Court throws Pennsylvania’s mail-in voting law into doubt

FILE—This file photo from Oct. 23, 2020, shows mail-in ballots for the U.S. 2020 General Election before being sorted at the Chester County Voter Services office, in West Chester, Pa. A statewide court said Friday Jan. 28, 2022 that Pennsylvania's expansive two-year-old mail-in voting law is unconstitutional, agreeing with challenges by Republicans. Friday's decision by a five-judge Commonwealth Court panel could be put on hold immediately by an appeal from Gov. Tom Wolf's administration to the state Supreme Court. (AP Photo/Matt Slocum, File)

HARRISBURG, Pa. — A court declared Friday that Pennsylvania’s expansive 2-year-old mail-in voting law violates the state constitution. 

Democratic Gov. Tom Wolf’s administration swiftly appealed to the state Supreme Court, immediately putting the party-line decision by a panel of three Republican and two Democratic judges on hold and stopping it from overturning the law. 

Still, it throws Pennsylvania’s voting laws into doubt as the presidential battleground state’s voters prepare to elect a new governor and a new U.S. senator in 2022. 

Just over 2.5 million people voted under the law’s expansion of mail-in voting in 2020’s presidential election, most of them Democrats, out of 6.9 million total cast. 

Wolf’s office said its appeal means the lower court ruling has no immediate effect, and criticized Republicans as trying to kill the law “in the service of the ‘big lie'” of Trump’s baseless election fraud claims. 

“We need leaders to support removing more barriers to voting, not trying to silence the people,” Wolf’s office said. 

Trump and Republicans quickly lauded the decision. 

“Big news out of Pennsylvania, great patriotic spirit is developing at a level that nobody thought possible. Make America Great Again!” Trump said in a statement through his political action committee. 

The mail-in voting law has become a hot topic on the campaign trail, with nearly every Republican candidate for governor — including two of three state senators who voted for it — vowing to repeal it. 

In Friday’s decision, the three Republican judges agreed with GOP challengers — including 11 lawmakers who actually voted for the law — and ruled that no-excuse mail-in voting is prohibited under the state constitution, until the constitution is changed to allow it. 

The two Democrats on the panel dissented. The state Supreme Court — which will hear the appeal — has a 5-2 Democratic majority.  

Pennsylvania’s attorney general, Josh Shapiro, a Democrat who is running for governor, said he is confident the state Supreme Court will uphold the mail-in voting law as constitutional.  

He criticized the lower court’s opinion as “based on twisted logic and faulty reasoning” and “wrong on the law.” 

Ultimately, any decision to throw out the law would not affect the millions of votes already cast under it in the past four elections.  

In 2019, the Republican-controlled Legislature authorized no-excuse mail-in voting for all voters, expanding upon a provision in the state constitution that required the state to provide the option for voters in specific circumstances. 

Those circumstances include being out of town on business, illness, physical disability, election day duties or religious observance.  

Every Republican lawmaker, except one, voted for the legislation in a deal with Wolf, who had sought the mail-in voting provision. In exchange, Wolf agreed to get rid of the straight-ticket voting ballot option that Republicans had sought as a way to protect their suburban candidates from an anti-Trump wave in 2020’s election. 

The constitution does not explicitly say that the Legislature cannot extend absentee voting to others. 

However, Republican challengers say the constitution intended that absentee voting be strictly limited, citing a passage that says voters must live in an election district for at least 60 days where they “shall offer to vote.” 

In the opinion, the three Republican judges agreed, saying that passage had been cited in two prior state Supreme Court decisions invalidating laws passed in 1839 and 1923 to expand absentee voting. 

The dissenting Democrats say a separate provision of the constitution empowered lawmakers to provide no-excuse mail-in voting. That provision says elections “shall be by ballot or by such other method as may be prescribed by law.” 

Raff Donelson, an associate professor of law at Penn State’s Dickinson Law School who teaches constitutional law, said he disagreed on a couple points with the majority opinion. 

One point, Donelson said, is that it doesn’t make sense to read the constitution as restricting the right to cast an absentee ballot. On voting matters, that’s not how the constitution typically works, Donelson said. 

Besides, the constitution seems to bluntly give lawmakers the power to prescribe voting by any method, and that cannot be negated by another provision in the constitution, he said.