PA Shows Why Courts Shouldn’t Dismiss Cases When Voting Ends

Voting in the 2024 presidential election may have ended more than a month ago, but a recent court decision that arose in Pennsylvania over electioneering at polling places will prohibit such unlawful behavior for years to come.

During the 2024 election in Pennsylvania, Democrats started appearing outside election offices across the Commonwealth, wearing badges that read “PA DEMS VOTER PROTECTION,” with “Paid For By The Pennsylvania Democratic Party” printed below, eyewitnesses say.

A website recruiting these volunteers claimed they needed to “assist voters outside Boards of Election and satellite locations during early voting.” The nature of the assistance and the need for protection of voters near election offices remains unclear. But because Pennsylvania law does not prevent electioneering outside of offices, absent harassment or interference, the badges were permissible. 

On Election Day, the Republican National Committee received reports of people in polling places all over the Commonwealth wearing the same badges. But under Pennsylvania law, polling places, unlike outside offices, should be completely free of electioneering. Additionally, the Pennsylvania Department of State had issued guidance defining prohibited electioneering to include wearing “partisan apparel or buttons.”

The RNC had trained poll watchers in place across the state along with volunteer lawyers schooled in election law. Immediate communication with election officials ensured the badges were swiftly contained and removed in all but the stubbornly Democrat-controlled counties of Allegheny and Philadelphia. 

RNC lawyers brought the issue to an Allegheny Common Pleas Court judge, who issued an order banning these partisan badges from local polling places. Unfortunately, a Philadelphia judge saw the matter differently and condoned the behavior.

In Philadelphia, the RNC presented evidence from three different witnesses who observed Democrats wearing the badges in polling places. Attorneys for the Pennsylvania Democratic Party argued that the badges were not electioneering, that they had tried to ask their people to hide the badges under clothing, and that it would be disruptive to ask their poll watchers to abide by a court order. The Democratic Party also argued that the print on the badges bearing the partisan wording was in a small font.

The Philadelphia judge agreed with the Democrats and allowed the electioneering. The RNC appealed, even though Election Day ended.

The Merits of Hearing a ‘Moot’ Case

More than 100 years ago, the U.S. Supreme Court decided a case wherein the Interstate Commerce Commission accused a railroad company of anti-competitive practices by preferring one shipper over others for a period of time. By the time the case wound its way to the Supreme Court, the exclusivity had expired so a case or controversy no longer existed. The court still heard the matter, reasoning that the situation could be repeated yet never be decided by an appellate court because of the short-term nature of most exclusivity contracts. Thus, the court declared that it would render a decision since this issue was capable of repetition and likely to again evade judicial review.

This legal doctrine takes on special significance in election matters when the time needed to litigate questions lasts well past the conclusion of voting. Sometimes, an appellate court still needs to weigh in to prevent the inappropriate conduct from reoccurring in the future.  

If not for the doctrine permitting appellate consideration of an issue that is capable of repetition but likely to evade judicial review, the RNC’s case against the Pennsylvania Democratic Party would have been summarily dismissed. The election ended and polling places closed. The badges could presumably do no more harm in 2024. However, the RNC argued that it reasonably expected these badges to be trotted out by the Democrats in future elections. The appellate court agreed to consider the merits of the appeal. 

Notably, the language included on the badges, “Paid For By The Pennsylvania Democratic Party,” denoted political advertising and thus demonstrated “the purpose of the badges was to promote the Party,” as the court acknowledged. Additionally, PA DEMS is the well-known nickname of the Democratic Party in the Keystone State. Finally, the “VOTER PROTECTION” language could be interpreted by voters as an aim of one party over the other or even a conclusion that voting for that party could prevent harm. This message has no place inside the sanctity of polling places.

The appellate court also concluded that the Democratic Party’s perseverance on the size of the lettering, and the trial judge’s adoption of that argument, had no merit. The prohibition on electioneering inside polling places requires a bright-line rule, not a case-by-case judgment on what voters could read or not read, depending on the quality of their eyesight.

In a Nov. 22 memorandum opinion, the Pennsylvania Commonwealth Court agreed with the RNC and overturned the Philadelphia court’s decision to greenlight these partisan Democrat badges in polling places. On Dec. 16, the court issued an order designating the opinion as reported, which gives it precedential value.

The accomplishment of thwarting illegal electioneering in Pennsylvania came about because of the cumulative efforts of the RNC in the year leading up to November 2024. After sweeping all of the statewide races, the RNC could have moved on, not bothering to lodge an appeal to one order by a Philadelphia judge, leaving the fight to a future election. And without the painstaking recruitment and training of poll watchers in every county, the widespread existence of these inappropriate Democratic badges may not have come to light. 

Linda A. Kerns served as the Pennsylvania Election Integrity Counsel for the Republican National Committee for the 2024 Election. You can reach her at @lindakernslaw and lindakernslaw.com .