In a case supported by Lawyers Democracy Fund, Counsel Wally Zimolong of Zimolong Law filed a letter on Monday with the Pennsylvania Supreme Court in McLinko v. Commonwealth to notify the court of a recent Third Circuit Court of Appeals decision that calls into question the validity of Pennsylvania’s no-excuse mail voting law (Act 77).

McLinko v. Commonwealth, a lawsuit LDF supported in July of last year, challenges the constitutionality of Act 77 under the Pennsylvania Constitution. The state Supreme Court is set to issue an opinion at any time.

But in June, the Third Circuit decided Migliori v. Lehigh Cnty. Bd. Of Elections. In doing so, the court preempted Act 77’s absentee ballot date requirement under the Materiality Provision of the Civil Rights Act of 1964 because the date requirement was immaterial to proving a voter’s qualifications to vote. However, up until now, this Materiality Provision has only been applied in the context of voter registration, not ballot qualifications.

Joined by Justices Thomas and Gorsuch, Justice Alito dissented from the United States Supreme Court’s denial of a stay of the Third Circuit’s decision, which is currently in effect. Justice Alito pointed out that the Third Circuit’s decision not only preempted the absentee ballot date requirement of Act 77 but that the Third Circuit’s interpretation of the Materiality Provision in the context of ballot qualifications was entirely novel and likely very wrong.

This is because nothing about Act 77’s absentee ballot date requirement concerns whether a voter is qualified to vote––they clearly are since they received a mail ballot. Rather, the date requirement, Justice Alito emphasizes, is an ordinary and non-burdensome compliance requirement to cast a valid mail ballot. Such requirements don’t fall under the Materiality Provision––and for good reason.

Defendants in Migliori have already filed for certiorari with the United States Supreme Court, asking the Court to vacate the Third Circuit’s decision for how it jeopardizes practically every valuable requirement to ensure absentee ballots are cast in a safe and secure manner – e.g., signature requirements, witness requirements, ballot return deadlines, etc. The effects of the Third Circuit’s decision could be incredibly far-reaching, not only in Pennsylvania but in other states as well for the continuance of important election safeguards.

Act 77’s non-severability clause is the major wrinkle in this case. That provision states that “if any provision of [Act 77] or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void.”

For background, legislators on both sides of the aisle struck a very intricate compromise to enact no-excuse mail voting in Pennsylvania. Because every component of the law was essential to Act 77’s workability and this compromise, legislators agreed that if one of the several enumerated provisions were struck, then the entire act would be void. The absentee ballot date requirement was one of these expressly enumerated provisions.

Following the Migliori decision, Representative Seth Grove, the Chairman of the State Government Committee, wrote a letter on July 12 to Acting Pennsylvania Secretary of State Leigh Chapman inquiring as to the status of Act 77 in light of the invalidated date requirement and Act 77’s non-severability clause.

I believe it is now clear that a ‘provision of this act or its application to any person or circumstance’ has been held invalid…when will the Department of State notify county boards of elections that the Election Code has now reverted to its status prior to the enactment of Act 77 of 2019?

Secretary Chapman responded on July 20, claiming that the date requirement was not invalidated by the Third Circuit, only that the Lehigh County Board’s decision to not count un-dated mail ballots was incorrect. Regardless, the date requirement of Act 77 remains wholly unenforceable and preempted under federal law for the foreseeable future.

The letter sent to the Pennsylvania Supreme Court by LDF in McLinko v. Commonwealth followed a procedural rule to simply inform the Court of the Third Circuit’s decision. It’s now up to the Court to consider the impact of the Circuit Court’s decision on the viability of Act 77 going forward.

Read Monday’s letter the Pennsylvania Supreme Court here.