Pennsylvania Court Strikes Down Mail-In Ballot Law By 3-2 Republican Vote

Today a Pennsylvania appellate court struck down the state’s generous law approving mail-in ballots. The court struck down the law by a 3-2 party-line vote. The law encourages precisely what former President Trump claimed was a booster of fraudulent voting. Some Republicans supporting the legal challenge had echoed Trump’s baseless claims of widespread voter fraud.

The law passed the state legislature two years ago. That law was passed with near-unanimous Republican support in a Republican-controlled, but relatively sensible, legislature. It was a striking legislative compromise, with Democrats seeking the mail-in ballot provisions and Republicans seeking to end automatic party-line voting. 

But the spirit of compromise is dead. Trump personally hailed the court decision, saying: “Big news out of Pennsylvania, great patriotic spirit is developing at a level that nobody thought possible.”   

Those Republican judges said it would require a state constitutional amendment to adopt the law. As a law professor, I have taught the course in Legislation at several schools. I am familiar with this argument. It is absurd to argue against a mail-in ballot law that it needs a constitutional amendment. With that as a standard, every state would need to adopt dozens of constitutional amendments a year, overtaxing the amending process that is only rarely resorted to and needs to be taken most seriously. It is a technicality to hide naked judicial partisanship.

To rule that way, because of the baseless claims of widespread voting fraud, makes the Republicans who wear the solemn robes on the Commonwealth Court sound like an obedient chorus at a Trump rally. Those judges have to run for re-election. The Trump threat keeps them in line the way it keeps other Republican figures in line.

The practical impact, if this decision stands, is frightening. Voting in 2022 may well be bedeviled by the virus. Last election, in 2020, amid the pandemic, more than 2.6 million Pennsylvania voters cast mail-in or absentee ballots out of 6.9 million. We all remember the post-election cliffhanger of the Pennsylvania vote. The final decision came by one percent. This court decision could flip the state.

There will be an appeal by the governor and attorney general of Pennsylvania.  Hopefully the appeal will win. But, what is happening to the law of elections in this country is scary.