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Commonwealth Court rules mail-in voting unconstitutional

Photo for File: Voting sign at Hill Presbyterian Church in Butler. (Keywords: Voting, Election, ballot) Seb Foltz/Butler Eagle 11/3/21
State files appeal in support of Act 77

A state appellate court issued a ruling Friday morning declaring mail-in voting as unconstitutional. By later that afternoon, the state filed a notice of appeal.

The Commonwealth Court ruled in favor of challenges to Act 77 of 2019 filed by Bradford County Commissioner Doug McLinko; Republican state representatives, including Timothy Bonner, R-8th, and Aaron Bernstine, R-10th; and the Republican committees of Butler, Washington and York counties.

The appeal was granted in a 3-2 vote with three Republican judges voting in favor and two Democratic judges voted against the appeal.

Butler attorney Tom King, who argued the case on behalf of the Republican committees, was pleased with the ruling.

“In my opinion, this is a victory for democracy,” King said.

“Going to the poll substantially diminishes the chances of fraud — the chances of people showing up who don’t live there or aren’t supposed to vote there,” King said.

He said checks to confirm the identity of people who cast mail-in ballots are unreliable.

In addition, he said hundreds of missing mail-in ballots cast in the 2020 remain unaccounted for.

Al Lindsay, chairman of the Butler County Republican Committee, also was pleased with the ruling.

“Our committee was one the main plaintiffs in the case. We’re gratified that we had a positive result,” Lindsay said. “We’re gratified because the mail-in ballot procedure as it panned out we think was suspect in its accuracy.”

He commended King for his work on the appeal.

Lindsay and King also said they expected the ruling to be appealed to the state Supreme Court. By mid-afternoon Friday, the state filed an appeal.

King said said Bonner filed the challenge, which is the same as the challenge filed by U.S. Rep. Mike Kelly, R-16th, in 2020.

“Rep. Bonner and Rep. Kelly have been proven to be absolutely right all along,” King said.

"The ruling by the Commonwealth Court is exactly why I led the challenge of Act 77 over a year ago. Act 77 is unconstitutional and deserves further review," Kelly said. "Any changes to Pennsylvania's voting laws are required to take place through a constitutional amendment, not legislation. That is why I filed my lawsuit after the 2020 election. I'm pleased to see the court advance this case that will create stronger, more secure mail-in voting laws in our great commonwealth."

Act 77 expanded no excuse mail-in voting and is supported by state voters, but the state constitution would have to be amended to allow it, according to the majority opinion from the court.

“Approximately 1.38 million voters have expressed their interest in voting by mail permanently. If presented to the people, a constitutional amendment to end the Article VII, Section 1 requirement of in-person voting is likely to be adopted. But a constitutional amendment must be presented to the people and adopted into our fundamental law before legislation authorizing no-excuse mail-in voting can be placed upon our statute books,“ President Judge Mary Hannah Leavitt wrote in the majority opinion citing a prior case.

Respondents in the case are Veronica Degraffenreid, acting secretary of the commonwealth of Pennsylvania, the Department of State and the state.

Citing Leavitt’s opinion, King said the state constitution permits absentee voting only for people who are sick, out of town and serving away from home in the military when elections are held.

The opinion cites a challenge to absentee voting by soldiers fighting the Civil War. The state Supreme Court ruled that the Military Absentee Act of 1839 was unconstitutional, invalidating all 420 absentee military votes cast in a district attorney election in 1862. The constitution was amended in 1864 to allow soldiers to vote using absentee ballots.

“That’s the way it’s historically been in Pennsylvania for 200 years,” King said. ‘It’s been a topic of conversation since the commonwealth was formed.“

The Military Absentee Act of 1813 was the first legislation that allowed soldiers to vote with absentee ballots.

Since 1838, the constitution has required voters to appear at a polling place in the election district where they live to vote. This requirement was adopted “to exclude disqualified pretenders and fraudulent voters of all sorts,” according to the opinion.

A 1967 constitutional amendment mandated that voters must “offer to vote” in the election district where they reside, and the Supreme Court has held that the phrase “offer to vote” requires the physical presence of the voter.

There is no air in this construction of “offer to vote.” There must be a constitutionally provided exception before the “offer to vote” requirement can be waived, according to the opinion.