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Republican lawsuits over Pennsylvania’s mail voting law have some Democrats quietly worried

The law known as Act 77 is facing perhaps its most serious court challenge yet. Some Democrats worry about how even a temporary legal setback would be received in the current political environment.

Workers prepare Philadelphia mail ballots to be counted after the November 2020 election at the Pennsylvania Convention Center. The law that greatly expanded mail voting is facing perhaps its most serious court challenges yet.
Workers prepare Philadelphia mail ballots to be counted after the November 2020 election at the Pennsylvania Convention Center. The law that greatly expanded mail voting is facing perhaps its most serious court challenges yet.Read moreALEJANDRO A. ALVAREZ / Staff Photographer

Two years ago this month, Republicans and Democrats in Harrisburg reached a deal on the most significant changes to Pennsylvania election law in decades — including greatly expanded mail voting.

But now, a year after a presidential race in which Donald Trump’s lies about mail voting and Pennsylvania’s results sowed distrust of the electoral system among his supporters, some Republicans are intensifying efforts to undo a law their party almost universally supported.

The law known as Act 77 is facing perhaps its most serious court challenges yet. Republicans filed two lawsuits this summer saying it violates the state constitution. Democrats had hoped courts would quickly throw them out, but the cases have instead been combined and continue to move forward. The national and state Democratic Party organizations asked Friday to join the litigation in defense of Act 77.

During oral arguments in one case, a panel of judges aggressively questioned lawyers representing the state, in what one Democratic observer described as “skepticism and hostility.” The hearing raised fears among Democrats that the state court might soon rule against the law.

Democratic Gov. Tom Wolf’s administration would almost certainly appeal a loss to the Pennsylvania Supreme Court, where a majority-Democratic bench has generally sided with the state on election issues. But while few believe the Supreme Court would ultimately throw out Act 77, some Democrats and good-government advocates worry that even a temporary loss could create significant challenges.

They worry about how such a setback would be received in a political environment already highly charged on elections issues. And regardless of how the courts rule, they fear the ongoing litigation will continue undermining already-tenuous public trust in the electoral system — just as Republican leaders begin talking with Wolf again about changing election law.

“We’re back at that point where we’re sort of defining democracy as something that only works when it achieves the particular outcome,” said Khalif Ali, head of the Pennsylvania branch of the nonpartisan advocacy group Common Cause. “What the messaging is by this Republican caucus is that at this point if it doesn’t achieve what we want, then it’s broken, and we need to change it in a way that it fixes it to achieve what we do want.”

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Earlier lawsuits challenging Act 77 in the wake of the 2020 election were thrown out, and some GOP lawmakers have vowed to repeal or significantly change the law. Republican candidates for governor in 2022 have voiced support for reversing the law. Republicans have expressed an array of concerns, with some primarily focused on procedural questions about the law and how elections are run and others seeming more focused on appealing to Trump’s supporters.

The first of the new and now-combined cases was filed in July by Doug McLinko, a county commissioner from Bradford County. A group of 14 Republican state representatives — 11 of whom voted for Act 77 — filed a similar lawsuit at the end of August.

“This lawsuit will determine whether the power to expand absentee or mail-in voting remains with the people,” State Rep. Tim Bonner (R., Mercer) said in a statement at the time. McLinko and his lawyer, Wally Zimolong, did not return messages seeking comment.

“[T]hese members are seeking to silence voters as they perpetuate false claims of a stolen election,” Wolf spokesperson Lyndsay Kensinger said in a statement, calling it “hypocritical and a betrayal of voters” for lawmakers to sue over a law most of them had voted for and all had been elected under last year.

The main argument in both cases is that Act 77 violates the state constitution’s rules about elections and how votes can be cast, especially the part that prescribes absentee voting for people who, under a specific set of circumstances, can’t vote in person. Republicans point to two past Supreme Court cases, one from 1862 and the other from 1924, that they say provide legal precedent against the legislature expanding voting without amending the constitution. Democrats argue those cases applied to earlier versions of the constitution, not the current 1968 version and say there’s nothing in the constitution that prevents the legislature from expanding voting.

It’s hard to predict which way the Commonwealth Court will rule, but Democrats who watched the hearing in the McLinko case said much of the judges’ questioning focused on two technical issues the state had hoped would get the case thrown out — not on the substance of the law’s constitutionality.

“The court spent so much time on these factors that I don’t think that they fully understood the consequences of the argument,” said one Democratic lawyer who has followed the case and spoke on condition of anonymity to avoid upsetting clients. “I wouldn’t jump to conclusions as to where the court might go. …They were getting so bogged down.”

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The Republican judge seen as the swing vote on the five-judge panel led questioning of the state and appeared skeptical of Democrats’ arguments. Two other Republican judges are believed to be ready to strike down the law. One, Judge Patricia A. McCullough, issued an order last November temporarily blocking further certification of votes because of a lawsuit challenging Act 77. The state Supreme Court threw out that suit, saying it was filed far too late, more than one year and two elections after Act 77 was signed.

The two Democrats on the panel are believed to favor upholding Act 77. One of them, Judge Michael H. Wojcik, responded to a mention of Act 77 during oral arguments in an unrelated case last week by expressing concern that Republicans who had voted for the law are now suing to overturn it.

Democrats believe the state Supreme Court will ultimately uphold Act 77.

“This state Supreme Court has made clear repeatedly that whenever possible, they are going to construe the state constitution and Election Code to promote voter participation and fair elections,” said Adam Bonin, a Philadelphia Democratic election lawyer.

Nevertheless, quiet concerns persist about how a ruling striking down Pennsylvania’s election law could roil an already toxic political environment.

After McCullough last year temporarily blocked certification of votes that had already been certified — an order that essentially had no impact and was quickly reversed by the state Supreme Court — it quickly became ammunition for election deniers online, where election misinformation continues to proliferate.

And while that lawsuit sought to throw out mail ballots in the context of a specific election, the new ones are challenging the law itself, outside of any election. That, some worry, makes it an attack on the electoral system that goes beyond one politician’s loss.

“I guess there’s no need for them to pretend it’s really about that particular election,” Ali said, “so much as it is a system that is fair and impartial and may not allow them to win.”