Note: This post was updated at 3:10 p.m. Friday to note that a notice of appeal of the Commonwealth Court ruling has been filed with the Pennsylvania Supreme Court, and that means the current law will remain in effect while the case is at issue.
A narrow Commonwealth Court majority struck down Pennsylvania’s new but widely-used law permitting no-excuse mail-in voting Friday, arguing that the state Constitution should have been amended before the Legislature made this kind of significant change to voting processes across the state.
In the 3-2 decision, the majority held that if the Legislature and state voters agree to that kind of amendment, mail-in balloting can be restored. But the 2019 law authorizing it got out ahead of the plain language of the state Constitution, the majority held in an opinion by Judge Mary Hannah Leavitt, and that can’t be ignored.
The immediate impact of the decision is limited.
That’s because Gov. Tom Wolf’s Department of State filed a notice of appeal with the Pennsylvania Supreme Court Friday afternoon, and because a governmental agency is bringing the appeal, the current statute - including other provisions in the law including the elimination of straight-party voting options and longer pre-election windows for residents to register to vote - stays in effect while the case is still as issue.
In a subsequent statement Friday afternoon, the department directly advised Pennsylvania voters who want to vote by mail this year to go ahead and request an application, or to complete and return any application they may have already received for 2022 because they’ve said in the past that they wanted to receive them automatically.
The department also told county election boards that they should proceed with all primary election preparations as they were before Friday’s ruling.
The Supremes would be the ultimate arbiter in the case.
“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,” Wolf said in his statement after Friday’s lower court ruling, in which he blamed many of those same Republicans for the efforts to overturn it.
“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.”
Voting by mail has already proven extremely popular with 21st Century Pennsylvania voters, perhaps fueled by interest in options to in-person voting during the coronavirus pandemic.
The new system was used by more than one in three voters in the 2020 presidential election, and about 1.38 million voters have signalled that they wish to have the option on a recurring basis. In the presidential vote, those mail-in votes skewed heavily in favor of Democrat Joe Biden, giving former President Donald J. Trump an initial platform to raise concerns - with no basis in fact - that the election was rigged.
In fact, Trump was one of the first politicians to react to the ruling, issuing this statement Friday from his Save America political action committee: “Big news out of Pennsylvania, great patriotic spirit is developing at a level that nobody thought possible. Make America Great Again!”
The current challenge was brought in two separate cases: one from Bradford County Commissioner Doug McLinko, and the second from a group of Republican state legislators.
In her opinion for the majority, Leavitt wrote that the standard for voting since 1838 has been understood in the Constitution to mean in-person voting at a specified time and place. That standard has been expanded over time to permit absentee balloting by military members, the disabled, people away on travel for work or pleasure, and even people constrained by religious observances.
But those changes, Leavitt said in an opinion joined by Judges Patricia McCullough and Christine Fizzano Cannon, have always followed corresponding amendments in the state Constitution that cleared the way for them to be enacted.
That’s a fundamental step, she said, that can’t be ignored.
“Our Constitution allows the requirement of in-person voting to be waived where the elector’s absence is for reasons of occupation, physical incapacity, religious observance, or Election Day duties. Because that list of reasons does not include no-excuse absentee voting, it is excluded,” Leavitt wrote.
“An amendment to our Constitution that ends the requirement of in-person voting is the necessary prerequisite to the legislature’s establishment of a no-excuse mail-in voting system.”
The dissenters in the case, Judges Michael Wojcik and Ellen Ceisler, agreed with the Wolf Administration’s premise that Leavitt’s theory could apply to changes in in-person or absentee balloting specifically, but that nothing in the Constitution bars the Legislature from authorizing a distinctly new form of balloting, which they hold that no-excuse mail-in balloting was meant to be.
In its latest appeal, lawyers for the state are asking the Supreme Court to consider both whether Leavitt and her colleagues are wrong on the law, or whether they were wrong in finding that the plaintiffs had proper standing to bring their challenge in the first place.
The new doubts about voting-by-mail come in a year where Pennsylvania voters are choosing a new governor, a new U.S. Senator, all 17 representatives to Congress, 203 state House members and 25 state senators.
If Leavitt’s holding does stand, in a way it would just be back to the relatively recent future for Pennsylvania voters: In-person voting never went away, and the court’s decision leaves in place the more traditional absentee balloting for people with specific reasons why they can’t be at the polls on election day.
But some vote-by-mail supporters argued Friday that having opened this avenue, it would be nothing less than disenfranchisement of voters to take it away.
“Three million voters can’t be wrong,” said Ray Murphy, state coordinator for the voter access group Keystone Votes. “The lawsuit that led to this decision was nothing more than a brazen attempt to cause confusion and turn a bipartisan election modernization law into a partisan political issue. It’s a stain on the success so many worked to achieve.
“More than 3.2 million Pennsylvanians used vote by mail in the last major election in 2020. In the 2020 general election, almost two-thirds of all vote-by-mail voters were over the age of 65. There is no legitimate reason for Republicans to try to overturn a law that so many people are using --- unless they are afraid of giving power to these voters,” Murphy continued. “Our focus remains on working with voters to educate and inform them, and we intend to do that here so there is no confusion, because this is not the end of the story.”
But one top Republican legislative leader said Friday that he believes there are real problems with the way aspects of the mail-in balloting was implemented by Wolf’s Department of State in 2020, and he called Leavitt’s ruling a pivot point for the governor to engage in negotiations on a new elections law.
“After what occurred in the 2020 and 2021 elections, I have no confidence in the no-excuse mail in ballot provisions. There is no doubt that we need a stronger election law than the one we have in place today,” said Senate President Pro Tempore Jake Corman, a Centre County Republican who happens to be running to succeed Wolf this year.
Corman’s reference was in part to a 2020 Election Eve guidance issued to counties by then-Secretary of State Kathy Boockvar’s about how to deal with mailed ballots that were incorrectly completed, such as not arriving inside a separate, secrecy envelope. The guidance advised counties to notify voters who had deficiencies on their ballot to cast a provisional ballot, which Corman has said is a step that has no basis in law.
Some counties followed Boockvar’s late guidance and others didn’t.
“Governor Wolf has ignored this debate for over a year, but hopefully this ruling will help bring him to the table so we can address concerns about our election system once and for all,” Corman said.
The mail-in voting law has also become a hot topic on the campaign trail, with nearly every Republican candidate for governor — including two of three state senators who voted for it — vowing to repeal it if elected.