Trump jumps the gun celebrating PA court ruling on mail-in voting

On Jan. 28, a Pennsylvania court of appeals, in a 3-2 ruling, invalidated “Act 77,” a statute that the state’s legislature adopted in 2019 to allow for no-excuse mail-in voting.

“Big news out of Pennsylvania,” pronounced Donald Trump, promulgator of the “Big Lie” that ballot fraud played a role in his 2020 defeat. The former president celebrated what he treated as a trophy for his longstanding campaign to discredit mail-in voting.

The court of appeals decision and Trump’s exuberant reaction drew national media attention.

But closer examination suggests that Trump might be spiking the ball before crossing the goal line. He might better have said: ‘MAGA-world, don’t get your hopes up. Here we go again.’

For Trump, however, momentary thrill beats keeping your powder dry.

History tells us not to proclaim too quickly that the “Big Lie” has taken any greater hold on judges now than the failing grip it had on them in 2020. In late November of that year, the very same appeals court briefly gave a win to Republicans challenging Act 77, halting the state’s 2020 election certification pending an evidentiary hearing the court planned to hold. Before it could do so, the Pennsylvania supreme court voided the ruling.

Not coincidentally, Pennsylvania court of appeals Judge Patricia McCullough, who signed the 2020 order that was so quickly overturned, was among the three Republican-appointed judges who issued Friday’s ruling declaring mail-in voting invalid under the state’s constitution.

Like her 2020 order, Friday’s decision is not likely to last long. 

Josh Shapiro, Pennsylvania’s attorney general who defeated every challenge that Trump supporters brought to overturn his state’s election, vowed to appeal Friday’s ruling swiftly, saying the opinion was based “on twisted logic and faulty reasoning.”

The opinion relied on upside-down assumptions in its interpretation of several of the state constitution’s provisions. In essence, the 3-2 court of appeals majority said that because the Pennsylvania constitution limits absentee ballots to groups of voters such as those in the military, the legislature cannot authorize no-excuse voting for all citizens.

But as the dissenting judges emphasized, the two types of voting are not the same — and nothing in the Pennsylvania constitution prohibits the state’s lawmakers from providing “no excuse” mail-in voting whether citizens are “absentee” or not.

The Republican-appointed majority ignored two important rules that jurists apply when interpreting a constitutional provision that is open to alternate readings.

First, courts are supposed to indulge every presumption in favor of a law’s constitutionality when the law can be interpreted either of two ways. In other words, under the most conservative principles of judicial restraint, ties in constitutional language favor the legislature.

Second, there is what elections scholar Richard Hasen has called the “democracy canon.” It provides that “courts should liberally interpret election statutes in favor of enfranchising more voters and maximizing voter choice.”

As one state supreme court has written, “Because election laws are intended to facilitate the right of suffrage, such laws must be liberally construed in favor of the citizens’ right to vote.”

It may seem no surprise that three Republican-appointed judges on a Pennsylvania court of appeals would reject those principles of interpretation at a time when the GOP is all about voter suppression. But even in the era of the “Big Lie,” partisan affiliation is not always a reliable predictor of what judges do.

Trump learned that lesson the hard way after the 2020 election: 60 courts rejected his election challenges, and at least 38 Republican-appointed judges were sitting on those courts. Those judges included multiple Trump appointees such as Stephen Bibas, a U.S. Court of Appeals judge who wrote the opinion dismissing Trump’s federal suit in Pennsylvania.

And the Pennsylvania state supreme court, consisting of five justices appointed by Democrats and two judges appointed by Republicans, also protected the right to vote in 2020 decisions upholding the use of drop boxes and longer deadlines for mailed-in ballots to be counted.

As Supreme Court Justice William Brennan wrote 45 years ago in the Harvard Law Review, “State constitutions … are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.”

There is no better illustration of Brennan’s point than in the area of voting rights: “Virtually every state constitution includes direct, explicit language granting the right to vote, as contrasted with the U.S. Constitution, which mentions voting rights only implicitly.”

Article VII of the Pennsylvania Constitution enshrines those rights, making them subject to the laws the legislature enacts. The Pennsylvania court of appeals majority compressing those rights is more like a speed bump than a roadblock.

Notably for Friday’s decision, interpreting state constitutions is a matter entrusted, ultimately, to the highest courts of each state. In light of the Pennsylvania supreme court’s reversal of the lower court on voting rights in 2020, by the time it finishes with this case, the “big news” will likely elicit Trump’s howls of protest. 

Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. He is author of numerous books on America’s death penalty, including “Gruesome Spectacles: Botched Executions and America’s Death Penalty.” Follow him on Twitter @ljstprof. 

Dennis Aftergut is a former federal prosecutor and currently of counsel to Lawyers Defending American Democracy.