Pennsylvania court rejects challenge to mail-in voting law News
Lauren Ban // JURIST
Pennsylvania court rejects challenge to mail-in voting law

A Pennsylvania state court rejected Tuesday a challenge to Act 77, a law that amended the state’s Election Code to expand mail-in voting options.

A complaint filed with the Commonwealth Court of Pennsylvania by current and former Republican representatives in the state challenged the integrity of the law as a whole due to its nonseverability clause. That clause reads, “[i]f any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void.”

The petitioners grounded their argument in Migliori v. Cohen, in which the US Court of Appeals for the Third Circuit ruled that undated mail-in ballots should be counted, despite provisions of Act 77 which indicate that the ballots should be dated to be counted. Interpreting this to mean that the dating provisions of Act 77 were invalidated, the petitioners went on to argue that the entirety of Act 77 is invalid because of the non-severability clause.

However, the Commonwealth Court was unconvinced by the challenge. It explained that because the appeals court ruling in Migliori was thereafter vacated as moot by the US Supreme Court, it cannot be used as precedent. Showcasing competing interpretations of the dating provisions, the decision also referenced Ball v. Chapman, a case in which the Supreme Court of Pennsylvania was split on the issue and therefore did not issue a ruling. Ultimately, the Commonwealth Court found that the dating provisions could not have been invalidated because they were not struck from the Election Code and continue to be followed by many electors. The opinion reads:

Petitioners have not cited authority, and our research has found none, in which a nonseverability clause is triggered by a judicial interpretation of a statutory provision that did not declare the provision invalid, and, following the interpretation, the provision remained a part of the statute.

The unsuccessful challenge to Act 77 is not the first of its kind. In 2022, the Supreme Court of Pennsylvania rejected an argument attacking the constitutionality of the law.

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