While the battles over redistricting and the state budget rage on in Harrisburg, there is another storm brewing around the constitutionality of a bipartisan 2019 law known as Act 77. In the 2020 presidential election over two and a half million votes were cast using mail-in ballots that favored Democrats by a three to one margin. A recent Commonwealth Court ruling on Jan. 28, as well as a future Pennsylvania Supreme Court Case, scheduled to start on March 8, could very well change the way elections are carried out in Pennsylvania.
According to AP, in a rare showing of bipartisan compromise, the State Legislature passed and Governor Wolf signed PA Act 77 in 2019. Act 77 amended the Pennsylvania Electoral Code to remove the straight party-ticket voting option from the ballot, expand the window for voter registration, increase funding for the 2020 census, update voting machines across the state and (most importantly for this article) expand access as well as the time window to request mail-in and absentee ballots. Democrats were interested in promoting higher voter turnout by expanding voting access options that included no excuse mail-in ballots and upgrading voting equipment to offer a paper trail like many states had done over the course of the decade. Republicans wanted straight party-ticket voting removed from the ballot in a bid to help local candidates during presidential election years in the suburbs of Philadelphia and Pittsburgh.
The controversy surrounding unsubstantiated claims of election fraud in the 2020 election spawned Republican efforts to limit mail-in and early voting access, and it was only a matter of time before this issue spread to Pennsylvania.
In November 2021, 14 Republican state legislators sued the state, claiming that Act 77’s no excuse mail-in ballot provision violated the Pennsylvania Constitution. The state Constitution clearly states that a person must place their ballot in the ballot box on election day, unless the voter meets the requirements for requesting an absentee or mail-in ballot in which a voter must give an excuse for not being able to vote in person. On Jan. 28, Commonwealth Court in a 3-2 line decision along party lines declared Act 77 unconstitutional. The Court ruled that the only way to alter the state electoral code to provide for no excuse mail-in voting is through an amendment to the constitution via a ballot referendum. The Wolf Administration appealed the decision and Democrats point out that Republicans voted for the law in 2019 that they are now challenging. Republicans filed the lawsuit after the 2020 elections because Democratic use of mail-in ballots exceeded Republican usage by three to one margin. This suggests that Republicans are less concerned with the constitutionality of Act 77 and more concerned with how it has impacts their election.
Things got even worse for the Democrats on Feb. 16 when, according to Pittsburgh Action News, the Commonwealth Court released an update to their Jan. 28 decision, clarifying that if the Supreme Court affirms its ruling, the no-excuse mail-in voting ban will go into effect before the 2022 spring primary elections in May. Many Democrats are holding out hope that the Democratic controlled State Supreme Court will rule in their favor in March. Public scrutiny of the high court is greater than ever with redistricting and now mail-in voting appeals pending. Two highly politicized decisions could damage the Court’s reputation and trust with the public. If Act 77 survives this court challenge, the Wolf Administration’s days are numbered and a leading Republican gubernatorial candidate Senator Doug Mastriano has already proposed legislation which would repeal no-excuse mail-in voting. The March winds of change are blowing in Pennsylvania and only time will tell which party will prevail heading into the 2022 primaries.
