Earlier this evening, the Pennsylvania Supreme Court issued a brief, three-page order dismissing an election lawsuit brought by Sean Parnell and several other qualified Pennsylvania voters challenging the constitutionality of Pennsylvania’s recently-enacted state law governing mail-in voting. In doing so, the Pennsylvania Supreme Court also vacated a lower court judge’s preliminary injunction preventing the Pennsylvania Secretary of State from certifying the results of the 2020 General Election pending resolution of the lawsuit.
In dismissing the lawsuit, the Pennsylvania Supreme Court did so on the narrowest of grounds: that Parnell and the other voters waited too long to file it. By styling their decision thus, the Pennsylvania Supreme Court avoided having to decide the case on the actual merits: Is the Pennsylvania mail-in voting law unconstitutional under the Pennsylvania state constitution? As we shall see below, the answer is most likely “yes.”
The Pennsylvania constitution and voting law
The Pennsylvania constitution allows absentee voting under five situations: (1) work; (2) illness; (3) physical disability; (4) the election occurring on a religious holiday; or (5) a person’s election-day duties themselves preventing the person from voting in person. No other justifications are allowed for absentee voting under the Pennsylvania constitution.
Towards the end of 2019, a majority of both houses of the Pennsylvania General Assembly passed the relevant mail-in voting legislation at issue here. As I discussed in my previous two articles, this legislation expanded voting by mail beyond the above-five situations under the Pennsylvania constitution to include any situation. In other words, the law purported to allow voting by mail for any reason whatsoever.
But while the General Assembly passed the legislation, this was not, of itself, sufficient to amend the Pennsylvania constitution and expand voting by mail beyond the above-five circumstances. To amount to a constitutional amendment, the Pennsylvania constitution requires that the law be passed a second time by majority vote of both houses of the General Assembly in the next legislative assembly. Once that is done, a majority of Pennsylvania voters then have to approve the mail-in voting legislation in a statewide election.
The above process has not taken place. Indeed, the Pennsylvania General Assembly itself appears to have recognized that such an expansion of mail-in voting would have to come about via a constitutional amendment, as the law itself was originally presented as a joint resolution proposing an amendment to the Pennsylvania Constitution.
The Parnell lawsuit
Parnell and the other voters brought suit on November 21, 2020, in the Commonwealth Court of Pennsylvania, seeking a declaration that the mail-in voting law is unconstitutional and an injunction barring the Pennsylvania Secretary of State from certifying the results of the General Election until the lawsuit was completed. The Commonwealth Court granted a preliminary injunction, finding that a substantial likelihood existed that the mail-in voting legislation did, in fact, violate the Pennsylvania Constitution.
The Pennsylvania Secretary of State immediately appealed the preliminary injunction to the Pennsylvania Supreme Court. Earlier today, that court entered an order both dissolving the preliminary injunction and dismissing the entire lawsuit. The only reason it gave for doing so was that Parnell and the other voters had waited too long to bring their lawsuit, and could not do so now, with the electoral college deadline being so close. The Pennsylvania Supreme Court did not address the fact that the mail-in voting legislation had not been passed in such a manner as to amend the Pennsylvania constitution.
What happens next?
If other lawsuit litigation is any predictor, Parnell and the other voters will now seek an expedited petition for a writ of certiorari. They will most likely also apply to Justice Alito—as Circuit Justice for the Third Circuit—for an emergency injunction barring the Pennsylvania Secretary of State from certifying the results of the election pending resolution of the cert petition. To obtain the Court’s review, Parnell and the other voters must show that the Pennsylvania Supreme Court’s decision somehow violates federal law. While the Pennsylvania Supreme Court’s decision is rooted in state law, a good argument can be made that it involves a federal question.
In interpreting the legislative power within the context of selecting Presidential Electors, the Supreme Court of the United States has held, “What is forbidden or required to be done by a state is forbidden or required of the legislative power under the state constitutions as they exist.” McPherson v. Blacker, 146 U.S. 1, 25 (1892). In other words, the “legislative power” to select Presidential Electors includes those limitations that state constitutions place on its legislatures—in this case, the Pennsylvania state constitution’s limiting of absentee voting to the above five situations. This may constitute a viable federal question for the Supreme Court of the United States to intervene. And while McPherson dates from 1892, its rationale is sound, and the Court relied upon it in resolving Bush v. Gore in 2000. See Bush v. Gore, 531 U.S. 98, 104 (2000). More recently, Chief Justice Roberts relied upon McPherson in a dissenting opinion joined by Justices Scalia, Thomas, and Alito. See Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, 576 U.S. 787, 839 (2015) (Roberts, C.J., dissenting).
The other question is what weight, if any, the Supreme Court of the United States will give to Parnell’s supposed delay in bringing the lawsuit. I will admit that this is an area I have not examined much, and so I will refrain from commenting on it for the time being. But this much, at least, seems clear to me: the Pennsylvania mail-in voting law is unconstitutional.
This article has been updated to reflect (1) that the Supreme Court cited to the McPherson case in Bush v. Gore; and (2) that in the 2015 Arizona State Legislature case, the Court itself did not cite to McPherson, but rather Chief Justice Roberts cited to the case in a dissenting opinion.
John M. Reeves, an appellate lawyer in St. Louis, is the founder and owner of Reeves Law LLC. A native of Chicago, he graduated from Washington University in St. Louis in 2004 with both a Bachelor of Arts and Master of Arts in History, having earned his master’s degree within four years of undergraduate study. Mr. Reeves likewise earned his law degree from Washington University in St. Louis, graduating in 2007. He spent six-and-a-half years as an Assistant Missouri Attorney General in Jefferson City, Missouri, before returning to St. Louis and entering private practice.
Mr. Reeves has authored over 250 appellate briefs, including several in the Supreme Court of the United States. Find him on Twitter @reeveslawstl