Bad Omens for Election Laws in Pennsylvania

Politics

Court proceedings must have political outcomes. However, they should never have objective legal reasoning.

Trump and Biden supporters gathered at the ballot counting center as Biden supporters early celebrate in Philadelphia, Pennsylvania on November 6, 2020. Photo by Tayfun Coskun/Anadolu Agency via Getty Images

Earlier this month, the Pennsylvania Supreme Court issued a long-awaited ruling on the constitutionality of a 2019 state statute called Act 77 allowing no-excuse voting by mail. In a 5-2 decision in McLinko v. Commonwealth, the Court held that the Pennsylvania Constitution did not prevent the legislature from enacting universal voting by mail, despite the fact that the Pennsylvania Constitution requires voters to “offer to vote” in their voting districts and lays out very specific, limited instances where absentee ballots shall be allowed.

This is a Pennsylvania-specific case with nationwide significance. It is important to be aware that a high court of a major swing state may uphold a law which conflicts with its Constitution. This should not happen when the court appears to have given in to political pandering. It is important to be alert when a court decides on a sensitive partisan matter and admits it favors Democrats.

The McLinko Court recognizes that constitutional absentee voting has already been resolved in court cases based on similar facts. In an 1863 case called Chase v. Miller, the Court ruled that the Military Absentee Act of 1839 was unconstitutional in that it excused military personnel from the constitutional requirement that they “offer to vote,” that is, appear in person and physically deliver the ballot to election officials. This logic was repeated in the 1924 state case In re Contested Election of Fifth Ward of Lancaster City, which considered the legal right to absentee voting. This precedent is clear and has been in place for a long time.

In its discussion of precedent, the Court quotes old case law and rightly points out that courts are not bound to precedent at all costs: “While the doctrine of stare decisis is important, it does not demand unseeing allegiance to things past.” It is interesting that the Court is overruling precedent here without worrying that overriding established precedent risks the very legitimacy of the courts. It all depends on the precedent being overruled.

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Justice Brobson calls this out in his dissent: “The majority overrules 160 years of this Court’s precedent to save a law that is not yet 3 years old. This does not make it right an egregiously incorrect decision, or vindicate fundamental constitutional rights. This is not, as Justice Mundy observes, a Brown v. Board of Education moment.” He is right. When it’s bad law, precedent must be overruled. However, the Pennsylvania Supreme Court has made in-person voting decisions in the past based upon a legitimate interpretation of the Pennsylvania Constitution’s text and history. This was not an inexcusable legal error that should be corrected.

The majority opinion spends over 70 pages analyzing procedure, history, and the perceived ambiguities and misunderstandings of the term “offer to vote” in its attempt to explain why no-excuse voting by mail does not violate the Pennsylvania Constitution. But Justice Mundy gets to the heart of the matter in the very first paragraph of her dissent: “Notably, neither the majority nor the concurrence provides a convincing account of how our state Charter permits universal, no-excuse mail-in ballots, particularly in light of its specific authorization for absentee ballots for four defined groups of voters.

This point is easy to grasp even for a non-lawyer. The Pennsylvania Constitution used to forbid mail-in voting; after some amendment it now allows absentee voting by mail if they are absent from the voting district on business, are ill or disabled, or are unable to vote due to religious duties or election day work duties. If the Pennsylvania Constitution says the Legislature shall allow for absentee voting for these specific circumstances, how could the Legislature simply change the name from “absentee voting” to “mail-in voting” and allow it without excuse? The Court declared that mail-in voting is not a violation of the Pennsylvania Constitution. VII, Sec. 14 of the Pennsylvania Constitution essentially meaningless.

Something is wrong in Harrisburg. I am not referring to the outcome of the case. For years, the Pennsylvania Supreme Court has suffered from a reputation for political bias. A couple lines in particular in the McLinko opinion stand out as unnecessary political intrusions into this decision.

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The five Democrat judges of Pennsylvania’s Supreme Court begin by acknowledging the partisan background to the case. “A ‘clear partisan splitting when it comes to the method of voting was soon obvious; Joseph R. Biden beat Donald J. Trump more than three to one among mail-in ballots while Trump defeated Biden by less than two to one among votes cast on Election Day.”

The Court was aware that it would uphold mail in ballots. This will be a benefit to Democrats. The Court also knew the result would be 5-2. Five Democrat justices voted to keep the law, and two Republicans dissent. Already, this has the appearance of being a partisan vote. After analyzing the passage of Act 77, the Court here explicitly points out that Democrats prefer to vote by mail, while Republicans prefer to vote in person. The Democrat justices continue to defend the Constitution of the voting method they said was preferable by Democrats. The Court would not include the fact that the Democrat-decided ruling benefits Democrats in its opinion. It should not be trying to interpret the law and apply it to the facts in front of it. The Court should not make unnecessary statements that suggest political considerations have an impact on its decisions.

Speaking of things that the Court should not endorse or even mention in its legal decisions, the Court includes in its opinion an irrelevant and inappropriate argument from the Secretary of the Commonwealth: “Chase, she argues, cannot withstand scrutiny today, as it was ‘expressly informed by the anti-democratic sentiments of its era’ that restricted voting to white men; a restriction that the Chase Court embraced and celebrated.” It is no surprise that the secretary tried to delegitimize a past court decision by claiming it was anti-democratic and racist. It is an all-too common tactic used by the left. It is striking that this statement would be included in the Court’s judicial opinion.

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After the anti-racist line, the next sentence of the opinion tells us that, “additionally, she contends that Chase‘s consideration of “offer to vote” and the residency requirements is unsupported by any analysis of the text, structure or history of the 1838 Constitution.” This emphasis reveals the problem. In this instance, the only task of the court is to determine if the legislation conforms with the Constitution’s text. Judges are not allowed to make references to judges’ anti-democratic views or times in which only white people could vote. These arguments should be avoided by judges in their judicial rulings. These arguments should be treated as secondary and not taken seriously in the absence of other legal arguments.

Judicial rulings have political implications. Hot button legal opinions such as Dobbs and Bruen will be criticized for being partisan, even though they are based on sound legal judgement. While the judge isn’t expected to care about what his political views will be, he should take steps to ensure that legal decisions are not influenced by them. Failure to do this will result in public distrust in the judiciary’s legitimacy.

While the loss of trust is not justified when constitutionally sound decisions have been made (again see Dobbs and Bruen , et. al. ), that loss of confidence in partisan courts is absolutely warranted when the court reasons the way the Pennsylvania Supreme Court did in McLinko. All court cases have political consequences. They should not have any political reasoning that is objectively legal.

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