Electorally Speaking: How a terribly constructed law is being taped together in our courts

By Erin McClelland and Chuck Pascal
Special to the Pittsburgh Current

In October 2019, Act 77, an election reform bill authored by Republicans in the Pennsylvania legislature was signed into law by Governor Wolf. A majority of Democrats in both houses voted against the bill and were critical of its contents, some citing serious logistical deficiencies and lack of procedural integrity.

The cementing of the law, from introduction to passage, took only 48 hours and consisted of no hearings or public discussion. The result is what we are seeing play out in our courts today, creating a great deal of uncertainty and confusion for voters and election officials.

The sheer lack of preparation in crafting the bill and the resulting deficiencies, juxtaposed with the added pressure and demands of a global pandemic, has led to a number of legal challenges regarding processes and procedures for PA elections. Suits challenging the use of drop boxes, signature matching of mail-in-ballot and employment of out-of-county poll watchers have managed to tie up the Commonwealth’s election departments for the past 2 months, with one case still pending, only 2 weeks to go and thousands of votes already cast.

In one case, the Republicans challenged the Commonwealth’s process to count mail-in-ballots received after election day. The PA State Supreme Court (SCOPA) ruled that, in response to the pandemic and concerns regarding the processes of the US Postal Service, for this election cycle ONLY, valid ballots postmarked by or on election day can be accepted for up to 3 days after the election. That ruling was appealed to the Supreme Court of the United States (SCOTUS). Monday night, after nearly 2 weeks, the SCOTUS finally declined, without comment, to take the Republicans’ case attempting to block the counting of Pennsylvania mail-in-ballots received after election day. As a result of the 4-4 decision, valid mail-in-ballots received up to 3 days after election day can be legally counted in Pennsylvania.

In this ruling, it is important to address the lack of comment by the court. The complete absence of opinion is leading many to interpret the decision’s ambiguity to mean the court has avoided setting precedent in the case, fully intending to address it at a later date. So stay tuned . . .

The only case that remains pending is that in which Secretary of State Kathy Boockvar petitioned SCOPA to invoke “King’s Bench” privilege (the SCOPA’s right to pluck from a lower court any case they deem pertinent.) The unusual aspect of the Secretary’s request is, there is no existing case in the lower courts for the Supreme Court to pluck. The Secretary is essentially asking the Court to provide her legal advice on the interpretation of ACT 77 and corresponding guidelines for herself and the state’s County Elections Departments. The court agreed to take the case, but not without Justice Baer articulating his lack of enthusiasm with the court being employed as legal consultants. “In my view there is no case or controversy for this court to address and the legal question presented has been resolved in a federal lawsuit. Thus our exercise of jurisdiction would provide nothing more than an advisory opinion,” he wrote.

Justice Dougherty opined to accept the case stating, “Although I note my disapproval of the precise manner to which this case was presented for our review, I am persuaded by the Secretary’s assertion that only this court can render the ultimate determination concerning Pennsylvania law.”  One might interpret this statement to mean, “I don’t like it, but I’ll take it, because no one else is capable of cleaning up this mess.”

The court is expected to rule on the Boockvar decision very soon, concluding the pre-election challenges to ACT 77. But the level of systemic disruption created by this poorly constructed, hastily fast-tracked bill, on a process so integral to our democracy, remains of great concern that will yield more intense debate after the election. When our legislators are too irresponsible to protect and defend with vehemence and diligence the very foundation of our democracy, requiring our courts to intervene, rescue, and reassemble the broken pieces, we the people must rise in opposition, subdue this overreach, and restore the integrity of the American electoral system.

Electorally Speaking is a series on the extensive impact and complications ACT 77 has affected on Pennsylvania’s election processes, scheduled to run now through election day as a collaboration between and the Pittsburgh Current.

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