Bad Omens for Election Law in Pennsylvania

Earlier this month, the Pennsylvania Supreme Court issued a long-awaited ruling on the constitutionality of a 2019 state statute called Act 77 allowing no-excuse voting by mail. In a 5-2 decision in McLinko v. Commonwealth, the Court held that the Pennsylvania Constitution did not prevent the legislature from enacting universal voting by mail, despite the fact that the Pennsylvania Constitution requires voters to “offer to vote” in their voting districts and lays out very specific, limited instances where absentee ballots shall be allowed.

This is a Pennsylvania-specific case with nationwide significance. We must be vigilant when a high court in an important swing state upholds a law that is inconsistent with the text of its Constitution, especially when a court’s decision appears to succumb to political pandering. We should be aware when a court rules on such a hot-button partisan issue and actually admits that it knows its decision favors Democrats. 

The McLinko Court acknowledges that the constitutional absentee voting issue has been decided already in previous court cases on very similar facts. In an 1863 case called Chase v. Miller, the Court ruled that the Military Absentee Act of 1839 was unconstitutional in that it excused military personnel from the constitutional requirement that they “offer to vote,” that is, appear in person and physically deliver the ballot to election officials. This logic was repeated in the 1924 state case In re Contested Election of Fifth Ward of Lancaster City, which considered the legal right to absentee voting. The precedent was clear and long-standing.