Dauphin News

Since 1837, the Pennsylvania Constitution has required voters to cast their ballots in person at their proper polling places, with limited exceptions. But, in 2019, the Governor Wolf enacted an end-run around Pennsylvania Constitution and changed the rules under which every election was conducted from 1837 to 2020. That end-run is known as Act 77 and it brought universal no-excuse mailed voting to Pennsylvania. It allowed any voter to cast his or her ballot by mail from anywhere for any reason or no reason at all.  In July, I filed a lawsuit challenging the constitutionality of Act 77. In January, our Commonwealth Court agreed that Act 77 violated the Pennsylvania Constitution. And, on March 15, unless the Pennsylvania Supreme Court overturns the Commonwealth Court, elections will again be conducted according to the Pennsylvania Constitution, with voters casting ballots in person at their proper polling places unless they qualify to vote absentee. 

The lawsuit is not about politics, stolen elections, or decertifying election results. The lawsuit was not filed on the eve of an election, hours after millions of ballots had been cast, and it does not ask the court to invalidate the results of any election or even one vote. It is about whether our state Constitution means what it says and whether we should follow over 160 years of Supreme Court precedent that holds that our Pennsylvania Constitution requires voting to occur in person at the polling place. 

Of course, there is nothing fundamentally wrong with the concept of voting by mail. It is true that dozens of states (both red and blue) permit ballots to be cast by mail and some states conduct certain elections entirely by mail. In fact, Pennsylvania’s current absentee voting rules are a form of mailed voting. The problem with no-excuse mailed voting in Pennsylvanian is that the people have never approved it through a constitutional amendment. Act 77, a legislative act, is a runaround of the longstanding rule that the voters approve all changes expanding mail voting in Pennsylvania. That is how it’s been done for over a century. Each time Pennsylvania wished to grant an except to the rule that voters cast their ballots in person, it was properly done through a constitutional amendment. 

One wonders what is so abhorrent about giving the people the chance to decide whether no-excuse mailed voting should be permitted in Pennsylvania by constitutional amendment. If that had occurred, this lawsuit would have never been filed. Had that occurred it would have given voters the chance to approve or reject exceptions to the rule that voting occur in person, just as they have done time and time again (in 1864, 1949, 1957, 1967, 1985, and 1997). Act 77 gave the green light to override hundreds of years of constitutional history and gave elected official the go ahead to circumvent our constitutional. Act 77 robs the voters of their right to decide whether to pass expand mail voting by passing Act 77 as a legislative act. Voters alone get to decide what their Constitution permits, and in the case of Act 77, the voters never had a say. 

My client Doug McLinko is an elected official and a public servant. He is a member of his county’s Board of Elections. In that role, he must certify and assure that elections are conducted according to the constitution. Unlike some public officials, Mr. McLinko respect the Constitution’s limits. When something is wrongly enacted, like Act 77, its popularity or how much the government has spent to implement the law is irrelevant. If the law is unconstitutional, it ends there. Act 77 cannot contradict the Constitution and stand. 

He does not seek to disenfranchise anyone and does not want to invalidate any vote. Rather, his lawsuit is for the voters, and defends their longstanding and proven right to determine the limits of mail voting in Pennsylvania. His lawsuit also ensures that voters have faith in our elected process. It seeks to assure that elections are conducted according to the constitution regardless of the outcome.

Wally Zimolong is an Attorney from Philadelphia. He regularly assists clients with investigations brought by the Department of Justice, Department of Labor, National Labor Relations Board (NLRB), and the City of Philadelphia Department of Licenses & Inspections (L&I).