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State Court Finds Pennsylvania’s Mail Voting Law Unconstitutional

Written by Alex Lloyd Gross, January 28, 2022

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Angela Couloumbis of Spotlight PA

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HARRISBURG — An appellate court has ruled that Pennsylvania’s mail voting law is unconstitutional, but the decision is not likely to have an immediate impact as the Wolf administration plans to appeal to the state’s highest court.

The ruling by Commonwealth Court comes in response to suits filed by Bradford County Commissioner Doug McLinko and a group of Republican state representatives — many of whom voted for Act 77, the 2019 law that expanded no-excuse mail voting in Pennsylvania.

In a 3-2 decision along party lines, the Republican judges — citing extensively from past state Supreme Court rulings — said such a change would need to be made through an amendment to the Pennsylvania Constitution.

Friday’s decision sets the stage for the state Supreme Court, which is dominated by Democrats, to take up the matter. The high court in 2020 largely rejected GOP efforts to scale back the law, which will remain in place once the Wolf administration formally appeals, as it is expected to later Friday.

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In a statement, Democratic Gov. Tom Wolf said his administration would immediately appeal the decision, adding that it would not have an immediate effect on the law.

He cast the GOP-led lawsuit as an effort “to strip away mail-in voting in the service of the `big lie.’”

“The strength of our democracy and our country depends on eligible voters casting their ballot and selecting their leaders,” Wolf said. “We need leaders to support removing more barriers to voting, not trying to silence the people.”

The state’s mail voting law, which passed the legislature with overwhelming bipartisan support, came under attack in the months before the 2020 presidential election. Republicans at the time challenged what they saw as the Wolf administration pushing the limits of the law amidst uncertainty over how to best keep voters safe as the pandemic raged.

Democrats have countered that GOP attempts to undermine the law are part of a national playbook to cast doubt — without evidence — on Donald Trump’s defeat by President Joe Biden. They believe it is part of an orchestrated campaign to use the legal system to sow unwarranted suspicion over election integrity.

In a statement Friday shortly after the ruling became public, Trump put out a statement praising the decision: “Big news out of Pennsylvania, great patriotic spirit is developing at a level that nobody thought possible. Make America Great Again!”

In making its determination, the panel of Commonwealth Court judges said that the state constitution requires voters to appear at polling places on Election Day, unless they have “duties, occupation, or business” that allows them to use absentee voting. The judges, in support of their reasoning, noted that the constitution has been amended several times to specify the exact groups of people who would qualify for absentee voting.

No excuse mail voting, the court said, is not explicitly spelled out in the constitution, and thus would require a constitutional amendment to be lawful. Constitutional amendments, unlike traditional bills, must follow a lengthy process: They first must be approved by the legislature in two consecutive sessions and then appear on the ballot for voters to have the final say.

“No-excuse mail-in voting makes the exercise of the franchise more convenient and has been used four times in the history of Pennsylvania. Approximately 1.38 million voters have expressed their interest in voting by mail permanently,” the decision, authored by Judge Mary Hannah Leavitt, states.

“If presented to the people, a constitutional amendment to end the … requirement of in-person voting is likely to be adopted,” Leavitt continued. “But a constitutional amendment must be presented to the people and adopted into our fundamental law before legislation authorizing no-excuse mail-in voting can ‘be placed upon our statute books.’”

Marian Schneider — senior voting rights policy counsel for the ACLU of Pennsylvania, which supported the original mail voting law — said the analysis was flawed.

“The state constitution requires that absentee voting be available to voters with disabilities, those who will not be in their precinct on Election Day for business reasons, for religious purposes, and for people deployed in the military,” Schneider said in a statement. “To read that language to mean that absentee voting is, therefore, forbidden for all other voters is a serious misreading of the constitution.”

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