The Pennsylvania Supreme Court docket dominated 5-2 final month that the state’s no-excuse, by-mail voting regulation is constitutional. However to do this, the state’s highest court docket needed to ignore and overturn over 150 years of precedent holding that the Pennsylvania Structure requires in-person voting.
In 2019, Gov. Tom Wolf, a Democrat, signed the voting regulation, often called Act 77, and with it introduced no-excuse voting by mail to Pennsylvania. The regulation permits any eligible voter within the state to vote by mail with no need to supply an excuse.
This modification, nevertheless, wasn’t enacted by constitutional modification, permitting Pennsylvania voters to determine, as had been the case with prior expansions to incorporate voting by mail.
Though Act 77 proved in style––over 2 million Pennsylvanians voted by mail within the 2020 common election––the regulation’s recognition doesn’t magically make it constitutional. So, in July, I led a crew of attorneys in difficult the regulation as an unconstitutional enlargement of voting by mail.
Our shopper was Doug McLinko, a county election official whose duties to the election code and adherence to the Pennsylvania Structure conflicted with Act 77. Our case didn’t increase any claims of voter fraud, it didn’t search to overturn the outcomes of any earlier election, and it didn’t allege that any election was stolen due to mail-in voting.
From the beginning, we have been clear that McLinko sought solely potential reduction. The plain language of the Pennsylvania Structure and its longstanding interpretation required voting to happen in individual, besides in restricted circumstances during which a voter certified to vote absentee (a type of mail voting).
We requested the Pennsylvania Supreme Court docket merely to stick to its precedent and declare that Act 77 violated the Pennsylvania Structure.
Act 77 wasn’t the primary time the Pennsylvania Legislature tried to enact mail voting the place the state Structure prescribed in any other case, and our case was not the primary time the Pennsylvania Supreme Court docket had thought-about the constitutionality of mail voting.
In 1862, the Pennsylvania Supreme Court docket thought-about the constitutionality of the Navy Absentee Act of 1839, which permitted Pennsylvania’s out-of-state service members to vote by mail from army camps. Then, in 1923, the excessive court docket thought-about the constitutionality of the 1923 Absentee Voting Act, which allowed absentee voting by mail.
In each instances, the court docket held that the Pennsylvania Structure required in-person voting and struck down the legal guidelines. And in contrast to our case, each of these instances had requested the court docket to overturn the election outcomes.
These precedents guided subsequent modifications to the tactic of voting in Pennsylvania for many years. Certainly, when absentee voting ultimately arrived in 1949, it did so by constitutional modification––authorized by the voters––expressly empowering the Pennsylvania Basic Meeting to allow voting by mail for sure electors.
Each subsequent enlargement of the lessons of voters eligible to vote absentee additionally was achieved via a constitutional modification authorized by voters.
McLinko’s case stood on these precedents and the authorized tenet of stare decisis, which instructions a court docket to stick to previous rulings even when the court docket believes these instances have been wrongly determined.
Democrats and progressive teams, together with the Democratic Nationwide Committee represented by former U.S. Solicitor Basic Seth Waxman, instantly intervened to argue in favor of Act 77’s constitutionality. Nonetheless, the Commonwealth Court docket agreed with our place, following stare decisis to declare Act 77 unconstitutional.
The Commonwealth Court docket prevented weighing whether or not the regulation was sound coverage. As an alternative, it strictly regarded to the language of the Pennsylvania Structure and present, longstanding precedent of the Pennsylvania Supreme Court docket to succeed in its conclusion. The Legislature didn’t go an modification, and as with each time earlier than, the court docket held that to be a deadly flaw.
However this determination proved ephemeral. Seven months later, the Pennsylvania Supreme Court docket reversed the Commonwealth Court docket, rubber-stamped the Legislature’s improper enlargement of mail voting and declared Act 77 constitutional.
The excessive court docket’s dissenting opinions rightfully uncovered the bulk for being extra thinking about upholding a regulation based mostly on its recognition somewhat than respecting precedent and the plain textual content of the Pennsylvania Structure.
The Pennsylvania Supreme Court docket eliminated energy that has belonged to the voters for 150 years and gave it to the Legislature, unchecked.
Mail-in voting in Pennsylvania has led many to query its legitimacy and fueled claims of election fraud. The Supreme Court docket’s determination to uphold Act 77 hardly settled these points.
A republic can not correctly perform if the populous lacks religion within the outcomes of elections. The Pennsylvania Supreme Court docket had a chance to revive religion in these outcomes by requiring voters to ratify a constitutional modification allowing no-excuse mail voting, simply as voters had been required to do time and time once more to increase mail- voting earlier.
By all accounts, a constitutional modification allowing mail voting would go simply. Sadly, the Pennsylvania Supreme Court docket stole that chance from the state’s residents.
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