                    IN THE SUPREME COURT OF PENNSYLVANIA
                                MIDDLE DISTRICT


 DISABILITY RIGHTS PENNSYLVANIA;                  : No. 83 MM 2020
 SENIORLAW CENTER; SOUTHEAST                      :
 ASIAN MUTUAL ASSISTANCE                          :
 ASSOCIATION COALITION, INC.                      :
 (SEAMAAC); SUZANNE ERB; THE                      :
 BARRISTERS' ASSOCIATION OF                       :
 PHILADELPHIA,                                    :
                                                  :
                      Petitioners                 :
                                                  :
                                                  :
               v.                                 :
                                                  :
                                                  :
 KATHY BOOCKVAR, IN HER CAPACITY                  :
 AS SECRETARY OF THE                              :
 COMMONWEALTH OF PENNSYLVANIA;                    :
 AND JESSICA MATHIS, IN HER CAPACITY              :
 AS DIRECTOR OF THE BUREAU OF                     :
 ELECTION SERVICES AND NOTARIES OF                :
 THE PENNSYLVANIA DEPARTMENT OF                   :
 STATE,                                           :
                                                  :
                      Respondents                 :


                              CONCURRING STATEMENT

JUSTICE WECHT                                                  FILED: May 15, 2020

       I join the Court’s resolution of this matter. Although actual evidence of disruption

in the United States Postal Service’s mail delivery service may be probative of Petitioners’

constitutional claims, and would be relevant to a future challenge on similar grounds, the

instant request for emergency relief for the June 2, 2020 primary election is predicated

upon mere speculation about what may or may not occur with delivery operations within

the Commonwealth in several weeks’ time.         While circumstances may change, the
possibility that votes may be suppressed due to late ballot delivery, as presently alleged,

is too remote at this time to constitute a cognizable injury.

       I write separately to express my skepticism that a single chamber of our bicameral

legislature would have standing to intervene in an action of this nature. Pennsylvania

Senate President Pro Tempore Joseph B. Scarnati, III, and Senate Majority Leader Jake

Corman (collectively, “Senate Intervenors”), aver that they “have been duly authorized to

act in this matter by each of the members of the Senate Republican Caucus, which

constitutes a majority of the Senate as a whole.” Motion to Intervene, 5/6/2020, at

unpaginated 1. Speaker of the Pennsylvania House of Representatives Mike Turzai and

House Majority Leader Bryan Cutler (collectively, “House Intervenors”) similarly attest that

109 of the 203 members of the House have authorized their intervention. See Petition to

Intervene, 5/12/2020, at 1. Although both chambers’ intervenors reiterate those apparent

authorizations in their proposed preliminary objections and memoranda of law, they cite

no formal enactment by the House or Senate purporting to authorize such interventions.

That deficiency alone strikes me as problematic. Moreover, I am not confident that a

formal enactment would be dispositive as to whether they have standing to intervene in

the first place.

       It is beyond dispute that “a State has standing to defend the constitutionality of its

statute[s].” Diamond v. Charles, 476 U.S. 54, 62 (1986). And the Commonwealth has

chosen to defend the instant mail voting statute by way of advocacy from the Department

of State. But our Rules of Civil Procedure also pertinently provide that, “[a]t any time

during the pendency of an action, a person not a party thereto shall be permitted to

intervene therein” if: “(3) such person could have joined as an original party in the action

or could have been joined therein; or (4) the determination of such action may affect any

legally enforceable interest of such person whether or not such person may be bound by




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a judgment in the action.” Pa.R.C.P. 2327(3)-(4).1 Whether the House and Senate

Intervenors have satisfied either of those criteria determines their eligibility to intervene.

       This Court has examined at length the history of legislative standing, most recently

in Markham v. Wolf, 136 A.3d 134 (Pa. 2016). There we recognized that members of the

General Assembly, qua legislators, have standing to litigate in their official capacity “only

in limited circumstances.” Id. at 145.

       Standing exists only when a legislator’s direct and substantial interest in his
       or her ability to participate in the voting process is negatively impacted, or
       when he or she has suffered a concrete impairment or deprivation of an
       official power or authority to act as a legislator . . . . These are injuries
       personal to the legislator, as a legislator. By contrast, a legislator lacks
       standing where he or she has an indirect and less substantial interest in
       conduct outside the legislative forum which is unrelated to the voting or
       approval process, and akin to a general grievance about the correctness of
       governmental conduct, resulting in the standing requirement being
       unsatisfied.


Id. (citing Fumo v City of Phila., 972 A.2d 487 (Pa. 2009); Wilt v. Beal, 363 A.2d 876 (Pa.

Cmwlth. 1976) (en banc)) (cleaned up).2 But Markham’s thorough explication of the limits

of legislators’ standing need not be belabored here, because the House and Senate



1      The remainder of Rule 2327 permits intervention where “(1) the entry of a judgment
in such action or the satisfaction of such judgment will impose any liability upon such
person to indemnify in whole or in part the party against whom judgment may be entered;”
and where “(2) such person is so situated as to be adversely affected by a distribution or
other disposition of property in the custody of the court or of an officer thereof.” Pa.R.C.P.
2327(1)-(2). Because the underlying action involves neither the imposition of liability nor
the disposition of property, these provisions plainly are inapplicable.
2      To the extent that this Court has agreed that individual legislators have standing
to bring or join suits, those circumstances largely have been confined to quo warranto
actions challenging the validity of certain appointments made by the Governor allegedly
without the Senate’s consent. In those cases, standing derived from the individual right
of each Senator to vote to confirm or reject nominees. See, e.g., Zemprelli v. Daniels,
436 A.2d 1165 (Pa. 1981); Stroup v. Kapleau, 313 A.2d 237 (Pa. 1973); cf. Frame v.
Sutherland, 327 A.2d 623 (Pa. 1974) (assuming, but not deciding explicitly, that three
members of the Senate could bring a suit related to the Governor’s appointment powers).

                                      [83 MM 2020] - 3
Intervenors offer no argument that the present circumstances necessitate their

intervention.

       Since Markham was decided, the Supreme Court of the United States has had

occasion to consider—and reject—the notion that a single chamber of a bicameral

legislature has standing to intervene in defense of a state law. In Virginia House of

Delegates v. Bethune-Hill, 587 U.S. ___, 139 S.Ct. 1945 (2019), the Court considered an

appeal brought by the Virginia House and its Speaker as intervenors in defense of

Virginia’s legislative districts—nearly a dozen of which had been struck down by a three-

judge District Court as racial gerrymanders in violation of the Fourteenth Amendment’s

Equal Protection Clause—after the Commonwealth declined to appeal the decision. Id.

at 1949-50. The Supreme Court held that the Virginia House, “as a single chamber of a

bicameral legislature, ha[d] no standing to appeal the invalidation of the redistricting plan

separately from the State of which it is a part.” Id. at 1950.

       Central to the Court’s decision was the intervenors’ inability to “independently

demonstrate standing.” Id. at 1951. Although a State may “designate agents to represent

it in federal court,” id. (quoting Hollingsworth v. Perry, 570 U.S. 693, 710 (2013)), the

Commonwealth had not so designated the lower chamber of its General Assembly in the

matter. Compare id. at 1952 (“Virginia has thus chosen to speak as a sovereign entity

with a single voice.”), with Karcher v. May, 484 U.S. 72, 82 (1987) (concluding without

extensive explanation that “the New Jersey Legislature had authority under state law to

represent the State’s interests”). Rejecting the House’s assertion that it had “standing in

its own right” to pursue the appeal, the Court observed that it had

       never held that a judicial decision invalidating a state law as unconstitutional
       inflicts a discrete, cognizable injury on each organ of government that
       participated in the law’s passage. The Court’s precedent thus lends no
       support for the notion that one House of a bicameral legislature, resting
       solely on its role in the legislative process, may appeal on its own behalf a
       judgment invalidating a state enactment.


                                     [83 MM 2020] - 4
Bethune-Hill, 139 S.Ct. at 1953.          Because the Virginia Constitution “allocate[d]

redistricting authority to the ‘General Assembly,’ of which the House constitute[d] only a

part,” id., the fact that each chamber independently voted to adopt Virginia’s legislative

districts following the 2010 decennial census was irrelevant to standing considerations.

       Significantly, the Court distinguished the Virginia House’s situation from that of the

Arizona Legislature in Arizona State Legislature v. Arizona Independent Redistricting

Commission, 576 U.S. ___, 135 S.Ct. 2652 (2015), “in which the Court recognized the

standing of the Arizona House and Senate—acting together—to challenge a referendum

that gave redistricting authority to an independent commission, thereby allegedly usurping

the legislature’s authority . . . over congressional redistricting.” Bethune-Hill, 139 S.Ct. at

1953 (emphasis in original). Thus, “[j]ust as individual members lack standing to assert

the institutional interests of a legislature,” id. at 1953 (citing Raines v. Byrd, 521 U.S. 811,

829 (1997) (holding that individual Members of Congress lacked standing to challenge

the Line Item Veto Act)), the Court concluded that “a single House of a bicameral

legislature lacks capacity to assert interests belonging to the legislature as a whole.” Id.

at 1953-54.

       This Court previously has found the federal courts’ decisions on prudential

standing in the context of legislative interests to be “helpful.” Fumo, 972 A.2d at 500 n.5;

see id. at 500 (citing Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 253 (3d Cir.

2009) (rejecting Pennsylvania legislators’ standing to challenge “increased salaries for

state legislators” and others pursuant to “the General Assembly’s enactment of Act 44 [of

2005] in a sleight-of-hand manner during the dead of night”)). Although Bethune-Hill does

not bind this Court, I find it persuasive. As in Bethune-Hill, it appears that there is no

independent statutory authorization for the General Assembly to intervene here, let alone




                                      [83 MM 2020] - 5
for either of its chambers, acting independently on behalf of their respective caucus

majorities, evidently without even consulting with their chambers’ full membership.

       Like the Virginia House of Delegates, the House and Senate Intervenors have

“purported to represent [their] own interests,” Bethune-Hill, 139 S.Ct. at 1952, rather than

those of the Commonwealth. Id.; see also id. at 1953 (“Nowhere in its motion did the

House suggest it was intervening as agent of the State.”). This is not a case where they

allege that a power delegated to them by the Pennsylvania Constitution has been usurped

by a coordinate branch of government. Nor is it one where individual legislators can claim

that their rights as the people’s elected representatives within those legislative bodies

have been curtailed. See Robinson Twp. v. Commonwealth, 84 A.3d 1054 (Pa. 2014)

(per curiam). Our foundational Charter confers no authority on individual legislators or

caucuses within each respective chamber to act on behalf of the General Assembly or to

substitute their interests for the Commonwealth. Pursuant to Article II, Section 1 of the

Pennsylvania Constitution, “[t]he legislative power of this Commonwealth shall be vested

in a General Assembly, which shall consist of a Senate and a House of Representatives.”

PA. CONST. art. II, § 1. Because the House and Senate Intervenors in their official capacity

cannot speak for the General Assembly as a whole, and therefore do not collectively

represent that body’s legislative prerogatives, in an appropriate case I would be receptive

to the argument that they are not “person[s]” with a “legally enforceable interest” permitted

to intervene under Rule 2327 in an action challenging the constitutionality of a

Pennsylvania statute.3




3     House and Senate Intervenors nonetheless may seek leave of court to file briefs
as amicus curiae consistent with the requirements of Pa.R.A.P. 531.


                                     [83 MM 2020] - 6
