McLinko v. Commonwealth

• Docket Number: 14 MAP 2022, No. 15 MAP 2022, No. 17 MAP 2022, No. 18 MAP 2022, No. 19 MAP 2022
• Decision Date: 02 August 2022
• Citation: 279 A.3d 539
• Parties: Doug MCLINKO, Appellee v. Commonwealth of Pennsylvania, DEPARTMENT OF STATE ; and Leigh M. Chapman, in Her Official Capacity as Acting Secretary of the Commonwealth of Pennsylvania, Appellants Timothy R. Bonner, P. Michael Jones, David H. Zimmerman, Barry J. Jozwiak, Kathy L. Rapp, David Maloney, Barbara Gleim, Robert Brooks, Aaron J. Bernstine, Timothy F. Twardzik, Dawn W. Keefer, Dan Moul, Francis X. Ryan, and Donald "Bud" Cook, Appellees v. Leigh M. Chapman, in her official capacity as Acting Secretary of the Commonwealth of Pennsylvania, and Commonwealth of Pennsylvania, Department of State, Appellants Doug McLinko v. Commonwealth of Pennsylvania, Department of State ; and Leigh M. Chapman, in her official capacity as Acting Secretary of the Commonwealth of Pennsylvania Cross Appeal of: York County Republican Committee, Washington County Republican Committee, Butler County Republican Committee Timothy R. Bonner, P. Michael Jones, David H. Zimmerman, Barry J. Jozwiak, Kathy L. Rapp, David Maloney, Barbara Gleim, Robert Brooks, Aaron J. Bernstine, Timothy F. Twardzik, Dawn W. Keefer, Dan Moul, Francis X. Ryan, and Donald "Bud" Cook v. Leigh M. Chapman, in her official capacity as Acting Secretary of the Commonwealth of Pennsylvania, and Commonwealth of Pennsylvania, Department of State Cross Appeal of: York County Republican Committee, Washington County Republican Committee, Butler County Republican Committee Timothy R. Bonner, P. Michael Jones, David H. Zimmerman, Barry J. Jozwiak, Kathy L. Rapp, David Maloney, Barbara Gleim, Robert Brooks, Aaron J. Bernstine, Timothy F. Twardzik, Dawn W. Keefer, Dan Moul, Francis X. Ryan, and Donald "Bud" Cook, Cross Appellants v. Leigh M. Chapman, in her official capacity as Acting Secretary of the Commonwealth of Pennsylvania, and Commonwealth of Pennsylvania, Department of State, Appellees
• Court: Pennsylvania Supreme Court

279 A.3d 539

Doug MCLINKO, Appellee

v.Commonwealth of Pennsylvania, DEPARTMENT OF STATE ; and Leigh M. Chapman, in Her Official Capacity as Acting Secretary of the Commonwealth of Pennsylvania, Appellants

Timothy R. Bonner, P. Michael Jones, David H. Zimmerman, Barry J. Jozwiak, Kathy L. Rapp, David Maloney, Barbara Gleim, Robert Brooks, Aaron J. Bernstine, Timothy F. Twardzik, Dawn W. Keefer, Dan Moul, Francis X. Ryan, and Donald "Bud" Cook, Appellees

v.Leigh M. Chapman, in her official capacity as Acting Secretary of the Commonwealth of Pennsylvania, and Commonwealth of Pennsylvania, Department of State, Appellants

Doug McLinko

v.Commonwealth of Pennsylvania, Department of State ; and Leigh M. Chapman, in her official capacity as Acting Secretary of the Commonwealth of Pennsylvania

Cross Appeal of: York County Republican Committee, Washington County Republican Committee, Butler County Republican Committee

Timothy R. Bonner, P. Michael Jones, David H. Zimmerman, Barry J. Jozwiak, Kathy L. Rapp, David Maloney, Barbara Gleim, Robert Brooks, Aaron J. Bernstine, Timothy F. Twardzik, Dawn W. Keefer, Dan Moul, Francis X. Ryan, and Donald "Bud" Cook

v.Leigh M. Chapman, in her official capacity as Acting Secretary of the Commonwealth of Pennsylvania, and Commonwealth of Pennsylvania, Department of State

Cross Appeal of: York County Republican Committee, Washington County Republican Committee, Butler County Republican Committee

Timothy R. Bonner, P. Michael Jones, David H. Zimmerman, Barry J. Jozwiak, Kathy L. Rapp, David Maloney, Barbara Gleim, Robert Brooks, Aaron J. Bernstine, Timothy F. Twardzik, Dawn W. Keefer, Dan Moul, Francis X. Ryan, and Donald "Bud" Cook, Cross Appellants

v.Leigh M. Chapman, in her official capacity as Acting Secretary of the Commonwealth of Pennsylvania, and Commonwealth of Pennsylvania, Department of State, Appellees

No. 14 MAP 2022

No. 15 MAP 2022

No. 17 MAP 2022

No. 18 MAP 2022

No. 19 MAP 2022

Supreme Court of Pennsylvania.

Argued: March 8, 2022

Decided: August 2, 2022

Irwin William Aronson, Esq., Willig, Williams & Davidson, for Amicus Curiae Pennsylvania AFL-CIO.

Matthew C. Forys, Esq., Linda Ann Kerns, Esq., Philadelphia, Law Offices of Linda A. Kerns, LLC, Michael J. O'Neill, Esq., for Amicus Curiae Landmark Legal Foundation.

Kathleen A. Gallagher, Esq., Russell David Giancola, Esq., Gallagher Giancola LLC, for Amicus Curiae Honest Elections Project.

Benjamin David Geffen, Esq., Philadelphia, Mary M. McKenzie, Esq., Philadelphia, Public Interest Law Center, Marian Karen Schneider, Esq., Witold J. Walczak, Esq., American Civil Liberties Union of Pennsylvania, for Amicus Curiae Molly Mahon et al.

Claude Joseph Hafner II, Esq., Ronald N. Jumper Jr., Esq., Harrisburg, Shannon Amanda Sollenberger, Esq., Pennsylvania State Senate, for Amicus Curiae Sen. Jay Costa.

Tara Lynn Hazelwood, Esq., Christopher J. King, Esq., Matthew S. Salkowski, Esq., Lam Dang Truong, Esq., Pennsylvania House of Representatives, for Amicus Curiae Rep. Joanna E. McClinton.

Ronald Lee Hicks Jr., Esq., Porter Wright Morris & Arthur, LLP, for Amici Curiae Citizens United, Citizens United Foundation & Presidential Coalition, LLC in Docket No: 14 MAP 2022.

Jeremy Allen Mercer, Esq., Porter Wright Morris & Arthur, LLP, for Amici Curiae Citizens United, Citizens United Foundation & Presidential Coalition, LLC in Docket No: 15 MAP 2022.

Rachel Jag, Esq., Jessica H. Steinmann, Esq., Craig Trainor, Esq., for Amicus Curiae America First Policy Institute (AFPI).

Michael Wu-Kung Pfautz, Esq., City of Philadelphia, for Amicus Curiae Philadelphia County Board of Elections.

Jacob Biehl Boyer, Esq., Stephen Moniak, Esq., Karen Mascio Romano, Esq., Joshua D. Shapiro, Esq., John Bartley Delone, Pennsylvania Office of Attorney General, Harrisburg, PA, Norman L. Eisen, Esq., John Brent Hill, Esq., Caroline Layne Rice, Esq., Hangley, Aronchick, Segal, Pudlin & Schiller, Kenneth Lawson Joel, Esq., Pennsylvania Governor's Office of General Counsel, Joshua Matz, Esq., Dimitrios Mavroudis, Esq., Joe H. Tucker Jr., Esq., Philadelphia, Tucker Law Group, LLC, Jessica Ann Rickabaugh, Esq., Christine P. Sun, Esq., Robert Andrew Wiygul, Esq., Philadelphia, for Appellants Leigh Chapman, Commonwealth of Pennsylvania, Department of State.

Kathleen Marie Kotula, Esq., Pennsylvania Department of State, for Appellant Commonwealth of Pennsylvania, Department of State, Appellee Kathleen Kotula.

Christopher E. Babbitt, Esq., Alex Michael Lacey, Esq., Clifford B. Levine, Esq., Pittsburgh, Emma Frances Elizabeth Shoucair, Esq., Dentons Cohen Grigsby, Daniel S. Volchok, Esq., Seth P. Waxman, Esq., for Appellees Democratic National Committee, Pennsylvania Democratic Party.

Thomas E. Breth, Esq., Cranberry Township, Thomas W. King III, Esq., Cranberry Township, Jordan Peter Shuber, Esq., Dillon McCandless King Coulter & Graham, LLP, for Appellees Butler County Republican Committee, York County Republican Committee, Washington County Republican Committee.

Harmeet K. Dhillon, Esq., Michael Richard Dimino, Esq., Widener University, Walter S. Zimolong III, Esq., Wayne, Zimolong LLC, for Appellee Doug McLinko in Docket Nos: 14 MAP 2022, 17 MAP 2022.

Gregory Hugh Teufel, Esq., OGC Law, LLC, for Appellee Timothy R. Bonner.

BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE DONOHUE

This is a case that is steeped in the history of this Commonwealth and the development of its Constitution. More than one hundred years ago, this Court recognized that our Constitution mandates that elections be free and equal, but that the "[t]he power to regulate elections is a legislative one, [which] has been exercised by the General Assembly since the foundation of the government." Winston v. Moore , 91 A. 520, 522-23 (Pa. 1914). Before the Court now is a question of whether the General Assembly overstepped the bounds of this power and violated our Constitution when it enacted legislation that allows for universal mail-in voting. For the reasons that follow, we find no constitutional violation, and so we reverse the order of the Commonwealth Court.

A. Background

The legislation at issue in this case is the Act of October 31, 2019, P.L. 552, No. 77, commonly referred to as "Act 77." Act 77 effected major amendments to the Pennsylvania Election Code.¹ Although its provisions establishing state-wide, universal mail-in voting are the subject of this appeal, see 25 P.S. §§ 3150.11 - 3150.17, these are only a fraction of the scope of the Act. For instance, Act 77 eliminated the option for straight-ticket voting;² moved the voter registration deadline from thirty to fifteen days before an election; allocated funding to provide for upgraded voting systems; and reorganized the pay structure for poll workers, along with other administrative changes. Act 77 was an enormously popular piece of legislation on both sides of the aisle. In the state Senate, Act 77 passed 35-14, with Republicans voting 27-0 in favor along with eight Democrats. Charlie Wolfson, Trump Politicized Mail-In Voting in 2020, But it Came to PA with Strong Republican Support , PUBLICSOURCE (Dec. 10, 2020), https://www.publicsource.org/trump-politicized-mail-in-voting-in-2020-pa-republicans-supported-it-originally/. In the state House of Representatives, it passed 138-61, with 105 Republicans and thirty-three Democrats voting in favor of it. Id. As put by Bryan Cutler, Pennsylvania's House Majority Leader at the time,

[Act 77] was not written to benefit one party or the other, or any one candidate or single election. It was developed over a multi-year period, with input from people of different backgrounds and regions of Pennsylvania. It serves to preserve the integrity of every election and lift the voice of every voter in the Commonwealth.

House Republican Caucus, Historic Election Reform , http://www.pahousegop.com/electionreform (last visited, July 11, 2022) (quoting Bryan Cutler, then-House Majority Leader). Act 77 was the result of years of careful consideration and debate that began in 2017 with a series of hearings, ultimately spanning twenty-seven months, on the reform and modernization of elections in Pennsylvania. Stephen E. Friedman, Mail-In Voting and the Pennsylvania Constitution , 60 DUQ. L. REV. 1, 6 (2022). With a bi-partisan majority of the General Assembly voting in favor of Act 77, Governor Wolf signed it into law on October 31, 2019. See Press Release, Governor Wolf Signs Historic Election Reform Bill Including New Mail-In Voting (Oct. 31, 2019).

With specific regard to the universal mail-in provisions, Act 77 for the first time allowed all qualified voters to cast their vote by mail. Prior to Act 77's enactment, a voter was required to establish that he or she fit the criteria of an absentee voter to be able to cast a ballot by mail. As we discuss at greater length in this opinion, absentee voting has a long history in the Commonwealth, dating to 1864. At the time of its inception, 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. Both the categories of qualified voters who are permitted to cast absentee ballots and the methods for casting absentee ballots have changed over the intervening century and a half. However, since 1963, a qualified voter has been able to receive and return an absentee ballot through the mail.³ Act 77's universal mail-in provisions extended the ability to receive and return a ballot through the mail to the electorate without the excuse of absenteeism. See 25 P.S. §§ 3150.11 - 3150.17.

Act 77 became effective immediately upon its October 31, 2019 enactment, allowing the Department of State and local election boards alike to notify the electorate about universal mail-in voting, which would be available for the April 2020 Primary Election.⁴ Within months after the passage of Act 77, the COVID-19 pandemic began its spread across the world. See Derrick Bryson Taylor, A...