Voting rights lawyers say latest Pa. GOP mail-voting challenge is ‘fueling the big lie’

Election workers scan ballots at the Pennsylvania Convention Center.

Election workers scan ballots at the Pennsylvania Convention Center on Nov. 4, 2020. (Emma Lee/WHYY)

More than a dozen Pennsylvania Republicans are trying, for a second time, to throw out a mail voting law that many of them helped pass in the first place.

Lawyers in the commonwealth who routinely contest GOP challenges to mail voting and attempts to toss ballots say they think the new lawsuit, filed Wednesday in Commonwealth Court, is unserious and legally shaky.

But they also think there’s a more concerning ulterior motive.

“The motivation here may be to keep fueling the big lie, and to keep encouraging voters to believe that there is something suspect about the way elections run in Pennsylvania when there’s not,” said Ben Geffen, a senior attorney with the Public Interest Law Center who often fights GOP attempts to restrict mail voting.

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American Civil Liberties Union lawyer Marian Schneider, who has also opposed this kind of litigation in the past, said she believes the point of many of the lawsuits is “to sow chaos and confusion among voters.”

The new suit comes in response to a previous court decision.

Last month, a federal judge ruled that undated mail ballots submitted in a Lehigh County judicial race should be counted, even though state election law technically says ballots must be dated. The judge decided that the dates have nothing to do with a voter’s eligibility, and that tossing the ballots would therefore violate voters’ civil rights.

Pennsylvania Republicans have repeatedly sought to invalidate undated ballots, and other courts have upheld their arguments in the past. But now, they’re seizing on the federal ballot decision, arguing that the judge invalidated a provision of Act 77, and that the whole law should therefore be invalid.

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That argument is based on a “non-severability” clause in Act 77, the 2019 law that legalized no-excuse mail voting in Pennsylvania. These clauses are fairly common, and generally say that if one part of a law is thrown out for some reason, the entire law should be void.

“Act 77,” the petitioners wrote, “must be struck down in its entirety.”

Non-severability clauses aren’t always enforced, however. Geffen said that’s one of two major reasons he thinks the Republicans’ suit doesn’t have legs.

“As a general rule, the courts disfavor them,” Geffen said, adding that in a 2006 case featuring “a non-severability provision with identical wording,” the courts decided not to apply it.

“I don’t know why they would reach a different outcome” this time, he said. “My guess is this lawsuit is meant more to achieve some PR purpose as opposed to one that’s meant to have a serious chance of succeeding in court.”

Plus, he and Schneider both think the case has an even more fundamental issue. While Act 77 says voters should date their mail ballots, it says nothing about the penalty for failing to do so. And the federal court’s decision only says the state can’t toss out ballots because they don’t have dates.

In other words, the lawyers believe that the federal decision doesn’t pertain to Act 77 at all.

“That’s a little nuanced,” Schneider said. “But quite frankly, the federal court didn’t invalidate any provision of 77.”

Republicans’ reversal on Act 77 has been stark.

The Pennsylvania legislature passed it in 2019 with near-unanimous GOP support. The law allowed no-excuse mail voting in the commonwealth for the first time in the 2020 primary and general election. Soon after Trump lost that election, however, Republicans began pitching bills to roll it back or repeal it entirely.

The new lawsuit is the second aimed at getting Act 77 completely tossed out. The first, filed last year, came from the same group of GOP lawmakers. It argued that the law should have been passed as a constitutional amendment, not simple legislation, and was therefore invalid.

In January, a Commonwealth Court judge agreed, handing down an opinion that the bill is unconstitutional. Gov. Tom Wolf’s administration immediately appealed the decision, and the law remains in effect while the state waits for the Pa. Supreme Court’s decision.

Rep. Dan Moul (R-Adams) was one of the lawmakers who voted for Act 77, then joined both lawsuits aimed at overturning it. Asked about his change of heart, he told NPR, “So my bad. I should’ve checked the constitutionality of that big bill.”

Moul didn’t respond to a request for comment about the new suit.

Schneider, the ACLU lawyer, said while she has some confidence that the courts will ultimately find the law constitutional in both suits, she also wants to make sure people know that in the meantime, they can still vote by mail.

“Mail-in balloting is still the law in Pennsylvania,” she said. “And you know, it’s important to vote in every election that you can because elections have consequences. These elections will definitely have consequences, coming up in November.”

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