DV Journal

The Commonwealth Court Friday ruled that Pennsylvania’s no-excuse mail-in voting law, Act 77, is unconstitutional.

In addition to striking down the law, the court ordered the acting secretary of state not to enforce Act 77.

The 3-2 ruling found the law, which permitted no-excuse absentee voting, while ending straight-ticket voting, violated the constitutional requirement of “the physical presence of the elector.” The judges found the legislature could not make changes to voting laws without amending the state Constitution.

Attorney General Josh Shapiro, a Democratic candidate for governor, said he will appeal the decision.

Pennsylvania Attorney General Josh Shapiro

“This opinion is based on twisted logic and faulty reasoning, and is wrong on the law,” said Shapiro, who is also the presumed Democratic candidate for governor. It will be immediately appealed and therefore won’t have any immediate impact on Pennsylvania’s upcoming elections. The issue will now go before the Pennsylvania Supreme Court, and we are confident in the constitutionality of Act 77.”

Gov. Tom Wolf agreed, saying, “The administration will immediately appeal this decision to the state Supreme Court and today’s lower court ruling will have no immediate effect on mail-in voting pending a final decision on the appeal.

An appeal has already been filed, triggering an automatic stay that keeps the law in place during the appeal process.

“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,” Wolf said.

He accused Republicans who opposed Act 77 of “trying to silence the people.”

Sen. Jake Corman

Pennsylvania Republicans, however, were thrilled. And they used the ruling to criticize the Wolf administration’s execution of the law.

“There have been numerous concerns raised about the way Act 77 was implemented by the Department of State, especially the double standard created by the removal of key mail-in ballot security measures in lead-up to the 2020 election,” said Senate President Pro Tempore Jake Corman (R-Bellefonte). After what occurred in the 2020 and 2021 elections, I have no confidence in the no-excuse mail in ballot provisions. There is no doubt that we need a stronger election law than the one we have in place today.

“Today’s ruling should serve as a call to action to open up a serious conversation about the reforms necessary to make voting both accessible and secure for all Pennsylvanians. Gov. Wolf has ignored this debate for over a year, but hopefully this ruling will help bring him to the table so we can address concerns about our election system once and for all.”

Corman plans to introduce a bill with voter ID, eliminating straight-party voting and ending drop-boxes, as well as banning outside money to fund elections, which was done by Mark Zuckerberg in key areas of Pennsylvania in 2020.

Bill McSwain

Republican Bill McSwain, the former U.S. Attorney for eastern Pennsylvania running for governor castigated those who supported Act 77, including his Republican primary opponents.

“Act 77 has wreaked havoc across our state and robbed voters of confidence in their elections. Any politician who supported this unconstitutional bill on either side of the aisle is unqualified to be governor,” said McSwain. “As U.S. Attorney and as a candidate for governor, I have consistently called Act 77 unconstitutional, and applaud the Commonwealth Court for recognizing it as such.”

Lou Barletta

Former Congressman Lou Barletta, another gubernatorial candidate, promised to repeal Act 77 if it remains on the books after appeals are exhausted.

“Now we know that not only was Act 77 a terrible law, it was also unconstitutional and shouldn’t have been passed in the first place,” said Barletta. “Most states that go to widespread mail-in voting take years to implement the process, but in Pennsylvania, we went from under 300,000 people voting by mail in 2016 to over 2.6 million in 2020. Local elections officers weren’t trained, equipped, or staffed to handle the flood of ballots and the result was the chaos that we all saw.”

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How did an election-reform measure in Pennsylvania that was almost universally supported by Republicans become a rallying point for conservative protesters who believe the 2020 election was stolen?

The answer is, in part, Republicans’ dismay in the way the Democratic governor and the Democrat-controlled state Supreme Court enacted procedural changes, based on interpretations of the law, that appear to have favored Democrats in the last presidential race.

“Everybody thought this was a good idea — a great idea, in fact — until Trump spoke out against it,” Duquesne law professor Joe Mistick told PublicSource.

The state law known as Act 77, which enabled “no-excuse” mail-in voting, passed with overwhelming support from the GOP-controlled legislature and was signed by Democratic Gov. Tom Wolf on Oct. 31, 2019.

The Democrat-backed initiative was a compromise between both parties as each got something in return, although one political commentator compared the process to a Looney Tunes-inspired “rabbit season-duck season” standoff between lawmakers ending with Republicans on the wrong side of the barrel.

The mail-in expansion meant voters no longer required valid excuses, such as illness or out-of-state travel, to cast absentee ballots. And Republicans, at least initially, felt they won by eliminating straight-ticket voting, which tended to favor down-ballot Democrats because of the imbalance in the number of registered Democrats to Republicans in some areas, like Philadelphia and Pittsburgh.

That meant more voters could conceivably split their ticket by voting for one party in the presidential election and for another in state and local races.

Prominent state leaders touted the accomplishment at the time, with Republican state Senate Majority Leader Jake Corman, now a gubernatorial candidate, calling it “probably the most historic reform bill we’ve ever done, not only in my time but in decades.”

Those feelings quickly dissipated once President Donald Trump lost the 2020 election. He and his allies, including Missouri Sen. Josh Hawley, disputed Pennsylvania’s electoral process with unproven claims about mail-in voting and election results.

Hawley argued against the Electoral College certification of Biden’s victory, saying Pennsylvania hadn’t followed its own election laws – a common refrain among Republicans raising legal challenges over the Keystone State’s voting.

Corman, who was among the Republicans who voted for Act 77, now has buyer’s remorse. In a statement to the Delaware Valley Journal, he accused Wolf and former Secretary of State Kathy Boockvar of “giving illegal, last-second directions” to county officials about how to process mail-in ballots.

“Their behavior led two counties in one senatorial district to tabulate votes differently and change the outcome of an election,” he said. “That’s unAmerican and why I’m pushing forward with the legislature’s constitutional responsibility to review our elections. As governor, I will make sure something like this can never happen again. All Pennsylvanians must have confidence that their vote will be counted fairly and legally.”

Republicans continue to try to overturn Act 77, which survived a previous court challenge.

Over the summer, a pair of lawsuits were filed challenging the constitutionality of Act 77. Those cases were combined and are moving forward, The Philadelphia Inquirer reported.

Meanwhile, Republican state Sen. Doug Mastriano (R-Franklin) introduced a measure in November that seeks to repeal parts of the historic election-reform law via a referendum. If SB 884 is passed by the General Assembly, voters will decide whether to do away with “no-excuse” mail-in voting altogether.

The bill would also impose a deadline for mail-in ballots to be received by the Friday before Election Day, unlike the 2020 election when courts ruled ballots postmarked by Nov. 3 counted as long as they arrived within three days of Election Day. It would also mandate signature verification for all mailed ballots.

Attorney General Josh Shapiro, the lone Democrat running for governor, says passing SB 884 would be a complete repudiation of the votes of Republicans in the legislature. Act 77 had the support of all 27 Republicans, and passed 138-61 in the House, he noted.

A spokesman for Shapiro told DVJournal the law “helped millions of Pennsylvanians make their voices heard and led to the highest voter turnout in the last six decades. Attorney General Shapiro believes it is critical to make voting accessible to all eligible Pennsylvania voters, and as governor, he would veto any bill that eliminates or restricts mail-in voting.”

Mastriano’s bill attempts to quash that by making it impossible for the winner of the gubernatorial race to veto the bill, which awaits action from the state government committee, before it appears on the ballot in May 2023.

“As we witnessed in 2020, Act 77 in its current form is susceptible to unconstitutional changes that weaken its election security safeguards,” said Mastriano, citing a poll that found a third of Pennsylvania voters who cast ballots in the 2020 election “were not confident” in the results. “Significant doubt in the validity of one’s vote has serious repercussions for our republic. SB 884 will allow the people of Pennsylvania to have the final say on these important election security measures.”

Gubernatorial candidate Sen. Scott Martin (R-Lancaster) said in a statement that Republicans who voted for the bill didn’t expect “what came about” after Act 77 was signed into law.

“Gov. Wolf weaponized the State Department to pervert the law as passed, and a partisan Supreme Court allowed those perversions to stand,” he said. “I have voted for legislation to reverse the State Department’s misdeeds, implement Voter ID and the other things necessary to ensure the integrity of future elections.  I support these changes and even a constitutional amendment if necessary to make sure bureaucratic misdeeds that do not follow the law can never happen again, whether we have an Act 77 or not.”

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Chester County commissioners, sitting as the Election Board, have voted to certify the Nov. 2 election results. It voted 2-1, with Republican Michelle Kichline opposing, to certify the election.

Commissioners got an earful of complaints from irate residents last Monday. Michael Taylor, the solicitor for the Chester County Republicans took issue with comments from Charlotte Valyo, chair of the county Democrats, that were reported in a previous Delaware Valley Journal article.  Taylor said he does not disagree with the GOP Chairman Dr. Gordon Eck’s assessment that numerous issues occurred during the 2021 election, but rather, Eck learned of those issues from Taylor.

“Let me be clear, there are serious issues with the count in Chester County caused by the failure of the electronic resources employed by the county to tabulate the vote,” said Taylor. “I have voiced them to county staff and at yesterday’s Board of Elections Meeting. The concerns voiced by Dr. Eck were first raised by me. Simply because I am polite and professional in dealing with the Democratic solicitor and or county staff does not equate to agreement or compliance with the election process. It astounds me that such a conclusion could be reached and underscores the divisive nature of politics in 2021.”

The issues included mail-in ballots that were damaged by a machine that opens the mail and then taped together, jammed scanners, a bag of uncounted 265 ballots found days after the election, and problems with UBS computer sticks with votes stored on them. Taylor said he and the Democrat’s solicitor will work with the county commissioners and staff to improve the vote-counting process.

He also hopes to “ameliorate the distrust many Republicans feel with the mail-in ballot program,” said Taylor. “It is not a good program, but we have to learn to work within the rules of the game. I am concerned that too many of my party’s voters stayed home because of distrust or disgust with the mail-in ballots. Educating them on the program can only assist in bringing trust back to the public.”

More than 20 people told the commissioners they don’t believe the election results were accurate due to issues such as damaged ballots, a bag of ballots found days after the election, and discrepancies with the voter rolls.

“What is the worth of a single life?” asked a Malvern man. “Hundreds of thousands of men and women have sacrificed their lives for our right to vote.” His son-in-law lost a leg in Iraq. “What’s a leg worth? If they thought there were counterfeit bills in a pile of money, wouldn’t they do more than just recount the same money? What is the worth of your election oversight and integrity?”

Another resident said the “citizens demand a full forensic audit.”

Elaine Weber said the county has had the same issues with the last three elections because of mail-in ballots.

Suzie Smith said, “I don’t understand why two commissioners won’t agree to a full audit. It is unacceptable to certify this election with all these issues.”

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The Montgomery County and Bucks County boards of elections have filed a lawsuit against the Pennsylvania Department of State secretary seeking to clarify the rules for mail-in and absentee ballots.

At issue is whether ballots where voters do not include a date with their signature as instructed can still be counted.

“The Pennsylvania Supreme Court held that a county board of elections must have a compelling reason for refusing to canvass a ballot due to minor irregularities,” the suit said. And it added, “The legislature has failed to provide any clarification for voters or county boards of election regarding the voter’s declaration.”

Rep. Seth Grove (R-York) said the legislature is filing a brief to intervene in the case, which is pending in Commonwealth Court. According to the docket, state lawyers asked for more time to respond to the suit, which was filed Oct. 1.

Grove, who chairs the House Government Committee, said the Pennsylvania Supreme Court issued rulings in the 2020 election to permit the counting of mail-in ballots in an Allegheny County race that were not properly signed and dated.

The state Supreme Court ruled on Nov. 23, 2020 against a challenge brought by Nicole Ziccarelli, who lost a close state Senate election, regarding the validity of 2,349 mail-in ballots that were signed but not dated. A four-justice majority held that not dating the ballots “did not warrant the disenfranchisement of thousands of Pennsylvania voters.”

“Uniformity, that’s our big issue with the elections,” Grove said. “You’re seeing non-uniform policies.”

Grove said the changes requested in the lawsuit filed by Bucks and Montco officials had been part of previous legislation vetoed by Gov. Tom Wolf. In an op-ed in “The Federalist,” Grove accused the county officials of working to advance the goals of the Democratic Party through the courts, rather than working with legislators to fix the state’s election laws.

However, new election laws were introduced in the legislature to make the voting process smoother.

“As the Voting Rights Protection Act moves through the legislative process, the committee today took steps to ensure elections across the commonwealth’s 67 counties are uniform and that all voters are treated equally,” Grove said, on his website. “We also took a major step toward holding non-elected public servants accountable in terms of ensuring ballot questions actually up on ballots.”

Grove cited these bills:  Senate Bill 738 by Sen. Kristin Phillips-Hill (R-York) would require the Department of State to post a tracker on its website for the public to monitor every step and action item the department is taking to ensure proper compliance to carry out a proposed constitutional amendment.

And House Bill 1482 by Rep. Bryan Cutler (R-Lancaster) would require the Commonwealth and each county in this Commonwealth to implement a post-election audit using an approved auditing method.

In addition, House Bill 2044 by Rep. Eric Nelson (R-Westmoreland) would end private funding for public elections in the commonwealth.  More than $20 million was given by a nonprofit related to Facebook founder Mark Zuckerberg went to 21 Pennsylvania counties that were trending Democratic or had a majority of Democratic voters in 2020.

While there were widely reported issues with the 2020 election, there have also been problems with the Nov. 2 2021 election, particularly with mail-in ballots in Montgomery, Chester and Delaware counties.

In Indiana County, Grove said, voters were given the wrong instructions for mail-in ballots, then the corrected instructions issued were also incorrect.

“You can’t make this stuff up,” he said.

He is very concerned about the 2022 election cycle, since the governor’s office and a U.S. Senate seat will be contested and large numbers of voters will likely cast ballots. The Senate seat, now held by Republican Sen. Pat Toomey, who is not running again, could decide which party controls of the Senate and is widely thought to be a seat that might flip to the Democrats.

“Next year in Pennsylvania there will be a nationalized election for the outcome of Congress,” said Grove.  “We want to at least make sure Frances Wolf does not become confused in the next election.” Grove was referring to a widely reported error by the first lady, who dropped off her husband’s mail-in ballot, in violation of election laws.

A spokesperson for Wolf called that incident “an honest mistake.”

Last month, Montgomery County election officials learned that approximately 16,000 mail-in ballots for Tuesday’s election were printed incorrectly. On Nov. 3, the Montgomery County Board of Elections released an update on the 2021 General Election with final results not expected until the weekend.

The update shows all ballots cast in-person have been recorded, but mail-in and provisional ballots are still being processed. While final results are expected to be delayed, the county will continue to update its online results dashboard on a regular basis in the following days as eligible ballots are counted and validated, officials said.

The county is sequestering the returned ballots related to the previously announced misprint of mail-in ballots by its printer, officials said. Affected ballots are subject to a separate verification process that was approved by the Board of Elections and shared with both political parties as well as the Pennsylvania Department of State.

The county has also encountered a higher than usual number of ballots that could be read by ballot scanners. Officials are following an established process in a bipartisan fashion to recreate the impacted ballots to make sure every eligible vote is validated and counted. The process occurs during every election as there are various reasons ballots are sometimes unable to be scanned.

Officials estimate approximately 23,000 ballots are affected by the two issues. Results will continue to be updated in real-time on the results dashboard as ballots are counted and validated.

“No matter what side of the aisle, I think we can all agree that waiting nearly a week for election results is unacceptable. We can do better,” said Clarice Schillinger, executive director of Back to School PA, a group that supported school board candidates who want to keep students in the classrooms.

Joe Gale, the sole Republican Montgomery County Commissioner, sounded off on the issue and about his own party yesterday via Instagram.

“Yet another election mess has been caused by Act 77, the unconstitutional Pennsylvania law that created 50 days of no-excuse mail-in voting,” said Gale, a GOP Pennsylvania gubernatorial hopeful. “If you or someone you know lost an election because of mail-in voting or the results still remain unknown because of mail-in voting, be sure to blame Doug ‘Mail-In’ Mastriano and every other Republican state senator who voted for Act 77.”

Ken Lawrence, vice chairman of the county commissioners told The Reporter that amid the ongoing controversy he was excited about the turnout for Tuesday’s election.

“I think there was a lot of interest in this election, particularly the school board races, our local elections,” Lawrence said. “So I think it’s great to see people were coming out to vote in person or to vote by mail.”

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Delaware County has sent hundreds of ballots to the incorrect address and voters, county officials confirmed Thursday to Delaware Valley Journal.

Radnor GOP Chair Howard Gartland began getting complaints this week from people who had requested mail-in ballots from the county but received ballots with someone else’s name and address on the inside, return envelope.

Gartland told DVJournal he advised them to take the ballots to the county Voter Services Center in Media or to vote in-person with a provisional ballot. However, he noted, “provisional ballots are only counted in a very close race.”

“We almost certainly have people voting for other people,” said Gartland. One resident knew the person whose name was on the inside of her ballot and called her about it, he said.

Bryn Mawr resident Kathy Bogosian said she had gotten a ballot with someone else’s name inside.

“I was concerned,” she said. “If I got one wrong ballot, then other people did, too.  I thought, ‘What idiots.’” The election on Nov. 2 involves local municipal and county officials and school board members, which are often decided by a handful of votes, Bogosian said.

“A few ballots could make a big difference.”

Contacted by DVJournal, Director of Election Operations James Allen acknowledged the county had, in fact, mailed out 670 incorrectly marked ballots.

He blamed a vendor that “misprinted outbound envelopes.”

“In one of the smaller, final files, our printing and mailing vendor misprinted outbound envelopes,” Allen admitted. “Those envelopes (and their contents) are being canceled so that even if they were to be returned, they cannot be processed. The vendor is working to mail out replacements to the affected individuals.”

Voters who receive the ballots with the errors can either wait for their re-mailed ballot, visit the Voter Services Center in Media for a new ballot (which would also cancel the re-mailed ballot), or go to their precinct polling place on Election Day to cast a provisional ballot.

“We truly regret this error, which surfaced yesterday, and that we are working to resolve as quickly as possible,” said Allen.

Meanwhile, Bogosian fears that, because of the slow pace of mail delivery, she doubts a replacement ballot that’s mailed this close to the election would arrive in time to be counted.

Bogosian, who is on the Delaware County Planning Commission, said she sometimes does not get mail from that office in time for scheduled meetings, despite the fact it’s mailed eight to 10 days in advance.

“I think the whole system is very bad and needs to be addressed,” she said. “At this point, I’m just going to go to the polls.”

Later, Allen, said that Gartland was mistaken and that provisional ballots are counted.

“Election administrators across the United States are committed to and required by law to process every single ballot, or partial ballot, that is legally valid and submitted on time,” said Allen.  “Unfortunately, there have been repetitions of old and entirely false memes that certain types of ballots are counted only if there is a ‘close’ contest. By law, election authorities must continue to process every valid ballot submitted by the deadline. This is one of the many reasons that elections are certified approximately two to three weeks after Election Day, regardless of whether any contests are close.”