Court finds Pennsylvania mail-in voting law unconstitutional

Law was challenged by Doug McLinko, vice chair of the Bradford County Board of Commissioners, who argued he was unable to perform his duties as commissioner and certify the 2020 election because the 2019 law is unconstitutional.

Updated: January 28, 2022 - 12:15pm

The Facts Inside Our Reporter’s Notebook

The Commonwealth Court of Pennsylvania on Friday found the state's mail-in voting law unconstitutional.

The lawsuit was filed by Doug McLinko, vice chairman of the Bradford County Board of Commissioners in Pennsylvania. His argument was that he was unable to perform his duties as commissioner and certify the 2020 election because Pennsylvania's 2019 election reform law is unconstitutional.

McLinko describes the Trump-Biden election after this law as a "mess" and told Just the News, "Our votes were just thrown away."

In October 2019, Act 77 was signed into law by Democratic Gov. Tom Wolf with support from both parties. The law, described by PennLive "as the most significant change to Pennsylvania's election laws in more than 80 years," greatly expands mail-in voting by allowing a citizen to vote by mail without an excuse. It also allocated $90 million to buy new voting machines and ended straight party voting, forcing Pennsylvanians to actively vote for each candidate on the ballot, rather than make one mark to vote for all candidates of a specified party.

The executive director of the left-leaning election organization Deliver My Vote, Leigh Chapman, was nominated by Wolf to serve as acting Secretary of State starting earlier this month. She will supervise the state's elections. 

The act "should have been put on the ballot, and the constitution should have been changed to allow it, like bulk case laws," the Bradford County Commissioner said.

The legal victory "may spur people to take a harder look at their own state, how they enacted the laws, so forth," attorney and former CIA officer Sam Faddis told Just the News. "At a minimum, it's a massive psychological boost."

Faddis said he feels that part of Biden's large share of Pennsylvania votes is "unfortunately fraud."

"That's one of the clear reasons the Democratic party has always pushed mail-in voting, is to get those folks who won't bother to vote," he told Just the News. "Because even if you hated Trump, nobody was really psyched about Joe Biden. I mean, it's very hard, very hard to get motivated about him."

"In exchange for Democratic support for ending straight party voting, the Republican establishment gave the Democrats mail-in voting" in Pennsylvania, Faddis wrote in AND Magazine.

"The boys in the backrooms in the state capital believed that Donald Trump was so unpopular people would show up and simply vote against all Republicans," Faddis wrote. In an effort to repeal straight party voting, the Pennsylvania GOP "engaged in some good old-fashioned political horse trading."

State Rep. David Zimmerman (R-East Earl) told Just the News he agrees. "It was kind of sold by Republican leadership to the Republican caucus that taking out straight-party voting will be a huge, huge improvement somehow, which, frankly, I was also opposed to that," he said.

In Pennsylvania's last election with straight ticket voting in 2019, more than 726,000 ballots (37% of all votes cast) were straight party, according to PennLive. During that election, "Of those who voted straight party, 51% indicated they were voting straight Republican and 48% straight Democratic," the Philadelphia Inquirer reported. "Despite making that choice, election directors pointed out that some may have split their ticket by then changing their vote for a candidate to a different party.”

The law was passed before the global pandemic, but McLinko said he knew it would cause problems. "A soon as they passed it, pre-COVID, I called the [GOP] state chairman," he recounted. "I said, 'What the hell did they do?'"

McLinko said 30 election officials across the state stepped down due to the act. "It's just the way it was handled," he told Just the News. "It was a wreck, and they don't need it.”

The act received wide support from Pennsylvania Republicans, and McLinko is facing GOP resistance. "I am fighting the Republican establishment, and that's my point with Harrisburg," the Bradford County Commissioner said. "I don't even like being around them. They're out of touch."

"This nonsense that somehow we're supposed to coddle everybody to get a vote is about as un-American as it gets," McLinko said. "You know, you get off your duff, and you go vote. If you can't go vote, you get an absentee ballot. America needs to wake up. They need to question their state representatives and their legislators."

The Inquirer described McLinko's case as possibly Act 77's "most serious court challenge yet," and it has "some Democrats quietly worried."

McLinko did certify the 2020 Pennslyvania primary elections, however, because "they weren't statewide," he explained. "There wasn't a mess. There were local, they were tight." The new election law was not in place yet, but would be for the general election. 

"People lost confidence in the whole vote last year," he said. "I did, and I did not certify it."

Fourteen state House Republicans filed a lawsuit against Act 77 in August: Reps. Timothy Bonner, P. Michael Jones, David Zimmerman, Barry Jozwiak, Kathy Rapp, David Maloney, Barbara Gleim, Robert Brooks, Aaron Bernstine, Timothy Twardzik, Dawn Keefer, Dan Moul, Francis Ryan, and Donald "Bud" Cook. Only Zimmerman opposed the legislation when it was proposed in 2019, while Twardzik and Bonner were not in office at the time.

The cases were combined, and an amicus curiae brief was filed by the representatives in support of McLinko.

Acting Secretary of State Chapman argued that McLinko's petition was not filed timely and should be dismissed. She wanted the petition dismissed with prejudice or because it lacked merit.

Zimmerman told Just the News: "That whole [law] was unconstitutional … It should have went to the voters."

Shortly after the court decision was announced, McLinko told Just the News: "I am really, really happy today. I want to thank Sean Parnell for introducing me to [attorney Walter Zimmerman]. It's a great day for common people, because common people can say, 'Enough is enough.'

"If one guy from one county in one state can stand up and make a difference, everybody in this nation can stand up and make a difference. This is about people taking back control of the ballot box of all parties."

The case is expected to be appealed. McLinko is keeping voters up to date on the case through his website, ballotsecuritynow.org, where they can also donate to help with his legal fees.

State officials across the country, including many in GOP-run states, have said they have found no evidence of widespread fraud in the November 2020 election that could have altered the outcome. However, several states have acknowledged serious irregularities or unlawful changes to election rules occurred in 2020.

For instance. Wisconsin's Supreme Court has ruled election regulators unlawfully allowed tens of thousands of absentee voters to skip voter ID checks by claiming they were "indefinitely confined" by the pandemic without suffering from a disabillity. And Wisconsin's legislative audit bureau found numerous other rule changes were made that were not approved by the state Legislature.

In Arizona, an audit called into question more than 50,000 ballots cast in the November 2020 election, while in Georgia state election officials have uncovered such widespread mismanagement in vote counting in Fulton County, the state's largest, that they have begun a process to have the state run future elections in the locality, which includes the city of Atlanta.

Just the News Spotlight