Pennsylvania’s mail-in voting law survives constitutional challenge by GOP lawmakers

(*This story was updated at 5:11 p.m., Tuesday, 8/2/2022, to include additional reaction to the Supreme Court decision.)

Pennsylvania’s mail-in voting law has survived a constitutional challenge by Republican officials who voted for it three years ago. 

The Pennsylvania Supreme Court ruled Tuesday that the state Legislature did not overstep its authority when it passed the 2019 law that permits any qualified voter to vote by mail without an excuse. 

The 5-2 decision reverses a Commonwealth Court order that would have invalidated the law.

Gov. Tom Wolf said the Supreme Court decision definitively asserts that voting by mail is a constitutionally valid method of voting. By upholding the law, which was approved with bipartisan support, the ruling ensures that Pennsylvania voters will be able to cast ballots without disruption or confusion.

“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,” Wolf said in a statement.

Rep. Seth Grove, R-York, chairperson of the House State Government Committee, where election bills are shaped, said the decision was unsurprising, citing the court’s approval this year of a congressional redistricting map favored by Democrats.

“While some may celebrate this ruling and others denounce it, the reality is we still have election laws and processes that are failing our voters and election administrators. Until we update our voting laws, Pennsylvania will continue to have chaos in our elections,” Grove, the sponsor of an omnibus election reform bill, said.

The decision comes amid other challenges to the mail-in voting law, including an appeal in the U.S. Supreme Court and another lawsuit filed last month by 14 Republican lawmakers in Commonwealth Court.

Acting Secretary of State Leigh Chapman said Tuesday that the state Supreme Court decision preserves a new method of voting that ensures Pennsylvania residents can exercise the right to vote regardless of obstacles such as illness, work schedules, or a lack of child care.

The Department of State said more than 5.3 million mail-in ballots have been cast since the option was first available in 2020. During the pandemic, mail-in voting was adopted en masse, overwhelmingly by Democrats.

Although the law was passed with bipartisan support, former President Donald Trump spent much of his 2020 reelection campaign attacking the security of mail-in voting. When counties, forbidden to begin processing mail-in ballots before Election Day, were slow to count mail-in votes, it gave the appearance that Trump had lost his election night lead as votes for President Joe Biden trickled in over the following days, providing grist for the “Big Lie.”

A spokesperson for Senate Republicans said the Supreme Court’s decision underscores the importance of action by the General Assembly to ban third-party funding for election administration and proposed constitutional amendments to require voter identification and post-election audits. 

House Democratic Leader, Rep. Joanna McClinton, of Philadelphia, said the decision thwarted an attempt to roll back improvements to ballot access and election participation.

Commonwealth Court declared the law, known as Act 77, unconstitutional as it ruled on two challenges to the law — one brought by the Republican lawmakers, as well as a separate one from Bradford County Commissioner Doug McClinko.

Act 77 was approved in a deal between the Republican-controlled Legislature and Gov. Tom Wolf, in which lawmakers voted for no-excuse mail-in balloting and Wolf agreed to end straight-ticket voting, in which voters can vote for all of the candidates of a party together.

The Commonwealth Court, in a 3-2 January decision, found that the Pennsylvania Constitution requires voters to appear at the polls in person unless they have one of a number of excuses specified in amendments that allow voting by absentee ballot. The opinion cited two cases both more than 100 years old.

In the opinion by the Supreme Court majority, Justice Christine Donohue wrote the courts were interpreting a version of that constitution that predated Pennsylvania’s voter registration laws when “arguably, the only way to verify an individual’s qualifications to vote in an election district was to allow his neighbors to identify him as qualified.” 

Donohue said the rationale supporting the interpretation that the constitution requires voters to appear in person ceased to exist when it was amended in 1901 to require voter registration. Further, the adoption of the Election Code in 1937 required voters to prove their identities and qualifications before voting, Donohue wrote.

The Supreme Court majority also rejected the Commonwealth Court’s reading of Article VII Section 4, which states that voting must be conducted by ballot “or by such other method as may be prescribed by law,” as long as secrecy in voting is preserved. 

The Commonwealth Court found “other method” meant only that another process for voting, such as a voting machine, could be used as an alternative to paper ballots at the polling place. 

Donohue said the provision, unchanged since 1901, contains no such restriction.

“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,” Donohue said.