Another election is coming and there’s still uncertainty around Pennsylvania’s mail voting law

Uncertainty surrounding Pennsylvania’s mail voting law is persisting even as the state heads into its sixth election under the system.

The questions are as big as whether the law, Act 77, is valid at all. The state Supreme Court is poised to rule on its constitutionality, and a new Republican argument says the measure has become void regardless.

There are smaller questions about how the law works in practice — the kind that are resolved over time, such as with court fights over which mail ballots to count or reject.

And there are questions about mail voting’s future after this election, when Pennsylvania will pick a new governor. The Democratic nominee, state Attorney General Josh Shapiro, has vowed to defend the law, while State Sen. Doug Mastriano, his Republican rival, has repeatedly attacked and promised to repeal it.

It’s all frustrating elections administrators, who say they want certainty on the rules. Whether they like the rules or not, they say, the most important thing is that they’re clear to everyone.

The Pennsylvania Supreme Court is set to rule at any moment on a fundamental question about Act 77: Is it constitutional?

The state constitution specifically guarantees absentee voting for those who can’t vote in person on election day, including because they’re away from home. So when the Republican-controlled legislature negotiated Act 77, lawmakers expanded mail voting not by changing “absentee voting” itself, but by creating “mail-in voting” that was functionally identical — but that anyone could use.

The question Republicans have raised, fueled by former President Donald Trump’s lies about mail voting being rife with fraud, is whether the constitution actually requires in-person voting except for the absentee voting eligibility explicitly listed.

» READ MORE: Republican lawsuits over Pennsylvania’s mail voting law have some Democrats quietly worried

Echoing an earlier lawsuit, a county commissioner from Bradford County, Doug McLinko, sued last summer to say Act 77 was unconstitutional. A group of 14 Republican lawmakers, including 11 who voted for the law, soon filed a similar lawsuit. The two were combined, and in January the Commonwealth Court ruled that Act 77 was unconstitutional.

Democratic Gov. Tom Wolf’s administration appealed to the state Supreme Court, which stayed the ruling and heard arguments in the case.

Democrats have expressed confidence that the Supreme Court — which has a 5-2 Democratic majority — will ultimately uphold the law. But the legal questions are trickier than they would like.

While McLinko hangs like the sword of Damocles, there’s a new Republican argument: The law has already been nullified.

A federal appeals court ruled in May that mail ballots cast by voters last November in Lehigh County without handwritten dates on the envelope — a requirement under state law — should be counted. Throwing out mail ballots on that technicality violates federal civil rights law, the court ruled. The U.S. Supreme Court declined to step in and overturn the ruling on an emergency basis, though the losing Republican candidate has filed a full appeal.

Act 77 had what’s known as a non-severability provision: “If any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void.”

That’s designed to prevent either side from trying to chip away at the other’s priorities in the compromise legislation, said State Rep. Seth Grove, Republican chair of the House State Government Committee. He wrote a letter last week to the Pennsylvania Department of State saying the whole law is void now that undated ballots must be counted.

Leigh M. Chapman, the acting secretary of state, disagreed in a letter Wednesday, saying Act 77 remains in place.

“Your specious legal theory perpetuates disinformation,” Chapman wrote.

On Thursday, the group of Republican lawmakers who sued to overturn Act 77 filed another lawsuit, this time taking the non-severability argument to court.

It’s normal for new laws to have kinks that need resolving and for unanticipated questions to arise.

But when it comes to mail voting, some of the questions aren’t just unanswered — they’re being actively fought over across elections, counties, and courtrooms.

Undated mail ballots are the clearest example. The federal appeals court ruling came after state courts interpreted the text of the law to require ballots be dated. That’s left counties making different decisions, and the Department of State has sued three counties that refuse to count undated ballots.

And that’s just in this year’s elections. The disagreements need to be resolved for the future, officials said, with more clarity from courts or the legislature.

Elections officials in Bucks and Montgomery Counties sued last year trying to get that clarity; the case remains open. The use of federal civil rights law to get undated mail ballots counted has also prompted Democratic lawyers and their allies to consider other ways it could be applied, including so-called naked ballots that voters return without inner secrecy envelopes.

Much of the policymaking to come will depend on the results of November’s elections.

Mastriano is a leading figure among far-right election deniers who falsely claim there was rampant fraud in the general 2020 election. He has called for major changes to Pennsylvania’s election system, including eliminating no-excuse mail voting and wiping voter rolls and requiring everyone to re-register — which would almost certainly violate federal voting-rights protections.

Shapiro has promised to defend Act 77 and expand mail voting as part of an effort to broaden ballot access.

How successful either gubernatorial hopeful would be in passing new laws depends on the legislature. While Republicans see a strong chance of continuing to control the state House in a generally favorable political environment for the GOP — and will almost certainly hold the Senate — the new House map may help Democrats erode that majority.

If Shapiro is governor and doesn’t work well with a Republican-controlled legislature, sweeping reform would likely be off the table. If Mastriano is governor and Democrats can pull enough Republican lawmakers to their side — there are Republicans who continue to support mail voting or want to change, not repeal, it — dramatic restrictions might not happen, either.

And it’s not just about legislation.

Election administration is overseen by the Department of State, which is part of the governor’s administration. Whether Shapiro or Mastriano wins will affect not only the law but how the state interprets and applies it.