Pennsylvania’s mail-in ballot law unconstitutional, state court rules; The Wolf administration is appealing the decision


A Pennsylvania appeals court struck down the Commonwealth’s landmark postal voting law in 2019, though the near certainty of an appeal means voters may not notice a difference until the Supreme Court has not weighed.

In a 49-page opinion delivered by Judge Mary Hannah Leavitt on Friday morning, a five-member court panel found 3-2 that the law, which allows all Pennsylvanians to vote by mail without excuse, was enacted in a manner unconstitutional as law, rather than being approved through the state’s long and rigorous constitutional amendment process.

“If presented to the people, a constitutional amendment to end the in-person voting requirement will likely pass,” Leavitt wrote. “But a constitutional amendment must be presented to the people and passed into our basic law before legislation permitting absentee voting without excuse can ‘be placed on our law books’.”

Otherwise, Leavitt expressed “no opinion on whether or not such a system should be implemented as part of public policy.”

The law, known as Bill 77, was passed by the Republican-controlled General Assembly and signed by Democratic Gov. Tom Wolf in the fall of 2019.

The lawsuit was brought by a Republican Bradford County commissioner, as well as 14 lawmakers – 11 of whom voted for the law. In fact, in both houses, all but two GOP lawmakers voted for the proposal.

At the time, this was seen as a bipartisan victory that expanded voting access. Since then, millions of Pennsylvanians have used mail-in ballots to participate in democracy.

However, Republicans have grown wary of the law, amid former President Donald Trump’s baseless efforts to delegitimize mail-in votes ahead of the 2020 election.

In November 2020, after losing Pennsylvania and the presidency, some of the former president’s allies filed a similar suit to strike down the law and have millions of legally cast mail-in ballots thrown out, likely handing over electoral votes from state to Trump instead of the president. Joe Biden.

The state Supreme Court rejected their arguments, but the court will likely hear them again.

Adam Bonin, a Philadelphia elections attorney who often works for Democrats, told the Capital-Star that he expects the decision to be overturned on appeal to the state Supreme Court, that the administration Wolf filed Friday afternoon.

“Not only do I expect this ruling to be overturned, but it’s critical that the state Supreme Court move quickly to suspend the effect of this ruling,” Bonin said.

With the call. Pennsylvania court procedure says the lower court’s order will automatically stay, meaning mail-in voting will remain legal until the high court issues a ruling.

While the decision creates another layer of uncertainty over the upcoming Commonwealth elections, local officials who organize the elections are now used to it, after years of legal battles and legislative inaction on election law.

A county election official, who requested anonymity to speak candidly, expressed more dissatisfaction with the timing than the decision itself.

“A returning officer looks at this decision and says, ‘who cares?’ It will be appealed,” they told the Capital-Star.

But as election day nears, it presents the specter of running out of time in a month or two when the state Supreme Court must issue a final order — and “we won’t have time to deal with the implications”.

For Republicans, especially those outside Harrisburg who did not vote for it, the ruling was vindication for their attacks on mail-in voting. GOP gubernatorial candidate Lou Barletta said that while the law remains in effect if elected governor, he would seek to repeal it as soon as possible.

“Now we know that not only was Bill 77 a terrible law, it was also unconstitutional and should not have been passed in the first place,” Barletta said.

His stance has been echoed across the Republican gubernatorial field — of eight candidates in the field Capital-Star interviewed, five called for the law’s total repeal, with the rest often promising to repeal parts of it.

Prior to Law 77, voters were limited to two voting options specifically mentioned in the Pennsylvania state constitution – in person at a polling place or by mail.

“The legislature shall by general law provide the manner in which, the time, and the place at which, persons qualified to vote who may, on the occasion of an election, be absent from the municipality of their residence”, says the constitution.

The section then mentions work, illness or religious observances as the reason a voter may request an absentee ballot.

Combined with tight statutory deadlines, Pennsylvania’s mail-in ballot laws were among the strictest in the nation, and there was a bipartisan agreement among state and local officials as well as advocates to relax those standards in fall 2019. .

What closed the deal was an exchange. Wolf, a Democrat, has agreed to sign a bill that would remove the direct-vote option from Pennsylvania ballots — a GOP priority — and allow any voter to request an absentee ballot without an excuse until 50 days before an election.

The bill passed through the General Assembly in about a week. Legislative Democrats were skeptical of repealing direct voting, but Wolf called it a “leap forward” and signed it into law surrounded by smiling Republican lawmakers.

If passed as an amendment, it would have taken at least two years to enact – plus voter approval in a referendum.

Looking at the language of the constitution, the Wolf administration had argued that “because there is no express prohibition…against legislation establishing a new system of mail-in voting, it must be permitted,” a writes Leavitt.

Instead, she pointed to a 1920s Lancaster County voting case and a ruling on whether Civil War soldiers on the front lines could vote. The legislature’s discretion applied only to the choice of voting machines, she argued, and the wording of the constitution implies that all votes, in addition to the specific absentee exemption, must be in anybody.

In a dissenting opinion, Judge Michael Wojcik, joined by a colleague, called the argument a “wrong premise”.

Instead, Wojcik said the court should, citing an earlier ruling, “pursue our task presuming constitutionality in part because … our sister branches take their constitutional oaths seriously.”

A small question also remains unclear, Wojcik noted. While the court invalidated Law 77, the majority opinion does not mention the fate of the repeal of direct ticket voting. Deviating from precedent, “if the no excuse mailing provisions of Bill 77 are found to be unconstitutional, all provisions of Bill 77 are void,” Wojcik wrote, meaning voters could again have the opportunity to vote for an entire ticket. with just one button.

But Bruce Ledewitz, a Pennsylvania constitutional law scholar at Duquesne University Law School, said the legal risk of Bill 77 was known when the legislature passed Bill 77.

Ledewitz, a Capital-Star opinion contributor, pointed to a small section near the end of the 125-page law, in which the legislature wrote that any challenges to the law must be filed within 180 days of its enactment.

“The Legislature knew they could be wrong, everyone knew that was exactly the problem,” Ledewitz told the Capital-Star. “It’s not shocking.”

The challenge instead came months after the window for a challenge closed, following the defeat of Trump in 2020, U.S. Representative Mike Kelly, R-16th district, as well as a number of losing Republican candidates. The lawsuit argued that 2.6 million mail-in ballots should be invalidated and the law struck down.

In dismissing the case, the state Supreme Court ruled on the timing and sought relief — which would have set up a Trump victory — more than the merits of the challenge, Ledewitz noted.

In fact, at least one member of the High Court, Justice Sallie Updyke Mundy, signed a notice expressing her interest in hearing all arguments against Bill 77, even though she disagreed with the launch of the results. of 2020.

“I think both parties have a good legal record,” Ledewitz said. He expected the case would not necessarily follow party lines in the Liberal-majority court.

Overall, he understated the end result.

“People who want to vote, vote,” Ledewitz said. “I think there’s a lot less at stake than people think.”

But Kadida Kenner, executive director of the New Pennsylvania Project, disagrees. Kenner, whose group is trying to encourage voting and broaden the electorate, feared the decision would have a chilling effect on people who don’t often engage in politics.

“It’s an opportunity for someone to get poor information, or bad information, or incomplete information and change their voting habits,” Kenner said.

Mail-in ballots allow people who work multiple jobs with little day-to-day flexibility to participate in democracy, Kenner added. Removing the option here smacks of judiciary politics, Kenner noted, amid widespread Republican efforts to restrict access to the ballot box.

But with an appeal likely, Kenner expressed confidence in the state Supreme Court to overturn the decision.

“We encourage anyone wishing to vote by mail to continue to request a ballot in 2022,” she said.

This article was originally published by Pennsylvania Capital-Star.

Pennsylvania Capital-Star is part of States Newsroom, a grant-supported network of news outlets and a coalition of donors as a 501c(3) public charity. Pennsylvania Capital-Star maintains editorial independence. Contact editor John Micek with any questions: [email protected] Follow Pennsylvania Capital-Star on Facebook and Twitter.


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