Mail-in voting lawsuit looms over Pennsylvania elections

HARRISBURG, Pa.—When the Pennsylvania Legislature passed an election overhaul bill in 2019, the Senate majority leader at the time, Republican Jake Corman, lauded it as the state’s “most significant modernization of our elections code in decades.” To pass the compromise measure, called Act 77, Democrats agreed to abolish straight-party voting on ballots, while Republicans conceded to an expansion of no-excuse mail-in voting.

Fast-forward one pandemic and presidential election later. Now Corman is the president pro tempore of the Pennsylvania Senate and running to replace Democratic Gov. Tom Wolf. And he has changed his tune. “I have no confidence in the no-excuse mail-in ballot provisions,” he said. “There is no doubt that we need a stronger election law than the one we have in place today.”

Corman’s public statement came on the heels of a Jan. 28 appellate court ruling that declared Act 77 violated constitutional procedure. Judge Mary Hannah Leavitt cited Article VII, Section 14 of the state constitution, which mandates Pennsylvanians must vote in-person on Election Day unless they meet criteria such as illness, absence from their polling location, or a state excuse such as being a poll worker. In a 3-2 decision, Leavitt and the other Republican judges on the bench ruled the legislature could only allow no-excuse mail-in voting through a constitutional amendment, not a law.

Act 77 remains in effect while the Wolf administration appeals to the Pennsylvania Supreme Court, but the case threatens to bring chaos to this year’s primary and midterm elections in the Keystone State. Pennsylvania voters will choose a new governor, lieutenant governor, U.S. senator, and 17 representatives for the U.S. House—all after the state Supreme Court rules on new congressional maps following a contentious redistricting process. Observers expect the high court to try to rule on that case and on the Act 77 dispute before statewide primaries, scheduled for May 17. Meanwhile, the legal dispute shows how the political rancor of the 2020 election has affected Republican and Democratic views on election policy in a crucial swing state.

Act 77 was the first major update to Pennsylvania election code since 1937. Nearly every Republican senator supported it, and only two representatives opposed it in the House. Democrats, on the other hand, unanimously opposed the bill in the Senate and split in the lower chamber with only 33 approving and 59 against, mainly due to the elimination of the straight-party ticket.

The law allows any Pennsylvania voter to request a mail-in ballot online. It passed in 2019 before anyone knew about the impending COVID-19 pandemic that would prompt more than 2.6 million Pennsylvanians to vote by mail-in or absentee ballots rather than stand in line at the polls.

Opponents of mail-in balloting have argued since before the 2020 election that the practice is prone to fraud and errors. One of the best-known voter fraud cases in recent years involved a Republican operative in North Carolina tampering with absentee ballots in a 2018 congressional election. 

In 2020, President Joe Biden won Pennsylvania by only 80,000 votes, and former President Donald Trump claimed fraudulent mail-in ballots contributed to his loss. Eventually, a Republican county commissioner and 14 Republican legislators filed the lawsuit against the act. Eleven of those lawmakers had voted for Act 77 in 2019.

Daniel Mallinson, assistant professor of public policy and administration at Penn State Harrisburg, noted that the local tension over voting reflects national dynamics. “Former President Trump raised accusations about the validity of mail-in ballots even before the election, and that narrative has been picked up across the country,” he said. “So now there’s a broad push by Republicans to move away from mechanisms like no-excuse absentee ballots that make voting easier.”

Mallinson, like other experts and legal scholars, sees valid constitutional arguments on both sides. Those challenging the law say it improperly bypassed the amendment system and violated Article VII, while its defenders point to a separate section of the same article that gives the legislature authority to decide the manner in which elections are held in the state. Given the ambiguity, some scholars say an amendment is needed to clarify the issue. Amendments take at least two years to enact and require two rounds of voter approval, but Mallinson said they typically do succeed.

Some election directors have protested difficulties in implementing Act 77, and voters have complained that the vote-by-mail process is confusing. Rather than tossing the entire bill, Khalif Ali, executive director of Common Cause Pennsylvania, said legislators should discuss how to improve it. But he conceded this is a difficult year to achieve bipartisan civility: “It’s hard to model at the ground level when so much divisiveness and enmity exist at the national level.”

In the Pennsylvania Supreme Court, where justices hold party affiliations, Democrats hold a 5-2 majority. But Bruce Ledewitz, a law professor at Duquesne University, doubts their ruling will fall along party lines. He told Spotlight PA that he expected the justices to uphold Act 77.

The state Supreme Court also holds another wild card: The Commonwealth Court ruling did not determine what might happen to straight-party voting or other aspects of the legislation, such as its shortened timeline to apply for absentee ballots. If the high court strikes down Act 77 based on mail-in voting alone, it is unclear what would happen to the other elements, and how it might affect this year’s elections.