GOP lawmakers celebrate Act 77 ruling, though what’s next is unclear

The order, which struck down mail-in ballots, has already been appealed, and further legislative action is on hold

By: - February 9, 2022 4:58 pm

Lawmakers who oppose mail-in ballots, many of whom voted for the state’s 2019 mail-in ballot law, at a Feb. 9 press conference on a lawsuit challenging the law (Capital-Star photo).

Republican lawmakers who filed suit against Pennsylvania’s mail-in ballot law said Wednesday that they were confident that it would be upheld by the state Supreme Court.

The suit, filed last September by 14 House Republicans, argues that Act 77, the 2019 law that authorized mail-in ballots, was unconstitutionally enacted by statute rather than put to voters as a constitutional referendum. 

The law passed the General Assembly with the near unanimous support of Republicans, including 11 of the 14 plaintiffs.

In a 3-2 January decision, a panel of Pennsylvania Commonwealth Court judges agreed with their arguments, and struck down the law. 

Pennsylvania’s mail-in voting law unconstitutional, state court says; Wolf admin appeals

While she remained silent on mail-in ballots as a matter of public policy, Judge Mary Hannah Leavitt argued in a 50-page opinion that precedent dating back to the Civil War was on the plaintiffs’ side, and that no-excuse absentee voting could only be implemented if approved as a constitutional amendment.

The immediate impact of the ruling is minimal. That’s because Democratic Gov. Tom Wolf has already appealed the decision to the liberal state Supreme Court, which stays Leavitt’s order.

Also, most observers agree her decision will be overturned by the high court. In a dissenting opinion, Commonwealth Court Judge Michael Wojcik already argued that Leavitt’s opinion is based on a “faulty premise.” 

But to the plaintiffs, the decision was still vindication. 

State Rep. Mike Jones, R-York, said Leavitt has produced “an incredibly well-written opinion” and that “many have said her [ruling] is one of the finest they’ve ever read.”

“While my colleagues and I are very happy with this victory, the big winners are the voters of Pennsylvania,” Jones added.

While most of the attendees of the press conference — which also included a half-dozen lawmakers who did not sign onto the suit — voted for the law, what united them, said state Rep. Dave Zimmerman, R-Lancaster, was the “motivation to get it right in the end.”

Zimmerman has appeared at rallies held by individuals who make baseless claims that President Joe Biden’s 2020 election victory was fraudulent 

Most of the attendees also either signed the Dec. 2020 letter calling for Congress to toss out Pennsylvania’s electoral college results, or put their names to proposals calling back the Legislature to “provide election oversight” or delaying the certification of election results pending a legislative review of the election.

Pennsylvania once had among the strictest absentee ballot laws in the country. But since the GOP-controlled General Assembly and Democratic Gov. Tom Wolf reached a deal in 2019, millions of people — including about 2 million in the 2020 presidential election — have voted by mail in the commonwealth.

At the time, it was hailed as a bipartisan victory. But as former President Donald Trump attacked mail-in ballots, claiming without evidence that they were rife with fraud in the lead up to his 2020 election, Republicans began to sour on the deal.

The lawsuit’s basic argument was first used in a suit filed after Trump lost Pennsylvania, in which ballots cast by mail made up a large portion of victor Joe Biden’s support. 

U.S. Rep. Mike Kelly, R-16th District, asked for the state courts to find Act 77 unconstitutional and invalidate every vote cast by mail-in ballot, swinging the state’s results to Trump.

The Commonwealth Court, which has a conservative majority, agreed, temporarily halting the certification of Pennsylvania’s results. Then, the more liberal Supreme Court reversed the decision, rejecting both the suit’s argument and the requested resolution — tossing millions of ballots.

Still, state Rep. Tim Bonner, R-Mercer, the lone lawyer among the plaintiffs, said was “confident” the high court would affirm the Commonwealth Court decision.

Bonner added that he came up with the idea for the suit in the spring of 2020 after seeing “how mail-in ballots worked in the primary.” He then began to research the issue and checked in with colleagues to gauge support for a court challenge.

He added that part of the long delay in filing the suit was because lawmakers had to privately fundraise to finance the suit, “much of which” came from the plaintiffs.

The only impact of the 2020 election on the suit, Bonner said, was “seeing how the system was overwhelmed with mail-in voting. We were incapable of truly administering the election process added to our concern.”

Counties are caught in between as Wolf, GOP once again try to negotiate election reform

While ballot-counting was delayed, forcing the public to wait days for a final result, county election officials have said the main culprit is state law, which prevented them from opening and tabulating mail-in ballots until the morning of Election Day. 

Republicans have rejected efforts to fix this, unless it’s married to their own priorities which could restrict ballot access, such as allowing people to watch polls outside their home county or approving voter ID.

Many of those changes are in House Republicans’ omnibus election law rewrite. But Bonner told the Capital-Star that he and other lawsuit plaintiffs were equally skeptical of the GOP proposal. 

Among many other provisions, the bill proposes to restrict how voters request or return mail-in ballots, while implementing signature verification for such ballots. But, importantly for Bonner and others, it does not eliminate them entirely, as their lawsuit attempts to do. 

Republicans say voter ID will increase voters’ trust in elections; researchers say otherwise

The bill “does incorporate and reaffirm some of the provisions of Act 77,” Bonner told the Capital-Star, “so until we have a determination whether Act 77 is constitutional, we’re reluctant to support the bill at this time.”

Wolf vetoed an earlier version of the bill, which cleared the General Assembly last June. A second version has since been proposed and repeatedly scheduled for a vote, but then pulled off the House’s voting calendar at the last minute.

In an email, House Republican spokesperson Jason Gottesman said leaders were waiting “for the judicial process to reach its conclusion before making any final legislative decisions.” 

“It bears repeating that the General Assembly passes legislation and the courts interpret the law,” he added.

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Stephen Caruso
Stephen Caruso

Stephen Caruso is a former senior reporter with Pennsylvania Capital-Star. Before working with the Capital-Star he covered Pennsylvania state government for The PLS Reporter.