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harrisburg: The state supreme court upheld Pennsylvania’s mail-in ballot law, temporarily preserving a method of popular voting that was approved by the legislature with bipartisan support but was later challenged by Republican elected officials.
In a 5-2 decision published Tuesday, the justices rejected the Republican argument that the legislature did not have the power under the state constitution to allow Pennsylvanians to vote by mail without excuse.
The 2019 law, known as Law 77 and first used during the contentious 2020 presidential election, marked the beginning of the most sweeping expansion of voting access in Pennsylvania in decades.
The Republican elected officials who filed the lawsuit said Tuesday they plan to appeal to the US. uu. Supreme Court. a handful of Republican state lawmakers are also seeking another legal avenue to overturn the law entirely.
The timeline for resolving additional legal challenges is unclear, but supporters of the law said Tuesday’s ruling will preserve voters’ options ahead of critical midterm elections.
“This ruling ensures that voting by mail remains in place and that Pennsylvanians will be able to legally cast their vote in person or by mail without interruption or confusion,” the governor said. Tom Wolf, a Democrat who signed Bill 77 in a statement.
In the fall of 2021, a county commissioner and 14 state House Republicans (11 of whom voted for the law in 2019) filed separate lawsuits alleging that Law 77 was unconstitutionally implemented as a statute. they argued that allowing no-excuses mail-in voting required amending the state constitution, a lengthy process in which voters decide the issue via a ballot question.
That argument was first used in an unsuccessful 2020 lawsuit brought by u.s. rep. Mike Kelly (R., Pa.) who attempted to throw out 2.6 million mail-in ballots, likely giving the state’s 20 electoral votes to former President Donald Trump.
A lower appeals court earlier this year ruled in favor of Republican officials, saying allowing no-excuses mail-in voting through a statutory change violated the state constitution and judicial precedent dating back over the decade from 1920.
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 legal policy decision, “based on the authority vested in it by our charter, to provide all qualified voters with the convenience of casting your votes by mail. donohue wrote.
The five judges who supported Law 77 were elected Democrats. the two dissenting justices were elected as Republicans.
Prior to the passage of Bill 77 in 2019, Pennsylvania had one of the most restrictive absentee voting laws in the country.
That year, Wolf and the Republican General Assembly reached an agreement to allow 50 days of no-excuse mail-in voting before each election in exchange for eliminating direct voting. all but two Republican lawmakers voted in favor of the bill.
Despite initial support, Republican sentiment on the law shifted throughout the 2020 election cycle as Trump tapped into unfounded fears of widespread mail-in voting fraud, his allies in Pennsylvania say.
what happens next
The Pennsylvania Department of State, which oversees voting, said Tuesday’s decision “ensures that eligible Pennsylvanians can vote by mail on November 1.” 8 general elections.”
But continued Republican challenges to the law, and a critical gubernatorial election later this year, mean there is still some uncertainty about the future of voting by mail.
state representative tim bonner (right, mercer), one of the lawmakers who filed the lawsuit, told spotlight pa that the petitioners plan to appeal their case to the united states. supreme court.
He also pointed to a separate and ongoing case seeking to strike down Law 77 on a legal technicality known as the “non-separability” clause.
said clause establishes that if “any provision of this law or its application to any person or circumstance is considered invalid, the remaining provisions or applications of this law will be null”.
In a lawsuit filed this July in Commonwealth court, Bonner and other Republican elected officials argued that a recent federal ruling has triggered that provision.
As written, Bill 77 requires voters to “complete, date and sign the printed statement” on the outer envelope of the mail-in ballot. But in response to a challenge by a Lehigh County candidate, a federal judge found the requirement “immaterial” and violated federal voting rights law, ordering election officials to count undated mail-in ballots. . the United States. the supreme court refused to block that ruling.
State Supreme Court Justice Kevin Brobson, an elected Republican, called the non-separability argument “an interesting question” in a six-page dissent to Tuesday’s ruling. was not addressed in the majority opinion.
In a July letter, the state department said the federal decision focused on county policy rather than state law, and thus Law 77 remained intact.
Out of court, there is support among some Republicans in the legislature to completely repeal Bill 77, with legislators in the state House and Senate such as Sen. Doug Mastriano (R., Franklin), his party’s gubernatorial candidate, is introducing legislation to do just that.
But so far, the leadership has not put these proposals up for a vote, and the measures would also face a guaranteed wolf veto.
In remarks Tuesday, Republican legislative leaders advocated changes to the election law, but did not commit to promoting legislation to repeal voting by mail.
State Senate Republican Speaker Erica Clayton Wright said the ruling “underscores the importance of actions taken by the General Assembly to strengthen the integrity of the election.” She pointed to a ban on third-party election administration grants, signed by Wolf, and pending constitutional amendments that would implement universal voter identification and additional post-election audits.
Since 2020, legislative Republicans have attempted to make changes to Pennsylvania’s election law while keeping voting by mail intact. the legislature last year approved an omnibus proposal from the state representative. seth grove (r., york) who would have created early voting, instituted new mailbox security rules, and allowed voters to fix mail-in ballots with missing signatures.
wolf vetoed the bill due to its stricter voter ID requirements, among other reasons.
In a statement, Grove, who chairs the House election administration committee, called Tuesday’s ruling unsurprising given the court’s partisan makeup and argued the state needs to update its election law, but not said how.
grove has re-introduced his electoral omnibus bill, but it has not moved forward due to a lack of support from the republican party. Some rank-and-file Republicans, including Bonner, have previously said they would not vote for legislation to keep mail-in voting intact until the high court rules on their challenge.
As with many other policies, what happens next may be due to the November gubernatorial election. wolf has a limited time to run for office again.
Democratic candidate Josh Shapiro, the state attorney general, supports voting by mail and has said he would veto legislation restricting voting rights. Mastriano, who voted for Bill 77 as a freshman legislator, has spoken out against mail-in ballots and spread false claims about them.
There’s also another route to eliminating mail-in voting that bypasses the governor, no matter who he is, entirely.
bonner said he supports sending a proposed constitutional amendment to voters to repeal Bill 77 and explicitly require that any future expansion of mail-in voting occur through the amendment process
“I think it would be better if people were given the opportunity to vote on what they want as a Pennsylvania electoral process,” Bonner said.
Such amendments have become a popular route in recent years for Republicans to avoid the wolf and advance their political priorities. these proposals must be approved by the general assembly during two consecutive two-year sessions before being presented to voters for consideration.
rarely they don’t happen.
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