The Pennsylvania law that authorizes no-excuse voting by mail is constitutional, the state Supreme Court ruled on Tuesday.
“We find no restriction in our Constitution on the General Assembly’s ability to create universal mail-in voting,” Justice Christine Donohue said, writing for the 5-2 majority.
The decision preserves Act 77, enacted by bipartisan majorities and signed into law by Gov. Tom Wolf in 2019.
Many Pennsylvanians took advantage of mail-in voting during the pandemic, but the practice became controversial after President Trump made unsubstantiated claims of widespread mail-in ballot fraud a centerpiece of his efforts to overturn the 2020 election.
By and large, the Republicans who voted for Act 77 have denounced it since, including a majority of those who filed a lawsuit against it last year.
In January, the Commonwealth Court ruled 3-2 that Act 77 was unconstitutional. Judge Mary Hannah Leavitt wrote that Pennsylvania’s constitution requires in-person voting except in certain defined circumstances, and that authorizing mail-in voting would require a constitutional amendment.
The Supreme Court disagreed, contending that Leavitt had relied on faulty case law to interpret the phrase “offer to vote” as requiring in-person voting.
In a Civil War-era case, the state Supreme Court had held that soldiers must present themselves in person in case their eligibility to vote needed to be verified.
Subsequently, election laws and the constitution were changed to establish registration requirements, accomplishing the same purpose as in-person presentment. Therefore, a 1920s ruling that interpreted “offer to vote” as continuing to mandate in-person voting was “patently flawed,” Donahue’s opinion said.
In their dissents, Justices Sallie Mundy and Kevin Brobson said the majority’s opinion is “historically selective” and that longstanding precedent holds that the Commonwealth Court’s interpretation of “offer to vote” is correct one.
In a statement, state House Speaker Bryan Cutler, R-Lancaster County, said the court’s previous rulings on Act 77, along with the Department of State’s “unlawful interventions,” have undermined election processes and voters’ confidence in election integrity. He called for enacting Voter ID and mandatory election audits by constitutional amendment.
“Voters deserve the opportunity to make some of these changes on their own,” he said.
In a statement, state Rep. Seth Grove, R-York, chairman of the House State Government Committee, said the ruling “should not come as a surprise to anyone who has watched this court over the past few years” and that Pennsylvania’s election laws “are failing our voters and election administrators.”
Gov. Wolf said in a statement that voting is a fundamental right and that mail-in voting “is a safe, secure and legal option for Pennsylvania voters.”
Lancaster County’s two Republican commissioners, Ray D’Agostino and Josh Parsons, have denounced Act 77 and praised Leavitt’s ruling that it is unconstitutional.
John Trescot, the county’s Democratic commissioner, supports mail-in voting, but agrees Act 77 should be modified to ease election administration by, among other things allowing mail ballots to be “pre-canvassed” — sorted and prepared for counting before Election Day.
Parsons and D’Agostino support such fixes, but maintain that even with them, Act 77 would remain fundamentally problematic, and the state should revert to predominantly in-person voting.
