Flashbacks Valvaka 2020

The Court’s handling of the important constitutional issue raised by this matter has needlessly created conditions that could lead to serious post-election problems. The Supreme Court of Pennsylvania has issued a decree that squarely alters an important statutory provision enacted by the Pennsylvania Legislature pursuant to its authority under the Constitution of the United States to make rules governing the conduct of elections for federal office.

In a law called Act 77, the legislature permitted all voters to cast their ballots by mail but unambiguously required that all mailed ballots be received by 8 p.m. on election day.

It also specified that if this provision was declared invalid, much of the rest of Act 77, including its liberalization of mail-in voting, would be void.

The legislature subsequently made it clear that, in its judgment, the COVID–19 pandemic did not call for any change in the election-day deadline. In a law enacted in March 2020, the legislature addressed election related issues caused by the pandemic, but it chose not to amend the deadline for the receipt of mailed ballots.

In the face of Act 77’s deadline, the Pennsylvania Supreme Court, by a vote of four to three, decreed that mailed ballots need not be received by election day. Instead, it imposed a different rule: Ballots are to be treated as timely if they are postmarked on or before election day and are received within three days thereafter. In addition, the court ordered that a ballot with no postmark or an illegible postmark must be regarded as timely if it is received by that same date. The court expressly acknowledged that the statutory provision mandating receipt by election day was unambiguous and that its abrogation of that rule was not based on an interpretation of the statute. It further conceded that the statutory deadline was constitutional on its face, but it claimed broad power to do what it thought was needed to respond to a “natural disaster,” and it justified its decree as necessary to protect voters’ rights under the Free and Equal Elections Clause of the State Constitution.

It would be highly desirable to issue a ruling on the constitutionality of the State Supreme Court’s decision before the election. That question has national importance, and there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution. The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.