On Jan. 28, a 3-2 decision by a Pennsylvania court of appeals invalidated “Act 77,” a law passed by the state legislature in 2019 to allow for no-excuse mail-in voting.
“Big news out of Pennsylvania,” declared Donald Trump, the proponent of the “Big Lie” that ballot fraud was a factor in his 2020 defeat. The former president celebrated what he saw as a victory in his long-running campaign to delegitimize mail-in voting.
The decision of the Court of Appeals, as well as Trump’s exuberant reaction, drew national media attention.
However, a closer look reveals that Trump may be spiking the ball before crossing the goal line. ‘MAGA-world, don’t get your hopes up,’ he should have said. We’re at it again.’
However, for Trump, a brief thrill outweighs the importance of keeping your powder dry. History teaches us not to be too quick to declare that the “Big Lie” has a stronger grip on judges now than it did in 2020. In late November of that year, the same appeals court granted Republicans a temporary victory in their challenge to Act 77, halting the state’s 2020 election certification pending an evidentiary hearing scheduled by the court. The ruling was overturned before it could be implemented by the Pennsylvania Supreme Court.
Not by chance, the Pennsylvania Court of Appeals Judge Patricia McCullough, who signed the 2020 order that was quickly overturned, was one of three Republican-appointed judges who issued a ruling on Friday declaring mail-in voting unconstitutional under the state constitution.
Friday’s decision, like her 2020 order, is unlikely to last long. Josh Shapiro, Pennsylvania’s attorney general, who has defeated every challenge brought by Trump supporters to overturn his state’s election, vowed to appeal Friday’s ruling quickly, calling it “twisted logic and faulty reasoning.”
In its interpretation of several provisions of the state constitution, the opinion relied on upside-down assumptions. In essence, the 3-2 majority of the court of appeals ruled that because the Pennsylvania constitution restricts absentee ballots to specific groups of voters, such as military personnel, the legislature cannot authorize no-excuse voting for all citizens.
However, as the dissenting judges pointed out, the two types of voting are not the same – and nothing in the Pennsylvania constitution prevents the state’s lawmakers from providing “no excuse” mail-in voting to all citizens, whether they are “absentee” or not. The Republican-appointed majority disregarded two important rules that jurists follow when interpreting a provision of the Constitution that is open to multiple interpretations.
First, when a law can be interpreted in one of two ways, courts are supposed to give every presumption in favor of its constitutionality. In other words, ties in constitutional language favor the legislature under the most conservative principles of judicial restraint.
Second, there is what elections expert Richard Hasen refers to as the “democracy canon.” “Courts should liberally interpret election statutes in favor of enfranchising more voters and maximizing voter choice,” it says. “Because election laws are intended to facilitate the right of suffrage, such laws must be liberally construed in favor of the citizens’ right to vote,” wrote one state supreme court.
It may come as no surprise that three Republican-appointed judges on a Pennsylvania court of appeals would reject those interpretation principles at a time when the GOP is all about voter suppression. Even in the “Big Lie” era, partisanship is not always a reliable predictor of what judges do.
After the 2020 election, Trump learned the hard way: 60 courts rejected his election challenges, with at least 38 Republican-appointed judges sitting on those courts. Among those judges were several Trump appointees, including Stephen Bibas, a United States Court of Appeals judge who wrote the opinion dismissing Trump’s federal suit in Pennsylvania.
In addition, in 2020 decisions upholding the use of drop boxes and extending deadlines for mailed-in ballots to be counted, the Pennsylvania state supreme court, comprised of five justices appointed by Democrats and two judges appointed by Republicans, protected the right to vote.
“State constitutions… are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law,” wrote Supreme Court Justice William Brennan 45 years ago in the Harvard Law Review.
