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PA Court Overturns Unconstitutional No-Excuse Mail Voting Law

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28.Jan, 2022 Comments Off on PA Court Overturns Unconstitutional No-Excuse Mail Voting Law , , Election Litigation

PA Court Overturns Unconstitutional No-Excuse Mail Voting Law

Today, the en banc Pennsylvania Commonwealth Court struck down Act 77, Pennsylvania’s unconstitutional no-excuse absentee voting law, in a Lawyers Democracy Fund (LDF)-backed lawsuit––McLinko v. Commonwealth (No. 224 M.D. 2021) consolidated with Bonner v. Degraffenreid (No. 293 M.D. 2021).  


Wally Zimolong, Petitioner’s Counsel, stated:

We are very pleased with the Commonwealth Court’s decision. The Pennsylvania Constitution clearly prohibits no-excuse mail voting. This has been the law for over 100 years. The Commonwealth Court agreed. This case is a victory for the Pennsylvania Constitution, the rule of law, and election integrity.


Lisa Dixon, LDF Executive Director, added:  

The Pennsylvania Commonwealth Court recognized today that the state legislature cannot circumvent the Pennsylvania state constitution and the people of Pennsylvania’s right to vote directly on the provisions of their state constitution. The decision today in McLinko v. Commonwealth protects the rule of law in Pennsylvania, and LDF is honored to have been a part of this effort.


In July 2021, Bradford County election official Doug McLinko brought an action for declaratory judgment on the constitutionality of Act 77 with LDF’s support.  Act 77, Pennsylvania’s no-excuse absentee voting law enacted in 2019, allows any voter to cast a ballot by mail.  But Act 77 directly conflicted with the state constitution pertaining to who is eligible to vote by mail.  The Pennsylvania constitution––Art. VII, Sec. 14––expressly limits mail voting to only certain qualifying electors; Act 77 unlawfully circumvented Sec. 14 to allow anyone to vote by mail.  


The Commonwealth Court agreed (emphasis added): 

Our Constitution allows the requirement of in-person voting to be waived where the elector’s absence is for reasons of occupation, physical incapacity, religious observance, or Election Day duties. PA. CONST. art. VII, §14(a). Because that list of reasons does not include no-excuse absentee voting, it is excluded. Page v. Allen, 58 Pa. 338, 347 (1868); Lancaster City, 126 A. at 201. An amendment to our Constitution that ends the requirement of in-person voting is the necessary prerequisite to the legislature’s establishment of a no-excuse mail-in voting system.  [Op. at 35.]


LDF applauds the en banc Commonwealth Court’s holding, for it is a major victory for the rule of law and election integrity in Pennsylvania.  It is now clear that if Pennsylvania wants to enact no-excuse absentee voting, it must do what has long been required to expand who can vote by mail: pass a constitutional amendment and let the voters of Pennsylvania decide.


The Court affirmed:

[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.’ Lancaster City, 126 A. at 201. For these reasons, we grant summary relief to McLinko and declare that Act 77 violates Article VII, Section 1 of the Pennsylvania Constitution, PA. CONST. art. VII, §1. We deny the Acting Secretary’s application for summary relief on the procedural and substantive grounds proffered therein.  [Op. at 37.]


LDF commends its counsel who worked so diligently to defend the Pennsylvania Constitution from improper legislative enactments on such an important issue.  LDF will continue to support common-sense efforts to strengthen election integrity.


Direct all media inquiries to LDF Executive Director Lisa Dixon at [email protected].  To view the Commonwealth Court’s opinion, click here. 


For a PDF of this press release, please click here.

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