The U.S. Supreme Court’s recent decision to hear arguments in Moore v. Harper has garnered significant attention. That case concerns whether the Elections Clause of the U.S. Constitution limits the ability of a state court to apply vague provisions of its state constitution to restrict the state legislature’s “time, place, and manner” regulations for federal elections. No matter how that case is resolved, state courts will continue to play a significant role in determining whether state legislative enactments governing elections comport with state constitutions. One recent case out of Pennsylvania offers a salient illustration.

On August 2, 2022, the Pennsylvania Supreme Court rejected a challenge to a 2019 Pennsylvania law called “Act 77.” Among other significant changes to Pennsylvania’s Election Code, Act 77 allowed for universal eligibility for mail-in voting.[1] In affirming the constitutionality of Act 77 under the Pennsylvania Constitution, the Pennsylvania Supreme Court reaffirmed a principle it first recognized more than one hundred years before: that “[t]he power to regulate elections is a legislative one, [which] has been exercised by the General Assembly since the foundation of the government.”[2] However, the court was still required to assess whether, in exercising its power, “the General Assembly overstepped the bounds of this power and violated [Pennsylvania’s] Constitution.”[3]

Absentee voting in Pennsylvania has expanded by fits and starts over the last 150 years. When absentee voting began in Pennsylvania in 1864, “only otherwise qualified voters who were not present in their election districts on Election Day because of active military duty were allowed to cast an absentee ballot.”[4] In 1923, the state legislature expanded the categories of eligible absentee voters to encompass “non-military civilians who were absent from their election districts on election day due to their ‘duties, business, or occupation.’”[5]

As a threshold matter, the court was required to quickly dispose of a question of justiciability by interpreting a provision of Act 77 which purported to restrict the Supreme Court’s jurisdiction over challenges to the law. The court found that this provision was only a temporary vesting of exclusive original jurisdiction in the Pennsylvania Supreme Court, after which original jurisdiction over challenges would revert to the Commonwealth Court consistent with Pennsylvania law. To hold otherwise and accept the argument that this provision precluded all challenges to Act 77 after 180 days, the court held, would “lead[] to the conclusion that the provision is unconstitutional; a result that is to be avoided.”[6]

Turning to the merits of the constitutional challenge to Act 77, the court was forced to grapple with whether the Pennsylvania Constitution’s use of the phrase “offer to vote” compels in-person voting.[7] If so, then Act 77’s universal mail-in voting provisions would be constitutionally suspect because they were adopted without first amending that constitutional language. The Pennsylvania Supreme Court’s previous interpretations of the provision complicated this analysis. The court offered its first interpretation of the phrase “offer to vote” in the 1862 case of Chase v. Miller. In an interpretation that could have doomed Act 77, the Chase court defined this phrase to mean “to present oneself, with proper qualifications, at the time and place appointed, and to make manual delivery of the ballot to the officers appointed by law to receive it.”[8] This was only logical, reasoned the Chase court, because to permit voting by mail “would break down all the safeguards of honest suffrage” and open the door to fraud.[9] The current court, however, viewed this entire discussion as dicta that “was unnecessary to the dispositive holding of the case that voting can only take place in a voter’s election district created by or under the authority of the legislature.”[10]

The meaning of the phrase “offer to vote” was again considered by the Pennsylvania Supreme Court in the 1924 case of In re Contested Election of Fifth Ward of Lancaster City. In that case, the court, in ostensible reliance on the earlier holding in Chase, explained that the legislature had impermissibly attempted to alter constitutional qualifications for absentee voting eligibility by means of statute, rather than the appropriate vehicle of a constitutional amendment.[11] The court explained that “[t]he Legislature can confer the right to vote only upon those designated by the fundamental law [i.e., the state constitution], and subject to the limitations therein fixed.”[12] Again, however, the contemporary court distinguished the Lancaster City case, noting that the prior court “rested its decision on an interpretation made in a case decided more than half a century before [i.e. Chase], under a prior version of the Constitution that had been amended multiple times since, and for a proposition that was unquestionably dicta.”[13]

Because the court determined that Chase’s interpretation of the “offer to vote” language was dicta and that Lancaster City improperly relied on that interpretation as if it were the holding of the case, it was not bound to decide the instant case in accordance with those “patently flawed” decisions.[14] Stare decisis did not compel adherence to these earlier decisions because “courts should not perpetrate error solely for the reason that a previous decision although erroneous, has been rendered on a given question.”[15] Contrary to those earlier interpretations, the modern court determined that the phrase “‘offer to vote’ . . . does no more than identify the district in which the elector is eligible to vote, which is the interpretation supported by the recorded history.”[16] In other words, it is a restriction on the geography within which a voter can participate in an election, not on the manner in which that voter can cast their ballot.

Even accepting the Chase court’s anti-fraud rationale as correct, the court determined that it no longer makes sense given subsequent constitutional amendments. The state constitution in 1862 “was drafted at a time when there were no voter registration laws and, arguably, the only way to verify an individual’s qualifications to vote in an election district was to allow his neighbors to identify him as qualified.”[17] After the adoption of voter registration laws in the early 20th century, which required voters for the first time to prove their qualifications before casting a ballot, this is no longer true.

Concurring with the majority opinion in almost all aspects, Justice David Wecht wrote a separate opinion to further “underscore Chase’s infirmities relative to both its constitutional era and ours.”[18] In particular, Justice Wecht posited that the Chase decision warranted “close examination” given its outsized role in the present court’s “constitutional analysis.”[19] While recognizing the value of stable constitutional analysis, the concurrence wholeheartedly rejected “unquestioning adherence” to past decisions, especially where doing so would “perpetuat[e] error.”[20] After thoroughly rejecting Chase’s “narrow construction of ‘offer to vote,’” the concurring opinion acknowledged one disagreement with the majority.[21] In considering whether some other provision of the Pennsylvania Constitution restricted the legislature’s authority to enact universal mail-in voting, the majority considered Article I, Section 4’s requirement that “[a]ll elections . . . shall be by ballot or by such other method as may be prescribed by law.”[22] While the concurring opinion found persuasive some elements of the majority’s reasoning that this provision permits the Pennsylvania General Assembly to prescribe “other methods” of voting, it ultimately concluded that consideration of that issue was “wholly unnecessary to resolve this case” because “[m]ail-in ballots are ballots.”[23]

Two justices dissented in full from the court’s opinion. In the principal dissent Justice Sallie Mundy, joined by Justice Kevin Brobson, expressed that “neither the majority nor the concurrence provides a convincing account of how our state Charter permits universal, no-excuse mail-in ballots, particularly in light of its specific authorization for absentee ballots for four defined groups of voters.”[24] In its interpretation of the Pennsylvania Constitution’s “offer to vote” language, the Mundy dissent asserted that the provision “should be construed according to what it meant” when it was inserted into the Constitution in 1838.[25] Rejecting the majority’s conclusion that the Chase court’s interpretation of this language was “incidental or dicta,” the Mundy dissent highlighted that “Chase was decided close in time to when the provision was first included in the Constitution, and the authoring Justice participated in the constitutional convention that adopted it.”[26] Because Chase found that “‘offer to vote’ meant to show up in person to vote,” the current court should not disturb its holding absent exceptional circumstances.[27] To the dissent, this was not such a case.[28]

To illustrate its view that the meaning of “offer to vote” was settled, the Mundy dissent highlighted that the Pennsylvania Constitution has undergone numerous amendments since the Chase decision, including to allow for absentee voting in certain defined circumstances.[29] At no point, however, did Pennsylvania voters feel compelled to clarify or eliminate the “offer to vote” language. The Mundy dissent viewed this as especially relevant given the relative ease with which the Pennsylvania Constitution can be amended.[30] Writing in a brief separate dissent, Justice Brobson underscored this view, noting that despite “two constitutional conventions” and “several occasions” of amendment to the current Pennsylvania Constitution, “the phrase ‘offer to vote’ remains.”[31]

As this case illustrates, regardless of how the U.S. Supreme Court decides questions of federal constitutional limitations in Moore v. Harper, state courts will continue to have a significant role in interpreting their states’ election laws in light of state constitutional provisions. Principles of constitutional interpretation, stare decisis, and canons of construction will all remain important as state courts continue to grapple with such questions.

[1] See McLinko v. Pennsylvania, No. 14 MAP 2022 (Pa. Aug. 2, 2022).

[2] Id. at Majority Op. 3 (quoting Winston v. Moore, 91 A. 520, 522-23 (Pa. 1914) (alterations in original)).

[3] Id.

[4] Id. at Majority Op. 5.

[5] Id. at 52.

[6] Id. at 42.

[7] Id. at 45; see also Pa. Const. art. VII, § 1 (mandating a voter “shall have resided in the election district where he or she shall offer to vote at least 60 days immediately preceding the election”).

[8] McLinko, No. 14 MAP 2022, at Majority Op. 50 (quoting Chase v. Miller, 41 Pa. 403, 419 (1862)).

[9] Id. (quoting Chase, 41 Pa. at 419).

[10] Id.

[11] Id. at 53 (quoting In re Contested Election of Fifth Ward of Lancaster City, 126 A. 199, 201 (Pa. 1924)).

[12] Id. at 55 (quoting Lancaster City, 126 A. at 201).

[13] Id. at 57.

[14] Id.

[15] Id. at 58 (quoting Olin Mathieson Chem. Corp. v. White Cross Stores, Inc., No. 6., 199 A.2d 266, 268 (Pa. 1964)).

[16] Id. at 61.

[17] Id. at Majority Op. 62-63.

[18] Id. at Concurring Op. 4.

[19] Id. at 5.

[20] Id. at 6 (quoting Stilp v. Commonwealth, 905 A.2d 918, 967 (Pa. 2006)).

[21] Id. at 19.

[22] See id. at Majority Op. 65-66 (quoting Pa. Const. art. VII, § 4).

[23] Id. at Concurring Op. 19.

[24] Id. at Dissenting Op. 3 (Mundy, J., dissenting).

[25] Id. at 10.

[26] Id.

[27] Id. at 11.

[28] Id. at 12 (“it was not so egregiously wrong as to present an exception to the doctrine of stare decisis, nor has it lost its precedential weight through the passage of time notwithstanding that a majority of this Court disapproves of the outcome”).

[29] See, e.g., id. at 13, 15-16; see also id. at 17 (“The history of absentee voting in Pennsylvania as briefly sketched above confirms that the electorate has always understood that any expansion of the franchise on an absentee basis can only be accomplished through an amendment to the Constitution.”).

[30] Id. at 24 (Mundy, J., dissenting).

[31] Id. at Dissenting Op. 4 (Brobson, J., dissenting).

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