HARRISBURG, Pa. (CN) — Only months out from a U.S. Senate primary race, a Pennsylvania appeals court on Friday struck down a 2019 state law that lets voters cast their ballots by mail without justifying why they can't vote in person.
Decided by a 3-2 panel, the 49-page opinion calls the 2019 law unconstitutionally enacted, saying it should have been put approved or denied by voters via ballot question.
“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’,” Judge Mary Leavitt wrote for the Commonwealth Court majority.
Leavitt's ruling has already been appealed to the Pennsylvania Supreme Court, which has a 5-2 Democratic majority, triggering an automatic stay that keeps the law in place during the proceedings.
“More Republicans voted for this law than Democrats,” Pennsylvania Attorney General Josh Shapiro tweeted Friday. “These are facts. We’ll appeal to restore Act 77 and protect mail-in voting.”
Like the two other judges in the majority, Leavitt is a Republican. Acknowledging that a mail-in option makes voting “more convenient,” she wrote that “approximately 1.38 million voters have expressed their interest in voting by mail permanently.”
Both of the dissenting judges meanwhile are Democrats.
The law codified as Act 77 was originally championed as a bipartisan effort — giving all Pennsylvanians more options on how and when to vote — and it was pushed through by Pennsylvania’s Republican-controlled General Assembly and signed by its Democratic Governor Tom Wolf in 2019.
Those bipartisan aspirations quickly disintegrated, however, as former President Donald Trump contested the legitimacy of mail-in ballots across the country during the 2020 presidential election in which Pennsylvania was a key swing state. The state’s mail-in ballots, tallied after in-person votes, pushed President Joe Biden over the threshold to victory.
Republican lawmaker Timothy Bonner led the lawsuit here in August, joined by 13 other Republican members of the state House. Eleven of the 14 plaintiffs originally voted to pass the law.
Judge Ellen Ceisler joined the 10-page dissent by Judge Michael Wojcik, which says the Pennsylvania should have been granted summary judgment on the constitutional claims raised by Republican lawmakers.
“To the contrary … the Pennsylvania Constitution specifically empowers the General Assembly to provide for another means by which an elector may cast a ballot through legislation such as Act 77,” Wojcik wrote, noting that the law permits for elections to proceed “by ballot or by such other method as may be prescribed by law” as long as votes remained confidential.
“Thus, the General Assembly is constitutionally empowered to enact Act 77 to provide for qualified and registered electors present in their municipality of residence on an election day to vote by no excuse mail-in ballot,” Wojcik continued.
The Pennsylvania Attorney General’s office did not immediately return a request for comment, nor did state lawmaker Bonner's attorney Greg Teufel of OGC Law.
More high-stakes decisions regarding Pennsylvania elections are set to go before the Commonwealth Court in the days to come.
Following Governor Wolf’s Thursday veto of the state’s new congressional redistricting map, chosen by the GOP-controlled legislature, the Commonwealth Court is set to select a map Sunday. The map will determine Pennsylvania’s 17 new congressional districts. Pennsylvania currently has 18 congressional districts; it will lose one due to the results of the 2020 census, which found that its general population has declined.
This move will also come close ahead of Pennsylvania’s midterm election primaries, set for May 17.
As Pennsylvania is a closed-primary state, voters can choose only between candidates running in their own political parties in primary elections. Republican U.S. Senator Pat Toomey’s decision not to seek reelection in 2022 has opened the door for numerous candidates from the two major parties.
The race to find Toomey's successor is shaping up to be one of the most anticipated in the country in 2022.
Gunning for the seat on the Democratic side of the ticket are those like Pennsylvania’s Lieutenant Governor John Fetterman, U.S. Representative Conor Lamb and Democratic state lawmaker Malcolm Kenyatta from North Philadelphia, the state’s first openly gay representative.
On the Republican side are cardiothoracic surgeon Dr. Mehmet Oz, who found politics after years on television as "Dr. Oz," Jeff Bartos, a former lieutenant governor candidate, and Carla Sands, who was U.S. ambassador to Denmark during the Trump administration.
Pennsylvania’s 2022 elections will also put up two new names for governor.
State Attorney General Josh Shapiro, a Democrat, is most well known among candidates running within his party, while Pennsylvania Senate President Pro Tempore Jake Corman may be the most well known among Republican candidates.
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