As the 2022 midterm election approaches, a ruling by the Pennsylvania Supreme Court will most likely please Democrats and upset many Republicans. The court upheld a 2019 law that greatly expanded access to mail-in voting across the state.
That wide expansion of mail-in voting in Pennsylvania survived a legal challenge on Tuesday before the state Supreme Court in a case ironically brought by some of the same Republican state representatives who voted for the legislation nearly three years ago. The court ruled 5-2 that the law is Constitutional and will stand. The two dissenting votes came from Republican judges on the court.
This means the expanded mail-in voting law will most certainly be in place for the 2022 midterm elections that feature several marquis races including a Senate race between Democrat John Fetterman and Republican Dr. Mehmet Oz. Also on the ballot will be the contest for governor that has Josh Shapiro, who in 2020 fought for the expanded access and having every vote count after the election. His opponent will be Doug Mastriano who has been caught on videotape present at the riot and attempted coup on January 6th, 2021. Mastriano also sponsored busses to transport people to the Washington, D.C. riot.
Representing the majority ruling, Justice Christine Donohue wrote, “We find no restriction in our Constitution on the General Assembly’s ability to create universal mail-in voting.”
Widener Law Commonwealth professor Michael Dimino, who argued the case for the lawmakers and others who sued, declined immediate comment. In the dissenting minority opinion, Judge Kevin Brobson had some things to say, however.
“Today, this court upends the tradition and historic preference in this commonwealth for in-person voting without the requisite ‘special justification’ and important reasons necessary to set aside long-standing precedent,” Brobson wrote. “Mere disagreement with that precedent is not enough.”
But the majority opinion doesn’t seem to rebuke precedent and rather relies on what the Constitution in Pennsylvania actually says and how lawmakers in the past have responded to developments in technology and preference.
The majority ruling cited a provision of the Pennsylvania Constitution that says “all elections shall be by ballot or by such other method as may be prescribed by law.” That section was what apparently brought the use of voting machines a century ago.
Donohue wrote that the constitutional provision means the General Assembly can “prescribe any process by which electors may vote,” bound only by a requirement that the secrecy of a vote must be maintained.
It is interesting, however, that the Republican justice complained about “disagreeing with precedent” not being enough in a case where that didn’t seem to happen but did actually happen when the US Supreme Court dismissed a 7-2 decision that established 50 years of precedent when they overturned Roe v Wade earlier this year.
