Act 77, a “voter reform act,” was passed by the Pennsylvania General Assembly in October 2019 and introduced new election procedures like no-excuse mail-in voting and ballot drop boxes. Since then, numerous lawsuits in the state have focused on these practices. One of them is the request for the court to invalidate Act 77 made by 14 Republican members of the Pennsylvania House of Representatives.
The 14 lawmakers’ attorney, Pittsburgh attorney Greg Teufe of OGC Law, believes they still have a case and plans to appeal the Commonwealth Court’s ruling to the Pennsylvania Supreme Court. The Commonwealth Court rejected the request in a decision on June 27.
It’s critical to understand how Act 77 was negotiated in the legislature in order to comprehend the argument.
“It was a negotiated law— a bargain between the Democrats and the Republicans—with the key elements that the Democrats cared about, and key elements that Republicans cared about,” Mr. Teufe told The Epoch Times. “They included what’s called a non-severability provision … if any provisions in this act, or its application to any person or circumstances is held invalid, the remaining provisions or application of this Act are void.”
The non-severability clause is essential to the argument because if any portion of the act is declared invalid, the entire act is also declared invalid. The 14 lawmakers think that a crucial clause in Act 77 was removed in another instance involving mail-in voting.
Act 77 mandates that mail-in ballots be enclosed in an envelope that has been signed and dated by the voter. Republicans claimed that some voters had missed this step and that the ballots should not be counted; Democrats countered that the ballots should be counted to prevent voter disenfranchisement.
Courts Had Conflicting Decisions
The Pennsylvania Supreme Court ruled in November 2022 that absentee and mail-in ballots for the November 8, 2022 General Election should not be counted if their return envelopes were undated or incorrectly dated.
In its Feb. 8, 2023 opinion, the state Supreme Court provided justification for that relief, stating that Act 77’s requirement for a date was “unambiguous and mandatory” and rendered any absentee and mail-in ballot returned in an undated envelope invalid.
However, courts ruled that undated ballots should be counted in two other cases, Chapman v. Berks County Board of Elections and Ritter v. Migliori. In the Migliori case, the Third Federal Circuit Court ruled that failing to count the votes would be against the Civil Rights Act of 1964. The case was later deemed moot by the U.S. Supreme Court because the election was over and certified.
“In Berks County, they said, ‘We agree with Migliori, that this dating provision, if it were enforced as mandatory, that would violate the materiality provision of the Civil Rights Act of 1964,” Mr. Teufe said. “And therefore, federal law blocks the application of a mandatory dating requirements, because effectively they’re saying it isn’t material enough to justify throwing out a vote, and therefore under federal law, you’re not allowed to do it. And that very clearly invalidated the application of the dating provision to any person or circumstance in Pennsylvania. It reduced what we argued was a mandatory provision.”
That he says, should cause Act 77 to be overturned.
But in the June 27 opinion, the Commonwealth Court said that although prior courts offered their “interpretation” of the law, Act 77 is still the state law.
“It’s true, they didn’t use the words, ‘We are invalidating this provision,’ they didn’t say ‘It is hereby stricken from statute.’ But they declared that it was unlawful to apply it in any circumstance. They reduced it to a suggestion to the voters,” Mr. Teufe said. “The substance of what they did was refuse views to apply—invalidate—the dating provision, thereby triggering the non-severability provision, thereby requiring that they void the rest of Act 77. And if they don’t, it’s a massive bait and switch because this was a package deal. They are slicing out of the package the dating provision, and they’re leaving the rest of the deal intact, and undermining the legislative process. Legislators from this case forward, if this isn’t overturned by the Supreme Court, can’t rely on package deals with each other in legislative proposals.”
The 14 Republican state representatives who brought this case are Timothy Bonner, Michael Jones, David Zimmerman, Barry Jozwiak, Kathy Rapp, David Maloney, Barbara Gleim, Robert Brooks, Aaron Bernstine, Timothy Twardzik, Dawn Keefer, Dan Moul, Francis Ryan, and Donald “Bud” Cook.
“Many other laws have been passed with, with non-severability as well, and if we’re not going to honor it in this case, then it could be challenged in any other law, and that’s a fundamental reason for doing this,” Rep. Zimmerman told The Epoch Times. “If we don’t uphold this one, then that puts other laws jeopardy. There are quite a few pieces of legislation that we passed that have the same thing and right in the law itself.
“This whole idea of these mail-in ballots being dated and signed—our secretary of state ended up throwing all that out and says, ‘Well, it doesn’t matter if they’re signed or dated. We don’t care about that.’ But it’s very clear in the law, that that the whole thing gets thrown out if we violate any of it. And we’re currently violating it by not having a date and signed and accepting it.”
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