The Pennsylvania General Assembly passed Act 77, a “voter reform act” in October 2019, which brought new election procedures, such as no-excuse mail-in voting and ballot drop boxes. Since then, these procedures have been the subject of lawsuits around the state. Among them is the case of 14 Republican members of the Pennsylvania House of Representatives, who are asking the court to overturn Act 77.
The Commonwealth Court denied the request in a June 27 opinion, but Pittsburgh Attorney Greg Teufe of OGC Law, who represents the 14 lawmakers, still believes they have a case and intends to appeal the decision to the Pennsylvania Supreme Court.
To understand the argument, it is important to know how Act 77 was negotiated in the legislature.
“It was a negotiated law— a bargain between the Democrats and the Republicans—with the key elements that the Democrats cared about, and key elements that Republicans cared about,” Mr. Teufe told The Epoch Times. “They included what’s called a non-severability provision … if any provisions in this act, or its application to any person or circumstances is held invalid, the remaining provisions or application of this Act are void.”
If part of the act becomes invalid, the entire act is invalid, the non-severability provision is key to the argument. The 14 lawmakers believe that in another case, regarding mail-in voting, Act 77 had a key provision severed.
Act 77 requires mail-in ballots to be placed in an envelope that voters must sign and date. When some voters missed this step, Republicans said the ballots were invalid and should not be counted; Democrats said the ballots without the valid date and signature should be counted to prevent disenfranchising voters.
In November 2022, the Pennsylvania Supreme Court ordered county boards of elections not to count mail-in and absentee ballots received for the November 8, 2022 General Election if their return envelopes were undated or incorrectly dated.
The state Supreme Court explained why that relief was granted in its Feb. 8, 2023 opinion, saying requiring a date in Act 77 was “unambiguous and mandatory” which made any absentee and mail-in ballot returned in an undated envelope invalid.
But in two other cases, Chapman v. Berks County Board of Elections, and Ritter v. Migliori, courts said undated ballots should be counted. The Third Federal Circuit Court said in the Migliori case, not counting the ballots would be a violation of the Civil Rights Act of 1964. The U.S. Supreme Court later declared the case moot because the election was over and had been certified.
“In Berks County, they said, ‘We agree with Migliori, that this dating provision, if it were enforced as mandatory, that would violate the materiality provision of the Civil Rights Act of 1964,” Mr. Teufe said. “And therefore, federal law blocks the application of a mandatory dating requirements, because effectively they’re saying it isn’t material enough to justify throwing out a vote, and therefore under federal law, you’re not allowed to do it. And that very clearly invalidated the application of the dating provision to any person or circumstance in Pennsylvania. It reduced what we argued was a mandatory provision.”
That he says, should cause Act 77 to be overturned.
But in the June 27 opinion, the Commonwealth Court said that although prior courts offered their “interpretation” of the law, Act 77 is still the state law.
“It’s true, they didn’t use the words, ‘We are invalidating this provision,’ they didn’t say ‘It is hereby stricken from statute.’ But they declared that it was unlawful to apply it in any circumstance. They reduced it to a suggestion to the voters,” Mr. Teufe said. “The substance of what they did was refuse views to apply—invalidate—the dating provision, thereby triggering the non-severability provision, thereby requiring that they void the rest of Act 77. And if they don’t, it’s a massive bait and switch because this was a package deal. They are slicing out of the package the dating provision, and they’re leaving the rest of the deal intact, and undermining the legislative process. Legislators from this case forward, if this isn’t overturned by the Supreme Court, can’t rely on package deals with each other in legislative proposals.”
The 14 Republican state representatives who brought this case are Timothy Bonner, 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.
“Many other laws have been passed with, with non-severability as well, and if we’re not going to honor it in this case, then it could be challenged in any other law, and that’s a fundamental reason for doing this,” Rep. Zimmerman told The Epoch Times. “If we don’t uphold this one, then that puts other laws jeopardy. There are quite a few pieces of legislation that we passed that have the same thing and right in the law itself.
“This whole idea of these mail-in ballots being dated and signed—our secretary of state ended up throwing all that out and says, ‘Well, it doesn’t matter if they’re signed or dated. We don’t care about that.’ But it’s very clear in the law, that that the whole thing gets thrown out if we violate any of it. And we’re currently violating it by not having a date and signed and accepting it.”