Justices uphold Pennsylvania's 2019 mail-in voting expansion

The Associated Press

HARRISBURG  — A wide expansion of mail-in voting in Pennsylvania survived a legal challenge on Tuesday before the state Supreme Court in a case brought by some of the same Republican state representatives who voted for the legislation nearly three years ago.

Millions of state voters have chosen to cast ballots by mail in recent elections, although Democrats have used it in far greater numbers and the law fell out of favor with Republicans as former President Donald Trump attacked it during his losing 2020 reelection campaign.

The 5-2 ruling, with the two Republican justices both voting no, means expanded vote-by-mail will almost certainly be in place for marquee races in November for governor and U.S. Senate.

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"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.

Widener Law Commonwealth professor Michael Dimino, who argued the case, declined immediate comment.

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.

Decision: In the new decision, the justices agreed with Wolf's argument that the lower court wrongly based its decision on court rulings that addressed older versions of the state constitution that had invalidated laws passed in 1839 and 1923 to expand absentee voting.

The majority cited a provision of the Pennsylvania Constitution, "method of elections," that says all elections shall be by ballot "or by such other method as may be prescribed by law."

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.

FILE - This Nov. 6, 2020 file photo shows a general view of the Pennsylvania Judicial Center, home to the Commonwealth Court in Harrisburg, Pa. A Pennsylvania court hearing Thursday, July 28, 2022 will address the fate of some 800 mail-in spring primary votes that three Republican-majority county elections boards threw out over the lack of handwritten dates on their outside envelopes. (AP Photo/Julio Cortez, File)

They said the constitution establishes only minimums for absentee and mail-in ballots, minimums that for decades have been expanded by letting military spouses and those on vacation vote by absentee ballot even though neither is expressly permitted in the state constitution.

Locally, state Reps. Mike Jones, R-York Township, and Dawn Keefer, R-Carroll Township, were part of the lawsuit. Both voted in favor of the bill in 2019 before opposing it in the lawsuit.

Wolf celebrated the decision in a release Tuesday. 

"Today's court ruling definitively asserts that mail-in voting is a legal and constitutional method for Pennsylvania voters," Wolf said. "Voting is a fundamental right -- a right that we should ensure is accessible for all voters. Mail-in voting is a safe, secure and legal option for Pennsylvania voters to exercise that right."

Rep. Seth Grove, R-Dover Township, who chairs the House State Government Committee and has been sharply critical of the state's election process, said the decision did not come as a surprise.

“While some may celebrate this ruling and others denounce it, the reality is we still have election laws and processes that are failing our voters and election administrators," Grove said. 

Pending lawsuit: Meanwhile, 14 Republican state lawmakers sued last month in another attempt to get the mail-in voting law thrown out. That lawsuit hinges on a provision that says the law becomes void if any of its requirements are struck down in court.

The pending lawsuit says the "non-severability" provision was triggered by a May 20 decision by a panel of the 3rd U.S. Circuit Court of Appeals over the law's requirement that mail-in ballots have a voter's handwritten date on the outside envelope. The federal appeals court panel found that a handwritten date had no bearing on a voter's eligibility in a Lehigh County judicial race last November.

More than half of states now allow no-excuse absentee voting. Pennsylvania joined them in 2019, when Wolf agreed to a deal that also got rid of the straight-ticket voting by party option on ballots. But many Republicans soured on the law as Trump began making baseless claims that mail-in voting was rife with fraud and urged Republicans to avoid it.

Republican lawmakers have sought to restrict mail-in voting by expanding photo ID requirements and banning drop boxes.

The GOP's nominee for governor, state Sen. Doug Mastriano of Franklin County, voted for the law but now wants to repeal it.

In one post-election lawsuit in 2020, Republicans sought to invalidate the mail-in voting law and throw out all ballots cast under it in a bid to overturn Democrat Joe Biden's victory in Pennsylvania. The state Supreme Court threw out the case, saying the plaintiffs "failed to act with due diligence" in waiting to challenge the law until after Trump lost the election. The U.S. Supreme Court refused appeals to intervene.

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