HARRISBURG – A 3-2 majority of the Commonwealth Court of Pennsylvania has ruled that the state’s law permitting mail-in voting is unconstitutional, a finding immediately appealed by the administration of Gov. Tom Wolf to the state Supreme Court.
Through summary relief, the intermediate appellate court found that Act 77, which had been passed in 2019, violated Article VII, Section I of the Pennsylvania Constitution.
However, the instant appeal to the Supreme Court of Pennsylvania from the Wolf Administration renders an automatic stay on the ruling, pending the high court’s decision.
The Commonwealth Court ruling came in response to a consolidated set of petitions challenging the constitutionality of Act 77, from Bradford County Board of Elections member Doug McLinko and 14 members of the Pennsylvania House of Representatives – chief among them Rep. Timothy R. Bonner (R – Mercer County).
Veronica Degraffenreid, Secretary of the Commonwealth, and the Pennsylvania Department of State filed preliminary objections in response to the petitions, countering that those bringing them lacked both standing and timeliness in their actions, and that the Pennsylvania Constitution permitted voting “by ballot or by such other method as may be prescribed by law” as long as “secrecy in voting be preserved.”
Commonwealth Court Judge Mary Hannah Leavitt and colleagues Patricia McCullough and Christine Fizzano Cannon decided to overrule the objections, while Commonwealth Court judges Michael Wojcik and Ellen Ceisler dissented from the majority.
Leavitt authored the ruling on behalf of the majority, which found Act 77 violated the Pennsylvania Constitution’s Article VII, Section I on the grounds that voters appear in person to cast votes, and that any allowance of “such other method” of voting exclusively applied to votes submitted in person by a process other than a paper ballot.
However, the Commonwealth Court majority added that a constitutional amendment could be passed in the future to make no-excuse mail-in voting a permanent method to submit votes in Pennsylvania.
“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,” Leavitt said.
“If presented to the people, a constitutional amendment to end the Article VII, Section I requirement of in-person voting is likely to be adopted. 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.”
In a dissent authored by Wojcik, the judge stated the petitions were “without merit.”
“Article VII, Section IV by its plain language specifically empowers the General Assembly to provide for this new method of casting a no-excuse mail-in ballot, and petitioners’ claims regarding the constitutionality of Act 77 are without merit. Accordingly, unlike the majority, I would grant respondents’ application for summary relief with respect to the substantive claims of Act 77’s constitutionality, and dismiss petitioners’ petitions for review with prejudice,” Wojcik said.
Wolf’s office wasted no time appealing the ruling to the state Supreme Court, which places it in suspense until the high court makes its own decision in the case.
“The Administration will immediately appeal this decision to the state Supreme Court and today’s lower court ruling will have no immediate effect on mail-in voting pending a final decision on the appeal. The Republican-controlled legislature passed Act 77 with strong bipartisan support in 2019 to make voting more safe, secure and accessible, and millions of Pennsylvanians have embraced it,” Press Secretary Elizabeth Rementer said in a statement.
“The simple fact is that despite near-unanimous Republican legislative support for this historic update to Pennsylvania election law, they now want 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. We need leaders to support removing more barriers to voting, not trying to silence the people.”
ACLU of Pennsylvania Executive Director Reggie Shuford also attacked the ruling.
“This lawsuit is an attack on the right to vote. Vote-by-mail has been wildly successful, with millions of Pennsylvanians taking advantage of the option in 2020 during the worst pandemic in a century. We’re on the side of democracy; we believe that voting should be convenient and accessible. By expanding mail-in voting to everyone, this law made that possible. Why are the challengers in this lawsuit afraid of the voters?” Shuford said.
Commonwealth Court of Pennsylvania cases 244 M.D. 2021 & 293 M.D. 2021
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com