The 34-page suit filed in Commonwealth Court on Tuesday night asks for the state court to declare the law unconstitutional, and prevent the state from issuing mail-in ballots to Pennsylvanians who do not have a work, health, or religious excuse for not voting in-person in upcoming elections.
The law, Act 77, allows all Pennsylvanians to request and to return, a mail-in ballot with no excuse. It was heavily used in the 2020 presidential election amid the COVID-19 pandemic.
Eleven of the 14 House GOP lawmakers who filed the suit voted for the law. Two were not in the General Assembly at the time. And one, state Rep. David Zimmerman (R-Lancaster) voted against it.
Nine of the lawsuit’s ’s plaintiffs also signed a December 2020 letter asking Congress to toss Pennsylvania’s electoral college results, and most were involved in other efforts to delegitimize the 2020 election.
The complaint argues that the law must have been passed as a constitutional amendment, which is put before voters in a referendum, rather than through legislation, where voters do not directly weigh in. That move, the suit argues, disenfranchised the entire Pennsylvania electorate.
To support that claim, the lawsuit points to a half-finished constitutional amendment to approve mail-in ballots, passed once through the General Assembly in 2019.
Constitutional amendments must be approved in consecutive legislative sessions, and then be approved by the voters at a statewide referendum to win ratification.
That approach was abandoned when GOP legislative leaders and Gov. Tom Wolf instead agreed on the framework of Act 77, which traded approval for mail-in ballots for the elimination of straight-ticket voting, plus funding for new voting machines.
As such, the lawmakers argue, Act 77 usurped “the power of the people to give the final consent to any amendment to the Pennsylvania Constitution.”
The suit follows up on a first GOP attempt to throw out the law in the immediate aftermath of the 2020 election. In it, U.S. Rep. Mike Kelly (R-16th District) attempted to invalidate millions of mail-in ballots amid former President Donald Trump’s efforts to overturn his loss to now-President Joe Biden.
At the time, the state Supreme Court rejected the suit, arguing it was too late to challenge the law, and that it could not toss ballots that had already been filled out and counted in good faith.
The Supreme Court’s two conservative justices still signaled an interest in hearing out the full constitutional arguments on the law, but they are a minority of the seven-member bench.
Regardless of the court’s eventual verdict, Republican candidates for governor already have begun to campaign against Act 77. At least five, including former U.S. Rep. Lou Barletta (R-Hazleton), have signaled they would sign a repeal of the law.
Stephen Caruso is a reporter for the Pennsylvania Captial-Star, where this story first appeared.