Roles were reversed in the Pennsylvania Supreme Court on Tuesday, as attorneys argued over the fate of the state’s three-year-old mail-in voting law, with lawyers for Gov. Tom Wolf arguing to protect legislative power, and lawyers for 14 dissident lawmakers arguing to undo a law that 11 of them had voted to approve.
The law, known as Act 77, was declared unconstitutional in a 3-2 January decision by the state’s Commonwealth Court, 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 GOP-controlled General Assembly and Democrat Wolf, in which the General Assembly passed no-excuse absentee ballots, and Wolf agreed to eliminate straight-ticket voting. The bill also provided funding to counties to replace decertified voting machines. It passed with near-unanimous Republican support.
But a three-judge Commonwealth Court panel that initially invalidated the law ruled that universal mail-in balloting should have been passed as a constitutional amendment, which requires a referendum, rather than as a statute signed into law.
The opinion, written by Judge Mary Hannah Leavitt, cited two cases both more than 100 years old to argue that the state constitution mandated that voters have to show up in person to vote to bar a handful of excuses enumerated in the constitution.
In oral arguments before the state Supreme Court, Mike Dimino, an attorney for the McLinko, pointed to those same excuses — such as illness, work, or a religious reason — as proof that if the Legislature’s authority included the ability to allow all voters of the commonwealth to vote by mail, there was “no reason” to list specific excuses in the state’s foundational legal document, which can trace its origins to the 1700s.
Justice Christine Donohue pushed back, saying that “if there is any policy reason to show up to vote, it is to effectuate the intent and make certain that only the right people show up to vote,” such as “every white freemen” guaranteed a vote under an 1838 constitutional change.
Attorneys for Democratic Gov. Tom Wolf and the national Democratic Party argued that changing circumstances and constitutional wording meant that the high court should break with the lower court’s ruling and uphold the law.
“All doubts have to be resolved in favor of the General Assembly’s authority,” attorney Robert Wiygul, of Hangley Aronchick Segal Pudlin & Schiller, said.
If the high court were to go along with the lower court, added attorney Seth Waxman, “there is going to be at minimum mass confusion” from the hundreds of thousands of voters who have come to regularly vote with mail-in ballots.
“I submit that affirmance of the Commonwealth Court decision is going to involve disenfranchisement of voters who’ve come to rely on the current system,” Waxman, who represented the Democratic Party, said.
In contrast, Waxman argued, there is no interest “in imposing a system of democratic elections that allows fewer rather than more people to participate.”
Wolf attorney Wigyul also pointed to the wide bipartisan support for Act 77, though justices appeared unconvinced by such an argument.
“I’m not sure why overwhelming support in the Legislature is deserving of deference,” Justice Kevin Brobson, who was elected as a Republican last November, said.
Still, the fact that 11 GOP lawmakers who once voted for the law now challenged it, also piqued the justices’ interest.
Under questioning Tuesday, the legislators’ attorney, Gregory Teufel, said that the legislators voted for Act 77 at the time because they were ignorant of the law’s “constitutional infirmity.”
“This is an epic and fundamental change none of us can deny, and the Pennsylvania voters have the right to have a say whether we amend it this way,” Teufel said. “It is not just up to the legislature to decide it this way.”
At first, Act 77 was hailed as a bipartisan win. However, Trump spent most of his reelection campaign attacking, without evidence, the integrity of mail-in voting. Then, amid the COVID-19 pandemic, Democratic voters used mail-in ballots en masse.
Counties, forbidden by law from counting them until Election Day, were slow to process almost 2 million mail-in votes that skewed to now-President Joe Biden. This gave the false impression of Trump “losing” his Election Night advantage to “dumps” of Democratic votes.
Republican voters, led on by Trump and his allies’ rhetoric, have soured on mail-in voting.
However, GOP leadership in Harrisburg so far hasn’t backed a full repeal of Act 77, only proposing to tighten verification and return requirements for mail-in votes, among other broader changes to the state election code.
Without legislative action, the GOP House lawmakers filed their suit in September 2021.
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