Premature Unilateral Certification Transmitted to Congress While Legislature Formally Disputed Electors (PA)

Pennsylvania Secretary of the Commonwealth Kathy Boockvar, acting unilaterally, certified the Commonwealth’s presidential electors to the National Archives and Congress on November 24, 2020 — while active election litigation remained pending, including a Third Circuit appeal of the federal court dismissal in Trump for President v. Boockvar and Kelly v. Commonwealth (No. 620 MD 2020), a state suit filed three days earlier expressly seeking to halt certification, which obtained a temporary injunction in Commonwealth Court the very next day. The certification preceded any opportunity for the General Assembly to exercise its constitutional authority, and the legislature’s formal response was unambiguous: House Resolution 1094 (introduced November 30, 2020), adopted by 41 members, declared the certification “unilateral and premature,” formally condemned the “infringement on the General Assembly’s authority pursuant to the Constitution of the United States to regulate elections,” and urged the United States Congress to “declare the selection of presidential electors in this Commonwealth to be in dispute.” The certified result was therefore transmitted to Congress over the formal written objection of the legislature whose constitutional authority it purported to represent.
The evidentiary foundation of the certification was itself subject to legal challenge. On October 23, 2020, on petition filed by Secretary Boockvar herself, the Pennsylvania Supreme Court issued a declaratory order directing county boards of elections “not to reject absentee or mail-in ballots for counting, computing, and tallying based on signature comparisons” — a ruling HR 1094 characterized as eliminating “a critical safeguard against potential election crime.” (In Re: November 3, 2020 General Election, No. 149 MM 2020 [J-113-2020].) Separately, on January 28, 2022, an en banc panel of the Pennsylvania Commonwealth Court held in McLinko v. Commonwealth (No. 244 M.D. 2021) that Act 77 — the 2019 statute under which all no-excuse mail-in ballots in the 2020 election were cast — violated Article VII, Section 1 of the Pennsylvania Constitution, temporarily establishing that the statutory framework governing the certified ballots was constitutionally infirm. That ruling was subsequently reversed by the Pennsylvania Supreme Court on August 2, 2022.