Pennsylvania Supreme Court rejects GOP lawsuit, upholds likely unconstitutional legislative expansion of absentee mail-in ballots

The Pennsylvania state legislature passed a law in 2019 that extended a universal right to cast mail-in absentee ballots to all voters in the state, but that law provoked great controversy in the 2020 election, was later challenged with a lawsuit by Republicans, and was ruled to be unconstitutional by a commonwealth court judge in January.

The predominately Democrat Pennsylvania Supreme Court, however, ruled Tuesday in a 5-2 party-line vote that the lower court was wrong and the law, known as Act 77, was not in violation of the state’s constitution, the Associated Press reported.

Court upholds legislative expansion of absentee voting

Act 77 was a legislative package of various election reforms, including expanding absentee voting by mail to all state voters, that received bipartisan support from lawmakers and was signed into law by the Democratic governor.

The lawsuit arose over an argument put forward by some Republicans — including some who had initially voted for the legislation — that substantial changes to election rules, particularly involving the eligibility for absentee voting, needed to be made with constitutional amendments and not mere legislative acts.

However, in the majority opinion, Justice Christine Donohue wrote, “We find no restriction in our Constitution on the General Assembly’s ability to create universal mail-in voting.”

She went on to assert that legislators had the full authority to “prescribe any process by which electors may vote,” so long as the vote remained secret, and insisted that the majority was “unaware of any evidence” of fraud or illegality that would call into question the integrity and validity of recent elections due to the widespread use of no-excuse universal mail-in absentee ballots.

That’s not how this is supposed to work

Breitbart reported that both Republican members of the state’s high court offered dissenting opinions, though, including Justice Sallie Mundy, who wrote, “Notably, neither the majority nor the concurrence provides a convincing account of how our state Charter permits universal, no-excuse mail-in ballots, particularly in light of its specific authorization for absentee ballots for four defined groups of voters.”

She explained how the majority either ignored or failed to understand that, per the state constitution and prior court precedence, in-person voting was the default requirement, that substantial rule changes required a constitutional amendment, and that it didn’t matter if legislators carefully debated or voted in a bipartisan manner for anything other than a valid amendment in order to alter the rules for how people could cast their ballot.

“None of these observations has any relevance to the issue before this Court,” Mundy wrote. “Legislation inconsistent with our state Charter cannot gain validity through popular sentiment or careful drafting. The Constitution stands as a bulwark against contrary sentiment and the passions of the moment, and it can only be altered in the careful manner that it prescribes.”

“I express no opinion as to whether no-excuse mail-in voting reflects wise public policy. That is not my function as a member of this state’s Judiciary,” she concluded. “My function is to apply the text of the Pennsylvania Constitution, understood in light of its history and judicial precedent. In so doing, I would hold that that venerable document must be amended before any such policy can validly be enacted. Accordingly, I respectfully dissent.”

Upending 160 years of court precedence for purely partisan purposes

Breitbart noted that Mundy was joined by Justice Kevin Brobson, who also filed a brief dissent of his own, and wrote, “Succinctly stated, the majority overrules 160 years of this Court’s precedent to save a law that is not yet 3 years old. It does so not to right some egregiously wrong decision or to vindicate a fundamental constitutional right,” but merely to uphold a rule change popular among Democrats.

“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,” he added. “Mere disagreement with that precedent is not enough.”

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