The consolidated lawsuits McLinko v. Commonwealth and Bonner v. Commonwealth are state constitutional challenges to Act 77 of 2019. That law implemented numerous election law reforms, including no-excuse absentee voting, or what is sometimes called vote-by-mail. The challengers, who are, were, or will be candidates for office and Republican legislators, argue that the Pennsylvania Constitution restricts who can vote absentee to only those explicitly named in the constitution.

In January 2022, the Commonwealth Court ruled in favor of the challengers, finding that vote-by-mail is unconstitutional. The commonwealth appealed that ruling to the state Supreme Court, which will hear oral arguments on March 8.

The ACLU of Pennsylvania is not a party to the case but filed an amicus brief with Public Interest Law Center and Professor Jessie Allen of the University of Pittsburgh School of Law. In the brief, ACLU-PA and its co-counsel argue that the state constitution mandates absentee voting for those named in the constitution but does not preclude the legislature from expanding vote-by-mail to other groups of people. The constitution is a floor for the rights that must be respected; it is not a ceiling limiting expansion of rights by the legislature. In fact, numerous categories of absentee voters have been added even before the passage of Act 77 by legislation and case law, including spouses of members of the military, people who are on vacation on Election Day, and people detained in jail before trial.

For the 2020 general election, in the midst of the COVID-19 pandemic, nearly three million Pennsylvanians utilized mail-in voting, and vote-by-mail has been available for voters in four elections since the passage of Act 77 in October 2019.

Attorney(s)

Witold J. Walczak and Marian Schneider, ACLU of PA; Benjamin Geffen and Mary McKenzie, Public Interest Law Center; Professor Jessie Allen, University of Pittsburgh School of Law

Court

Supreme Court of Pennsylvania

Status

Amicus Brief