Previte v. Erie Cty. Bd. of Elec.

320 A.3d 908

Michelle PREVITE, Appellant

v.ERIE COUNTY BOARD OF ELECTIONS

No. 814 C.D. 2023

Commonwealth Court of Pennsylvania.

Argued April 10, 2024

Decided July 31, 2024

Appealed from No. 12720-2022, Common Pleas Court of the County of Erie, Erin Connelly Marucci, J.

Thomas E. Breth, Butler, for Appellant.

Jay R. Stranahan, Erie, for Appellee.

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge, HONORABLE PATRICIA A. McCullough, Judge, honorable ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE LORI A. DUMAS, Judge, HONORABLE MATTHEW S. WOLF, Judge

OPINION BY JUDGE CEISLER

Appellant Michelle Previte (Previte) appeals from the Court of Common Pleas of Erie County’s (Common Pleas) June 28, 2023 order. Through that order Common Pleas ruled, in relevant part, that the Pennsylvania Election Code (Election Code)¹ prevented Previte from using the Right-to-Know Law (RTKL)² to obtain digital images of absentee and mail-in ballots that had been cast in the 2020 General Election. After thorough review, we reverse Common Pleas’ order in part.

I. Background

On August 1, 2022, Previte submitted three RTKL request forms to Appellee Erie County Board of Elections (Board), through which she sought several kinds of records that pertained to the 2020 General Election. The first request was for "an electronic copy of the images of all mail-in ballots (including absentee ballots) from the November 2020 election" (Item 1). Reproduced Record (R.R.) at 47a. The second request was for "an electronic copy of the images of all outer envelopes (containing each voter’s declaration) for the mail-in ballots (including absentee ballots) from the November 2020 election" (Item 2). Id. at 48a. Finally, the third request was for "an electronic copy of the images of all polling place ballots from the November 2020 election" (Item 3). Id. at 49a. On August 2, 2022, the Board invoked its right to extend the deadline for responding to this request by 30 days. Id. at 43a.³ On September 2, 2022, the Board denied Previte’s request, because the sought-after documents were not public records, per Section 308 of the Election Code, 25 P.S. § 2648.⁴

Previte appealed this denial to the Office of Open Records (OOR), which issued a Final Determination on October 20, 2022. See id. at 82a-90a. Therein, OOR affirmed the Board with regard to Item 3 (polling place ballots), but reversed as to Items 1 and 2 (mail-in ballots; absentee ballots; and those ballots’ outer envelopes). Id. at 88a-89a.

The Board appealed OOR’s Final Determination to Common Pleas on November 18, 2022,⁵ which then held a de novo hearing on the matter on February 10, 2023.⁶ Thereafter, Common Pleas issued an order on June 28, 2023, through which it denied Previte’s request as to Items 1 and 2. Id. at 93a.⁷ In its accompanying opinion, Common Pleas explained that it had done so for two reasons. First, Previte had sought "images of ballots that, pursuant to the new voting system implemented in Pennsylvania for the November 2020 election, are electronically kept within the voting machines and stored as inseparable three-page documents." Id. at 6a (cleaned up). Common Pleas concluded that such images were the contents of voting machines and, thus, were shielded from RTKL requests by virtue of Section 308 of the Election Code. Id. Furthermore, Common Pleas stated Requester had failed to provide "any evidence showing that she is a quali- fied elector of [Erie C]ounty." Id. Thus, even if the requested records were otherwise subject to release, Requester did not have standing to request or obtain them from the Board. Id.

This appeal followed shortly thereafter.

II. Discussion

Previte offers several arguments for our consideration, which we reorder and summarize as follows. First, Common Pleas erred by raising the question of Previte’s standing on its own initiative and by failing to take judicial notice that Previte is a registered voter in Erie County. Previte’s Br. at 13-14. Second, Common Pleas erred by failing to recognize that Sections 1307-D(a)⁸ and 1309(a)⁹ of the Election Code designate images of absentee and mail-in ballots as public records. Id. at 8-10. Finally, digital images of cast absentee and mail-in ballots cannot be considered the contents of voting machines, so Common Pleas erred by ruling that such images where shielded from public disclosure by Section 308 of the Election Code. Id., at 10-13.

A. Previte’s Standing

[1–8] We agree with Previte that Common Pleas erred by addressing the issue of whether she had standing to request the aforementioned records. "Standing is a justiciability concern—a threshold requirement that must be established ‘prior to judicial resolution of a dispute.’ " Pa. State Educ. Ass'n v. Pub. Sch. Emps.’ Ret. Bd., — Pa, —, 311 A.3d 1017, 1028 (2024) (quoting Pittsburgh Palisades Park, LLC v. Com., 585 Pa. 196, 888 A.2d 655, 659 (2005)) (cleaned up). Generally speaking, a party must be "aggrieved" to have standing, in that the party must have an interest in the matter that is substantial, direct, and immediate. William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269, 282-83 (1975).

A substantial interest is one in which there is "some discernible adverse effect to some interest other than the abstract interest of all citizens in having others comply with the law." William Penn, 346 A.2d at 282. A "direct" interest requires a showing that the matter complained of causes harm to the party’s interest. Upper Bucks Cnty. Vocational-Tech. Sch. Educ. Ass'n v. Upper Bucks Cnty. Vocational-Tech. Sch. Joint Comm., 504 Pa. 418, 474 A.2d 1120 (1984). An "immediate" interest is something more than a "remote consequence" and centers on the causal nexus and proximity between the action complained of and the injury to the party challenging it. William Penn, 346 A.2d at 283; Skippack Cmty. Ambulance Ass'n, Inc. v. Twp. of Skippack, 111 Pa.Cmwlth. 515, 534 A.2d 563 (1987). The requirement that the interest be "immediate" is also met where it falls within the "zone of interests sought to be protected by the statute or constitutional guarantee in question." Upper Bucks Cnty., 474 A.2d at 1122. Finally, the rationale underlying the requirement that the party be "aggrieved" or "adversely affected" by the action at issue is to ensure that a legal challenge is made by the appropriate party.

Pittsburgh Tr. for Cultural Res. v. Zoning Bd. of Adjustment of City of Pittsburgh, 145 Pa.Cmwlth. 503, 604 A.2d 298, 303-04 (1992) (cleaned up). In matters such as this one, where an individual has filed an RTKL request with a county board of elections, Section 308 of the Election Code further restricts standing to seek such rec- ords to "any qualified elector of the county[.]" 25 P.S. § 2648.¹⁰ In other words, someone who is not a registered voter in a specific county does not have standing to seek records from that county’s elections board. See Honey v. Lycoming Cnty. Offs. of Voter Servs., 312 A.3d 942, 946 n.5 (Pa. Cmwlth. 2024).

[9] Even so, it is well settled that "standing is not a jurisdictional question." In re Paulmier, 594 Pa. 433, 937 A.2d 364, 368 (2007). Rather, it is a "prudential" concern that can be waived in the event an opposing party does not raise it at the earliest possible juncture. Pa, State Educ. Ass’n, 311 A.3d at 1028; Diop v. Bureau of Pro. & Occupational Affs., State Bd. of Cosmetology, 272 A.3d 548, 559 (Pa. Cmwlth. 2022). A court cannot step into the breach in instances where a party fails to challenge their opponent’s standing, and commits legal error if it elects to do so on its own motion. In re Gun Range, LLC, 311 A.3d 1242, 1248 (Pa. Cmwlth. 2024).

In this instance, the Board admits that it did not challenge Previte’s standing until March 30, 2023, when it submitted posthearing supplemental briefs. See Board's Br. at 30-32. The Board justifies this delay by asserting that "[s]tanding could not have been challenged until after the evidentiary record was closed[,]" ostensibly because Previte had failed to proactively offer proof at the February 10, 2023 hearing that she was a qualified elector in Erie County. See id. This argument is without merit. To state the obvious, the Board is the local agency that is responsible for administering elections in Erie County. See Section 301(a) of the Election Code, 25 P.S. § 2641(a). It therefore has actual or constructive knowledge of which registered voters reside within its domain. As such, there was nothing that should have impeded the Board’s power to question Previte’s elector status as early as its September 2, 2022 denial of her RTKL request, or its ability to raise that question either before OOR or at an earlier stage of the proceedings before Common Pleas. Furthermore, even if the Board did not have such actual or constructive knowledge, it still claims that Previte never asserted to Common Pleas that she was a qualified elector. This omission, which the Board dates to as early as December 8, 2022, certainly should have put the Board on notice that something may have been amiss about Previte’s elector status. Accordingly, the Board waived its ability to challenge Previte’s standing by failing to raise that issue at the earliest possible point, and Common Pleas erred by both disregarding that fact and instead reaching the merits of that question.

B. Public Records in the Context of Absentee Ballots and Mail-In Ballots

[10–12] Moving on, we also agree with Previte that Common Pleas erred by concluding that images of cast absentee and mail-in ballots are not public records that are subject to disclosure in response to an RTKL request. Generally speaking, the purpose of the RTKL is "to promote access to official government information in order to prohibit secrets, scrutinize the actions of public officials[,] and make public officials accountable for their actions." Off. of Governor v. Raffle, 65 A.3d 1105, 1107 n.1 (Pa. Cmwlth. ...