A mail-in voting law is under attack by Pennsylvania GOP lawmakers who passed it
Updated May 17, 2022 at 2:00 PM ET
It once had the backing of almost every Republican lawmaker in Pennsylvania's GOP-controlled legislature.
But after expanding mail-in voting to all voters in the key swing state, Pennsylvania's Act 77 is now under challenge by a group of GOP state representatives who are suing to throw out the 2019 law they helped pass.
In the wake of baseless attacks on the integrity of mail-in voting by former President Donald Trump and his allies, the lawsuit is part of a stark about-face from many Republicans around the country on what was once an uncontroversial way of voting.
While, for now, no-excuse voting by mail is still allowed in Pennsylvania — including for Tuesday's primary elections — the state's more than 8.7 million registered voters may find it harder to cast their ballots in November and for other future elections depending on how and when the Pennsylvania Supreme Court rules in the lawsuit.
The high court has been reviewing a lower court's ruling from January that sided with the Republican lawmakers and found the mail-in law in violation of the state's constitution.
Pennsylvania Republicans flipped on mail-in voting after the 2020 election
The result of a bipartisan deal led by the Republican-controlled legislature and Democratic Gov. Tom Wolf, Act 77 had the state's top GOP leaders singing its praises when it became a law.
"Every bill we could pick some pieces that we don't like about it," said the then-state Senate majority leader, Jake Corman of Centre County, the day it secured unanimous support from Republican state senators in October 2019. "But I think ultimately, this is the most significant modernization of our election's code in decades."
These days, however, many Republican lawmakers have changed their tune.
So my bad. I should've checked the constitutionality of that big bill.
Corman, who recently dropped out of the GOP primary for governor, has since called for ending no-excuse mail-in voting. And so has state Sen. Doug Mastriano of Franklin County, a Trump-backed election denier who is the frontrunner in that governor's primary.
Act 77 also had the support of almost all of the Republican state representatives in the Pennsylvania House, including state Rep. Dan Moul, a Republican from Adams County who joined the lawsuit over the mail-in voting law in 2021.
"So my bad. I should've checked the constitutionality of that big bill," Moul says.
Moul is one of 11 Republicans in the state House who are claiming in the lawsuit that the mail-in voting provisions in Act 77 that they voted for three years ago are unconstitutional.
"We pass bills all the time. Do we go back and check every single one to make sure it stays within the confines of the constitution? We'd never get anything done if we did that," Moul says.
In court filings, the lawmakers argue that to change who can vote by absentee ballot in Pennsylvania requires changing the state's constitution.
But the governor's administration counters that the state constitution allows lawmakers to determine how voters can cast their ballots.
During oral arguments for the lawsuit in March, Pennsylvania Supreme Court Justice Kevin Dougherty gave voice to the skepticism that voting rights advocates have about this case.
"Let's be candid," Dougherty said. "What it really looks like is that maybe some legislators are concerned because the no-excuse balloting, at least recently, shows that maybe one party votes overwhelmingly by mail-in ballot as opposed to another. So maybe this is an attack for supremacy at the ballot. I don't know."
Moul says there's no connection between this lawsuit and Trump's election loss in 2020. Instead, Moul points to a state Supreme Court ruling that year that extended the deadline for accepting mail-in ballots and allowed drop boxes during major Postal Service delays amid the coronavirus pandemic.
"Had they had left it alone, we probably wouldn't be talking today," Moul says.
Millions of mail-in and absentee voters could lose access to the ballot box
Voters like Hassan Bennett are worried that depending on how the state Supreme Court rules, fewer citizens could have the ability to vote by absentee ballot, including those who are jailed in their hometown while waiting for a trial, like Bennett once was.
"They came to me with a ballot one day. It's a gasp of fresh air. It's empowering," says Bennett, who was wrongfully convicted for a crime he did not commit.
Now a bail navigator with the Defender Association of Philadelphia, Bennett is part of a group of voters organized by the Public Interest Law Center in Philadelphia and the American Civil Liberties Union of Pennsylvania to help show the high court who exactly could be affected if mail-in voting is restricted.
Bennett says that absentee ballots have been an essential lifeline for many citizens in Pennsylvania's jails.
"Not only are they going to be more likely to vote, they're going to be more likely to advocate for other people to vote," he says. "And that's what democracy is all about — everybody's voice being heard."
Whether or not Molly Mahon's voice has been heard at the ballot box has depended largely on her work schedule.
As a nurse at Children's Hospital of Philadelphia's Newborn/Infant Intensive Care Unit, Mahon often has to work 12-hour shifts on election days. The mail-in ballots she's been able to receive through Act 77, she says, have been "game-changing."
"It took the stress out of me having to schedule myself around Election Day and just ensured that I could vote," says Mahon, who remembers once rushing back to her neighborhood after work in an Uber only to find election workers closing down the local polling place.
Mahon says she's not sure yet if she'll be able to schedule time off to vote in person for November's election. But she hopes she will still have the option to vote by mail.
"The reality is, a lot of us, whoever is working on Election Day, if they're not using mail-in voting, they're most likely not voting," she adds.
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