Pa. Supreme Court upholds no-excuse mail voting ahead of midterms

Stephen Caruso of Spotlight PA and Angela Couloumbis of Spotlight PA

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HARRISBURG — The state Supreme Court has upheld Pennsylvania’s mail ballot law, preserving for the time being a popular voting method that passed the legislature with bipartisan support but was later challenged by Republican elected officials.

In a 5-2 decision released Tuesday, the justices rejected the GOP argument that the legislature did not have the power under the state constitution to allow Pennsylvanians to vote by mail without an excuse.

The 2019 law, known as Act 77 and employed for the first time during the contentious 2020 presidential election, ushered in the most sweeping expansion of voting access in Pennsylvania in decades.

More challenges to the law are on the horizon. Republican elected officials who brought the suit said Tuesday that they plan to appeal to the U.S. Supreme Court.

A handful of Republican state lawmakers are also pursuing another avenue to have the entire law thrown out. That separate challenge, working its way through the state court system, was sparked by a federal ruling that found mail ballots that a voter failed to date, as required by state law, must still be counted.

The timeline to resolve the additional legal challenges is unclear, but supporters of the law said Tuesday’s ruling will preserve voters’ options ahead of the critical midterm election.

“This ruling assures that mail-in voting remains in place and Pennsylvanians will be able to cast their ballot legally in person or by mail without any disruption or confusion,” Gov. Tom Wolf, a Democrat, said in a statement.

A lower appellate court earlier this year struck down Act 77, saying that permitting no-excuse mail voting required amending the state constitution, a lengthy process in which voters decide the matter through a ballot question.

But in Tuesday’s majority opinion for the state Supreme Court, Justice Christine Donohue wrote that the Pennsylvania General Assembly “is endowed with great legislative power, subject only to express restrictions in the Constitution.”

While the expansion of voting rights is not guaranteed to be permanent, the legislature made a lawful policy decision, “based on the authority afforded it by our Charter, to afford all qualified voters the convenience of casting their votes by mail,” Donohue wrote.

All five of the justices who upheld Act 77 were elected as Democrats. Both of the dissenting justices were elected as Republicans.

Before the law’s passage, Pennsylvania had one of the most restrictive absentee ballot laws in the country.

In late 2019, Wolf and the Republican General Assembly struck a deal to allow 50 days of no-excuse mail voting before each election in exchange for eliminating straight-ticket voting. All but two GOP lawmakers voted for the bill.

Despite the early support, Republican sentiment on the law shifted throughout the 2020 election cycle as former President Donald Trump played up baseless fears of fraud via mail voting, claims which allies repeated in Pennsylvania.

GOP lawmakers in the state House and Senate — such as state Sen. Doug Mastriano (R., Franklin), his party’s gubernatorial nominee — have introduced legislation to repeal the law, but so far none of the proposals have received a vote in the General Assembly.

In fall 2021, a county commissioner and 14 state House Republicans — 11 of whom voted for the law in 2019 — filed separate suits claiming the law was unconstitutionally implemented as a statute when it should have been sent to the voters as a constitutional referendum.

That argument was first used in a 2020 lawsuit brought by U.S. Rep. Mike Kelly (R., Pa.) that attempted to toss out 2.6 million votes cast by mail, likely handing the state’s 20 electoral votes to Trump. The high court rejected Kelly’s case on procedural grounds, arguing that it could not post-facto reject millions of ballots cast in good faith under what was at the time a legal method of voting.

This is breaking news and will be updated.

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