Hangley Aronchick attorneys Robert Wiygul, John Hill and Nicholas Bellos, representing the Pennsylvania Department of State, successfully defended—for the second time—a challenge to Act 77. The legislation reformed Pennsylvania election law in a number of ways. Perhaps most significantly, Act 77 gave all qualified Pennsylvania voters the right to vote by mail.
In 2021, a group of petitioners argued that the Pennsylvania Constitution prohibited the General Assembly from authorizing no-excuse mail-in voting, and that Act 77 was therefore invalid. Hangley Aronchick represented the Department of State in that litigation and successfully defended the statute. In August 2022, the Pennsylvania Supreme Court rejected the petitioners’ constitutional challenge and upheld no-excuse mail-in voting.
In July 2022, some of the same petitioners filed a second lawsuit seeking to invalidate mail-in voting based on a different theory. The petitioners argued that earlier judicial decisions—which held that mail-in ballots could not be rejected based solely on a voter’s failure to handwrite a date on the outside of the ballot-return envelope—triggered Act 77’s non-severability clause. Non-severability clauses tell courts that the legislature views certain provisions of a statute as inextricably intertwined with others, and that if a court invalidates one of these “non-severable” provisions, the legislature believes the others should be invalidated as well. According to the petitioners’ interpretation of Act 77’s non-severability clause, the earlier decisions regarding handwritten dates required the court to strike down the entirety of Act 77, including the provision allowing no-excuse mail-in voting.
On June 27, 2023, a five-judge en banc panel of the Pennsylvania Commonwealth Court unanimously granted the Secretary and Department of State’s application for summary relief, dismissing the petitioners’ lawsuit premised on Act 77’s non-severability clause. The court’s decision once again upholds Pennsylvanians’ access to no-excuse mail-in voting.
The decision is covered in Law360 and the Philadelphia Inquirer.
