Litigation Challenging Pennsylvania’s No-Excuse Absentee Voting Law

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The Lawyers Democracy Fund supported a challenge to Act 77, Pennsylvania’s no-excuse absentee voting law, in McLinko v. Commonwealth (No. 224 M.D. 2021) consolidated with Bonner v. Degraffenreid (No. 293 M.D. 2021).

Case Summary

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.

At numerous points in history, Pennsylvania voters have approved constitutional amendments to allow certain qualified voters to vote absentee as an exception to Pennsylvania’s default requirement that voters cast their ballots in person. Voters currently eligible to vote absentee include those who are unable to go to the polls due to occupation or business; an illness or physical disability; the observance of a religious holiday; or Election Day duties. Pa. Const. Art. VII, §14(a).

When the legislature has failed to go through the constitutional amendment process to expand who may vote by mail in Pennsylvania, it has been struck down. See Chase v. Miller, 41 Pa. 403 (1862) and In re Contested Election of Fifth Ward of Lancaster City, 126 A. 199 (Pa. 1924) (Lancaster City). Both these cases invalidated legislative acts that expanded mail voting and remain binding, authoritative precedent on the issue.

Act 77 was passed by legislative act in 2019 after the legislature abandoned an attempt to properly amend the constitution to provide no-excuse absentee voting to all voters. See Senate Bill 411 (2019). In July 2021, Petitioner Doug McLinko, a local election official, brought his challenge to invalidate Act 77, seeking prospective relief in the form of a declaratory judgment. His challenge was consolidated with a similar challenge by Pennsylvania state legislators (Bonner v. Degraffenreid, No. 293 M.D. 2021). The en banc Commonwealth Court ruled in favor of Petitioners citing the two aforementioned cases and Pennsylvania’s consistent constitutional history to hold Act 77 could only be valid as a constitutional amendment.

This case is highly important because of what it means for preventing Pennsylvania and other states from overlooking their longstanding, binding precedents to achieve policy outcomes that violate the state constitution. Furthermore, it holds states accountable to the clear text of their constitutions, not what they would like their constitutions to say. If Pennsylvania is able to overlook legal and historical precedent to expand mail voting, the same will, unfortunately, be true for other states and for other constitutional provisions the state may not agree with but refuses to amend properly.

On January 28, 2022, Pennsylvania’s Commonwealth Court struck down Act 77. The Commonwealth immediately appealed. The Pennsylvania Supreme Court heard oral arguments on March 8, 2022. On August 2, 2022, the Pennsylvania Supreme Court reversed the Commonwealth Court’s decision and upheld Act 77 by a vote of 5-2, with the Court’s 5 progressive justices in the majority.

While LDF’s supported challenge to Act 77 was ultimately unsuccessful, the Pennsylvania Supreme Court was forced to overturn 160 years of legal precedent and constitutional interpretation to reach its flawed conclusion. This case nevertheless made important strides to defend both the exclusive rights of Pennsylvania voters to expand mail voting by constitutional amendment and the rule of law in Pennsylvania elections.

Importantly, this case established invaluable precedent clarifying who has standing to bring such a challenge, whether or not laches applies in these circumstances, and which court has jurisdiction to hear future cases. LDF is proud of these achievements and the path it paves for future challenges under Pennsylvania law.