HARRISBURG – A 5-2 majority of the Supreme Court of Pennsylvania has affirmed a state law permitting mail-in voting, reversing a contrary finding reached in the Commonwealth Court of Pennsylvania in January.
According to the state Supreme Court majority, Article VII, Section 4 of the Pennsylvania Constitution permitted the General Assembly to approve new methods of voting, without an amendment to the document being necessary – invalidating past decisions requiring voting to occur in person as “flawed.”
The 5-2 decision was split along party lines, with the five Democratic justices comprising the majority and the two Republican justices making up the dissenting minority.
“The General Assembly is authorized, pursuant to Section 4, to prescribe any process by which electors may vote. The amendment did not limit the relevant methods of casting a vote to ballot or voting machine, as were relevant at the time of its passage, but instead provided that the General Assembly could enact laws establishing ‘other methods’ for elections by citizens, subject only to the requirement that the method preserve secrecy in voting,” Justice Christine Donohue said, in writing for the majority.
“Maintaining the secrecy of an elector’s vote is supported by a fairly straightforward rationale, namely, that ‘a citizen in secret is a free man; otherwise he is subject to pressure and, perhaps, control.’ Such secrecy has historically served as a bastion to the integrity of the election franchise. However, the requirement that secrecy must be preserved cannot alone inform the legislature as to what methods it may prescribe, only that those methods must maintain this secrecy. This was, and continues to be, the sole restriction found in Section 4.”
Meanwhile, Justices Sallie Updyke Mundy and P. Kevin Brobson each released their own dissents from the majority ruling.
“The majority opinion in particular takes an approach that, if not ahistorical, is at best historically selective. Its most glaring omission is its failure to come to grips with the fact that the Pennsylvania Constitution’s election-related provisions have been amended on numerous occasions in the 160 years since this Court first explained that by default it requires in-person voting, and in none of those instances have the people of this Commonwealth sought to eliminate, alter or clarify the textual basis for that ruling as it appears in our organic law,” Updyke Mundy stated.
“I join the dissenting opinion of Justice Mundy in full. Succinctly stated, the majority overrules 160 years of this Court’s precedent to save a law that is not yet three years old. It does so not to right some egregiously wrong decision or to vindicate a fundamental constitutional right…honoring our precedent and striking Act 77 as unconstitutional would not extinguish the right of people to vote in this Commonwealth; rather, it would merely return us to where we were before the 2020 primary election,” Brobson added.
Gov. Tom Wolf issued a statement on the state high court’s ruling, reminding that the Republican-controlled legislature passed the state’s mail-in voting law, Act 77, which he then signed into law in 2019.
“Today’s court ruling definitively asserts that mail-in voting is a legal and constitutional method for Pennsylvania voters. By upholding the law, which the General Assembly approved in 2019 in a bipartisan manner, this ruling assures that mail-in voting remains in place and Pennsylvanians will be able to cast their ballot legally in person or by mail without any disruption or confusion,” Wolf said.
“Voting is a fundamental right – a right that we should ensure is accessible for all voters. Mail-in voting is a safe, secure and legal option for Pennsylvania voters to exercise that right. I will continue to advocate for voting reforms that remove barriers and increase access to voting.”
ACLU of Pennsylvania Executive Director Reggie Shuford also commended the ruling.
“It was only 57 years ago that the United States made democracy more accessible and protected the right to vote with the passage of the Voting Rights Act. That right has always been under attack. In recent years, however, we’ve seen renewed efforts by some to roll back access to the franchise. Losing the right to vote puts us on a fast track to losing our democracy. We should be finding ways to expand the right to vote, not shrink it. Ensuring Pennsylvanians have the right to vote by mail is a proven way to do that. We applaud today’s ruling by the state Supreme Court,” Shuford said.
Mail-in voting became a flash point during the COVID-19 pandemic, when a considerable amount of voters exercised the option to cast their ballots in the 2020 Presidential Election. Though former President Donald Trump decried the practice of mail-in voting and subsequently made illegitimate claims of election fraud in Pennsylvania, his series of court cases on that point proved unsuccessful, and then President-Elect Joe Biden was declared the legitimate winner of both the state’s electoral votes and the election.
Commonwealth Court’s January Ruling Initially Struck Down Act 77
Back in January, the Commonwealth Court found that Act 77 violated Article VII, Section 1 of the Pennsylvania Constitution. But an instant appeal to the Supreme Court of Pennsylvania from the Wolf Administration rendered 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 Commonwealth Court 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.
The Commonwealth Court majority added that, in its view, a constitutional amendment could be passed in the future to make no-excuse mail-in voting a permanent method to submit votes in Pennsylvania – however, with the state Supreme Court’s new ruling, that has now become a moot point.
Supreme Court of Pennsylvania case 19 MAP 2022
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