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Bad Omens for Election Law in Pennsylvania

Court cases necessarily have political outcomes, but they ought never to have political reasoning posing as objective legal judgment.

Trump and Biden supporters gathered at the ballot counting center in Philadelphia
Trump and Biden supporters gathered at the ballot counting center as Biden supporters early celebrate in Philadelphia, Pennsylvania on November 6, 2020. (Photo by Tayfun Coskun/Anadolu Agency via Getty Images)

Earlier this month, the Pennsylvania Supreme Court issued a long-awaited ruling on the constitutionality of a 2019 state statute called Act 77 allowing no-excuse voting by mail. In a 5-2 decision in McLinko v. Commonwealth, the Court held that the Pennsylvania Constitution did not prevent the legislature from enacting universal voting by mail, despite the fact that the Pennsylvania Constitution requires voters to “offer to vote” in their voting districts and lays out very specific, limited instances where absentee ballots shall be allowed.

This is a Pennsylvania-specific case with nationwide significance. We must be vigilant when a high court in an important swing state upholds a law that is inconsistent with the text of its Constitution, especially when a court’s decision appears to succumb to political pandering. We should be aware when a court rules on such a hot-button partisan issue and actually admits that it knows its decision favors Democrats. 


The McLinko Court acknowledges that the constitutional absentee voting issue has been decided already in previous court cases on very similar facts. In an 1863 case called Chase v. Miller, the Court ruled that the Military Absentee Act of 1839 was unconstitutional in that it excused military personnel from the constitutional requirement that they “offer to vote,” that is, appear in person and physically deliver the ballot to election officials. This logic was repeated in the 1924 state case In re Contested Election of Fifth Ward of Lancaster City, which considered the legal right to absentee voting. The precedent was clear and long-standing.

In its discussion of precedent, the Court quotes old case law and rightly points out that courts are not bound to precedent at all costs: “While the doctrine of stare decisis is important, it does not demand unseeing allegiance to things past.” It is interesting that the Court is overruling precedent here without worrying that overriding established precedent risks the very legitimacy of the courts. But I suppose that depends on which precedent is being overruled. 

Justice Brobson calls this out in his dissent: “The majority overrules 160 years of this Court’s precedent to save a law that is not yet 3 years old. It does so not to right some egregiously wrong decision or to vindicate a fundamental constitutional right. This is not, as Justice Mundy observes, a Brown v. Board of Education moment.” He is right. Precedent needs to be overruled when it is bad law. But the Pennsylvania Supreme Court’s past decisions on in-person voting are based on legitimate reading of the text and history of the Pennsylvania Constitution. This precedent was not a legal injustice crying out for correction.

The majority opinion spends over 70 pages analyzing procedure, history, and the perceived ambiguities and misunderstandings of the term “offer to vote” in its attempt to explain why no-excuse voting by mail does not violate the Pennsylvania Constitution. But Justice Mundy gets to the heart of the matter in the very first paragraph of her dissent: “Notably, neither the majority nor the concurrence provides a convincing account of how our state Charter permits universal, no-excuse mail-in ballots, particularly in light of its specific authorization for absentee ballots for four defined groups of voters. The majority opinion in particular takes an approach that, if not ahistorical, is at best historically selective.” 

This point doesn’t take a lawyer to understand. The Pennsylvania Constitution used to forbid mail-in voting; after some amendment it now allows absentee voting by mail if they are absent from the voting district on business, are ill or disabled, or are unable to vote due to religious duties or election day work duties. If the Pennsylvania Constitution says the Legislature shall allow for absentee voting for these specific circumstances, how could the Legislature simply change the name from “absentee voting” to “mail-in voting” and allow it without excuse? By declaring that no-excuse voting by mail does not violate the Pennsylvania Constitution, the Court has made Art. VII, Sec. 14 of the Pennsylvania Constitution essentially meaningless.


Something is rotten in the city of Harrisburg, and I don’t refer primarily to the holding of the case. For years, the Pennsylvania Supreme Court has suffered from a reputation for political bias. A couple lines in particular in the McLinko opinion stand out as unnecessary political intrusions into this decision.

The majority opinion, written and signed by the five Democrat justices of the Pennsylvania Supreme Court, begins by admitting the partisan backdrop to this case: “A ‘clear partisan split when it came to the method of voting’ was soon evident; Joseph R. Biden defeated Donald J. Trump by more than three-to-one among mail-in ballots, while Trump beat Biden by two-to-one among the votes cast in person on Election Day.” 

Now, the Court knew that it was about to uphold mail-in ballots, which will benefit Democrats. It also knew that the vote would be 5-2, with five Democrat justices voting to uphold the law and the two Republicans on the Court dissenting. This already has the appearance of a partisan decision. After analyzing the passage of Act 77, the Court here explicitly points out that Democrats prefer to vote by mail, while Republicans prefer to vote in person. The Democrat justices go on to uphold the constitutionality of the method of voting they stated was preferred by Democrats. Why would the Court include in its opinion the fact that this Democrat-decided decision benefits Democrats? The Court should be judging what the law says and how it applies to the facts before it. It should never needlessly make statements giving the appearance that political considerations are affecting its decision.

Speaking of things that the Court should not endorse or even mention in its legal decisions, the Court includes in its opinion an irrelevant and inappropriate argument from the Secretary of the Commonwealth: “Chase, she argues, cannot withstand scrutiny today, as it was ‘expressly informed by the anti-democratic sentiments of its era’ that restricted voting to white men; a restriction that the Chase Court embraced and celebrated.” It is no surprise that the secretary tried to delegitimize a past court decision by claiming it was anti-democratic and racist. This is a common and typical tactic of the left. But it is shocking that the Court would include such a statement in its judicial opinion. 

After the anti-racist line, the next sentence of the opinion tells us that, “additionally, she contends that Chase’s consideration of “offer to vote” and the residency requirements is unsupported by any analysis of the text, structure or history of the 1838 Constitution.” This emphasis reveals the problem. The only job of the court in this case is deciding whether the legislation is consistent with the text of the Constitution. The references to anti-democratic sentiments of judges and times when only white men could vote are embarrassingly irrelevant to the work of judges. Judges should not even mention such arguments in their judicial decisions. They certainly should not prioritize them or take them seriously at the expense of actual legal arguments.

Judicial decisions have political ramifications, and so hot button legal opinions like Dobbs and Bruen will be decried as partisan even when based in sound legal judgment. The judge’s job is not to worry about how the political world will perceive him, but he must take care to keep his political preferences out of legal decisions. The failure to do so will continue to result in the public losing confidence in the legitimacy of the courts. 

While the supposed loss of confidence is unwarranted when decisions are constitutionally sound (again, see Dobbs, Bruen, et al.), that loss of confidence in partisan courts is absolutely warranted when the court reasons the way the Pennsylvania Supreme Court did in McLinko. Court cases necessarily have political outcomes. But they ought never to have political reasoning posing as objective legal judgment.


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