Aug 13, 2022 5 min read

Pennsylvania’s hyper-partisan Supreme Court recently ruled that mail-in voting was constitutional. In doing so, they invalidated 150 years of jurisprudence and two previous Supreme Court rulings to the contrary.

Not since Bill Clinton asked, “It depends on what the meaning of the word ‘is’ is,” has so much litigation and court time hinged on the pretty obvious meaning of a few little words. In the case of Act 77 and universal mail-in ballots, the words are, “shall offer to vote.”

In this case, we watched five members of our Supreme Court take a hammer and a bucket of lard and beat a square peg through a linguistic round hole. Donning the robes of constitutional originalists, which is unique for Democrats, and then becoming constructionists, for 76 pages of convoluted verbiage they tortured the English language to arrive at a logically confusing conclusion.

The legislation at issue was Act 77 of Oct. 31, 2019, a sweeping update to the election code that created universal mail-in ballots and eliminated straight-ticket voting, among many other things. This was a radical change in voting procedure in an untested environment that led to easily anticipated problems.

Lawsuit followed lawsuit until we arrived at the case at hand.

Doug McLinko, a member of the Bradford County Board of Elections, filed a petition for summary relief in the Commonwealth Court claiming that the Pennsylvania Constitution requires that a qualified elector must establish residency for 60 days before an election where he or she “shall offer to vote” as stated in Article VII Section 1 of the PA Constitution and that the PA Supreme Court has definitively construed the term “offer to vote” to mean the elector must “physically present a ballot at their polling place.” Bottom line, an elector must be physically present at their polling place on Election Day to vote.

On Jan. 28, 2022, the Commonwealth Court held that Act 77 violates Article VII Section 1 of the PA Constitution. The court clearly stated that the phrase, “offer to vote,” means to appear in person and deliver the ballot to election officials. This they based on multiple precedents where mail-in voting had been declared unconstitutional based on that term and declaring the term consistent with the wording of the constitution.

Enter the Supreme Court. Argument was heard on March 8, 2022. In their opinion, the Supreme Court reviewed the internal workings of our state Legislature, noting that the development of Act 77. Then they discussed the history of voting and voting rights and voter qualifications in this country back to Colonial times. This was followed by a discussion of the “fundamental rules of construction and the rudiments of English that the drafters may have followed.” Have to squeeze the peg through somehow.

I won’t bore you with the sausage making but they arrive at a few basic conclusions:

• The Legislature’s power is limited only by what the people specifically deny it through the Constitution.
• The overarching basis for this challenge is the term “offer to vote” being defined as “being present at one’s polling place to deliver one’s ballot.”
• The Court concluded it is not bound by previous and well-established definitions of “offer to vote,” which they find flawed (They spend seven pages analyzing three words).
• The conclusion of multiple pages of analysis is that “offer to vote” is not the action of a voter but, rather, used to define the election district residency requirement (how is that for mental gymnastics?).
• The only specific requirement for voting, in the Constitution, is that the Legislature must provide secrecy.
• The General Assembly may prescribe any method of voting it wishes as long as that method provides secrecy.

So there you have it. The square peg fits. The five Democrats have tortured 150 years of practice to reach a desired conclusion. The General Assembly can do anything it wants as long as it assures secrecy. Challenge denied.

Where does this go now? There are several possibilities. It could be appealed to the U.S .Supreme Court, but that is probably a dead end. It is unlikely they would take the case. There is no clear constitutional issue.

The Legislature could continue to tweak bits and pieces of Act 77 and hope the governor, whoever it is, will sign it. They did just pass Act 88 of 2022, which bans private grants by partisan groups like Zuckerberg. The governor did sign Act 88. That is a start. Plans are in progress to do the same for Voter ID and State Audits.

The people could use the constitutional amendment route and bypass the Legislature and the governor. This would take three or four years. Or the Legislature could use the logic of the court and do whatever is not prohibited and pass a bill revoking Act 77. This would take a strong Legislature and a Republican governor.

For the moment, it looks like the only path forward is incremental tweaking. This is a very strong incentive to elect a Republican governor.

Dave Ball is chairman of the Washington County Republican Party.