IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA IN RE: ENLARGEMENT OF TIME TO SUBMIT ABSENTEE BALLOT APPLICATIONS AND

ABSENTEE BALLOTS : : : : :

Civil Action Docket No. __________

ORDER AND NOW, this ________ day of October, 2012, upon consideration of the Emergency
Petition of the Montgomery County Board of Elections Requesting Enlargement of Time to Submit Absentee Ballot Applications and Absentee Ballots, it is hereby ORDERED and DECREED,

pursuant to Montgomery County Civil Court Rule 208.3(a)(3), and this Courts statutory power to supervise the conduct of elections, under the Pennsylvania Election Code, 25 P.S. 3046, that said Petition is GRANTED. Judgment is hereby entered in favor of Board of Elections as follows: 1. The Montgomery County Board of Elections shall accept absentee ballot

applications for the November 6, 2012, election, for processing provided that they are received by the Montgomery County Board of Elections on or before Friday, November 2, 2012, at 5:00 PM; 2. The Montgomery County Board of Elections shall accept for tabulation, all

absentee ballots received at the Montgomery County Board of Elections by Monday, November 5, 2012, at 5:00 PM or received after this date and time but bearing a postmark no later than November 5, 2012, provided that said ballots are received by the Montgomery County Board of Elections by Tuesday, November 13, 2012. 3. Absentee ballots received after Friday, November 2, 2012, at 5:00 PM shall be

retained, unopened, by the Montgomery County Board of Elections and shall not be sent to 1

the appropriate polling place; 4. Said absentee ballots retained by the Montgomery County Board of Elections

shall be subject to challenge as specified in the Pennsylvania Election Code.

BY THE COURT:

________________________________ J.

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA IN RE: ENLARGEMENT OF TIME TO SUBMIT ABSENTEE BALLOT APPLICATIONS AND ABSENTEE BALLOTS : : : : :

Civil Action Docket No. __________

EMERGENCY PETITION OF THE MONTGOMERY COUNTY BOARD OF ELECTIONS REQUESTING ENLARGEMENT OF TIME TO SUBMIT ABSENTEE BALLOT APPLICATIONS AND ABSENTEE BALLOTS

Petitioner, Montgomery County Board of Elections (Board of Elections), by the undersigned attorneys, hereby petitions this honorable Court, pursuant to Montgomery County Civil Court Rule 208.3(a)(3), and this Courts statutory power to supervise the conduct of elections, under the Pennsylvania Election Code, 25 P.S. 3046, for an enlargement of time for Absentee Voters to submit Absentee Ballot Applications and Absentee Ballots to Board of Elections as postmarked by Monday, November 5, 2012. In support of this Petition, Board of Elections avers as follows: I. The Petitioner 1. Board of Elections, empowered by the Pennsylvania Election Code, 25 P.S.

2641, et. Seq., is charged with serving as the governing board of elections in the County of Montgomery, including, among other things, oversight of processing absentee ballot applications and absentee ballots cast by qualified electors. Its principal office is at Suite 602, One

Montgomery Plaza, Norristown, Pennsylvania 19404. 2. Board of Elections, not being able to convene given the emergency nature of this

Emergency Petition, has polled its members regarding the requested relief. County Commissioner and Board of Elections Chairperson Leslie S. Richards agrees with this Petition. County Chairman and Board Member Josh Shapiro agrees with this Petition. County

Commissioner and Board Member Bruce Castor agrees with this Petition. Unanimous ratification of this action shall be on the agenda at the next public meeting of the Board of Elections, currently scheduled for November 15, 2012. II. Factual Background 3. The effects of Hurricane Sandy and other weather systems that struck the County

of Montgomery during the week of October 29, 2012, caused the closure of the offices of the Board of Elections on Monday, October 29, 2012, and Tuesday, October 30, 2012. 4. The General Election is scheduled by law to occur in the County of Montgomery,

and throughout the Commonwealth of Pennsylvania, on Tuesday, November 6, 2012. 5. Under the provisions of Section 1302.1(a) of the Pennsylvania Election Code (25

P. S. 3146.2a(a)), the general deadline by which a qualified elector may apply to receive an absentee ballot for the General Election is Tuesday, October 30, 2012, i.e., not later than five oclock P.M. of the first Tuesday prior to the day of any primary or election. 6. The Pennsylvania Election Code requires that absentee ballots, for the November 6,

2012 Election, are to be received by the Board of Elections by 5:00 PM on Friday, November 2, 2012. 25 P.S. 3146.6. 7. Board of Elections is concerned that, given the severe weather conditions

experienced along the eastern seaboard and, more specifically, Montgomery County, otherwise qualified absentee voters will not have their Absentee Ballot Applications and/or Absentee Ballots submitted on time should the statutory deadlines remain. As a result, it is likely that many Montgomery County Absentee Voters will not have their ballots counted. 8. The weather-related closures of the offices of numerous county boards of

elections, including the Montgomery County Board of Elections, during the last two days on which the applications of qualified electors for absentee ballots by law may be received by the county boards of elections made it necessary and proper for the Governor of Pennsylvania, Tom 2

Corbett, by Executive Order 2012-13, dated October 29, 2012 (Executive Order), to extend in those counties the general statutory deadline by which the county boards of elections may receive applications for absentee ballot. A copy of the Executive Order is attached hereto. 9. The Executive Order states that [t]he deadline prescribed by Section 1302.1(a)

of the Pennsylvania Election Code (25 P. S. 3146.2a(a)) by which a qualified elector of a county may apply to receive an absentee ballot for the General Election shall be extended by one additional day for each business day during the week of October 29, 2012, on which the office of the county board of elections was closed for business as a consequence of weather conditions, but in no event shall said deadline be extended beyond 5:00 p.m. prevailing time on Friday, November 2, 2012. 10. In the case of Montgomery County, whose courthouse and offices were closed for

two days because of inclement weather, the Executive Order extended the date of the deadline for receipt of Absentee Ballot Applications to 5:00 p.m. on Thursday, November 1, 2012. 11. The extension granted by the Executive Order, however, is insufficient because

while the Board of Elections office is now open, many Montgomery County Absentee Voters, whether currently in Montgomery County or in other parts of the country effected by the devastating impact of Hurricane Sandy, are still without power, transportation, heat, water, and are unable to file their Absentee Ballot Applications and Absentee Ballots for reasons beyond their control. 12. Moreover, the Executive Order made no mention of a possible extension of the

date that the completed Absentee Ballots need to be returned. 13. Without this second extension, an estimated two thousand or more Absentee

Ballots will be sent to voters without any chance of them being completed and returned to the Board of Elections by the current statutory deadline of 5:00 p.m. on Friday, November 2, 2012, just one day after the extended deadline for receipt of Absentee Ballot Applications, thereby 3

effectively disenfranchising that many Montgomery County Absentee Voters from their Constitutional right to vote. 14. On October 30, 2012, the Governor and Lieutenant Governor advertised that

counties could exercise their option to petition their Courts of Common Pleas for an extension of the deadline to receive completed Absentee Ballots if the Commonwealth decided not to extend the deadline. 15. As of the filing of this Motion, the Commonwealth has not issued an extension of

the deadline to receive completed Absentee Ballots. 16. Board of Elections respectfully requests that the Court of Common Pleas enlarge

the deadlines to file absentee applications and absentee ballots as follows: a. Absentee Ballot Applications shall he honored if received by Board of

Elections by 5:00 PM on Friday, November 2, 2012; and b. Absentee Ballots shall be counted in full, if postmarked by Monday,

November 5, 2012, if received by Tuesday, November 13, 20l2. 17. Absentee Ballots received after Friday, November 2, will be retained by the

Board of Elections and not sent to local polling places; 18. Absentee Ballots held by the Board of Elections would still be subject to

challenge as set forth in the Pennsylvania Elections Code. 19. appropriately. 20. The requested enlargement of time is entirely reasonable because Absentee The voting public would benefit and the franchise would be extended

Ballots submitted by members of the military are already permitted to be postmarked no later than the day of the primary or general election. Furthermore, under normal circumstances,

Absentee Ballots received after the statutory deadline are nevertheless counted for presidential votes during Presidential elections such as this one. 21. relief. III. Legal Authority A. 22. This Court Has Jurisdiction With respect to this Courts jurisdiction, neither the Pennsylvania Constitution nor No person, political party and/or candidate would be negatively affected by this

the Election Code, Act of June 3, 1937, P.L. 1333, as amended, 25 P.S. 2601, 4051, expressly provides any procedure to follow when a natural disaster creates an emergency situation that interferes with an election. 23. However, section 1206 of the Election Code, 25 P.S. 3046, states that the court

of common pleas of each county or a judge thereof shall on election day be in continuous session from 7 a.m. to 10 p.m. and during such period shall decide ... matters pertaining to the election as may be necessary to carry out the intent of this act.... See, In re General Election 1985, 109 Pa.Cmwlth. 604, 606, 531 A.2d 836, 838 (Sept. 30, 1987) (Commonwealth Court held that (1) the power of the Court of Common Pleas to supervise conduct of elections included the authority to suspend voting in precincts suffering from emergency conditions). B. 24. Enlargement of Time Should be Granted It is well settled law that the purpose of the election laws is to ensure fair

elections, including an equal opportunity for all eligible electors to participate in the election process. In re General Election 1985, 109 Pa.Cmwlth. at 608, 531 A.2d at 839 (Court postponed the date of the General Election for 11 precincts that suffered extensive flooding, loss of electricity, heat, and water during extreme weather conditions) (citing, In re Mayor, City of Altoona, Blair County, 413 Pa. 305, 196 A.2d 371 (1964)).

25.

Moreover, to permit an election to be conducted where members of the electorate

could be deprived of their opportunity to participate due to circumstances beyond their control, such as a natural disaster, would be inconsistent with the purpose of the election laws. Id. 26. The County of Montgomery and, thus, Board of Elections, was closed on

Monday, October 29, 2012, and Tuesday, October 30, 2012, due to extreme weather conditions, thereby prohibiting out of necessity Absentee Ballot Applications from being processed and Absentee Ballots from being mailed to Absentee Voters. 27. In a press conference on Sunday, October 28, 2012, in anticipation of Hurricane

Sandy, Governor Tom Corbett said, when the Frankenstorm (Hurricane Sandy mixing with a Nor'easter) turns into Pennsylvania Monday, it could bring unprecedented flooding and power outages. Small streams and rivers are expected to flood and sustained winds will affect the entire state. What will make it worse, Corbet, said, is that it will be a full moon, creating higher tides in addition to flooding. Bryan P. Sears and Jerry Brahm, lowersouthampton.patch.com, Hurricane Sandy: Pennsylvania in a State of Emergency, October 27, 2012. 28. Governor Corbett asked the Federal Government for disaster assistance, stationed

1,600 National Guard troops on standby, and warned residents who live in flood prone areas to be prepared to evacuate, or to stay home and off the roads. Id. 29. The storm was estimated to have affected 50 to 60 million people along the East

Coast. States of emergency were declared in Maryland, New York, Virginia, Washington D.C. and Pennsylvania. Id. 30. The primary damage caused by the storm was due to widespread flooding,

extensive power outages, and fallen trees and limbs. The massive size of the storm covered the eastern third of the country. Id.

31.

Therefore, for the reasons set forth, herein, this Court should enlarge the time

required for receipt of Absentee Ballot Applications until Friday, November 2, 2012, and for Absentee Ballots until postmarked by Tuesday, November 6, 2012. IV. Conclusion

WHEREFORE, Board of Elections hereby requests the entry of an Order granting judgment to Board of Elections for the enlargement of the time required for receipt of Absentee Ballot Applications until Friday, November 2, 2012, and for Absentee Ballots received at the Montgomery County Board of Elections by Monday, November 5, 2012, at 5:00 PM or received after this date and time but bearing a postmark no later than November 5, 2012, provided that said ballots are received by the Montgomery County Board of Elections by Tuesday, November 13, 2012. Respectfully submitted,

______________________________ Raymond R. McGarry, Solicitor Attorney ID No. 56520 David E. Robinson, Assistant Solicitor Attorney ID No. 83829 Montgomery County Solicitors Office One Montgomery Plaza, Suite 800 Norristown, PA 19404 (610) 278-3033 Attorneys for Petitioner, Montgomery County Board of Elections Dated: October 31, 2012

IN THE COURT OF COMMON PLEAS OF MONTGOMERY COUNTY, PENNSYLVANIA IN RE: ENLARGEMENT OF TIME TO SUBMIT ABSENTEE BALLOT APPLICATIONS AND ABSENTEE BALLOTS : : : : :

Civil Action Docket No. __________

CERTIFICATE OF SERVICE The undersigned counsel hereby certifies that on this 31st day of October, 2012, he served a true and correct copy of the Emergency Petition of the Montgomery County Board of
Elections Requesting Enlargement of Time to Submit Absentee Ballot Applications and Absentee Ballots,

via email upon the following:

Marcel Groen, Chairman Montgomery County Democratic Committee MGroen@foxrothschild.com Robert J. Kerns, Chairman Montgomery County Republican Committee rjkerns@kernslaw.com Steve Scheetz, Chairman Montgomery County Libertarian Party montgomery@lppa.org Ed Bonsell, Communications Montgomery County Green Party montcogreens@earthlink.net

__________________________________ David E. Robinson

Dated: October 31, 2012