Supreme Court upholds no-excuse, mail-in voting law
Sen. Lisa Boscola, D-18, was prime sponsor of bill with bipartisan support
The Pennsylvania Supreme Court on Tuesday upheld no-excuse, mail-in voting – allowing a law that had bipartisan support when it passed in October 2019, but was spurned by Republicans after mail-in ballots helped Democrat Joe Biden best then President Trump in the 2020 election in Pennsylvania.
Tuesday’s ruling grew out of a consolidated lawsuit in which plaintiffs, including Republican lawmakers, argued that Article VII, Section 14, of the Pennsylvania Constitution requires voters to be present to cast ballots at polling places, except when they meet constitutional exceptions.
Any changes, the lawmakers argued, would have to be approved under a constitutional amendment, an arduous process that can take years.
However, the opinion concluded, “We reiterate that our General Assembly is endowed with great legislative power, subject only to express restrictions in the Constitution. We find no restriction in our Constitution on the General Assembly’s ability to create universal mail-in voting.”
The vote was 5-2, reflecting the political parties of the justices.
Justice Christine Donohue wrote the majority opinion, joined by fellow Democrats Chief Justice Max Baer and Justices David Wecht, Kevin Dougherty and Debra Todd. Wech also wrote a concurring opinion.
Justices Sallie Mundy and Kevin Brobson, both Republicans, voted no and wrote dissenting opinions.
Mundy wrote, “I express no opinion as to whether no-excuse mail-in voting reflects wise public policy. That is not my function as a member of this state’s Judiciary. My function is to apply the text of the Pennsylvania Constitution, understood in light of its history and judicial precedent. In so doing, I would hold that that venerable document must be amended before any such policy can validly be enacted.”
Prior to the passage of Act 77, voters could only vote by absentee ballot if they were out of their municipality on Election Day, had a disability or illness that prevented them from making it to the polls or were engaged in official Election Day duties.
Besides no-excuse, mail-in voting, Act 77 also gave residents 18 and older an additional 15 days to register to vote before an election, provided funding for new county voting machines and gave voters 50 days before an election to cast mail-in ballots.
The Supreme Court’s long-awaited decision comes as legal disputes over whether to allow mail-in ballots continue. At issue with the latest challenges is whether to count ballots that do not have a handwritten date on the outer envelopes.
A 3rd U.S. Circuit Court of Appeals ruling in favor of counting undated envelopes in a 2021 Lehigh County judicial race led the Pennsylvania Department of State, which oversees elections, to rule they should be counted in the May 17 primary
But three counties – Berks, Lancaster and Fayette – have refused, leading to a lawsuit filed by the Department of State last month, according to WHYY.
In addition, 14 Republicans are taking a new legal approach to having the law struck down, saying it must be invalidated if any part of the law is struck down – in this case, the nullification of the requirement of the handwritten date on the outer envelope, according to The Associated Press.
The Associated Press said the lawsuit cites the ruling by the 3rd U.S. Circuit Court of Appeals against Republican candidate David Ritter’s legal challenge to counting the undated ballots in the Lehigh County judicial race. Ritter ultimately lost to Democratic candidate Zach Cohen.
Law’s Lehigh Valley connection
Act 77 also contained a provision that eliminated straight-party voting – a measure that had been included by Lehigh Valley Sen. Lisa Boscola, D-18, in an earlier bill that provided funding for new machines and a decertification process.
The bill was vetoed by Gov. Tom Wolf in July 2019.
Boscola had long pushed to end straight-party voting, saying it put political parties above candidates. She also noted that Pennsylvania was among eight states that allowed it.
“It is bad for our democracy,” she said in a press release.
Boscola’s straight-party voting measure was rolled into what eventually became Act 77 and she became its prime sponsor. Adding it was viewed as a way to gain Republican support for the Senate bill in exchange for expanded mail-in voting.
Straight-party voting was viewed as favoring Democrats, who outnumber Republicans in Pennsylvania. Eliminating it drew rebuke from fellow Democrats.
State Sen. Pat Browne, R-16, was listed among the co-sponsors of the final Act 77 bill. It passed the Senate 35-14 on Oct. 29, 2019.
The law, which passed 138-6 vote in the House on the same day, had mixed support among Lehigh Valley House members.
Current incumbents voting yes were: Peter Schweyer, D-22, Michael Schlossberg, D-132, Ryan Mackenzie, R-134, Joe Emrick, R-137 and Gary Day, R-187.
Voting no were Jeanne McNeill, D-133, Steve Samuelson, D-135, and Bob Freeman, D-136.
Zachary Mako, R-183, did not vote. Wolf signed it into law on Oct. 31, 2019.