On January 31 2022, theCommonwealth Court issued an opinion overturning Act 77's no-excuse mail-in voting in Pennsylvania. As a rank-and-file legislator who was present and voted for this Act in both the House State Government Committee and on the floor of the House, I wanted to offer you my perspective on it.
First, let me state that Act 77 is the only vote I ever regret making in my seven years in Harrisburg. I regret it because I never imagined how Tom Wolf, Secretary of the Commonwealth Kathy Boockvar, election officials in certain counties, and the PA Supreme Court would abuse their positions to blow through every piece of security we built into that statute to meet their objective of defeating the President.
Second, my vote for Act 77 was predicated on what I was informed was an agreement made between all stakeholders (Wolf, Democrats, Republicans, the Senate, and our House leadership) to a) provide a solution for the problem of the prerequisites for absentee voting being unenforceable, b) to eliminate straight party lever voting in general elections, and c) to provide $90 million in funding to counties to help them purchase new voting machines after they were forced to scrap their old machines by a unilateral settlement agreement entered into by Tom Wolf in a lawsuit filed by Green Party candidate Jill Stein's campaign after the 2016 presidential election.
[Sidebar: Act 71, or SB421 as it was known then, was our second attempt to provide the funding needed by counties in response to Wolf's unilateral settlement with the Stein campaign. The first attempt, SB48, included many of the same provisions of SB421, but did not include no-excuse mail-in voting. The bill was passed in June 2019 and Tom Wolf vetoed it on July 5th.]
The meat of the Commonwealth Court's ruling, however, is that Act 77 is unconstitutional. That ruling did not rely on a purely textualist reading of the Pennsylvania Constitution. Rather, it is based on case law or "binding precedent of the Pennsylvania Supreme Court," as the opinion termed it.
I am a textualist at heart. I believe our constitution means what it says in plain language. I don't like relying on case law. If something is unconstitutional, a clear reading of the document should make it obvious to every Pennsylvanian, without having to pour through volumes of law books and court cases.
When I was contemplating Act 77 during its journey through the House in 2019, I read and re-read the constitutional provisions for elections several times. At no place in the document is any explicit exclusivity mentioned or inferred regarding in-person voting or the traditional absentee voting process. I wrote a blog post reflecting that belief in January 2021. You can read that post here.
At no time in 2019 did anyone bring to my attention the PA Supreme Court's previous rulings in Chase v. Miller, 41 Pa. 403 (1862), or In re Contested Election of Fifth Ward of Lancaster City, 126 A. 199 (Pa. 1924). I was not fully aware of these rulings until I read the filing by Bradford County Commissioner Doug McLinko in July 2021, which served as the genesis of Friday's Commonwealth Court ruling.
In Chase, the Supreme Court held that the Military Absentee Act of 1839 was unconstitutional. In Lancaster, the Court found the same regarding the 1923 Absentee Voting Act. In both cases, the Court ruled that the constitution would need to be amended before such acts could be adopted by statute.
Had anyone brought these two century-old Court rulings to my attention back in 2019, I would have never voted in favor of Act 77.
I believe the Commonwealth Court's ruling on Act 77 in the case filed by Commissioner McLinko, who was later joined by 14 of my colleagues in the House, is sound. I look forward to seeing what the PA Supreme Court does with the appeal the Wolf Administration filed on Friday.
I have had several conversations with both Commisioner McLinko and Representative Tim Bonner, the lead legislative plaintiff, about this case. I did not sign on as a plaintiff because I believed it would have been hypocritical given my preference for explicit textualism vs. reliance on case law. That said, I'm glad they prevailed and eagerly await the final disposition of the matter.
I am not afraid to admit that I am wrong when I am shown to be wrong.
Because case law and precedent are partially responsible for this ruling, we must now await the final disposition of the appeal to the PA Supreme Court before anyone can say with certainty that Act 77 is or isn't constitutional. This is because when we believe in constitutional rule, we must also accept that the Supreme Court – regardless of how right or wrong we may find their decisions to be – is a legitimate arbiter of such questions.
If the Supreme Court overturns this Commonwealth Court ruling, it certainly would not be the first time I find myself in disagreement with that panel of Justices. If the Court upholds the McLinko ruling, it would be a laudable adherence to legal precedent.
Regardless of which way the appeal goes in the Supreme Court, I am prepared with a legislative solution. My House Bill 1717 would add a few simple words to our constitution to EXPLICITLY EXCLUDE any method of voting other than in-person voting and the traditional absentee voting system.
If the Commonwealth Court ruling in McLinko is upheld, my proposal would incorporate that ruling into the constitution. If the Commonwealth Court ruling is overturned, then HB1717 will serve as a rallying point for those who want to dump mail-in voting by putting the question directly to the people rather than having to deal with a governor who might veto it.
Finally, for those of the opinion that Act 77 cost Donald Trump the presidency, I would point out that a) Pennsylvania alone was not the deciding factor in the Electoral College vote, and b) Tom Wolf, Secretary of the Commonwealth Kathy Boockvar, election officials in certain counties, and the PA Supreme Court would have equally abused their positions to blow through every piece of security of the traditional absentee ballot law to achieve their objective, had Act 77 not been in place. That's exactly what happened in some other states.
The willful and wanton disregard for, and subversion of, the law we've witnessed from Democrats during the last seven years is unprecedented. We've now seen how reckless they are with election law, disaster emergency management, the legislative redistricting process, school mask mandates, and countless other areas where they believe they can unilaterally make it up as they go.
This is no way to run a Commonwealth, and I will continue to keep doing my best to fight for common sense and adherence to the law as written.