PA Republicans persist in their bid to terminate Act 77 and mail-in voting.

The Pennsylvania General Assembly passed Act 77, a “voter reform act” in October 2019, which brought new election procedures, such as no-excuse mail-in voting and ballot drop boxes. Since then, these procedures have been the subject of lawsuits around the state. Among them is the case of 14 Republican members of the Pennsylvania House of Representatives, who are asking the court to overturn Act 77.

The Commonwealth Court denied the request in a June 27 opinion, but Pittsburgh Attorney Greg Teufe of OGC Law, who represents the 14 lawmakers, still believes they have a case and intends to appeal the decision to the Pennsylvania Supreme Court.

To understand the argument, it is important to know how Act 77 was negotiated in the legislature.

“It was a negotiated law— a bargain between the Democrats and the Republicans—with the key elements that the Democrats cared about, and key elements that Republicans cared about,” Mr. Teufe told The Epoch Times. “They included what’s called a non-severability provision … if any provisions in this act, or its application to any person or circumstances is held invalid, the remaining provisions or application of this Act are void.”

If part of the act becomes invalid, the entire act is invalid, the non-severability provision is key to the argument. The 14 lawmakers believe that in another case, regarding mail-in voting, Act 77 had a key provision severed.

Act 77 requires mail-in ballots to be placed in an envelope that voters must sign and date. When some voters missed this step, Republicans said the ballots were invalid and should not be counted; Democrats said the ballots without the valid date and signature should be counted to prevent disenfranchising voters.

Courts Had Conflicting Decisions

In November 2022, the Pennsylvania Supreme Court ordered county boards of elections not to count mail-in and absentee ballots received for the November 8, 2022 General Election if their return envelopes were undated or incorrectly dated.

The state Supreme Court explained why that relief was granted in its Feb. 8, 2023 opinion, saying requiring a date in Act 77 was “unambiguous and mandatory” which made any absentee and mail-in ballot returned in an undated envelope invalid.

But in two other cases, Chapman v. Berks County Board of Elections, and Ritter v. Migliori, courts said undated ballots should be counted. The Third Federal Circuit Court said in the Migliori case, not counting the ballots would be a violation of the Civil Rights Act of 1964. The U.S. Supreme Court later declared the case moot because the election was over and had been certified.

“In Berks County, they said, ‘We agree with Migliori, that this dating provision, if it were enforced as mandatory, that would violate the materiality provision of the Civil Rights Act of 1964,” Mr. Teufe said. “And therefore, federal law blocks the application of a mandatory dating requirements, because it would disenfranchise voters.”