PHILADELPHIA — Pennsylvania’s mail voting law is constitutional, the state Supreme Court ruled Tuesday, upholding the 2019 measure that allows any voter to use mail ballots and removing a cloud of uncertainty heading into the midterm elections.
The law, used for the first time in 2020, dramatically expanded mail voting from a method that had been allowed only in a very small number of cases — about 5% of votes in any given election — to one used by millions over the last two years.
It was the product of bipartisan negotiations between Democratic Gov. Tom Wolf and the Republicans who control the state legislature. But its implementation came during both the first year of the pandemic and an intensely heated presidential election. As massive numbers of voters cast ballots by mail, state and county elections officials tried to build out the system, in some cases triggering Republican outrage and lawsuits over their decisions.
That was further stoked by then-President Donald Trump, who began attacking mail voting months before his loss to Joe Biden in the 2020 presidential election. Republicans have continued to try to dismantle the law, with some saying they believe it has been abused in its implementation, and others espousing bogus conspiracy theories about widespread fraud.
A group of Republican lawmakers — some of whom voted for the law in 2019 — and a Republican county commissioner sued last summer, saying Act 77 violates the state Constitution. Because the Constitution explicitly describes situations allowing absentee voting, they argued, it’s unconstitutional to provide mail voting in other cases.
The state Supreme Court disagreed Tuesday.
“We reiterate that our General Assembly is endowed with great legislative power, subject only to express restrictions in the Constitution,” Justice Christine Donohue wrote for the majority. “We find no restriction in our Constitution on the General Assembly’s ability to create universal mail-in voting.”
Donohue was joined by Chief Justice Max Baer and Justices Debra Todd and Kevin Dougherty; a fifth justice, David Wecht, agreed with most of the opinion. All five are Democrats.
The two Republicans on the court, Justices Sallie Updyke Mundy and Kevin Brobson, dissented.
“I express no opinion as to whether no-excuse mail-in voting reflects wise public policy,” Mundy wrote. “That is not my function as a member of this state’s Judiciary. 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.”
She and Brobson argued the court was seeking to improperly recast history — and prior precedent — to protect the law.
