Court Decision May Invalidate Pennsylvania’s No-Excuse Mail-In Vote Law

A Pennsylvania law that allows no-excuse mail-in voting may be in jeopardy because of a Democrat effort to water it down. 

Act 77, passed in October 2019, made numerous changes to Pennsylvania’s election code including setting aside “funding for the purchase of election machines” and establishing no-excuse mail-in balloting. Prior to Act 77, Pennsylvania had one of the strictest absentee ballot laws in the country. 

But a recent decision by the Third U.S. Circuit Court of Appeals may challenge Act 77’s legality. As Republican state Rep. Seth Grove noted in a letter to Pennsylvania Acting Secretary of State Leigh Chapman, Act 77’s non-severability clause states that if any of its provisions are invalidated, then “the remaining provisions or applications of this act are void.” 

Grove further highlighted that the ruling by the Third Circuit Court of Appeals invalidated one of the provisions in Act 77 — Section 1306-D, which requires voters to date and sign the outside of their ballots. The court ruled that dating the outside envelope of a mail-in ballot is “immaterial.” 

As Grove outlined in the letter, “I seek the Department’s stance on the continued application of the provisions of Act 77 of 2019 in light of a recent ruling by the Third Circuit Court of Appeals. Specifically, the court held on May 20, 2022, that a provision enacted by Section 8 of Act 77 of 2019 is incompatible with Federal law. Specifically, this is the requirement in Section 1306-D providing that a mail-in ballot be both signed and dated in order to be counted.” 

Since Act 77’s non-severability clause was triggered by the court ruling, Grove argued that the law is now invalid. 

“The clear intent of the General Assembly in enacting Act 77 of 2019 is that the entire bill should now be void,” Grove wrote. “As the 2022 General Election is fast approaching, when will Department of State notify county boards of elections that the Election Code has reverted to its status prior to the enactment of Act 77 of 2019?” 

Chapman’s office did not respond to The Federalist’s request for comment. When asked whether he thinks Chapman will update Pennsylvania’s election code, Grove told The Federalist “she won’t do anything about it. This is the same lady that said she publicly supports illegal voting.” Chapman is a registered Democrat. 

Pennsylvania election law attorney Linda A. Kerns does not expect Chapman to take any action on Grove’s letter, either.

“The Secretary of State is in a Democratic administration,” she said. “They want mail-in balloting.” 

Kerns does expect multiple lawsuits to be filed based on Act 77’s non-severability clause since the Third Circuit Court declared one of its mail-in balloting provisions inappropriate.

One lawsuit by 14 Pennsylvania House Republicans argued Act 77 was “unconstitutionally enacted by statute rather than put to voters in the form of a referendum.” In January, a Pennsylvania Commonwealth Court agreed with their arguments and struck down Act 77, but Democratic Gov. Tom Wolf appealed the decision to the state Supreme Court. The left-leaning court has already stayed the lower court’s order and will most likely overturn it. 

The reality that Democratic jurors are loathe to hear cases regarding the legality of mail-in balloting is something The Federalist’s Margot Cleveland highlighted in her reporting on the Wisconsin Supreme Court’s decision invalidating ballot drop boxes. 

For that reason, Kerns emphasized the importance of paying attention to judicial elections. “Our judges have power,” she said. “When I was representing the Trump campaign in 2020, I was filing lawsuits to get the local election boards to follow the statute, but I had judges who were Democrats who did not want to see anything about mail-in balloting restricted at all.” 

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