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The Santa Clara County D.A.’s Office released this statement today:
County Undersheriff, Sheriff’s Captain, Local Businessman, and Apple’s Chief Security Officer Charged with Bribery for CCW Licenses
A grand jury has issued two indictments charging the Santa Clara County Undersheriff, a previously indicted sheriff’s captain, a local business owner, and the head of Global Security for Apple, Inc. with bribery. [Only the Sung/Chadha indictment seems to be linked here, but I’m trying to get a copy of the other indicment as well. -EV]
Undersheriff Rick Sung, 48, and Captain James Jensen, 43, are accused of requesting bribes for concealed firearms (CCW) licenses, while insurance broker Harpreet Chadha, 49, and Apple’s Chief Security Officer Thomas Moyer, 50, are accused of offering bribes to get them.
The defendants will be arraigned on January 11, 2021 at the Hall of Justice in San Jose. If convicted, the defendants could receive prison time.
DA Jeff Rosen said: “Undersheriff Sung and Captain Jensen treated CCW licenses as commodities and found willing buyers. Bribe seekers should be reported to the District Attorney’s Office, not rewarded with compliance.”
The two-year investigation by the District Attorney’s Office revealed that Undersheriff Sung, aided by Captain Jensen in one instance, held up the issuance of CCW licenses, refusing to release them until the applicants gave something of value.
In the case of four CCW licenses withheld from Apple employees, Undersheriff Sung and Cpt. Jensen managed to extract from Thomas Moyer a promise that Apple would donate iPads to the Sheriff’s Office. The promised donation of 200 iPads worth close to $70,000 was scuttled at the eleventh hour just after August 2, 2019, when Sung and Moyer learned of the search warrant that the District Attorney’s Office executed at the Sheriff’s Office seizing all its CCW license records.
In the case of the CCW license withheld from Harpreet Chadha, Sung managed to extract from Chadha a promise of $6,000 worth of luxury box seat tickets to a San Jose Sharks hockey game at the SAP Center on Valentine’s Day 2019. Sheriff Laurie Smith’s family members and some of her biggest political supporters held a small celebration of her re-election as Sheriff in the suite.
The various fees required to obtain a CCW license generally total between $200 and $400. Under state law, it is a crime to carry a concealed firearm without a CCW license. Although state law requires that the applicant demonstrate “good cause” for the license, in addition to completing a firearms course and having good moral character, the sheriff has broad discretion in determining who should qualify.
The may-issue states today are California, Connecticut, Delaware, Hawaii, Maryland, Massachusetts, New Jersey, New York, and Rhode Island (though I’ve heard mixed things on just how available permits are in Connecticut, Delaware, and Rhode Island). In 1986, this roughly 80%-20% split in favor of broad concealed carry rights was roughly 80%-20% in the opposite direction; one of the key gun control stories of the last 35 years has been the decontrol of concealed carry. Here is the Wikipedia map of the rules as of 2019, county-by-county; it seems generally right, though I can’t speak for all the details:
(“Constitutional carry” refers to concealed carry being allowed without a license; shall-issue refers to a regime where law enforcement is required to issue a license so long as the recipient is a law-abiding adult who satisfies some largely objective criteria.)
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From a report and recommendation by Magistrate Judge Debra C. Poplin (E.D. Tenn. Oct. 30) in Saidak v. Schmidt, just adopted Friday by Judge Jon P. McCalla.
The Complaint states that Plaintiff [Derek Saidak] formed a business venture in 2012 under the name “Legends Brass,” designing mouthpieces for trumpets and other brass wind instruments. Plaintiff entered into a manufacturing agreement with Pickett Brass to manufacture the mouthpieces that Plaintiff designed.
The Complaint states that Plaintiff later met Defendant [Michael Schmidt], an avid trumpet player, who became interested in Legends Brass’s products. Defendant expressed an interest in a custom mouthpiece, which Plaintiff designed and produced through Pickett Brass. As homage to Defendant, Plaintiff labeled the mouthpiece the “Outlaw.” [Apparently Schmidt had been known as the Outlaw Trumpet Player. -EV]
In addition, as further homage to Defendant, Plaintiff mentioned Defendant on Legends Brass’s website. The Complaint states, however, that Defendant did not design the Outlaw mouthpiece, or any other mouthpieces that were sold by Legends Brass and manufactured by Pickett Brass.
The Complaint states that Defendant became embroiled in a series of social media controversies involving third parties not related to Plaintiff or Legends Brass. As a result, however, Plaintiff dropped all references to Defendant on the Legends Brass website and on all promotional advertising for Legends Brass. The Complaint alleges that Defendant became upset at his omission on the Legends Brass website and its promotional advertising.
The Complaint avers that Defendant began a calculated campaign to defame, slander, and libel Plaintiff and Legends Brass…..
Plaintiff sued for libel, alleging that the defendant had called plaintiff “a crook, a thief and a dishonest Christian,” and seeking (among other remedies) a preliminary injunction—but the court said no:
While recognizing that a “modern rule” has developed carving out “a narrow and limited injunction” as an exception to the long-standing, traditional rule that “equity does not enjoin a libel or slander and that the only remedy for defamation is an action for damages,” the Court finds that such modern rule does not apply in this instance. Plaintiff’s reliance on Lothschuetz v. Carpenter (6th Cir. 1990) and Loden v. Schmidt (Tenn. Ct. App. 2015) in support of his request for a preliminary injunction is misplaced, because neither Lothschuetz nor Loden addressed the issue of whether a preliminary injunction should issue, but rather whether a permanent injunction should issue after false speech had been determined….
It is clear that where this “modern rule” has been followed, there has been an adjudication of the merits before a permanent injunction has issued, and the judge or jury has made a final determination that the statements to be enjoined are false and libelous. See, e.g., Williams v. Rigg (S.D. W. Va. 2020) (“Thus, the majority rule first requires a finding on the merits that such speech is unprotected before an injunction can be issued enjoining further speech. Otherwise, the injunction runs afoul of the First Amendment and constitutes a prior restraint on what might otherwise be lawful speech.”); Goodson v. Republican State Leadership Comm. – Judicial Fairness Initiative (E.D. Ark. Nov. 1, 2018) (“It appears wholly unprecedented, however, for a federal court to enter a preliminary injunction in a defamation case. In those defamation cases upholding the constitutionality of restraints on future speech, the injunctions were entered after the claims were adjudicated on the merits, and the injunctions were limited to the speech that was actually found to be defamatory by the fact-finder.”).
“In essence, Plaintiff seeks to bar further speech before a final adjudication on the merits concludes that the speech is unprotected.” In Williams, the Southern District of West Virginia addressed an analogous motion for a preliminary injunction brought by a military veteran (Williams), who had received a Congressional Medal of Honor, against the author (Rigg) with whom he allegedly collaborated with to write his biography, seeking to enjoin the defendant from selling the book. Although the plaintiff in Williams was a public figure, thus necessitating a different standard for defamation, the Southern District of West Virginia stated that “ruling on this preliminary injunction request would require this Court to pass judgment on the falsity of Rigg’s speech and the potential damage this speech may cause to Williams’ reputation,” and found that the “requested relief constitutes a direct encroachment upon the rights and guarantees embodies in the First Amendment of the United States Constitution.”
Here, … there has not been a final determination that any statements made by Defendant are false and defamatory, and the Court declines to make such a finding at this time. See Am. Univ. of Antigua Coll. of Med. v. Woodward (E.D. Mich. 2010) (“Where this ‘modern rule’ has been followed, there has been a full adjudication of the merits before an injunction has issued and the judge or jury has made a final determination that the statements to be enjoined are false and libelous.”)….
[Also], even if this Court later determines after such adjudication that an injunction is appropriate, Plaintiffs’ requested relief is overly broad, extending well beyond the allegedly defamatory statements posted by Defendant. Plaintiff seeks to prohibit Defendant, as well as any third-parties acting on Defendant’s behalf, from making any public statements regarding Plaintiff, his employer, the Church, or Legends Brass. Any injunction that may issue would have to be limited in scope to the statements found to be false and libelous. Renoir-Large v. Lane (S.D. Ohio 20, 2011). Accordingly, even assuming that Plaintiff could demonstrate a likelihood of success with respect to his claims and that the other applicable factors favor Plaintiff, the issuance of an injunction—at least prior to a full adjudication of the merits—is not an appropriate form of relief at this juncture….
Here, Plaintiff sets out three allegedly defamatory statements made by Defendant, i.e., calling Plaintiff a crook, a thief and a dishonest Christian. In order to be actionable, Defendant’s statements “must involve fact and not a matter of simple opinion.” “[S]tatements of pure opinion, hyperbole, or rhetorical exaggeration will receive First Amendment protection.” The Sixth Circuit has fashioned a framework for ascertaining whether a defamatory meaning can be gleaned from allegedly defamatory statements using a multi-factor test:
“(1) The common usage or meaning of the allegedly defamatory words themselves, whether they are commonly understood to be loose, figurative, or hyperbolic words;
“(2) The degree to which the statements are verifiable, whether the statement is objectively capable of proof or disproof;
“(3) The immediate context in which the statement occurs; and
“(4) The broader social context into which the statement fits.”
It will be up to the trier of fact to weigh these factors together and determine whether to attribute a defamatory meaning to Defendant’s statements. While Plaintiff could ultimately prevail on his claims, on the record currently before the Court, Plaintiff has not satisfied the first prong of the preliminary injunction test in making a clear showing that he is likely to succeed at trial.
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From a report and recommendation by Magistrate Judge Debra C. Poplin (E.D. Tenn. Oct. 30) in Saidak v. Schmidt, just adopted Friday by Judge Jon P. McCalla.
The Complaint states that Plaintiff [Derek Saidak] formed a business venture in 2012 under the name “Legends Brass,” designing mouthpieces for trumpets and other brass wind instruments. Plaintiff entered into a manufacturing agreement with Pickett Brass to manufacture the mouthpieces that Plaintiff designed.
The Complaint states that Plaintiff later met Defendant [Michael Schmidt], an avid trumpet player, who became interested in Legends Brass’s products. Defendant expressed an interest in a custom mouthpiece, which Plaintiff designed and produced through Pickett Brass. As homage to Defendant, Plaintiff labeled the mouthpiece the “Outlaw.” [Apparently Schmidt had been known as the Outlaw Trumpet Player. -EV]
In addition, as further homage to Defendant, Plaintiff mentioned Defendant on Legends Brass’s website. The Complaint states, however, that Defendant did not design the Outlaw mouthpiece, or any other mouthpieces that were sold by Legends Brass and manufactured by Pickett Brass.
The Complaint states that Defendant became embroiled in a series of social media controversies involving third parties not related to Plaintiff or Legends Brass. As a result, however, Plaintiff dropped all references to Defendant on the Legends Brass website and on all promotional advertising for Legends Brass. The Complaint alleges that Defendant became upset at his omission on the Legends Brass website and its promotional advertising.
The Complaint avers that Defendant began a calculated campaign to defame, slander, and libel Plaintiff and Legends Brass…..
Plaintiff sued for libel, alleging that the defendant had called plaintiff “a crook, a thief and a dishonest Christian,” and seeking (among other remedies) a preliminary injunction—but the court said no:
While recognizing that a “modern rule” has developed carving out “a narrow and limited injunction” as an exception to the long-standing, traditional rule that “equity does not enjoin a libel or slander and that the only remedy for defamation is an action for damages,” the Court finds that such modern rule does not apply in this instance. Plaintiff’s reliance on Lothschuetz v. Carpenter (6th Cir. 1990) and Loden v. Schmidt (Tenn. Ct. App. 2015) in support of his request for a preliminary injunction is misplaced, because neither Lothschuetz nor Loden addressed the issue of whether a preliminary injunction should issue, but rather whether a permanent injunction should issue after false speech had been determined….
It is clear that where this “modern rule” has been followed, there has been an adjudication of the merits before a permanent injunction has issued, and the judge or jury has made a final determination that the statements to be enjoined are false and libelous. See, e.g., Williams v. Rigg (S.D. W. Va. 2020) (“Thus, the majority rule first requires a finding on the merits that such speech is unprotected before an injunction can be issued enjoining further speech. Otherwise, the injunction runs afoul of the First Amendment and constitutes a prior restraint on what might otherwise be lawful speech.”); Goodson v. Republican State Leadership Comm. – Judicial Fairness Initiative (E.D. Ark. Nov. 1, 2018) (“It appears wholly unprecedented, however, for a federal court to enter a preliminary injunction in a defamation case. In those defamation cases upholding the constitutionality of restraints on future speech, the injunctions were entered after the claims were adjudicated on the merits, and the injunctions were limited to the speech that was actually found to be defamatory by the fact-finder.”).
“In essence, Plaintiff seeks to bar further speech before a final adjudication on the merits concludes that the speech is unprotected.” In Williams, the Southern District of West Virginia addressed an analogous motion for a preliminary injunction brought by a military veteran (Williams), who had received a Congressional Medal of Honor, against the author (Rigg) with whom he allegedly collaborated with to write his biography, seeking to enjoin the defendant from selling the book. Although the plaintiff in Williams was a public figure, thus necessitating a different standard for defamation, the Southern District of West Virginia stated that “ruling on this preliminary injunction request would require this Court to pass judgment on the falsity of Rigg’s speech and the potential damage this speech may cause to Williams’ reputation,” and found that the “requested relief constitutes a direct encroachment upon the rights and guarantees embodies in the First Amendment of the United States Constitution.”
Here, … there has not been a final determination that any statements made by Defendant are false and defamatory, and the Court declines to make such a finding at this time. See Am. Univ. of Antigua Coll. of Med. v. Woodward (E.D. Mich. 2010) (“Where this ‘modern rule’ has been followed, there has been a full adjudication of the merits before an injunction has issued and the judge or jury has made a final determination that the statements to be enjoined are false and libelous.”)….
[Also], even if this Court later determines after such adjudication that an injunction is appropriate, Plaintiffs’ requested relief is overly broad, extending well beyond the allegedly defamatory statements posted by Defendant. Plaintiff seeks to prohibit Defendant, as well as any third-parties acting on Defendant’s behalf, from making any public statements regarding Plaintiff, his employer, the Church, or Legends Brass. Any injunction that may issue would have to be limited in scope to the statements found to be false and libelous. Renoir-Large v. Lane (S.D. Ohio 20, 2011). Accordingly, even assuming that Plaintiff could demonstrate a likelihood of success with respect to his claims and that the other applicable factors favor Plaintiff, the issuance of an injunction—at least prior to a full adjudication of the merits—is not an appropriate form of relief at this juncture….
Here, Plaintiff sets out three allegedly defamatory statements made by Defendant, i.e., calling Plaintiff a crook, a thief and a dishonest Christian. In order to be actionable, Defendant’s statements “must involve fact and not a matter of simple opinion.” “[S]tatements of pure opinion, hyperbole, or rhetorical exaggeration will receive First Amendment protection.” The Sixth Circuit has fashioned a framework for ascertaining whether a defamatory meaning can be gleaned from allegedly defamatory statements using a multi-factor test:
“(1) The common usage or meaning of the allegedly defamatory words themselves, whether they are commonly understood to be loose, figurative, or hyperbolic words;
“(2) The degree to which the statements are verifiable, whether the statement is objectively capable of proof or disproof;
“(3) The immediate context in which the statement occurs; and
“(4) The broader social context into which the statement fits.”
It will be up to the trier of fact to weigh these factors together and determine whether to attribute a defamatory meaning to Defendant’s statements. While Plaintiff could ultimately prevail on his claims, on the record currently before the Court, Plaintiff has not satisfied the first prong of the preliminary injunction test in making a clear showing that he is likely to succeed at trial.
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It’s been a bad few days for Donald Trump’s lawyers, court cases, and political party. But has it been bad for the rest of us as well?
That’s the question dominating the second half of this week’s Reason Roundtable. The first 30 minutes are all about this year’s COVID-tainted Thanksgiving—recipes, serving strategies, tips for sidestepping political conversations, and grisly family traditions (including a “Cranberry Man” you cannot unhear). We also describe what we’re thankful for, in a very on-brand way.
Speaking of which: Got questions for Roundtable podcasters Nick Gillespie, Peter Suderman, Matt Welch, and Katherine Mangu-Ward? Please email them to podcasts@reason.com before December 1, and we will tackle them during our annual Webathon, which begins at the end of this month. You’ll be glad you did!
Audio production by Ian Keyser and Regan Taylor.
Music “Pizzi Waltz” by Kadir Demir.
Relevant links from the show:
“A Scathing Ruling Against the Trump Campaign Highlights the Gap Between Rudy Giuliani’s ‘Massive Fraud’ Claim and His Legal Arguments,” by Jacob Sullum
“Senator Pat Toomey (R-PA) Statement on Court Ruling in Trump v. Boockvar Is Worth Reading,” by Jonathan H. Adler
“Sidney Powell Now Claims Election Conspiracy Involved Republican Gov. Brian Kemp, Hillary Clinton, Bernie Sanders,” by Robby Soave
“Perils of Trump’s Conspiracy-Mongering About the Election,” by Ilya Somin
“Can We Please Be Done with This Already?” by Sasha Volokh
“‘This Election Is a Joke,’ Insists Libertarian-Leaning Congressman Andy Biggs,” by Matt Welch
“As Trump’s Election Conspiracy Theories Get Crazier, Some Republicans Are Finally Backing Away,” by Eric Boehm
“Voters Wisely Chose Divided Federal Government,” by Steven Greenhut
“The Voters Eschewed Extremism on Election Day,” by Veronique de Rugy
“New York’s COVID-19 Microcluster Whac-A-Mole Game,” by Josh Blackman
“Andrew Cuomo’s Emmy Award for His COVID-19 Briefings Is a Disgusting Prioritization of Style Over Substance,” by Christian Britschgi
“More Cops Say They Won’t Enforce Coronavirus Curfews,” by Elizabeth Nolan Brown
“Why the Hell Don’t We Have Enough Damned COVID-19 Tests After 8 Months of the Pandemic?” by Ronald Bailey
“Gavin Newsom’s French Laundry Outing Crystallizes the Arrogance of COVID-19 Dictators,” by Jacob Sullum
“Another Wave of Business Closures Devastates the Suffering Restaurant Industry,” by Christian Britschgi
“Coronavirus Curfews Are Trending Again, Despite Total Lack of Evidence They Help,” by Elizabeth Nolan Brown
“Why Libertarians Should Want More Trust in Government,” by Nick Gillespie
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It’s been a bad few days for Donald Trump’s lawyers, court cases, and political party. But has it been bad for the rest of us as well?
That’s the question dominating the second half of this week’s Reason Roundtable. The first 30 minutes are all about this year’s COVID-tainted Thanksgiving—recipes, serving strategies, tips for sidestepping political conversations, and grisly family traditions (including a “Cranberry Man” you cannot unhear). We also describe what we’re thankful for, in a very on-brand way.
Speaking of which: Got questions for Roundtable podcasters Nick Gillespie, Peter Suderman, Matt Welch, and Katherine Mangu-Ward? Please email them to podcasts@reason.com before December 1, and we will tackle them during our annual Webathon, which begins at the end of this month. You’ll be glad you did!
Audio production by Ian Keyser and Regan Taylor.
Music “Pizzi Waltz” by Kadir Demir.
Relevant links from the show:
“A Scathing Ruling Against the Trump Campaign Highlights the Gap Between Rudy Giuliani’s ‘Massive Fraud’ Claim and His Legal Arguments,” by Jacob Sullum
“Senator Pat Toomey (R-PA) Statement on Court Ruling in Trump v. Boockvar Is Worth Reading,” by Jonathan H. Adler
“Sidney Powell Now Claims Election Conspiracy Involved Republican Gov. Brian Kemp, Hillary Clinton, Bernie Sanders,” by Robby Soave
“Perils of Trump’s Conspiracy-Mongering About the Election,” by Ilya Somin
“Can We Please Be Done with This Already?” by Sasha Volokh
“‘This Election Is a Joke,’ Insists Libertarian-Leaning Congressman Andy Biggs,” by Matt Welch
“As Trump’s Election Conspiracy Theories Get Crazier, Some Republicans Are Finally Backing Away,” by Eric Boehm
“Voters Wisely Chose Divided Federal Government,” by Steven Greenhut
“The Voters Eschewed Extremism on Election Day,” by Veronique de Rugy
“New York’s COVID-19 Microcluster Whac-A-Mole Game,” by Josh Blackman
“Andrew Cuomo’s Emmy Award for His COVID-19 Briefings Is a Disgusting Prioritization of Style Over Substance,” by Christian Britschgi
“More Cops Say They Won’t Enforce Coronavirus Curfews,” by Elizabeth Nolan Brown
“Why the Hell Don’t We Have Enough Damned COVID-19 Tests After 8 Months of the Pandemic?” by Ronald Bailey
“Gavin Newsom’s French Laundry Outing Crystallizes the Arrogance of COVID-19 Dictators,” by Jacob Sullum
“Another Wave of Business Closures Devastates the Suffering Restaurant Industry,” by Christian Britschgi
“Coronavirus Curfews Are Trending Again, Despite Total Lack of Evidence They Help,” by Elizabeth Nolan Brown
“Why Libertarians Should Want More Trust in Government,” by Nick Gillespie
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The recent announcement by the Standard and Poor’s 500 Index that Tesla Inc. would join the index of large U.S. stocks is the latest reminder of the importance of immigrants to America’s success.
Tesla’s founder and CEO, Elon Musk, is now the third-richest person in the world, according to the Bloomberg Billionaires Index. Musk was born in South Africa but eventually came to the United States via Canada.
People may complain about Musk’s erratic tweets or the share of his company’s revenues that come from reselling regulatory credits. Even discounting for all that, though, what he has done with Tesla is a remarkable achievement. People who can afford to drive Mercedes-Benz cars or other luxury gas-powered vehicles are voluntarily (okay, with nudges of government subsidies in some cases, but more or less voluntarily) trading them in for cars from a new entrant to the market. They are doing so in such numbers as to make Musk and other Tesla shareholders extremely wealthy. In the third quarter of 2020—amid a global pandemic—Tesla produced 145,036 vehicles. Tesla’s market capitalization now exceeds that of much older companies such as JPMorganChase & Co., Coca-Cola Co., or McDonald’s Corp.
Nor is Musk an exception when it comes to America’s most valuable companies being led by immigrants. Microsoft’s CEO, Satya Nadella, is originally from Hyderabad, India. Alphabet, the parent company of Google, was co-founded by an immigrant from Russia, Sergey Brin. The current CEO of Alphabet is Sundar Pichai, who was born in Chennai, India, and came to the U.S. to study at Stanford and Wharton.
Some big companies that aren’t immigrant success stories are children-of-immigrant success stories. Abdulfattah Jandali was a Syrian professor of political science who came to America and gave his son up for adoption; the son became Apple founder and CEO Steve Jobs. Amazon founder and CEO Jeff Bezos is the son of an immigrant to the U.S. from Cuba.
All this is worth thinking about now as an incoming presidential administration looks at how it might support economic growth amid the effects of the pandemic. Joe Biden’s temptation will be to try to handle this via executive order, as President Obama did with the Deferred Action for Childhood Arrivals program and as President Trump did with rolling it back.
But if Republicans are to do a proper reckoning with where Trump went wrong, part of it has to be a clear-eyed look at the mixed signals he sent on immigration. At moments, such as the naturalization ceremony staged at the Republican National Convention, Trump welcomed immigrants. The more dominant message, though, was that immigrants, especially illegal immigrants and refugees, were a threat—”rapists.” Some of that was press bias, seizing on Trump’s negative statements and ignoring the positive ones. But the signals were clear enough from the policies of building the wall, reducing refugee admissions, and separating children from parents at the border.
As Matthew Yglesias writes in an excellent new book, One Billion Americans: The Case for Thinking Bigger, U.S. immigration policy needn’t be “an act of kindness toward strangers.” Rather, it can be “a strategy for national growth and national greatness.”
With more people, America will have more innovative, job-creating companies like Apple and Tesla and Alphabet and Amazon.
A recently retired CEO recalled the other day that during a visit to China he had tried to curry favor by telling his hosts that with the talent of 1.4 billion people to draw on, China would be formidable. The Chinese interlocutor had replied, wisely, that the U.S. could draw on the best talents of the world’s 7-and-a-half billion people.
Musk is but one example.
The best way for Senate Republicans to put the Trump era behind them would be to work with Biden on immigration legislation that will throw open America’s doors to the next generation of immigrant and child-of-immigrant entrepreneurs. They are worthy descendants of the Thanksgiving Pilgrims.
What those new innovators will invent is impossible to imagine, but anyone with retirement savings in an S&P 500 Index fund—and anyone invested in the future of the United States—will want it to happen here.
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From Justice Christine Donohue’s 3-Justice plurality opinion today (joined by Justices Max Baer and Debra Todd) in In re: Canvass of Absentee & Mail-In Ballots (Appeal of: Donald J. Trump for President, Inc.):
These appeals present the question of whether the Election Code requires a county board of elections to disqualify mail-in or absentee ballots submitted by qualified electors who signed the declaration on their ballot’s outer envelope but did not handwrite their name, their address, and/or a date, where no fraud or irregularity has been alleged. Pursuant to our longstanding jurisprudence, central to the disposition of these appeals is whether the information is made mandatory by the Election Code or whether the inclusion of the information is directory, i.e., a directive from the Legislature that should be followed but the failure to provide the information does not result in invalidation of the ballot….
[W]e conclude that the Election Code does not require boards of elections to disqualify mail-in or absentee ballots submitted by qualified electors who signed the declaration on their ballot’s outer envelope but did not handwrite their name, their address, and/or date, where no fraud or irregularity has been alleged….
Justice David Wecht concurred in part but dissented as to how such matters should be dealt with in the future:
I agree with the conclusion that no mail-in or absentee ballot should be set aside solely because the voter failed to hand print his or her name and/or address on the declaration form on the ballot mailing envelope. These items are prescribed not by statute but by the Secretary of the Commonwealth under legislatively delegated authority. Absent evidence of legislative intent that what in context amounts to redundant information must be furnished to validate a mail ballot, their omission alone should not deny an elector his or her vote. But I part ways with the conclusion reflected in the Opinion Announcing the Judgment of the Court (“OAJC”) that a voter’s failure to comply with the statutory requirement that voters date the voter declaration should be overlooked as a “minor irregularity.” …
[I]n future elections, I would treat the date and sign requirement as mandatory in both particulars, with the omission of either item sufficient without more to invalidate the ballot in question. However, under the circumstances in which the issue has arisen, I would apply my interpretation only prospectively. So despite my reservations about the OAJC’s analysis, I concur in its disposition of these consolidated cases….
And Justices Kevin Dougherty, Thomas G. Saylor, and Sallie Updyke Mundy concurred in part and dissented in part:
I concur in the decision to affirm the lower courts’ orders pertaining to ballots where the qualified electors failed to print their name and/or address on the outer envelope containing their absentee or mail-in ballots. However, I cannot agree that the obligation of electors to set forth the date they signed the declaration on that envelope does not carry “weighty interests.” I therefore respectfully dissent from the holding at Section III(2) of the OAJC which provides that the undated ballots may be counted….
I can’t opine on the merits of the matter, since I’m not up on the relevant Pennsylvania law (and this is a question of state law, not of the U.S. Constitution); but I thought I’d pass along the opinions. Thanks to Howard Bashman (How Appealing) for the pointer.
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