Lawsuit filed on behalf of Republican members of the Pennsylvania House of Representatives against Acting Secretary of the Commonwealth of Pennsylvania Leigh M. Chapman (D) challenging Act 77 of the Pennsylvania Election Code. Act 77 is 2019 law that largely expanded mail-in voting opportunities in the Commonwealth. (The same plaintiffs already tried to eliminate no-excuse mail-in voting in the state in McLinko v. Degraffenreid, but the Pennsylvania Supreme Court upheld the law.) In their complaint, the plaintiffs argue that Act 77 should be struck down due its provision which states that “if any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void” (in legal terms, this is known as a non-severability provision). The plaintiffs contend that in light of a federal lawsuit, Migliori v. Lehigh County Board of Elections, in which the 3rd U.S. Circuit Court of Appeals prohibited the application of two provisions of Act 77 requiring voters to date their outer secrecy envelopes for mail-in ballots, the entire law should be void. The petitioners request that the court declare all remaining provisions of Act 77 that are still in effect invalid. Oral arguments were held before the Pennsylvania Commonwealth Court on Oct. 12. Litigation is ongoing.
On Wednesday, Oct. 12, the full bench of judges on the Pennsylvania Commonwealth Court heard oral arguments in a Republican case challenging Act 77, a 2019 law that largely expanded mail-in voting in the commonwealth. The Republican plaintiffs argue that the entirety of Act 77 should be struck down based on a section of the law that stipulates that “if any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void” (in legal terms this is known as a “non-severability provision”). The lawsuit claims that, because of the 3rd U.S. Circuit Court of Appeals’ decision in Migliori v. Lehigh County Board of Elections (which prohibited the application of two provisions of Act 77 requiring voters to date their outer secrecy envelopes for mail-in ballots, thereby allowing undated mail-in ballots to be counted), the entire law should be void. The state lawmakers request that the court declare all remaining provisions of Act 77 that are still in effect invalid. Today, the court heard from an attorney representing the Republican legislators who filed the lawsuit, an attorney representing the acting secretary of the commonwealth and the Pennsylvania Department of State, an attorney representing the Democratic National Committee (DNC) and the Pennsylvania Democratic Party (PDP) and an attorney representing the Democratic Senatorial Campaign Committee (DSCC) and Democratic Congressional Campaign Committee (DCCC).
The attorney representing the Republican legislators spoke first. When asked if yesterday’s U.S. Supreme Court decision vacating the decision by the 3rd Circuit (which required Pennsylvania to count undated mail-in ballots that were previously rejected for lacking handwritten dates next to voters’ declaration signatures on the outer ballot envelopes) impacts the current Act 77 challenge, the attorney responded “no…it’s not terribly relevant.” He argued that the non-severability provision claim — the argument that the whole law should be struck down because a provision of the law was blocked in court — is still active as there is also a Pennsylvania state court decision, Chapman v. Berks County Board of Elections (a case that established that undated mail-in ballots must be included in vote certification totals in the May 2022 primary) pertaining to undated mail-in ballots. In other words, Republicans in this case are arguing that because the part of Act 77 that requires a date on the outer ballot envelope was struck down in state court , the entire law expanding mail-in voting access should be struck down.
A judge then asked what purpose the date on the outer envelope serves. The Republican legislators’ attorney responded that the date serves a purpose in determining “the voter’s eligibility.” However, during oral argument for Chapman v. Berks County Board of Elections, a Department of State official testified that there is no administrative use for the date on the envelopes of mail-in ballots. When asked what the date requirement has to do with severability, the attorney argued that you have to look at the function of a law and, if a provision is taken out, determine if the law still serves the same function. In this situation, the attorney argued, the dates on outer envelopes serve a “fraud” prevention purpose, stating that if you remove the date requirement, “[y]ou compromise the accountability and integrity of elections, by removing an important basis to challenge votes and to investigate fraud and things of that nature.” He continued that “fraud hides… No, I would say it’s impossible to say and because fraud. Fraud is by nature a crime committed in secrecy and people try to conceal it and cover the tracks as best they can. Fortunately, some of them are stupid enough to do things like date or provision on a date when the voter is dead and now we’ve discovered your fraud.” The judge asked if looking into fraud takes “priority over voter disenfranchisement,” to which the attorney replied that “there is no issue of voter disenfranchisement.”
Next, the court heard from the attorney representing the defendants (the acting secretary of the commonwealth and Pennsylvania Department of State) who stated that the “federal Civil Rights Act and its application doesn’t invalidate any provision of Act 77.” He argued that the Republican legislators are wrong about the date serving a purpose of eligibility and that the Republican legislators “don’t cite a case law for that.” He then moved on to rebut the Republican legislators’ fraud prevention argument and demonstrated what is on the line in this case: “What hangs in the balance is whether you’re going to disqualify a qualified elector’s ballot, their ability to participate in the democratic process, simply because they made a technical error of omitting a date… It’s clear that the fundamental bedrock principle in these sorts of cases is that the long standing and overriding policy of this common law is to protect the elective franchise.”
Next, the court heard from one set of Democratic intervenors. The attorney for the DNC and PDP stated that the Republican “petitioners are the legislators who voted for this law. They voted for Act 77 and a year later, two years later, they challenged the constitutionality,” adding that “almost every single Republican voted for Act 77.” He then went on to explain that the purpose of a non-severability provision is to strike down a law if provisions of it are stuck down in such a way that makes the standing provisions unrecognizable from what the Legislature intended. He argued that, in this situation, this is not the case: “The Legislature, on four occasions since Act 77 [was enacted] has passed amendments to the election code, which do not contain non-severability provisions.”
The court then heard from the attorney representing the DSCC and DCCC. He argued that the legislators’ claims should be barred by laches, a legal principle that requires plaintiffs to make their claims within a reasonable time frame. The attorney argued that the legislators’ delay causes “extensive prejudice,” noting that “[t]here are hundreds of thousands of Pennsylvania voters who have had their applications for mail-in ballots approved for the November 8 election, over 800,000 and probably over 900,000 by now, as we speak.”
The attorney for the Republican legislators rebutted arguments brought by the Democratic intervenors and the Department of State and reiterated his belief that Act 77 should be struck down because of the law’s non-severability provision. He argued that the non-severability applies in order to “preserve the compromise” brokered to pass Act 77 and concluded that by not honoring the non-severability provision, Act 77 becomes a “bait and switch.”