Election Law; Constitutionality of No Excuse Absentee Voting
McLinko v. Department of State, — A.3d — (Jan. 28, 2022), original jurisdiction, appeal dockets 14 & 15 MAP 2022
This original jurisdiction appeal arises from challenges to the constitutionality of Act 77, Pennsylvania’s absentee voting law that allows any voter to cast a ballot by mail without an excuse for the absence.
The relevant portion Section 1 of the Pennsylvania Constitution provides:
Qualifications of Electors
Every citizen 21 years of age, possessing the following qualifications, shall be entitled to vote at all elections subject, however, to such laws requiring and regulating the registration of electors as the General Assembly may enact.
3. He or she shall have resided in the election district where he or she shall offer to vote at least 60 days immediately preceding the election, except that if qualified to vote in an election district prior to removal of residence, he or she may, if a resident of Pennsylvania, vote in the election district from which he or she removed his or her residence within 60 days preceding the election.
Slip op. at 9-10, quoting PA. CONST. art. VII, §1 (emphasis added by Commonwealth Court). Section 4 of the state constitution provides: “Method of Elections; Secrecy in Voting All elections by the citizens shall be by ballot or by such other method as may be prescribed by law: Provided, That secrecy in voting be preserved.” Slip op. at 15, quoting PA. CONST. art. VII, §4. The relevant portion of Section 14 of the state constitution provides that:
(a) The Legislature shall, by general law, provide a manner in which, and the time and place at which, qualified electors who may, on the occurrence of any election, be absent from the municipality of their residence, because their duties, occupation or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability or who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of election day duties, in the case of a county employee, may vote, and for the return and canvass of their votes in the election district in which they respectively reside.
Slip op. at 20-21, quoting PA. CONST. art. VII, §14 (emphasis added by Commonwealth Court).
Plaintiffs argued that Section 1 requires in-person voting, except where mail voting is expressly permitted under Section 14, which limits mail voting to circumstances where the elector’s absence is for reasons of occupation, physical incapacity, religious observance, or Election Day duties, and that Section 4 applies to the conduct of elections at the polling place. The Secretary of the Department of State responded that Section 4 authorizes the legislature to establish a system of no-excuse absentee mail-in voting and that Section 14 sets forth the minimum requirements for absentee voting, but the legislature is empowered to expand that minimum using its authority under Section 4.
A majority of the Commonwealth Court concluded that Act 77 violates article VII, section 1 and section 14 of the Pennsylvania Constitution by adding “a qualified mail-in elector” as a class of elector who is eligible to vote and permitting any qualified elector, who is not eligible to be a qualified absentee elector, to vote by an official no-excuse mail-in ballot. The court reasoned that because that list of reasons provided in Section 14 does not include no-excuse absentee voting, it is excluded. In so holding, the court concluded that the purpose of section 4 was to allow the use of voting machines and that this section does not empower the General Assembly to authorize no excuse absentee voting. In reaching its conclusion, the court relied on In re Contested Election of Fifth Ward of Lancaster City, 126 A. 199 (Pa. 1924) (Lancaster City), in which the Pennsylvania Supreme Court invalidated the Military Absentee Act of 1839 and the 1923 Absentee Voting Act that expanded absentee voting to civilians not in active military duty because the enactments violated the requirement under Section 1 that a qualified elector must “offer to vote” in person at a polling place in his election district on Election Day. Commonwealth Court summarized Lancaster City as “establish[ing] that legislation, no matter how laudable its purpose, that relaxes the in-person voting requirement must be preceded by an amendment to the Constitution ‘permitting this to be done.’” Slip op at 14, quoting Lancaster City, 126 A. at 201. The court expressly disagreed with Democratic Intervenors’ argument that “because the Supreme Court did not provide a sufficiently penetrating analysis of Article VII, Section 4, Lancaster City has no precedential effect,” reasoning that:
The Supreme Court quoted the text of Section 4 in full and then stated that its purpose was to allow voting machines and to maintain secrecy in voting as “part of our fundamental law.” Lancaster City, 126 A. at 201. More to the point, the Supreme Court quoted and addressed the same three provisions of the Constitution we review here, and concluded, decisively, that they prohibited the enactment of legislation to permit qualified electors absent from their polling place on Election Day to vote, except for reasons enumerated in the Pennsylvania Constitution. Id. Lancaster City is binding precedent that has informed election law in Pennsylvania for nearly 100 years. It has provided the impetus for the adoption of multiple amendments to the Pennsylvania Constitution that were each considered the necessary first step to any expansion of absentee voting. See, e.g., Joint Resolution No. 3, 1997, P.L. 636. Moreover, the rulings in Chase and Lancaster City have been followed over the years in numerous election cases.
Slip op. at 28. The court further explained that “[t]o read Section 4 as an authorization for no-excuse mail-in voting is wrong for three reasons”:
First, no-excuse mail-in voting uses a paper ballot and not some “other method.” Second, this reading unhooks Section 4 from the remainder of Article VII as well as its historical underpinnings. It ignores the in-person place requirement that was made part of our fundamental law in 1838. PA. CONST. art. VII, §1. Third, it renders Article VII, Section 14 surplusage. The Acting Secretary’s interpretation of “such other method” means that the legislature always had the authority to extend absentee voting to every elector, in any circumstance, and Lancaster City was dead wrong in holding that before an expansion to absentee voting could be placed on the “statute books,” there must be a constitutional amendment to authorize that expansion.
Slip op. at 31. The court further disagreed with the Secretary that Section 4 supplants the need for the exceptions in Section 14, reasoning that:
Section 4 and Section 14 address different concerns. Section 4 incorporated the terms of the Baker Ballot Law into our fundamental law to ensure elections were conducted free of coercion and fraud. Section 14 addresses the concern that some electors physically unable to “attend at their proper polling places” should not be denied the franchise. Section 14 resolves the tension between the constitutional requirement of in-person voting and the need to waive that requirement in appropriate circumstances. FORTIER & ORNSTEIN at 498.
Slip op. at 34. The court declared that Act 77 violates Article VII, Section 1 of the Pennsylvania Constitution, concluding that:
No-excuse mail-in voting makes the exercise of the franchise more convenient and has been used four times in the history of Pennsylvania. Approximately 1.38 million voters have expressed their interest in voting by mail permanently. If presented to the people, a constitutional amendment to end the Article VII, Section 1 requirement of in-person voting is likely to be adopted. But a constitutional amendment must be presented to the people and adopted into our fundamental law before legislation authorizing no-excuse mail-in voting can “be placed upon our statute books.” Lancaster City, 126 A. at 201.
Slip op. at 49.
In a dissenting and concurring opinion joined by Judge Ceisler, Judge Wojcik observed that section 4 of the Pennsylvania Constitution “specifically empowers the General Assembly to provide for another means by which an elector may cast a ballot through legislation such as Act 77.” Dissent slip op. at MHW-4. Judge Wojcik disagreed with “the Majority’s faulty premise that the no-excuse mail-in ballot method of voting is merely a subspecies of voting by absentee ballot as provided in article VII, section 14, and that article VII, section 1 and article VII, section 14 have primacy over the provisions of article VII, section 4.” Id. Judge Wojcik further disagreed with the Majority’s application of Lancaster City, opining that:
…Lancaster City merely stands for the proposition that the General Assembly may not by statute extend the scope of a method of voting already specifically provided for in article VII, section 14 of the Constitution. The Supreme Court’s holding in that case in no way limits the authority conferred upon the General Assembly by article VII, section 4 to provide for a new and different method of voting such as the no-excuse mail-in ballot provisions of Act 77.
Dissent slip op. at MHW-7. Judge Wojcik reasoned that the limitation of Section 4 to voting machines “is undermined by the subsequent amendment of the present article VII, section 6 of our Constitution in 1928” to expressly address the use of voting machines by local municipalities. Id. “Moreover,” the dissent explains:
…the Majority’s limited construction of article VII, section 4 renders the phrase “or by such other method as may be prescribed by law” meaningless and mere surplusage in light of the amendment to article VII, section 6 to specifically include the use of voting machines as a new and different method of casting a ballot. Thus, contrary to the Supreme Court’s observation in Lancaster City, and the Majority’s conclusion herein, article VII, section 4 may not be construed in such a limited manner to give effect to all of its provisions.
Rather, sections 1, 4, and 14 of article VII must all be read together and given the same prominence and effectiveness. When construed in such a manner, the plain language of article VII, section 4 specifically empowers the General Assembly to provide a distinct method of casting a ballot for electors who are present in their municipality on a primary, general, or municipal election day by permitting the use of no-excuse mail-in ballots. This method is distinct from an elector’s appearance at his or her district of residence to cast a ballot as provided in article VII, section 1, either by paper ballot or by the use of a machine pursuant to article VII, section 6, or the use of an absentee ballot by an elector who is absent from his or her municipality on the day of a primary, general, or municipal election as provided in article VII, section 14.
Dissent slip op. at MHW-9. Therefore, because “article VII, section 4 by its plain language specifically empowers the General Assembly to provide for this new method of casting a no-excuse mail-in ballot,” Judge Wojcik would grant the Department’s Application for Summary Relief and dismiss Petitioner’s challenge.
 Addressing Judge Wojcik’s argument regarding the application of section 6, the Majority countered that:
The dissent notes that Article VII, Section 6 allows the General Assembly to “permit the use of voting machines, or other mechanical devices for registering or recording and computing the vote . . . ,” PA. CONST. art. VII, §6, suggesting that this is the provision that authorizes voting machines. We disagree.
The text, in full, reads as follows:
Election and Registration Laws Section 6.
All laws regulating the holding of elections by the citizens, or for the registration of electors, shall be uniform throughout the State, except that laws regulating and requiring the registration of electors may be enacted to apply to cities only, provided that such laws be uniform for cities of the same class, and except further, that the General Assembly shall, by general law, permit the use of voting machines, or other mechanical devices for registering or recording and computing the vote, at all election or primaries, in any county, city, borough, incorporated town or township of the Commonwealth, at the option of the electors of such county, city, borough, incorporated town or township, without being obliged to require the use of such voting machines or mechanical devices in any other county, city, borough, incorporated town or township, under such regulations with reference thereto as the General Assembly, may from time to time prescribe. The General Assembly may, from time to time, prescribe the number and duties of election officers in any political subdivision of the Commonwealth in which voting machines or other mechanical devices authorized by this section may be used.
CONST. art. VII, §6 (emphasis added). When this provision was adopted in 1928, voting machines were already in use. See Lancaster City, 121 A. at 201. Section 6 requires uniformity in election law, as stated in the first sentence. But it allows exceptions. The first exception authorizes the imposition of stricter voter registration requirements in “cities.” The second exception, added in 1928, clarifies that uniformity does not require that voting machines be used in every polling place in the Commonwealth, if allowed in one county, city, borough, town or township.
Slip op. at n. 19.