“Big news out of Pennsylvania,” wrote 45th President Donald J. Trump in a statement, “great patriotic spirit is developing at a level that nobody thought possible. Make America Great Again!”

On Jan. 28, the Pennsylvania Commonwealth Court struck down Act 77, which made absentee/mail-in voting available to all eligible voters, as a violation of the Pennsylvania Constitution.

The court voted 3-2, with Judges Mary Hannah Leavitt, Patricia McCullough, and Christine Fizzano Cannon (all Republicans) forming the majority and Judges Michael Wojcik and Ellen H. Ceisler (both Democrats) dissenting.

As a result, and pending action by the state supreme court, absentee/mail-in voting eligibility in Pennsylvania is governed by Article VII, Section 14, of the state constitution. This section allows absentee/mail-in voting for “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.”

As expected Democrat Gov. Tom Wolf criticized the ruling, saying “We need leaders to support removing more barriers to voting, not trying to silence the people.”

Judge Leavitt, writing for the majority, analyzed Act 77 within the context of three provisions of the state constitution:

Article VII, Section 1, of the Pennsylvania Constitution says a voter must have “resided in the election district where he or she shall offer to vote at least 60 days immediately preceding the election[.]”

Leavitt said, “Our Supreme Court has specifically held that the phrase ‘offer to vote’ requires the physical presence of the elector, whose ‘ballot cannot be sent by mail or express, nor can it be cast outside of all Pennsylvania election districts and certified into the county where the voter has his domicile.'”

Leavitt added, “There is no air in this construction of ‘offer to vote.’ … Our Supreme Court has further directed that before legislation ‘be placed on our statute books’ to allow qualified electors absent from their polling place on Election Day to vote by mail, ‘an amendment to the Constitution must be adopted permitting this to be done.”

Article VII, Section 4 establishes that “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.” Leavitt said, “To 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.

🔹Third, it renders Article VII, Section 14, surplusage.”

Article VII, Section 14, allows absentee/mail-in voting for “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.”

Leavitt wrote, “Section 14 can only be understood as an exception to the rule established in Article VII, Section 1, that a qualified elector must present herself at her proper polling place to vote on Election Day, unless she must ‘be absent” on Election Day for the reasons specified in Article VII, Section 14(a).”

State Senate President Pro Tempore Jake Corman (R) said, “Today’s ruling should serve as a call to action to open up a serious conversation about the reforms necessary to make voting both accessible and secure for all Pennsylvanians. Governor Wolf has ignored this debate for over a year, but hopefully this ruling will help bring him to the table so we can address concerns about our election system once and for all. ”

State Sen. Doug Mastriano (R) said, “I welcome the end of ‘no-excuse’ mail-in voting in Pennsylvania and I introduced legislation this session that does just that.”

Currently, seven states conduct their elections predominantly by mail (i.e., all voters automatically receive mail-in ballots.

Twenty-five states allow all voters to vote absentee/by mail, but voters must request a ballot themselves.

The remaining states allow voters meeting specific eligibility criteria to vote absentee/by mail. 

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