By: Christopher Chau

When Pennsylvania Governor Tom Wolf signed Act 77 into law on October 31, 2019, state legislators from both sides of the aisle hailed it as a bipartisan triumph as the state formally legalized no-excuse mail-in voting. Pennsylvania Republicans voted overwhelmingly for the bill, with 27-0 in the Senate and 105-2 in the House. In fact, the Democrats were more divided, with a majority in both chambers voting against the bill. In an interview with CNN, Republican Pennsylvania State Senate Majority Leader, Jake Corman, stated, “What’s important is that people have faith in the system…the elections process matters—it matters a great deal in a democracy.” As COVID-19 ravaged the nation in 2020, Act 77 became Pennsylvania voters’ relief to vote safely and privately during the uncertainty of the pandemic.

By 2021, the Republicans seemed to have changed their tune. Fourteen House members filed a lawsuit in the Commonwealth Court of Pennsylvania challenging Act 77’s constitutionality. In their petition, filed on August 31, 2021, the House members claimed that the law was invalid because the legislature passed it in lieu of a constitutional amendment and thereby “disenfranchised the entire Pennsylvania electorate.” This marked a radical departure from what many Republican state lawmakers had strongly supported only two years before. Of the fourteen House members, eleven of them previously voted for Act 77 in 2019. The plaintiffs pointed to an unfinished constitutional amendment from 2019 to approve no-excuse mail-in ballots. According to the Constitution of Pennsylvania, all constitutional amendments must be approved in consecutive legislative sessions, and then approved through a statewide referendum for official ratification. However, the amendment was abandoned by the legislature in favor of a broader bipartisan bill as a quicker means for ratification, as agreed on by both the Democratic and Republican leadership, without objection.

It was not the first time that Act 77 had been challenged in court. Congressman Mike Kelly and several other Republican party members also filed suit in November 2020, disputing the law’s constitutionality and asking that the Commonwealth Court grant a prohibitory injunction to invalidate millions of mail-in votes and only count alleged “legal” votes during the 2020 General Election. By the end of the month, the Pennsylvania Supreme Court unanimously dismissed the claim with prejudice, citing the parties’ failure to file their petition in a timely manner. The Court reasoned that the law had been enacted over a year ago and appeared to function well during the primary election in June without any legal challenges. Consequently, the case was ultimately unsuccessful. This is perhaps indicative of the current challenge against Act 77, as it was also not filed in a timely manner.

The PA Republicans’ lawsuit against Act 77 was one of numerous attempts to override the results of the contentious 2020 General Election, often with rhetoric deriding mail-in ballots as invalid or fraudulent in the electoral process. On September 3, 2021, Republicans also launched an election audit of Pennsylvania’s election results, including a Senate probe to investigate any “vote irregularities.” As of September 30, 2021, the audit had yet to produce any evidence of voter fraud to bring the election results into doubt. Pennsylvania Attorney General Josh Shapiro criticized the audit, assuring that “[T]his sham audit is not going to be successful.” While these attempts may not be successful in overturning the election results, they reveal a dramatic shift in attitudes among Republicans regarding the validity of mail-in voting. With tensions running high between both parties, it remains unlikely that there will be a bipartisan compromise like last time.

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