Pennsylvania court strikes down no-excuse mail voting law

A Pennsylvania court on Friday struck down Act 77, the law that established no-excuse mail voting in Pennsylvania, saying it violated the state Constitution.

The Pennsylvania Commonwealth Court said the state's constitution requires votes to be cast in-person unless voters meet certain requirements.  Shortly after the court's decision, a notice of appeal was filed with the Pennsylvania Supreme Court, which leans Democratic. 

In a statement Friday afternoon after that notice of appeal was filed, the Pennsylvania State Department issued a statement saying "today's ruling on the use of mail-in ballots has no immediate effect on mail-in voting. Go ahead and request your mail-in ballot for the May primary election."

Fourteen Republicans in the Pennsylvania House of Representatives sued last year, arguing that the law was unconstitutional. Eleven of those GOP lawmakers voted for Act 77 in 2019.

In its decision, the court noted that the law has expanded access to the ballot, but the majority said that any changes to mail voting laws would require a constitutional amendment.

"No-excuse mail-in voting makes the exercise of the franchise more convenient and has been used four times in the history of Pennsylvania," wrote Judge Mary Hannah Leavitt, a Republican. "Approximately 1.38 million voters have expressed their interest in voting by mail permanently. If presented to the people, a constitutional amendment…is likely to be adopted. But a constitutional amendment must be presented to the people and adopted into our fundamental law before legislation authorizing no-excuse mail-in voting can 'be placed upon our statute books.'"

The court's three Republicans ruled that the law was unconstitutional, while the two Democrats dissented. 

Act 77 was passed in 2019 with bipartisan support, including leading Republicans. In 2020, the first general election in which the law was in effect, 2.6 million Pennsylvanians voted by mail. 

Some conservatives in the state turned against the law after President Joe Biden won Pennsylvania, claiming the expanded access to mail ballots cost former President Donald Trump the state. Republicans have blasted previous court decisions about the law and criticized the Pennsylvania executive branch's implementation of the law. 

Republican State Senator Doug Mastriano, who voted for Act 77 in 2019, introduced a bill in November 2021 to repeal certain provisions of the law, including eliminating no-excuse mail voting. Mastriano is also running for governor in Pennsylvania. 

Pennsylvania Senate minority leader Jay Costa, a Democrat, said he is hopeful that the Pennsylvania Supreme Court will reverse the decision.

"Act 77 was a bipartisan, bicameral achievement that protected & improved access to the ballot box. It must be protected," Costa tweeted. "I do not believe that mail in voting is unconstitutional, and there were not constitutional concerns brought up when the bill passed nearly unanimously in '19."

In addition to establishing no-excuse mail voting, the law also created a permanent mail voting list, gave Pennsylvanians an extra 15 days to register to vote and extended the deadline for returning mail ballots.