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Pa. Election Law Is Unconstitutional

The U.S. Supreme Court has considered its first 2020 presidential-election challenge since Election Day.

Although the high court has declined to give the challengers the preliminary relief they sought, the challengers could return and ask the court to consider their challenge fully on the merits.

If the challengers do this, Kelly v. Commonwealth of Pennsylvania will likely be much different from other such challenges and won’t be the only challenge from the Keystone State.

The challengers are U.S. Rep. Mike Kelly, R-Pa., who lives in Butler County and represents Pennsylvania’s northwestern-most congressional district; Sean Parnell, a congressional candidate from southeastern Pennsylvania; Pennsylvania voters Thomas Frank, Nancy Kierzek, Derek Magee, Robin Sauter, and Michael Kincaid; and Wanda Logan, a Pennsylvania House of Representatives candidate from Philadelphia County.

The challenge, presented by Dr. Gregory Teufel of Pittsburgh, with a friend-of-the-court brief by Dr. Richard Hutchison of Kansas City, Mo., is easy to understand.

Under Pennsylvania’s constitution, only those qualified to vote may cast ballots, and voting must occur either (1) in person at a polling place or (2) by absentee ballot. Pennsylvania’s constitution permits only four categories of qualified voters to cast absentee ballots.

The first is those who:

¯ “may, on the occurrence of any election, be absent from the municipality of their residence, because their duties, occupation or business require them to be elsewhere.”

The second, third, and fourth are those “who, on the occurrence of any election”:

¯ “are unable to attend at their proper polling places because of illness or physical disability”;

¯ “will not attend a polling place because of the observance of a religious holiday”; and

¯ “cannot vote because of election day duties, in the case of a county employee.”

In other words, under Pennsylvania’s constitution, qualified voters who want to cast ballots and fall under none of these four categories may vote only — yes, only –by showing up at a polling place and voting in person. Any other form of voting runs afoul of Pennsylvania’s constitution.

Nevertheless, in 2019 the Pennsylvania General Assembly passed, and the governor signed, a bill allowing all — yes, all — qualified Pennsylvania voters to cast ballots without showing up at a polling place and voting in person. This law — called “Act 77” — reaches beyond what Pennsylvania’s constitution permits.

But a state-constitutional violation doesn’t usually suffice for the U.S. Supreme Court to take a case. What may suffice is a violation of the U.S. Constitution. The challengers explain why one has occurred.

Please remember from last week’s column that Article II, Section 1, Clause 2 of the U.S. Constitution is what empowers state legislators to appoint presidential electors.

As the U.S. Supreme Court held in Bush v. Palm Beach County Canvassing Board in 2000, “in the case of a law enacted by a state legislature applicable not only to elections to state offices, but also to the selection of Presidential electors, the legislature is not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under (Article II, Section 1, Clause 2) of the United States Constitution.”

The challengers explain that when “a state legislature violates its state constitution, purportedly in furtherance of its plenary authority to regulate federal elections and appoint electors, it also violates the U.S. Constitution.”

The challengers further recall part of a concurring opinion by Chief Justice William Rehnquist, joined by Justice Antonin Scalia and Justice Clarence Thomas, in Bush v. Gore in 2000: “A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.”

This is only the first 2020 presidential-election challenge to reach the high court since Election Day.

Texas filed the second one, asserting claims against Georgia, Michigan, Pennsylvania, and Wisconsin.

More may well be on the way.

Last week’s column by Dr. Randy Elf, who has filed briefs in the U.S. Supreme Court, addresses Bush v. Gore.

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