Call Us:202-441-5487
Instaappointment Image
Instaappointment image

LDF Backs Litigation Challenging Pennsylvania’s No-Excuse Absentee Voting Law

Home  /  Other Issues  /  State Spotlight  /  LDF Backs Litigation Challenging Pennsylvania’s No-Excuse Absentee Voting Law

The Lawyers Democracy Fund is proud to back 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 will hear the Commonwealth’s appeal on March 8, 2022, at 9:00 a.m. EST.  Arguments can be watched via live stream here.

 

 

Case Documents


Pennsylvania Supreme Court

 

Reply Brief of DNC Appellants (March 2, 2022)

 

Reply Brief of Appellant Commonwealth of Pennsylvania (March 2, 2022)

 

Order Granting Emergency Application to Reinstate Automatic Supersedeas (March 1, 2022)

 

Brief of Amicus Curiae in Support of Appellees – Honest Elections Project (February 25, 2022)

 

Brief of Amicus Curiae in Support of Appellees – Citizens United (February 25. 2022)

 

Brief of Amicus Curiae in Support of Appellees – Landmark Legal Foundation (February 25, 2022)

 

Brief of Amicus Curiae in Support of Appellees – American First Policy Institute (February 25, 2022)

 

Appellees’ Joint Answer to Appellants’ Emergency Application (February 25, 2022)

 

Brief of Appellees GOP Committees (February 25, 2022)

 

Brief of Bonner Appellees (February 25, 2022)

 

Brief of Appellee Doug McLinko (February 25, 2022)

 

Appellants’ Emergency Application to Reinstate Automatic Supersedeas (February 24, 2022)

 

Brief of Appellants Democratic National Committee, PA Democratic Party Brief (February 15, 2022)

 

Brief of Appellant Commonwealth of Pennsylvania (February 15, 2022)

 

Order Granting Appeal and Argument Schedule (February 2, 2022)

 

Commonwealth Notice of Appeal (January 28, 2022)

 

More filings can be accessed here.

 

Pennsylvania Commonwealth Court

 

Commonwealth Court Order Terminating Automatic Supersedeas (February 16, 2022)

 

Appellants’ Answer to Appellees’ Application to Terminate Automatic Supersedeas (February 4, 2022)

 

Appellees’ Joint Application to Terminate Automatic Supersedeas (January 31, 2022)

 

Commonwealth Court Opinion (January 28, 2022)

 

Commonwealth Court Concurring and Dissenting Opinions (January 28, 2022)

 

McLinko Amended Reply Brief (October 29, 2021)

 

McLinko Amended Petition for Review (September 29, 2021)

 

Commonwealth Court Order Consolidating Cases (September 24, 2021)

 

Commonwealth Additional Reply Brief (September 15, 2021)

 

Amicus Curiae Brief in Support of Petitioners – Legislators (September 9, 2021)

 

McLinko Reply Brief (September 8, 2021)

 

Commonwealth Reply Brief (August 26, 2021)

 

Commonwealth Cross-Application for Summary Relief (August 26, 2021)

 

McLinko Initial Brief (August 11, 2021)

 

More filings can be accessed here.

 

News


PA Court Overturns Unconstitutional No-Excuse Mail Voting Law (January 28, 2022)

 

 

 

[Last Updated March 2, 2022]