Mail-in Voting and the Pennsylvania Constitution

Authors

Stephen E. Friedman

Abstract

Pennsylvania was at the center of many of the disputes that arose after the hotly contested 2020 presidential election. One of the most significant challenges was a claim that Pennsylvania's newly enacted mail-in voting law violated the state's constitution. Plaintiffs in one lawsuit asked that all mail-in ballots be discarded, which would have shifted Pennsylvania's electoral votes to Donald Trump. When this lawsuit failed, challengers unsuccessfully objected to Congress counting Pennsylvania's electoral votes. A core argument both in court and in Congress was that the Pennsylvania Constitution requires in-person voting except where it specifically provides otherwise. The claim is supported by two older Pennsylvania Supreme Court cases, the more recent of which is nearly a century old.

This Article argues instead that no-excuse mail-in voting is consistent with the Pennsylvania Constitution. The language of the constitution provides the General Assembly ample authority to enact such legislation. Further, the current legislation on mail-in voting differs in crucial respects from the statutes found unconstitutional in the 1862 and 1924 cases. Finally, the constitutional provision on absentee voting does not, as some have argued, render mail-in voting unconstitutional. Instead, it reinforces and confirms the legislature's authority in this regard. The Pennsylvania Supreme Court has refrained from addressing the claim on the merits, thus leaving this important issue unresolved.

First Page

1

Recommended Citation

Stephen E. Friedman, Mail-in Voting and the Pennsylvania Constitution, 60 Duq. L. Rev. 1 (2022).
Available at: https://dsc.duq.edu/dlr/vol60/iss1/2