On Tuesday, the Pennsylvania Supreme Court heard much-anticipated oral arguments in McLinko v. Commonwealth, a case challenging Act 77, Pennsylvania's no-excuse absentee voting law. AP reported:
Justices did not indicate when or how they will rule, although Chief Justice Max Baer suggested that if they were to throw out the 125-page law it could remain in place through the spring primary, currently scheduled for May 17.
As we previously noted, this case has extremely important implications for the rest of the country because the key issue is whether Pennsylvania's General Assembly should be required to follow its own state constitution when enacting elections legislation.
This case has national significance because it sets a precedent for whether other state legislatures are bound by their state constitutions when writing legislation. https://t.co/u1tbJMp8Be— RNLA ⚖️ (@TheRepLawyer) March 4, 2022
Counsel for Appellants argued that the Pennsylvania Supreme Court should construe the state constitution to mean something that is opposite to prior rulings made by the court:
The constitution states that elections shall occur by ballot “or by such other method as may be prescribed by law” — a clause, the lawyers say, that gives the legislature the authority to make election changes without having to go through the lengthy process of amending the constitution.
Several justices Tuesday pushed back on that argument, asking lawyers for the state about two prior court cases that determined that the only constitutional exception to voting in person is voting by absentee ballot. Those cases, they noted, pose a problem to the state’s position.
The DNC didn't bring much stronger of an argument. Their main point argued that the decisions in Chase and Lancaster City were "weak".— Lawyers Democracy (@lawyersdf) March 8, 2022
Somehow 160 years of valid, binding precedent and clear constitutional history is "weak."
Counsel for Appellee Doug McLinko, Professor Michael Dimino, pushed back against arguments that the constitutional provisions governing mail voting were somehow obsolete because of the time period they were enacted:
Michael Dimino, a Widener Law School professor representing Doug McLinko, a Bradford County commissioner who sued to challenge the law, told the justices that having most voters cast ballots in person helps ensure that elections are run fairly, even if the original intent was spurred by early 19th century efforts to limit the franchise to white, male property owners.
“Having a presumption that voting in person is required continues to be some amount of guarantee that the people who do cast a vote are qualified to do,” Dimino said.
The Pennsylvania Supreme Court's decision should be an easy one. Upholding the lower court's decision to strike down the law would be in line with the state constitution and over a century of binding precedent.
If the PA Supreme Court upholds Act 77 (no-excuse mail voting law) it will have ignored the PA Constitution, 160 years binding precedent, and the exclusive and longstanding right of voters to determine who may vote by mail.— Lawyers Democracy (@lawyersdf) March 8, 2022
To do so could only be political.
Tuesday's oral arguments before the Pennsylvania Supreme Court can be listened to in their entirety here.