Poll watcher ruling

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PEDRO A. CORTÉS, in his capacity as
Secretary of the Commonwealth of
NO. 16-05524
PAPPERT, J. November 3, 2016
States have the power to regulate elections. The Pennsylvania Election Code, enacted in
1937, regulates the electoral process in the Commonwealth in numerous ways. This case focuses
on one specific Election Code provision, Section 2687(b), which requires poll watchers to be
qualified electors of the county in which they serve. In other words, voters appointed to serve as
poll watchers can perform that function only within the count y where they are registered to vote.
The Republican Party of Pennsylvania and eight duly qualified registered electors residing in
various counties within the Commonwealth (collectively “Plaintiffs”) sued Secretary of the
Commonwealth Pedro Cortés seeking to enjoin the enforcement of that geographic restriction.
Prior to 2004, Section 2687(b) required poll watchers to serve within a much narrower
areatheir election districts, or precincts. That year the Pennsylvania General Assembl y
amended the statute to allow poll watchers to work anywhere within their county, the current
geographic boundary. Plaintiffs now want the Court to effectively amend the Election Code
again and allow poll watchers to cross county lines and monitor voting anywhere in the
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Commonwealth. Indeed, there is a bill pending in the State House of Representatives which
would do just that, though the bill has languished in that body since January of 2015 without
making it to the House floor for a vote. Plaintiffs seek an immediate preliminary and then
permanent injunction which would “last until such time as the Legislature enacts remedial
legislation” that cures Section 2687(b)’s alleged constitutional defects. Specifically, Plaintiffs
contend that the provision violates their Fourteenth Amendment due process and equal protection
rights and their rights to free speech and association under the First Amendment.
Plaintiffs seek an extraordinary remedy. Because they have unreasonably delayed in
doing so, and because they cannot satisfy any of the requirements necessary for the grant of
injunctive relief, the Court denies the motion.
The United States Constitution reserves to the states the power to regulate elections. It
instructs that “[t]he Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress
may at any time by Law make or alter such Regulations, except as to the Places of chusing
Senators.” U.S. Const. art I, § 4. The states have long exercised this authority, “enact[ing]
comprehensive and sometimes complex election codes.” Anderson v. Celebrezze, 460 U.S. 780,
788 (1983).
In 1937, the Pennsylvania General Assembly crafted just such a comprehensive statutory
scheme: the Pennsylvania Election C ode. Under Section 2687 of the Code, candidates may
appoint two poll watchers to each election district in which they appear on the ballot. 25 P.S.
§ 2687(a). Political parties and political bodies
may also appoint up to three poll watchers per
Political body” and “political party” are separately defined. See 25 P.S. § 2831. Both entities nominate
candidates; the distinction between “parties” and “bodies” is the number of votes their candidates received in prior
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election district in which they have a candidate on the ballot. Id. Poll watchers are permitted
inside polling places “from the time that the election officers meet prior to the opening of the
polls . . . until the time that the counting of votes is complete and the district register and voting
check list is locked and sealed.” Id. § 2687(b). During voting, poll watchers may carry a list of
voters, and can “challenge any pe rson making application to vote and to require proof of his
qualifications.” Id. After voting is complete, poll watchers may remain in the polling place but
outside the enclosed space where ballots are counted and voting machines are canvassed. Id.
Poll watchers are permitted to participate in these activities partly in order to help “guard
the integrity of the vote.” Tiryak v. Jordan, 472 F. Supp. 822, 824 (E.D. Pa. 1979); see also (Tr.
of Prelim. Inj. Hr’g. (“Hr’g Tr.”), at 39:913). They also serve a decidedly partisan interest
assisting their party or candidate to keep track of who has voted to aid in “get out the vote”
Perhaps recognizing that the authority granted to poll watchers enables them to serve
this more partisan function, the Election Code pr ovides for their compensation by the candidates
or political parties. See 25 P.S. § 2687(c).
The creation and role of poll watchers is of course only one small part of the Election
Code’s regulatory framework. The Code also governs county boards of elections, district
election officers, election districts, polling places, elector qualifications, party organization, the
nomination process, ballot formats and quantities, the use of voting machines and other
general or municipal elections. If the candidates earned more than two percent of the votes, the entity i s a “party”; if
less, it is a “political body.” id.; see also Com. ex rel. MacElree v. Legree, 609 A.2d 155, 156 n.1 (Pa. 1992).
At the preliminary i njunction hearing, Jonathan Marks, Commissioner of the Commonwealth’s Bureau of
Commissions, Elections and Legislation, testified that in his experience, the “primary function” of poll watchers is
“to check off a list of names of . . . voters that they expect will vote for their party of their candidate,” and also noted
that “if . . . it gets late in the afternoon and certain voters haven’t show up, they may make calls [to targeted voters]
or contact somebody to make calls on their behalf.” ( Hr’g Tr., at 39:19); see also Cotz v. Mastroeni, 476 F. Supp.
2d 332, 345 (S.D.N.Y. 2007) (“Traditionally, poll watchers have a list of all the registered voters and they keep track
of those who voted.”).
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