By William & Mary Law Student Contributor
Voting right advocates secured a major victory in Pennsylvania this summer. The state Supreme Court upheld key provisions of Act 77, which provides all qualified voters the right to vote by mail.
In order to vote by mail prior to Act 77’s 2019 enactment, Pennsylvania election law required voters to establish their absentee status (or excuse) by asserting they lived outside their respective municipality or were unable to vote at the polls due to illness or physical disability. Outside of those “excuses”, voters had to cast their ballots in person in order to participate. This, of course, limited the pool of eligible mail-in (absentee) voters. Act 77’s expansion of mail-in voting from being exclusive to absentee voters to all qualified voters represented an enormous expansion of ballot access.
Act 77, importantly, earned considerable bipartisan support. Both state-house Republicans and Democrats broadly endorsed the bill. Despite this, in the lead up, and in the aftermath of the 2020 election, former President Trump and Pennsylvania Republican lawmakers severely criticized the law and argued that it was unconstitutional.
Since the November 2020 election, both federal and state elected Republicans have sought to strike Act 77’s no excuse mail-in voting as unconstitutional. For instance, immediately after the 2020 election, Rep. Mike Kelly (R-PA) challenged the constitutionality of Act 77 and requested that the court throw out non-absentee mail-in ballots. The Pennsylvania Supreme Court dismissed the case on procedural error. In its ruling, the Court stated: “Petitioners sought to invalidate the ballots of the millions of Pennsylvania voters who utilized the mail-in voting procedures. … Alternatively, Petitioners advocated the extraordinary proposition that the court disenfranchise all 6.9 million Pennsylvanians who voted in the General Election and instead “direct the General Assembly to choose Pennsylvania’s electors.” The Court had to revisit the constitutionality of Act 77 in its recent decision, and the subject of this post, McLinko v. Department of State.
McLinko, a member of the Bradford County Board of Elections, challenged the constitutionality of the Act 77, just as Rep. Mike Kelly did. Relying on past state Supreme Court precedent, McLinko argued that the Pennsylvania Supreme Court should strike down the law because the constitution states that qualified voters must establish residency sixty days before an election “in the election district where he or she shall ‘offer to vote’.” McLinko argued that the term “offer to vote” should continue to be understood as casting one’s ballot in person. Although Mclinko acknowledged clearly defined exceptions to in-person voting as guaranteed in the state constitution (as in absentee voting)[NK4] , he contended that the state legislature exceeded its authority by granting qualified voters, other than absentee voters, the right to “offer their vote” by mail, instead of in-person.
Weeks after McLinko brought suit, Pennsylvania state Rep. Bonner and thirteen other members also challenged the law on the same grounds. Pennsylvania courts consolidated these actions, as they all argued that the state legislature exceeded their scope of authority. And in January of 2022, Republican lawmakers won the initial round. The lower court concluded that the phrase “offer to vote” required voters to cast their ballot in person unless they could establish their absentee status. The state Supreme court rejected this argument, however.
The Court concluded that the phrase “offer to vote” does not require in person participation. Instead, the Court stated the phrase “where he or she shall offer to vote” is a descriptive clause that modifies the object of the prepositional phrase “in the election district.” It does no more than identify the district in which the elector is eligible to vote, which is the interpretation supported by the recorded history. Rejecting McLinko’s argument, the Court found that the legislature had authorization to expand mail-in voting pursuant to section four of the constitution, which permits the assembly to establish “other methods” for elections.
As the Dissent declared, this monumental decision overturned 160 years of court precedent that required in-person voting without “requisite special justification.”
Despite an early victory for Republican challengers, this decision represents a profound victory for voting right activists in Pennsylvania and cements the government’s ability to expand mail-in voting access.