Justices ponder bid to throw out no-excuse mail-in balloting

HARRISBURG, Pa. (AP) — Pennsylvania Supreme Court justices considered Tuesday whether to throw out a state law that greatly expanded mail-in balloting, holding oral argument in litigation brought in part by some of the Republican state representatives who voted overwhelmingly for it about two years ago.

The unusually long, three-hour session in Harrisburg could put an end to compromise legislation that in 2019 eliminated straight-ticket voting, a priority of legislative Republicans, in exchange for no-excuse mail-in voting. Voting by mail proved immediately popular during the pandemic.

Justices did not indicate when or how they will rule, although Chief Justice Max Baer suggested that if they were to throw out the 125-page law it could remain in place through the spring primary, currently scheduled for May 17.

Baer asked whether that would give election officials and others “ample time to straighten things out prior to a General Election.” Seth Waxman, a lawyer for the national and state Democratic parties, said that was not likely.

“There are millions and millions of people who would need to be reeducated, millions and millions of dollars that the state will have to spend in reeducating them,” he replied.

Michael Dimino, a Widener Law School professor representing Doug McLinko, a Bradford County commissioner who sued to challenge the law, told the justices that having most voters cast ballots in person helps ensure that elections are run fairly, even if the original intent was spurred by early 19th century efforts to limit the franchise to white, male property owners.

“Having a presumption that voting in person is required continues to be some amount of guarantee that the people who do cast a vote are qualified to do,” Dimino said.

The plaintiffs also include 14 state House Republicans, most of whom voted for the mail-in law in October 2019. Two were not in the Legislature at the time, and one voted against it. Their lawyer said they have since determined the law was not constitutional.

“Let’s be candid,” said Justice Kevin Dougherty, a Democrat. “What it really looks like is that maybe some legislators are concerned because the no-excuse balloting, at least recently, shows that maybe one party votes overwhelmingly by mail-in ballot as opposed to another. So maybe this is an attack for supremacy at the ballot.”

The justices have fast-tracked the appeal from a 3-2 Commonwealth Court ruling more than a month ago that threw out the mail-in voting law. The lower-court majority said the law impermissibly went beyond conditions for mail-in voting that are permitted under the state constitution, such as being out of town on business, illness, physical disability, election day duties or a religious observance.

Democrats argued the constitution’s allowances for mail-in are a minimum that does not prevent the Legislature from expanding them to apply to more people.

The state Supreme Court currently has a 5-2 Democratic majority, and the justices have previously rejected challenges to the law.

If the law is deemed unconstitutional, Justice Christine Donohue said, it would raise questions about an older state law that permits those who spend the winter months in warmer climes to vote absentee.

Gregory Teufel, a lawyer for the plaintiffs, said they were only seeking to have the mail-in voting law thrown out, and that being out of town for business could be interpreted as having personal business in Florida during the winter.

More than 2.5 million Pennsylvanians voted by mail during 2020′s presidential election, most of them Democrats, out of 6.9 million total votes.