A Quick Note on Pennsylvania's Constitution

Wait, what? You don't wake up in the middle of the night thinking about this?

There is a great little interview on Fox News between Brett Baier and Senator/Member of the Sedition Caucus Josh Hawley where Baier basically schools Hawley on what will happen on January 6th. Baier tries to pin Hawley down and get him to say that no matter what happens on Wednesday, Joe Biden will still be sworn in as president, but Hawley worms his way out of answering directly. Oleaginous is a word usually reserved for Ted Cruz but Hawley also seems to fit into the same category.

But he does say something in the interview that has been repeated by a lot of Senators, even ones who have acknowledged that Biden won. He says that Pennsylvania’s law that allows for any purpose mail-in voting violates the State’s own constitution, which says that all absentee voting needs to cite to an actual reason to vote by mail. This is wrong in two ways, and the first one is more technical than the second.

First, Trump’s legal team brought this supposed contradiction of the State’s constitution up in Pennsylvania’s courts and asked them to throw out all of the mail-in ballots in Pennsylvania. Pennsylvania’s Supreme Court rejected this argument based on the doctrine of “laches.” Think of laches this way: In The Wire, Omar says, “If you come at the king, you best not miss.” That would be dismissing a case on the merits, i.e., your legal argument is just straight-up wrong. If Omar had said, “If you come at the king, you best come quick,” that is the doctrine of laches. Basically, Trump’s team challenged the mail-in voting law two elections too late: You cannot ask a court to throw out a voting method that has already been used in two elections (it was also used in the primaries over the summer in addition to the election in November). The time to bring your challenge was before the election, not after. The Court said as much:

The want of due diligence demonstrated in this matter is unmistakable. Petitioners filed this facial challenge to the mail-in voting statutory provisions more than one year after the enactment of Act 77. At the time this action was filed on November 21, 2020, millions of Pennsylvania voters had already expressed their will in both the June 2020 Primary Election and the November 2020 General Election and the final ballots in the 2020 General Election were being tallied, with the results becoming seemingly apparent. Nevertheless, Petitioners waited to commence this litigation until days before the county boards of election were required to certify the election results to the Secretary of the Commonwealth. Thus, it is beyond cavil that Petitioners failed to act with due diligence in presenting the instant claim. Equally clear is the substantial prejudice arising from Petitioners’ failure to institute promptly a facial challenge to the mail-in voting statutory scheme, as such inaction would result in the disenfranchisement of millions of Pennsylvania voters.

Makes sense, right? However, it doesn’t feel like a real win. After all, the Court never addresses the actual merit of the claim: Does the mail-in voting law (Act 77) violate the State constitution? The quick answer to that question is no.

What does Pennsylvania’s constitution say about absentee voting?

§ 14.  Absentee voting.
(a)The Legislature shall, by general law, provide a manner      in which, and the time and place at which, qualified electors      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 or who, on      the occurrence of any election, are unable to attend at their      proper polling places because of illness or physical disability      or who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of election day duties, in the case of a county employee, may vote, and for the return and canvass of their votes in the election district in which they respectively reside.         (b)  For purposes of this section, "municipality" means a      city, borough, incorporated town, township or any similar      general purpose unit of government which may be created by the      General Assembly.      (Nov. 5, 1957, P.L.1019, J.R.1; May 16, 1967, P.L.1048, J.R.5;      Nov. 5, 1985, P.L.555, J.R.1; Nov. 4, 1997, P.L.636, J.R.3)

Nothing in there that suggests you can vote by mail for any reason, right? There is a key phrase in there though: “Qualified electors.” It says that while all absentee voters are qualified electors, not all qualified electors may need to vote absentee. To find out the clearest definition, you have to go to other parts of the State constitution:

"Qualified elector."  An applicant who possesses all of the qualifications for voting prescribed by the Constitution of Pennsylvania and the laws of this Commonwealth or who, being otherwise qualified by continued residence in the election district, obtains such qualifications before the next ensuing election. The term does not include a military elector.

So, what does the mail-in voting law, Act 77, say about who gets to vote by mail? It amends an old voting law - originally passed in 1937 - to add a new group to the “qualified electors” biker gang: Qualified mail-in electors. Act 77 is here, and it says:

(z.6)  The words "qualified mail-in elector" shall mean a qualified elector who is not a qualified absentee elector.

In other words, the law explicitly differentiates between absentee voters (who cannot vote by mail for any reason) and mail-in voters (who can vote by mail for any reason). It simply makes any “qualified elector” (/registered voter) a mail-in voter, should they so desire. The law was clearly written with the absentee requirements in mind, since it makes a point of separating the two. Other states with mail-in voting do the same thing: Colorado has had mail-in voting for a long time, and just like Pennsylvania, also has absentee voting rules.

So Hawley is wrong, and I would guess that he knows it. Not only is the laches argument sound and reasonable, the case is just flat-out stupid on the merits.

And that’s the tea.