WASHINGTON, D.C. — On Wednesday, July 20, a lawsuit was filed on behalf of Pennsylvania Republican state lawmakers against Acting Secretary of the Commonwealth of Pennsylvania Leigh M. Chapman (D) challenging Act 77 of the Pennsylvania Election Code, 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 which 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 “nonseverability 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.
This new lawsuit comes after Republicans supported the 2019 law and then attempted to strike it down two years later. Republicans’ previous lawsuit to strike down Act 77 is currently pending before the Pennsylvania Supreme Court in McLinko v. Degraffenreid. Earlier this year, a Pennsylvania trial court struck down Act 77 in a 3-2 decision that found the law’s no-excuse mail-in voting provision violated the Pennsylvania Constitution. This decision was immediately appealed to the Pennsylvania Supreme Court (and under state law Act 77 was automatically reinstated upon appeal), but the case is still pending.