020

Date: November 1, 2020

Version: 1.0
On October 28, 2020, the Department of State issued guidance related to the segregation of mail-in and
civilian absentee ballots received by mail after 8:00 P.M. on Tuesday November 3, 2020 and before 5:00
P.M. on Friday, November 6, 2020. In doing so, the Department of State indicated it would update the
county boards of elections on how to canvass those segregated ballots. That guidance follows:

1. All directions in the guidance issued on October 28, 2020 concerning the segregation and
logging of ballots received during this defined post-election period continue to apply.
Specifically, mail-in and civilian absentee ballots received by mail after 8:00 P.M. on November 3
and before 5:00 P.M. on November 6 shall be identified and segregated from all other voted
ballots and shall be maintained, preserved and appropriately logged as directed in the October
28, 2020 guidance.

2. One authorized representative of each candidate in an election and one representative from
each political party shall be permitted to remain in the room in which the ballots are canvassed.

3. By statute, no challenges by authorized representatives or any third party are permitted during
canvass of the mail-in and absentee ballots.

4. To facilitate transparency and ensure that all validly cast ballots are counted, it is critically
important that county boards maintain accurate records of the disposition of ballots received
during this period as directed below.

Canvass Procedures

• Guidance concerning mail-in and absentee ballots previously provided by the

Department, including the guidance issued on August 19, 2020, September 11, 2020,
and September 28, 2020, continues to apply unless otherwise specified herein.

• The county board of elections shall canvass segregated absentee and mail-in ballots
received after 8:00 P.M. on Tuesday November 3, 2020, and before 5:00 P.M. on Friday,
November 6, 2020 as soon as possible upon receipt of the ballots and within the period
specified by law for the canvass. The canvass meeting shall continue until all segregated
absentee and mail-in ballots have been canvassed.

• The county board of elections shall examine the voter declaration on each envelope to
ensure that it is executed and signed and verify that the voter’s name appears on the
approved list of mail-in and absentee voters.

• The county board of elections should set aside and should not open or count any of the
following:

o Ballots cast by any voter who died prior to the opening of the polls on
November 3, 2020.

o Ballots containing a postmark that is after November 3, 2020.

o Ballots with a missing or illegible postmark containing a voter declaration

that is dated after November 3, 2020.

2
 o Ballots (whenever postmarked) received by mail after 5:00 P.M. on Friday,
November 6, 2020.

• Additionally, the county board of elections should not open or count any of the
following specific types of ballots pending further review as follows:

o If proof of identification for an absentee or mail-in voter was not received or

could not be verified, the ballot should not be counted unless the elector
provides proof of identification that can be verified by the county board by
the sixth calendar day following the canvassing, or on or before Thursday,
November 12.

o For ballots of voters whose applications were challenged prior to the

challenge deadline (5:00 P.M. on Friday, October 30, 2020), those ballots
should not be counted pending completion of the challenge procedure in
the Election Code. Ballot applications can only be challenged on the basis
that the applicant is not qualified to vote. Ballots associated with
applications timely challenged on this basis must be placed in a secure, safe,
and sealed container until the board of elections schedules a formal hearing
on the challenged ballots. The time set for the hearing shall be within three
(3) days after November 6. The hearing procedure shall comply with the
Election Code and shall be the same procedure for challenged ballots
received prior to 8:00 P.M. on Tuesday, November 3, 2020.

• Other than ballots falling into one of the categories set forth above, mail-in and civilian
absentee ballots that comply with the Election Code and the Department’s prior
guidance shall be canvassed as follows:

o Ballots with a postmark on or before November 3, 2020 are valid and must be
counted.

o Ballots that lack a postmark or other proof of mailing, or for which the postmark
or other proof of mailing is illegible, are presumed to have been mailed by
Tuesday, November 3, 2020, and are valid and must be counted, unless a
preponderance of the evidence demonstrates that the ballot was mailed after
November 3, 2020.

o County boards of elections are instructed to maintain separate counts for each
of the following categories of ballots: (i) ballots with a postmark on or before
November 3, 2020 which are counted; (ii) ballots without a postmark (or with an
illegible postmark) which are presumed to have been mailed prior to Election
Day and which are counted; and (iii) ballots without a postmark (or with an
illegible postmark) which are determined by a preponderance of the evidence to
have been mailed after Election Day and which are not counted.

• Consistent with the Department’s prior guidance, county boards of elections are
instructed to set aside any ballots that lack the inner secrecy envelope and any ballots in