The Pennsylvania Supreme Court Tuesday upheld the no-excuse mail-in ballot law, overturning a previous decision by the Commonwealth Court ruling Act 77 was unconstitutional.
In a 7-2 decision, the high court held the state legislature had the power to write election law, which changed a longtime process in Pennsylvania that had required voters to give a valid reason when they wanted to vote by absentee ballots. It also led to ballot drop boxes, which critics have complained brought ballot-harvesting, where people illegally turned in numerous ballots.
Attorney General Josh Shapiro, who is the Democratic candidate for governor, welcomed the decision.
“With this ruling, the court has provided certainty to voters — certainty that however people cast their vote, in person or by mail, it will be counted. After two years of consistent attacks on our election system and our voters, the Pennsylvania Supreme Court stated loud and clear that Act 77, which modernized our election code, is constitutional,” said Shapiro. “We must continue to stand up to attacks by those who want to pick and choose the laws to follow and the votes to count.”
State Sen. Doug Mastriano, the Republican running for governor, could not immediately be reached for comment.
Wally Zimolong, a lawyer involved in the case said, “We are disappointed by today’s ruling. It is an outcome-based opinion used to justify overturning 160 years of judicial precedent and redefining the phrase ‘offer to vote.’ We believe that we made a clear, concise, and constitutional argument that permitting mail-in ballots required a constitutional amendment. The Commonwealth Court of Pennsylvania agreed with our position and, unfortunately, the Supreme Court did not. This is also a reminder that elections matter and changes to Act 77 must be made at the ballot box.”
During a recent DVJournal podcast, longtime GOP political operative Michael Caputo also made the case that the state Supreme Court is playing politics and ignoring the clear language of the law. “We’re going to go through the midterms, I think, with no-excuse mail-in ballots because it took so long for any effective legislative fix. Act 77 needs to be repealed entirely,” Caputo said.
Linda Kerns, a Philadelphia attorney who handles election law cases, said, “Justice (Kevin) Brobson’s dissenting opinion boiled it down to, ‘The majority overruled 160 years of this Court’s precedent to save a law that is not yet three years old.’ I found it peculiar, as did Justice (Sallie) Mundy in her dissent, that the majority spent so much time discussing the so-called popularity of the law and who voted for it or signed it. None of that has anything to do with whether it should survive a challenge under the Pennsylvania Constitution.
“Until now, our Supreme Court has consistently placed a check on the legislature when they tried in the past to expand voting by means other than in person,” Kerns said. “Based on its other election-related decisions, I am not surprised by this ruling but I believe that the Court failed Pennsylvanians in what appears to be a zeal to protect no excuse mail balloting, whatever the cost,” Kerns said.