PA Supreme Court to Decide Fate of Controversial Absentee Voting Law

On Tuesday, the Pennsylvania Supreme Court is set to hear arguments over the fate of Act 77, Pennsylvania's controversial no-excuse absentee voting law. In January, the Commonwealth Court struck the law down, reasoning that Pennsylvania's General Assembly went against the state constitution when it enacted no-excuse absentee voting.

Wally Zimolong, who represents Bradford County election official Doug McLinko in the case, explains:

The lawsuit is not about politics, stolen elections, or decertifying election results. The lawsuit was not filed on the eve of an election, hours after millions of ballots had been cast, and it does not ask the court to invalidate the results of any election or even one vote. It is about whether our state Constitution means what it says and whether we should follow over 160 years of Supreme Court precedent that holds that our Pennsylvania Constitution requires voting to occur in person at the polling place. . .

The problem with no-excuse mailed voting in Pennsylvanian is that the people have never approved it through a constitutional amendment. Act 77, a legislative act, is a runaround of the longstanding rule that the voters approve all changes expanding mail voting in Pennsylvania. That is how it’s been done for over a century. Each time Pennsylvania wished to grant an except[ion] to the rule that voters cast their ballots in person, it was properly done through a constitutional amendment. 

This case has national significance because it sets a precedent for whether other state legislatures are bound by their state constitutions when writing legislation. The Pennsylvania Supreme Court brief for McLinko notes:

This case is not about whether no-excuse absentee voting is good policy. Rather, this case is about whether the General Assembly is bound by constitutional limits and by this Court’s long-established precedents, or whether, instead, the General Assembly may ignore the Constitution’s limits on its power when those limits prove inconvenient.

Several organizations have filed briefs in support of those challenging Act 77 including the Honest Elections Project, Citizens United, Landmark Legal Foundation, and America First Policy Institute.

As the brief by Citizens United explains, the logical conclusion is that Act 77 is unconstitutional no matter how you look at it:

The Commonwealth Court is correct. Article VII, Section 14 of the Pennsylvania Constitution limits to those identified in Section 14 the qualified electors able to vote other than in-person. The express language requires that conclusion. The legislative history behind Senate Bill 6, which proposed the amendment to Article VII, Section 14, requires that conclusion. The legislative history surrounding subsequent amendments to and attempts to amend Section 14 requires that conclusion. And the interpretive maxim expressio unius est exclusio alterius requires that conclusion.

You can watch the oral arguments live on Tuesday, March 8th at 9:00 a.m. ET.