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Court ruling puts mail-in voting on hold in Pennsylvania

Friday's Commonwealth Court opinion declares Act 77 of 2019 unconstitutional, though an appeal is expected by the Department of State.

PENNSYLVANIA, USA — A statewide court says Pennsylvania’s expansive two-year-old mail-in voting law is unconstitutional, agreeing with challenges by Republicans who soured on mail-in voting after then-President Donald Trump began baselessly attacking it as rife with fraud in 2020′s campaign.

According to a Commonwealth Court filing released Friday, the court ruled that Act 77, allowing residents to vote by mail in Pennsylvania, violates Article VII, Section 1 of the Pennsylvania constitution.

The Commonwealth Court denied the Pa. Department of State acting secretary's application for summary relief.

In the ruling, Commonwealth Court President Judge Mary Hannah Leavitt wrote, "If presented to the people, a constitutional amendment to end Article VII, Section 1 requirement of in-person voting is likely to be adopted. But a constitutional amendment must be presented to the people and adopted into our fundamental law before legislation allowing no-excuse mail-in voting can be 'placed upon our statute books.'"

Friday's decision by a five-judge Commonwealth Court panel could be put on hold immediately by an appeal from Gov. Tom Wolf’s administration to the state Supreme Court. 

The decision throws the state’s voting laws into doubt in a big election year.

The three Republican judges agreed with Republican challengers. The two Democrats on the panel dissented. 

Governor Wolf said his administration would immediately appeal the decision, in the hopes the Supreme Court would issue a stay, thus halting the lower court's decision.

“The Republican-controlled legislature passed Act 77 with strong bipartisan support in 2019 to make voting more safe, secure, and accessible and millions of Pennsylvanians have embraced it. The simple fact is that despite near-unanimous Republican legislative support for this historic update to Pennsylvania election law, they now want to strip away mail-in voting in the service of the “big lie”, Wolf said in a statement.

Act 77, the Pennsylvania law which legalized no-excuse mail-in voting in 2019, was originally born out of a compromise between legislative Republicans and Democratic Governor Tom Wolf. Republicans wanted to eliminate straight-ticket voting, and to do so, gave mail-in voting to Democrats. Prior to this, only people who qualified for absentee voting were allowed to vote by mail.

Republicans voted in near unanimity for Act 77; 27-0 in the Senate, and 105-2 in the House. Democrats offered no support in the Senate, and were split in the lower chamber, 59 against, 33 for. 

However, like many things, the COVID-19 pandemic changed everything.

Mail-in ballots cast by people weary to visit crowded polling places during the height of the pandemic overwhelmed election offices during the June 2020 primary election. When November general election came up, more than 2.6 million votes cast for President, more a third of all votes, were by mail. Among that number, two of every three mail-in voters, more than one million total, were registered Democrats.

Joe Biden won the election over Donald Trump by 80,000 votes.

Following the election, some Republicans wrote legislation calling for the repeal of Act 77, claiming no-excuse mail-in voting violates the constitution. Only voters who qualify for absentee voting are allowed to vote by mail, many claimed. Changes to the election code must be done, they said, through a constitutional amendment, where the proposal passes through the House and Senate on two consecutive sessions with the same language before it is approved by voters. 

Senate President Pro Tempore Jake Corman, while not among the petitioners to the case, applauded the Commonwealth Court's decision.

"I have no confidence in the no-excuse mail in ballot provisions," he said. "There is no doubt that we need a stronger election law than the one we have in place today."

Corman said Act 77 led to a "double-standard" in eliminating security features which he says turned into security issues during the 2020 and 2021 elections.

The state Supreme Court holds a 5-2 Democratic majority. 

You can read the full Commonwealth Court opinion below:

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