Is Act 77 Unconstitutional?


January 23, 2021

Many have been talking about Act 77, the statute which established no-excuse mail-in voting in Pennsylvania, and asking whether that statute is unconstitutional.

Short answer: No, Act 77 is not unconstitutional.

Why: Because a particular premise held by many regarding constitutionality, which is generally applicable to the US Constitution, is not necessarily applicable to the Pennsylvania Constitution.

Long answer: There is a common misconception regarding a basic difference between the US Constitution and the Pennsylvania Constitution. That misconception is commonly stated: "If it isn't specifically spelled out in the constitution, it must be unconstitutional." While this is generally applicable to the basics of congressional authority in the US Constitution, is not necessarily applicable to the General Assembly's authority in the Pennsylvania Constitution.

The US Constitution, in Article II Section 1 states:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

It follows this up by enumerating a list of specific congressional powers in Article II Section 8. Those enumerated powers are then encircled and contained by the 10th Amendment, which states:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Think of this like cows in a pasture, where the enumerated powers of the federal Congress in Article II Section 8 are the cows, and the 10th Amendment is a fence around those cows. Any cow outside the fence (topics not enumerated in Article II Section 8) belong not to the federal Congress, but to the states and the people themselves.

While Congress is prohibited from straying outside the 10th Amendment fence, there is no similar fence around the powers of the General Assembly within the Pennsylvania Constitution.

The states created the federal union, and they also wanted to specifically limit its power. Pennsylvania was NOT created by smaller units of government in an equivalent mutual federation. The counties did not gather together to form the Commonwealth and reserve certain powers to themselves like the states did when forming the federal union. Neither did the townships, cities, boroughs, or school districts. These are all subdivisions of the Commonwealth, which was established first under William Penn's charter.

Another way to look at this is that while counties, municipalities, and the other subdivisions are children of Pennsylvania, Pennsylvania itself is not a child of the federal union. The original states were already established when they gathered together as siblings to create a federal government in a particular manner: "Here's a specific list of topics the federal congress should deal with, and we're building a fence around them so we can retain control of everything else."

There *is* a fence of sorts in the Pennsylvania Constitution, expressed in Article I Section 25...

To guard against transgressions of the high powers which we have delegated, we declare that everything in this article is excepted out of the general powers of government and shall forever remain inviolate.

...but this section only applies to the enumerated individual rights declared within Article I, not the broader legislative powers of the General Assembly to make law and craft public policy. The power and authority of the General Assembly, and state legislatures in general, are vast and generally not contained within any fence other than minor specific constraints and limitations mentioned elsewhere in the state constitution.

To illustrate this point:

The Pennsylvania Constitution states this about public education, in Article III Section 14...

The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth.

...and then in Article III Section 15...

No money raised for the support of the public schools of the Commonwealth shall be appropriated to or used for the support of any sectarian school.

Nowhere in the constitution are local school boards mentioned. Nor are 499 different school districts, Intermediate Units, funding of schools via property taxes, nor that successful completion of grades K-12 earns a student a diploma. All these details have been implemented through statutes approved by the General Assembly. Not being specifically mentioned in the constitution does not constitute a prohibition of their establishment. The General Assembly is empowered to design nearly any system or policy structure it sees fit to properly carry out its authority as assigned in Article III Section 14.

Similarly, in Article VII Section 14 the state constitution states this about absentee voting:

The Legislature shall, by general law, provide a manner in which, and the time and place at which, qualified electors may, on the occurrence of any election, be absent from the municipality of their residence, because their duties, occupation or business require them to be elsewhere or who, on occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of election day duties, in the case of a county employee, may vote, and for the return and canvass of their votes in the election district in which they respectively reside.

Similar to the education provisions of the constitution above, this section (titled "Absentee voting") does NOT constitute a prohibition against the General Assembly creating other methods of voting. Rather, it represents a requirement to provide a distinct absentee voting method for voters who find themselves in the circumstances listed within. In fact, when Act 77 was being considered, we intentionally did not combine it with absentee voting due to the constitutional requirement for a separate absentee voting method for those voters so qualified.

To sum up this longer answer, the powers of the US Congress are specifically limited by the US Constitution and the 10th Amendment, but the powers of the General Assembly are NOT specifically limited in a similar manner. The notion of "not mentioned in the constitution" as a basis for claiming unconstitutionality is not equally applicable to both documents, nor to the powers of the respective legislative bodies they established.

Like it or not, Act 77 is constitutional. I believed it when we passed the law, and I still firmly believe it now. I cannot in good conscience flip-flop on that simply because the practical result may be unsatisfactory. While it may cause some discomfort, the means still don't justify that particular end.

I realize many don't appreciate the effect mail-in voting appears to have had on the 2020 General Election, but before you fully convince yourself Act 77 is a proverbial beast which needs hunted down and slayed by the villagers, I remind you that the focus of my post-election efforts have been centered around the fact that the election was not carried out under the provisions of Act 77 as approved by the General Assembly.

Frustrations with Act 77 and mail-in voting should be focused on the execution of the law rather than its constitutionality. The 2020 General Election was conducted under a bastardized version of what Act 77 added to the Pennsylvania Election Code. Efforts to contravene, frustrate, and undermine the security features of Act 77 by officials in the executive and judicial branches of the Commonwealth, as well as certain local election officials, is our real problem. Executive and judicial overreach is the beast we really need to slay.

Lawmaking belongs to the General Assembly – the people's representatives in Harrisburg. We cannot allow the other two branches of government to infringe on that authority. As we consider further revisions to the Pennsylvania Election Code to restore confidence in voting and elections, the prudent approach will be to include many iterations of the phrase "shall not."