Tuesday’s decision means expanded vote-by-mail will almost certainly be in place for the Nov. 8 midterm election.
The state Supreme Court ruled Tuesday that Pennsylvania’s mail-in voting law is constitutional, upholding the 2019 measure that allows any voter to cast a ballot by mail.
Tuesday’s decision means expanded vote-by-mail will almost certainly be in place for the Nov. 8 midterm election, which features marquee US Senate and gubernatorial races in Pennsylvania, along with important contests in the US House and state Legislature.
The court’s decision was 5-2, with the two Republican justices both voting no.
“We find no restriction in our Constitution on the General Assembly’s ability to create universal mail-in voting,” wrote Justice Christine Donohue in the majority opinion.
Pennsylvania’s 2019 mail-in voting law, known as Act 77, has become a hot topic for Republicans on the campaign trail, with Republican gubernatorial nominee Doug Mastriano vowing to repeal it if he gets elected.
A majority of states now offer no-excuse mail-in voting for all voters, and every Republican lawmaker but one voted for Pennsylvania’s law in 2019.
But Republicans in Pennsylvania soured on mail-in voting after former President Donald Trump began baselessly attacking it as rife with fraud in his 2020 reelection campaign.
Last year, 14 Republican state lawmakers — including 11 who actually voted for the law — sued to throw out the law, saying that prior court rulings make it clear that the constitution must be changed to allow no-excuse mail-in voting.
As the high court was still considering the initial suit, the same 14 Republicans filed a second suit over mail-in voting last month. That pending lawsuit hinges on a provision that says the law becomes void when any of its requirements are struck down in court.
Widener Law Commonwealth professor Michael Dimino, who argued the case for the lawmakers and others who sued, declined immediate comment following Tuesday’s decision.
A lower court panel with a majority of Republican judges had thrown out the law in January, a ruling put on hold while the state Supreme Court reviewed an appeal by the administration of Democratic Gov. Tom Wolf.
In a dissent, Justice Kevin Brobson said the majority overruled 160 years of court precedent.
“Today, this court upends the tradition and historic preference in this commonwealth for in-person voting without the requisite ‘special justification’ and important reasons necessary to set aside long-standing precedent,” Brobson wrote. “Mere disagreement with that precedent is not enough.”
The majority cited a provision of the Pennsylvania Constitution that concerns “method of elections” and says all elections shall be by ballot “or by such other method as may be prescribed by law.” That section was apparently motivated by the use of voting machines a century ago.
Donohue wrote that the constitutional provision means the General Assembly can “prescribe any process by which electors may vote,” bound only by a requirement that the secrecy of a vote must be maintained.
Wolf’s lawyers had told the court the current version of the state constitution should not be interpreted to outlaw voting by mail that goes beyond allowing it for people who are out of town on business, ill, physically disabled or performing election day duties or a religious observance.
Nearly 5 million votes were cast by mail over 2020-21. As of August 2021, nearly 1.4 million Pennsylvania voters were signed up for permanent mail-in voting notification.