Pennsylvania’s mail-in voting law is constitutional, the state Supreme Court ruled Tuesday, upholding a 2019 measure that allows any voter to use and remove mail-in ballots a cloud of uncertainty heading into the mid-term elections.
The law greatly expanded postal voting, from a method that was only allowed in a very small number of cases — about 5% of the votes in any given election — to a method used by millions over the past two years.
It was the result of bilateral negotiations between Democratic Gov. Tom Wolf and Republicans who control the state legislature, the biggest change to Pennsylvania’s election law in generations. But it was implemented in 2020 both during the first year of the pandemic and in a heated presidential election. As overwhelming numbers of voters cast mail-in ballots, state and county election officials tried to dismantle the system — in some cases prompting outrage and lawsuits from Republicans over their decisions.
The President at the time, Donald Trump, expressed this further he began to attack postal voting months before losing to Joe Biden in the 2020 presidential election. Republicans continue at attempt to dismantle the law — known as Act 77 — with some saying it has been abused in its implementation, while others point to false conspiracy theories about widespread fraud.
The resulting partisan divide over a mail-in voting law that was carefully negotiated — and trumpeted — by both Democrats and Republicans was on full display after Tuesday’s ruling.
“I will continue to advocate for voting reforms that remove barriers and increase access to voting,” Wolf said in a statement when Democrats and allied groups praised the court.
One of the House Republicans’ point on elections, meanwhile, suggested that the elected Democrats who make up the majority of the court were acting as interested parties. And a spokesman for Senate Republicans said the ruling “underscores the importance of actions taken by the General Assembly to strengthen election integrity,” including a move to add strict voter ID requirements to the Constitution.
The partisanship helped create Act 77 in the first place, with bipartisan negotiations underway in 2019 after Wolf and Republican lawmakers alone. repeatedly butted leaders on electoral legislation and funding for new voting machines.
Constitutional questions also surrounded the law from the beginning.
The Pennsylvania Constitution specifically describes situations that allow absentee voting, including disabled voters and those who will be away on Election Day. Because of that, the legislature was unable to increase absentee voting. Instead, Act 77 created a “mail-in” ballot that was the same as an absentee ballot. That created two functionally identical types of mail-in ballots — and lawmakers blurred the lines between the two in a separate bill they passed in March 2020.
A group of Republican lawmakers — some of whom voted for the law in 2019 — and a Republican county commissioner sued last summer, saying that Act 77 violates the state Constitution. The state Constitution’s protection of absentee voting, they argued, means it is unconstitutional to provide voting by mail in other cases.
Their argument also focused on the requirements for voter eligibility, including that “he or she shall reside in the electoral district in which he or she will offer to vote for at least 60 days immediately preceding the election.”
That “vote offer” language means voters must cast ballots in person unless they fall within the constitutional exception for absentee voting, Republicans argued, citing two cases from 1862 and 1924.
The state Commonwealth Court agreed with that argument and Temporary repeal of Act 77 in January. The state appealed to the Pennsylvania Supreme Court, which stayed the ruling and kept the law in place while considering the case.
The high court heard arguments in early March. Since then, officials and lawyers have been waiting for a ruling that they knew could come at any time and had the ability to confirm the status quo — or seriously disrupt the electoral system.
On Tuesday, the court gave its ruling: Act 77 did not violate the Constitution in expanding postal voting, and the law remains on the books.
“We reiterate that our General Assembly has great legislative power, subject only to express limitations in the Constitution,” wrote Justice Christine Donohue for the majority. “We see no restriction in our Constitution on the ability of the General Assembly to create collective mail voting.”
Joining Donohue were Chief Judge Max Baer and Judges Debra Todd and Kevin Dougherty; the fifth justice, David Wecht, concurred in the majority opinion. All five are Democrats.
They rejected the argument that previous court cases had called on them to limit voting by mail to expressly protected absentee voters. Walking through the history of the Constitution and absentee voting, the court reasoned that absentee voters are the minimally protected group of voters who are allowed to vote by mail — but that nothing prevents the legislature from giving that option to others.
The two Republicans on the court, Justices Sallie Updyke Mundy and Kevin Brobson, dissented. Both argued that the court was inappropriately reshaping history – and precedent – to defend the law.
“Put succinctly, the majority violates 160 years of this Court’s precedent to save a law that is not yet 3 years old,” Brobson wrote. “It does so without correcting some real wrong or protecting a fundamental constitutional right.”
Mundy emphasized that her disagreement with the Democratic majority was about law and precedent, not policy or politics.
“I express no opinion as to whether unapologetic voting by mail represents wise public policy,” Mundy wrote. “That is not my function as a member of the Judiciary of this state. My function is to apply the text of the Pennsylvania Constitution, understood in light of its history and judicial precedent. In doing so, I would think that that credible document must be amended before any such policy can be validly enacted.”
Tuesday’s decision is unlikely to ease the partisan fight over Pennsylvania’s elections.
The same Republican lawmakers who challenged Act 77 filed a second lawsuit in July, arguing that the law should be struck down on entirely separate grounds based on recent federal court rulings. Responses to that lawsuit are due Monday.