Keystone Today

An elections attorney who was successful arguing before Commonwealth Court for the unconstitutionality of no-excuse mail ballots permitted under Act 77 of 2019 is urging the state Supreme Court to consider a separate, federal ruling before it rules on the Act 77 case on appeal.

Wally Zimolong of Zimolong Law noted that in June, the 3rd Circuit of Appeals in Migliori v. Lehigh Cnty. Bd. Of Elections ruled that a provision in Act 77 that required the dating of outer envelopes was not enforceable.

“The court ruled that the provision disenfranchised voters and violated the Voting Rights Act,” Zimolong told Keystone Today. “A non-severability clause in the law makes the entire act invalid.”

Wally Zimolong of Zimolong Law | Provided

Zimolong added that the non-severability clause in Act 77 was included because that Act was compromise legislation between the Republican-controlled General Assembly and Gov. Tom Wolf, a Democrat. If a court struck down one part of the act, it struck down all of it – so as not to preserve one side’s provisions over another’s.

Commonwealth Court ruled in McLinko v. Commonwealth in late January that the state Constitution requires in-person voting unless the voter has a valid excuse for using a mail ballot. In the case, Zimolong represented an election official from Bradford County.

“The Constitution is clear about in-person voting, and past court rulings are clear that any changing the law regarding absentee ballots must be done by constitutional amendment not by an act of the Legislature,” Zimolong said for an earlier story.

The Pennsylvania Supreme Court quickly granted an emergency order for the law to remain in effect while it rules on the case. The court heard arguments on March 8.

Zimolong doesn’t expect a decision until after the Nov. 8 General Election, where conservative Republican state Sen. Doug Mastriano is running against Attorney General Josh Shapiro, a Democrat, for the governor's seat.

“If Mastriano wins the election, I expect the General Assembly would vote to repeal Act 77 very quickly," he said. "That would take some of the pressure off the Supreme Court.”

Many Republican lawmakers, who initially supported no-excuse balloting, have since reversed their positions.

After the January Commonwealth Court ruling, Senate President Jake Corman (R-Centre), issued a statement criticizing the way the Department of State implemented the law during the COVID-19 pandemic.

“There have been numerous concerns raised about the way Act 77 was implemented by the Department of State, especially the double standard created by the removal of key mail-in ballot security measures in leadup to the 2020 election,” Corman said. “After what occurred in the 2020 and 2021 elections, I have no confidence in the no-excuse mail in ballot provisions. There is no doubt that we need a stronger election law than the one we have in place today.”