HARRISBURG – Pennsylvania’s mail-in voting law has withstood another legal challenge, as the state’s Commonwealth Court reaffirmed the legislation in a decision handed down on Tuesday.
Last year, 14 Republican legislators argued that the Commonwealth Court must invalidate the law, known as Act 77, because a pair of prior court decisions authorizing the counting of undated mail-in ballots activated a tenet of Act 77, which reads that if any of the law’s requirements (such as the provision where voters must write a date on the ballot’s outer envelope) were struck down in court, the entire law would be null and void.
However, a unanimous complement of the Commonwealth Court disagreed.
Commonwealth Court Judges Renée Cohn Jubelirer, Patricia A. McCullough, Christine Fizzano Cannon, Ellen Ceisler and Lori A. Dumas collectively found that the prior decisions in questions (Ritter v. Migliori and Chapman v. Berks County Board of Elections) only guided local election board officials on Act 77’s interpretation, not serving to strike it down.
“While Migliori and Berks County interpreted the Dating Provisions, Migliori has been vacated by the United States Supreme Court; our Supreme Court, in Ball v. Chapman, has weighed in on the interpretation of the Dating Provisions and Section 10101(a)(2)(B) of the Civil Rights Act of 1964 (commonly referred to as the ‘Materiality Provision’), and the current state of the law does not support petitioners’ contention that they have a clear right to relief,” Cohn Jubelirer said.
“Further, even in the absence of these intervening events, the Courts in Migliori and Berks County did not invalidate the Dating Provisions, which remain a part of the Election Code. Rather, those Courts performed their constitutional obligation to engage in statutory interpretation in resolving the matters before them. Therefore, contrary to petitioners’ arguments, the Non-Severability Provision has not been triggered to invalidate Act 77 in its entirety. Accordingly, the Court denies petitioners’ application, grants the cross-applications, and dismisses the preliminary objections as moot.”
Counsel for the Republican legislators intend to appeal the Commonwealth Court’s decision to the Supreme Court of Pennsylvania – where, as Cohn Jubelirer pointed out, it decreed in Ball v. Chapman that for a mail-in ballot to be properly counted, it must include the date on which the voter filled out the ballot – in accordance with current state law.
But as far as whether or not the date listed on the ballot is a proper one, the state’s high court demurred on that issue and left it up to each county’s Board of Elections.
A potential future consequence of such a ruling is a patchwork of policies on how to address mail-in ballots across the state of Pennsylvania, with the Board of Elections in each of its 67 counties adopting its own standards.
“How county boards are to verify that the date an elector provides is, in truth, the day upon which he or she completed the declaration is a question that falls beyond our purview,” Supreme Court of Pennsylvania Justice David N. Wecht said, in writing for the majority in Ball v. Chapman.
“This Court having now issued guidance for the conduct of the most recent election, county boards of elections retain authority to evaluate the ballots that they receive in future elections – including those that fall within the date ranges derived from statutes indicating when it is possible to send out mail-in and absentee ballots – for compliance with the Election Code.”
Per another state Supreme Court ruling last fall, the justices tied 3-3 on whether the Materiality Provision superseded Pennsylvania state law. As former Chief Justice Max Baer passed away prior to the issuance of the ruling, no seventh, deciding vote was present on the Court, as would have been normal procedure.
With the Supreme Court of Pennsylvania undecided, the question remains open.
If any Pennsylvania court where a future Act 77 challenge is heard finds that the dating requirement can no longer be enforced, the Commonwealth Court now opines that any such a decision would not be reason enough to render Act 77 null and void in its entirety.
The question of mail-in ballots has and continues to remain a hotly-debated topic in political elections and court systems across the country, often with Democrats championing the process and accepting the greatest number of legitimate ballots in spite of some procedural errors, and Republicans wanting to eschew any ballot not properly conforming to each precise detail as the law requires.
Commonwealth Court of Pennsylvania case 364 M.D. 2022
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com