Ruling is good news for democracy and, perhaps, state Democrats...
By Ernest A. Canning on 8/8/2022, 10:05am PT  

Last Tuesday, Pennsylvania's state Supreme Court, once again, rejected a Republican challenge to the state constitutionality of an absentee ballot voting provision adopted by Republicans themselves.

The decision, affirming the expansion of the methods by which state voters may cast a vote --- in a state where absentee voting had long been highly restricted --- represents a win for democracy and, potentially, for the prospects of Democratic Party candidates in upcoming statewide contests.

It wasn't the first such challenge to the Keystone State's bipartisan legislation extending the right to cast an absentee ballot to all lawfully registered voters.The provision was part of a landmark 2019 election reform law, Act 77, adopted by the GOP-majority state legislature and signed by PA's two-term Democratic Governor, Tom Wolf.

In McLinko v. Commonwealth of Pennsylvania this past week, a majority of the state's high court, yet again, rejected a Republican challenge to the law.

On Nov. 21, 2020, Republicans presented the same argument when they petitioned to stop the counting of votes cast during the 2020 Presidential Election. At the time, the PA Supremes didn't rule on the constitutionality of Act 77. Instead, the Court denied the Republican challenge under the doctrine of laches, in which a Party who fails to seek relief in a timely manner will be barred from seeking it.

Republicans, who could have challenged the constitutionality of mail-in voting before the state's June 2, 2020 Primary, chose instead to wait until after Joseph R. Biden was declared the state's projected winner in the general election that November before they moved to contest Act 77's constitutionality.

This time around, the Court considered and rejected the GOP's constitutional challenge on the merits...

In addition to use of the U.S. Mail, Act 77 allows voters in PA to personally deliver their hand-marked paper absentee ballot to their county Board of Elections office on or before 8 p.m. on Election Day. Alternatively, where available, they can place absentee ballots in a designated secure drop-box. Unfortunately, drop-box availability has been eliminated by local officials in several Republican-controlled counties. But voters can check with PA's voting website for drop-box availability.

The PA Supreme Court's recitation of facts in their decision last week underscores the real reason why Republicans have twice unsuccessfully challenged the Legislature's democracy enhancing decision to extend the right to cast a mail-in ballot to every voter --- voter suppression.

In a May 2020 article, FiveThirtyEight claimed that mail-in voting doesn't favor one Party over the other. During the last Presidential election, however, the Keystone State electorate proved otherwise.

In that year's Presidential election, according to the PA Supreme Court, more than 2.6 million mail-in ballots were cast, representing 38% of the state's electorate. Biden defeated Donald Trump in the state by a greater than three-to-one margin in mail-in ballots. Election Day in-person voting went two-to-one for Trump, the Court noted. Biden ultimately won PA by 81,660 votes.

Of course, in their perpetuation of Trump's Big Lie, Republicans did not confine their "legal" challenge against absentee voting to State court. They also filed a failed motion in federal court seeking a temporary restraining order to prevent PA from certifying Biden's victory.

As we reported at the time, U.S. District Court Judge Michael W. Braun's denial of that motion left no doubt as to the absurdity of the Trump Campaign's assault on the lawful decision by the citizens of PA to vote Trump out of office...

Plaintiffs ask this Court to disenfranchise almost seven million voters. This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens.

That has not happened. Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by the evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws and institutions demand more.

Meanwhile, recent polling numbers in advance of this year's midterm elections suggest that the PA Republican candidates for both Governor and U.S. Senate may fare even worse in 2022 than Trump did in 2020.

In September 2020, statewide polls in PA suggested that Biden's previous 13-point lead there in July had shrunk to 4% by September. His final margin of victory would be just 1.2%.

As of August 2 this year, FiveThirtyEight's polling average finds Democrat John Fetterman holding a commanding 10-point lead over Trump-supported Mehmet Oz in the state's U.S. Senate contest. But where the Biden lead over Trump shrunk over time, Oz is in the midst of a downward trend in support.

FightThirtyEight's polling average also projects a more narrow 8.2% lead for Democrat Josh Shapiro over Republican Doug Mastriano in the Governor's race. However, that number also reflects a downward trend for Mastriano in the wake of recent media coverage of his alleged ties to anti-Semitic far right extremists.

While pre-election polls do not decide elections, they are indicative of what may happen if voters turn out in large numbers. By upholding the right of the electorate to choose whether to cast a hand-marked, absentee paper ballot or vote in-person, the PA Supreme Court has enhanced not only an exercise in democracy but may have also enhanced the prospect for statewide Democratic victories in November.

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Ernest A. Canning is a retired attorney, author, and Vietnam Veteran (4th Infantry, Central Highlands 1968). He previously served as a Senior Advisor to Veterans For Bernie. Canning has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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