Commentary

Why do Pa. courts have a say on mail-in voting? They probably shouldn’t | Bruce Ledewitz

The Commonwealth Court decision striking down mail-in voting for the 2022 election is probably unconstitutional

February 10, 2022 6:30 am

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On Jan. 28, the Pennsylvania Commonwealth Court struck down Act 77, Pennsylvania’s no-excuse mail-in voting law, as a violation of the state Constitution. People are now wondering what the Pennsylvania Supreme Court will decide in the case.

Bruce Ledewitz (Capital-Star file)

Whether the state Constitution requires in-person voting, with only a narrow exception for absentee ballots, is a close legal question. There are good arguments on both sides.

But the real question is why any state court gets to decide this issue, at least in the context of a federal election, such as 2022. It appears that a majority of the justices on the U.S. Supreme Court currently endorse the Independent State Legislature Doctrine, under which only state legislatures, not state courts interpreting state constitutions, decide the rules for voting in federal elections.

Under this doctrine, the decision of the Pennsylvania General Assembly to allow mail-in voting is final.

Pennsylvania is no stranger to the implications of this doctrine. It was the basis of the challenge to the three-day extension of receipt of mail-in ballots that the Pennsylvania Supreme Court ordered for the 2020 election.

In that case, the entire court found that the deadlines set out by the state election statute were unworkable because of COVID-19 and other issues. A four-justice majority held that under the State constitutional right to vote, the time to accept mail-in votes would be extended from election day to the following Friday.

As a matter of state constitutional law, this was a questionable decision. Justice Christine Donohue’s dissent, joined by then-Chief Justice Thomas Saylor and Justice Sallie Mundy, would have moved up the time for application of a mail-in ballot, thus protecting the right to vote while doing less damage to the legislature’s intent.

But no justice on the Pennsylvania Supreme Court imagined that this was a federal issue.

Normally, an interpretation of a state constitution by a state supreme court is a matter of state law only. The U.S. Supreme Court has no jurisdiction to review it.

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But in the three-day extension case, the U.S. Supreme Court not only considered the decision, but almost blocked it. Four justices— Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas —voted to stay the three-day extension, which only survived because the court at that time had only eight members and deadlocked on the stay.

At the time, these justices did not explain their votes.

But a statement by Alito, joined by Gorsuch and Thomas, issued only days before the 2020 election, explained that the “Supreme Court of Pennsylvania has issued a decree that squarely alters an important state provision enacted by the Pennsylvania Legislature pursuant to its authority under the Constitution of the United States to make rules governing the conduct of elections for federal office.”

Alito cited provisions in the Constitution authorizing a state’s “Legislature” to write such rules.

In a later dissent objecting to the failure of the U.S. Supreme Court to fully consider the three-day extension case after the 2020 election, Thomas amplified that “the Federal Constitution, not state constitutions, gives state legislatures authority to regulate federal elections.”

Whatever one may think about mail-in voting, it was the clearly express will of the General Assembly that voters have this option. According to the Independent State Legislature Doctrine, in the context of a federal election, that legislative decision cannot be reviewed under state constitutional standards.

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It is true that this doctrine has never been formally adopted by a majority on the U.S. Supreme Court. But voting for a stay of a lower court decision usually implies that a judge believes that the lower court decision would be overturned on the merits. It is thus fair to assume that four justices on the U.S. Supreme Court already endorse the doctrine. Given Justice Amy Coney Barrett’s accession to the court, it is a fair guess that a fifth vote is now present.

If that is so, it will not matter what the Pennsylvania Supreme Court decides about the 2022 election. Mail-in voting will go forward even if the Commonwealth Court decision is affirmed. This time, the U.S. Supreme Court will have a five-justice majority to stay such a decision.

Strangely, no judge on the Commonwealth Court mentioned the doctrine. It is not clear that anyone even thought about it.

The reason this is odd is that the issue of the three-day extension received enormous attention during the 2020 election cycle.

The doubts expressed by the U.S. Supreme Court Justices are often cited by Republican politicians as partial justification for the Big Lie that the 2020 election was stolen.

References are often made to changes in state election laws that did not reflect the will of the state legislature. The three-day extension was specifically mentioned by objectors during debate over accepting certified presidential electors on Jan. 6, 2021.

The failure of Commonwealth Court even to mention the doctrine, let alone face its implications, is probably explained by the doctrine’s unusual character. Commonwealth Court was deciding a normal, albeit important, state constitutional issue. That usually involves no federal issue.

Furthermore, the doctrine assumes that the framers of the federal constitution conceived of state legislatures as bodies that could act independently of their own state constitutions. It is doubtful that the men who so carefully limited the powers of Congress and created a rule of law would envision that kind of rogue legislative power.

Nevertheless, despite the doctrine’s weaknesses, the Commonwealth Court decision striking down mail-in voting for the 2022 election is probably unconstitutional.

Since time is of the essence given the immanence of the 2022 election and primary timeline, the best way forward would be for the Pennsylvania Supreme Court, quickly and summarily, to reverse the Commonwealth Court’s decision on the basis of this federal ground, reserving state constitutional issues for a later day and the 2023 election.

That action would immediately be challenged and the U.S. Supreme Court would have the chance to finally and formally adopt the Independent State Legislature Doctrine it appears the court now endorses.

Other challenges to Act 77 were raised but not decided by Commonwealth Court. Eventually, they must also be considered. But, for now, mail-in voting in Pennsylvania should go forward.

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” hereHis latest book, “The Universe Is On Our Side: Restoring Faith in American Public Life,” is out now. His opinions do not represent the position of Duquesne University Law School.

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