The Supreme Court is allowing elections officials to count mail-in ballots in Pennsylvania that lack a handwritten date but were received in time. The unsigned order Thursday applies to a Lehigh County judicial election from 2021.
Republicans have sued again in an attempt to throw out Pennsylvania's broad mail-in voting law, even as the state's highest court considers a separate lawsuit aimed at wiping out a law that lost favor with Republicans following former President Donald Trump's baseless claims about election fraud.
It is the latest fight over voting laws in a political battleground state. The lawsuit comes barely two months before voters can send in mail-in ballots in the fall election featuring high-profile contests for governor and the U.S. Senate.
The suit, filed Wednesday in the Commonwealth Court by 14 state Republican lawmakers, contends that the court must invalidate the law because of a provision written into it that says it is “void” if any of its requirements are struck down in court.
The lawsuit says the “non-severability” provision was triggered in a May 20 decision by a panel of the 3rd U.S. Circuit Court of Appeals concerning mail-in ballots in a Lehigh County judicial race in November.
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The ballots in question lacked handwritten dates on the return envelopes, as required in the law.
In the decision, the panel found that a handwritten date has no bearing on a voter's eligibility and said it would violate voters' civil rights to throw out their ballots in that election simply because they lacked a handwritten date.
The panel pointed out that ballots with incorrect dates had been counted. An appeal by the Republican candidate in the race is pending in the U.S. Supreme Court.
Decision 2022
Coverage of the 2022 elections
Gov. Tom Wolf's administration declined to comment on the lawsuit.
However, it separately wrote in a response to a state lawmaker's query Wednesday that the federal appeals court decision did not trigger the non-severability provision. That's because the lawsuit had targeted Lehigh County's decision to not count the ballots, not the validity of the date requirement, said the letter from Wolf's acting secretary of state, Leigh Chapman.
In any case, state courts have not always chosen to enforce non-severability provisions in the past, including in a high-profile 2006 case over government pay raises.
In a dissent in a 2020 election case at the state Supreme Court, Justice Christine Donohue criticized the mail-in voting law’s non-severability provision as being overly broad.
It “sets forth no standard for measuring non-severability, but instead simply purports to dictate to the courts how they must decide severability,” Donohue wrote.
Adam Bonin, the lawyer who represented the Democratic candidate in the Lehigh County judicial race, called the new lawsuit “desperate and doomed, a gross attempt to violate separation of powers.”
“Republican legislators should work on improving the voting experience and vote canvassing process, not stunts like this.” he said.
Bruce Ledewitz, a Duquesne University law professor, said the federal appeals court did not necessarily find the handwritten date requirement to be unconstitutional — potentially undercutting the premise of the new lawsuit.
Ledewitz also said it would be “very strange” for a court to invalidate an entire law for such a minor provision.
Pennsylvania's 2019 mail-in voting law has become a hot topic for Republicans on the campaign trail, with Republican gubernatorial nominee Doug Mastriano vowing to repeal it if he gets elected.
Most states offer mail-in voting for all voters, and every Republican lawmaker but one voted for Pennsylvania's law in 2019.
But Republicans in Pennsylvania soured on mail-in voting after Trump began baselessly attacking it as rife with fraud in his 2020 reelection campaign. Perhaps as a result, Democrats in Pennsylvania have more heavily voted by mail than Republicans.
Last year, the same 14 Republican lawmakers — including 11 who actually voted for the law — sued to throw out the law, saying that prior court rulings make it clear that the constitution must be changed to allow no-excuse mail-in voting.
An intermediate court agreed in January.
Wolf’s administration appealed, saying that the lower court wrongly based its decision on court rulings under older versions of the state constitution that invalidated laws passed in 1839 and 1923 to expand absentee voting.
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Follow Marc Levy on Twitter at https://twitter.com/timelywriter.
