A Supreme Court of Pennsylvania divided along partisan lines upheld the state’s 2019 mail-in voting law in a 5-2 decision on August 2, which means that current mail-in balloting rules will probably remain in place for the upcoming November 8 elections for Congress and for state offices such as governor.
The decision overturned a lower court ruling that had found the mail-in voting law ran afoul of the Pennsylvania Constitution.
All five Democratic justices supported the new ruling; both Republican justices dissented.
Pennsylvania Gov. Tom Wolf, a Democrat, hailed the ruling which he said “definitively asserts that mail-in voting is a legal and constitutional method for Pennsylvania voters.”
“Voting is a fundamental right—a right that we should ensure is accessible for all voters,” Wolf said in a statement.
“Mail-in voting is a safe, secure, and legal option for Pennsylvania voters to exercise that right. I will continue to advocate for voting reforms that remove barriers and increase access to voting.”
Mail-in voting in Pennsylvania has been questioned by former President Donald Trump and Pennsylvania Republicans who say it opens the door to voter fraud and chaos in the vote-counting process. According to official results, Trump beat Democrat Hillary Clinton in the state in 2016 but lost to Joe Biden in 2020. Some Republicans say election irregularities in Pennsylvania cost Trump the state in 2020.
The case goes back to 2019 when the Pennsylvania General Assembly passed Act 77, which, among other things, amended the state’s election code to create universal no-excuse mail-in voting statewide. Before the act, voters had to establish they fit the criteria of an absentee voter before being able to cast a ballot by mail. The legislation easily passed the state House of Representatives 138-61 and the state Senate 35-14.
When the COVID-19 pandemic arrived in Pennsylvania months later, voters, especially Democrats, took advantage of the law’s stay-at-home voting provisions. In the 2020 presidential election, Democrat Joe Biden beat Republican Donald Trump by more than 3-1 among mail-in ballots, while Trump prevailed over Biden by 2-1 in votes cast in person on Election Day, according to a summary in the new court opinion.
Two weeks after the election, Republican candidates filed a petition for review in the state’s Commonwealth Court seeking to halt the certification of the Nov. 3, 2020, General Election. They argued the Pennsylvania Constitution requires voters to vote in person on Election Day unless they qualified for absentee voting and asked the Commonwealth Court to block certification of the election results. That court preliminarily enjoined certification.
The Supreme Court of Pennsylvania stepped in and found that the challengers had waited too long to bring their lawsuit and threw out the lower court’s injunction. The candidates then asked the U.S. Supreme Court to intervene, and it refused to do so. The case returned to Commonwealth Court which ruled 3-2 that the mail-in voting provision violated the state constitution.
The Supreme Court of Pennsylvania heard oral arguments in the case on March 8 and issued its ruling August 2, reversing the lower court.
The majority opinion was written by Justice Christine Donohue, and joined by Chief Justice Max Baer, as well as Justices Debra Todd, Kevin Dougherty, and David Wecht. Justices Sallie Mundy and Kevin Brobson both filed dissenting opinions.
“We find no restriction in our Constitution on the General Assembly’s ability to create universal mail-in voting,” Donohue wrote (pdf).
“More than one hundred years ago, this Court recognized that our Constitution mandates that elections be free and equal, but that ‘[t]he power to regulate elections is a legislative one, [which] has been exercised by the General Assembly since the foundation of the government,’” Donohue wrote, referencing a precedent from 1914.
The General Assembly did not overstep “the bounds of this power” when enacting the universal mail-in voting provision, she added.
The Republicans who brought the legal challenge are expected to appeal the ruling.