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Mail-In Voting Survives in Pennsylvania

Election Law Society · March 3, 2023 ·

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.

Partisan Battles Loom Large over Pennsylvania’s Election Audit

Election Law Society · February 21, 2022 ·

By: Christopher Chau

Following the contentious 2020 election, controversy surrounded the validity of Pennsylvania’s election process as voters requested and submitted record numbers of mail-in ballots. While no-excuse mail-in voting was legalized under Act 77 in 2019, Republicans in the Pennsylvania Senate quickly turned against the practice and claimed that it was vulnerable to voter fraud. On  September 3, 2021, the Republican majority announced a “full forensic investigation,” in what seems to be an audit of the election results, voting to subpoena the PA Department of State for voter records along with nonpublic personal identification information, such as Social Security and driver’s license numbers. According to Senate President Pro Tempore Jake Corman: “This is about looking at our system inside because hundreds of thousands, if not millions, of Pennsylvanians, have questions.” While Corman asserted that voters’ information will be kept private, many remained concerned about the invasiveness of the audit. Meanwhile, Senate Democrats and PA Attorney General Josh Shapiro criticized the measure, citing that there was no evidence of voter fraud and that the investigation was a waste of taxpayer money and an invasion of voters’ privacy.

[Read more…] about Partisan Battles Loom Large over Pennsylvania’s Election Audit

Mail-in Ballots: Pennsylvania’s Latest Lawsuit on Election Rules

Election Law Society · October 29, 2021 ·

By: Christopher Chau

When Pennsylvania Governor Tom Wolf signed Act 77 into law on October 31, 2019, state legislators from both sides of the aisle hailed it as a bipartisan triumph as the state formally legalized no-excuse mail-in voting. Pennsylvania Republicans voted overwhelmingly for the bill, with 27-0 in the Senate and 105-2 in the House. In fact, the Democrats were more divided, with a majority in both chambers voting against the bill. In an interview with CNN, Republican Pennsylvania State Senate Majority Leader, Jake Corman, stated, “What’s important is that people have faith in the system…the elections process matters—it matters a great deal in a democracy.” As COVID-19 ravaged the nation in 2020, Act 77 became Pennsylvania voters’ relief to vote safely and privately during the uncertainty of the pandemic.

[Read more…] about Mail-in Ballots: Pennsylvania’s Latest Lawsuit on Election Rules

Don’t Get Caught Naked: The Pennsylvania Supreme Court Rules That Mail-In Ballots Without A Secrecy Envelope (“Naked Ballots”) Won’t Be Counted

vebrankovic · November 18, 2020 ·

By Jessica Washington

Ever heard of a naked ballot? It’s when a completed mail-in ballot is put into the paid postage envelope without first being put into a “secrecy envelope.” And the Pennsylvania Supreme Court has recently ruled that naked ballots are to be thrown out regardless of the validity of the ballot.

There is a provision in the Pennsylvania Election Code that requires mail-in ballots to first be put into a secrecy envelope and then that secrecy envelope containing the ballot will be put into a regular mailing envelope which has identifying information for the voter to fill out. It’s not uncommon for a voter—especially a voter voting by mail for the first time—to forget to put their ballot inside the secrecy envelope before putting it into the mailing envelope. But this common mistake could potentially disenfranchise 100,000 eligible voters whose ballot is correct save the secrecy envelope issue.

[Read more…] about Don’t Get Caught Naked: The Pennsylvania Supreme Court Rules That Mail-In Ballots Without A Secrecy Envelope (“Naked Ballots”) Won’t Be Counted

What’s in a Name?: Pennsylvania Requires Signatures For Mail-In Ballots To Be Counted And Decides Not To Throw Out Ballots For Signature Verification Issues

vebrankovic · November 16, 2020 ·

By Jessica Washington

Pennsylvania requires a signature for all mail-in ballots. The voter’s signature must match the voter’s permanent registration card.  If the signature matches, the voter’s ballot is counted. If the signature does not match, the voter’s ballot is discarded.

Prior to this year, signatures for mail-in ballots have been an issue. They are poised to become an even greater problem as a result of the COVID-19 pandemic taking the world by storm. As a result of the pandemic, many people have begun to work from home, had their groceries delivered to their door, and have limited their need to go out in accordance with health guidelines. As a result of the COVID-19 pandemic, more people than ever are expected to vote through mail-in ballots. This increases the chance that more ballots than ever will be discounted as a result of rejected signatures.

[Read more…] about What’s in a Name?: Pennsylvania Requires Signatures For Mail-In Ballots To Be Counted And Decides Not To Throw Out Ballots For Signature Verification Issues

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