Commonwealth Court: No Excuse Absentee Voting Requires Constitutional Amendment in Pennsylvania

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By David McPeak, Editor in Chief

In 2019, Act 77 established no-excuse absentee voting in Pennsylvania. The law provided opportunity for Pennsylvania electors to cast an absentee ballot without having to provide one of the enumerated excuses in the Pennsylvania Constitution for why they must be absent from their polling place on election day.[1] However, in McLinko v. Dept. of State, the Pennsylvania Commonwealth Court recently ruled that the legislature lacked authority to create a new “no-excuse” exception without first putting the question to voters in a constitutional amendment. In deciding whether Act 77 is constitutional, the court’s analysis is unconcerned with whether no-excuse absentee voting is good or bad policy.[2] Rather, the court concentrates on what the text of the State’s Constitution says about voting methods and how that language has been interpreted by the Pennsylvania Supreme Court. That analysis showed that—at least since the 1860’s—the Pennsylvania Constitution has required that voters cast their ballot in person, at a designated voting place, on election day.[3] That interpretation dates back to the Court’s decision in Chase v. Miller, a Civil War era case which held that any exception to in-person voting must be provided for in the Pennsylvania Constitution. Since then, other attempts to chip away at the in-person voting requirement without a constitutional amendment have been struck by the Pennsylvania Supreme Court.

In an opinion written by Judge Mary Hannah Leavitt, the court determined that Act 77’s no-excuse exception essentially nullifies the State Constitution’s in-person vote requirement and conflicts with the enumerated exceptions that have been properly provided for by constitutional amendment. Holding otherwise, as the court reasoned, would mean the arduous amendment process that provided for the current enumerated exceptions was a pointless endeavor if the legislature is empowered to simply override the constitutional text.[4]

Judge Leavitt’s opinion takes time to teach some of the lessons of historical voting methods that created the need for the higher constitutional safeguards at issue in McLinko. In the colonies for example, voice votes required a public declaration that subjected voters to intimidation.[5] This changed in 1790, when the Pennsylvania Constitution was amended to require all votes be cast on a paper ballot.[6] In most states, including Pennsylvania, this was accomplished by using “party tickets” that were distinctive in appearance and subjected voters to heckling and harassment by political operatives.[7] The continued need to relieve voters of these various connivances required a constitutional guarantee that a person’s vote would be secret. That principle was enshrined into the Pennsylvania Constitution in 1901 by requiring “All elections by the citizens shall be by ballot or by such other method as may be prescribed by law: Provided, That secrecy in voting be preserved.”[8] Thus, secrecy became a bedrock principle to ensure free and fair exercise of the franchise. Uniform paper ballots, cast in-person at the voter’s precinct, in a booth, where political operatives could not campaign or solicit votes, enabled the state to accord citizens this fundamental constitutional protection when voting.[9] Moreover, “offering to vote” in one’s appropriate election district and among neighbors protected the franchise from fraud.[10] All of these constitutional reforms served to advance confidence that election outcomes reflected the voters’ actual choice. 

The Pennsylvania Supreme Court’s interpretation of the in-person vote requirement stems from legislative efforts to provide a method of voting to people who could not physically attend their polling place on election day. Voting while absent from one’s polling place, that is, absentee voting, was not permitted in Pennsylvania until the legislature carved out a very narrow exception for soldiers who could not vote on account of their military service obligations.[11] This exception under the Military Absentee Act of 1839, however, was inconsistent with the constitutional requirement that electors “offer to vote” at their proper polling place.[12] The law was challenged during an 1862 district attorney race when it became clear that 420 Union soldier absentee votes would determine the outcome.[13] In Chase v. Miller, the Pennsylvania Supreme Court interpreted Article VII, § 1 of the State Constitution to require in-person voting.[14] Under that provision, those entitled to the franchise could “offer to vote” in the election district where “he or she shall have resided” 60 days before “the election.”[15] This, the Court held, means presenting yourself at the properly designated voting precinct where you live.[16] The Court found that the express language of the  Military Absentee Act allowing military service members to vote “at such place as may be appointed by the commanding officer” directly conflicted with the constitutional command, since it necessarily meant the elector would not “offer to vote” in the election district of their residence.[17] The Court held that the Military Absentee Act of 1839 was void because the legislature could not nullify that requirement by itself, without first amending the constitutional language. The Court lamented that this ruling necessarily meant tossing 420 absentee soldier votes, handing the election to the challenger.[18] Undeterred by the rulings effect on such a “meritorious class of voters” however, the Court was steadfast in its reasoning, stating “[o]ur business is to expound the constitution and laws of the country as we find them written. We have no bounties to grant to soldiers, or anybody else.”[19] Since then, established precedent in Pennsylvania has said that any innovations to in-person voting first need to be provided for by the people through a constitutional amendment.[20]

In 1923, another attempt to modify the in-person voting requirement was struck for circumventing the necessary constitutional amendment process. The 1923 Absentee Voting Act allowed an exception to in-person voting for citizens outside the state because of business or occupation.[21] At the time however, the only constitutional exception to in-person voting was for military service members, which was provided for by constitutional amendment after the decision in Chase v. Miller.[22] A familiar pattern emerged, where a significantly close race would be determined by absentee votes cast under the 1923 Act. In a Lancaster city councilman’s race, after all the ballots were tallied, the Republican candidate was ahead by only nine votes.[23] The Democrat candidate challenged the count, arguing that the only voters qualified to vote absentee were military service members, and that any other absentee vote was illegal.[24] The Pennsylvania Supreme Court agreed. In Lancaster City, the Court held that the 1923 Act violated the Pennsylvania Constitution and once again determined an election outcome after it excluded absentee votes that did not qualify for the military service in-person voting exception.[25]

In McLinko, the Commonwealth Court found Act 77’s provision for no-excuse absentee voting unconstitutional for the same reasons established in Chase v. Miller and Lancaster City. According to the court, that precedent means the legislature is only currently empowered to give alternative options to those unable to vote in-person because of their (1) duties, occupation, or business; (2) an illness or physical disability; (3) the observance of a religious holiday; or (4) Election Day duties.[26] These exceptions are the only ones enumerated in the State Constitution and no-excuse is not among them. 

The Pennsylvania Department of State (DOS) unsuccessfully defended Act 77 in the lawsuit, focusing on various procedural grounds that it claimed barred Petitioners from relief.[27] On the merits, DOS asserted that Petitioners were incorrectly interpreting the constitutional language.[28] The DOS claimed that the Pennsylvania Constitution permits the legislature to provide for any voting method, as long as that method maintains secrecy.[29] And in any event, DOS urged that Act 77’s no-excuse absentee voting provision did not actually provide an additional absentee voting option, arguing that Act 77 effectively just provides an additional way to vote within a citizens’ election district.[30] DOS further urged the Commonwealth Court to disregard the Pennsylvania Supreme Court decisions in Chase and Lancaster City as “wrongly decided and irreconcilable with modern principles of constitutional interpretation.”[31] These arguments were unavailing in Commonwealth Court, but they may be more persuasive on appeal in the Pennsylvania Supreme Court—which is less constrained by the doctrine of stare decisis then lower courts when following its own precedent. The Commonwealth Court’s decision in McLinko is currently stayed while the Pennsylvania Supreme Court considers an appeal.

[1] McLinko v. Dept. of State, 270 A.3d 1243, 1248 (Pa. Commw. Ct. 2022). 

[2] Id.

[3] Id. at 1260.

[4] Id. at 1264.

[5] Id. at 1254. 

[6] Id. 

[7] Id. at 1255. 

[8] McLinko v. Dept. of State, 270 A.3d 1243, 1256 (Pa. Cmmw. 2022) (citing Pa. Const. art. VIII, § 4 (1901)). 

[9] Id.

[10] McLinko v. Dept. of State, 270 A.3d 1243, 1252 (Pa. Cmmw. 2022) (quoting Chase, 41 Pa. at 418). 

[11] Id. at (discussing Military Absentee Act of 1839). 

[12] Id.

[13] Id. at 1252. 

[14] Chase v. Miller, 41 Pa. 403, 419 (1862) (interpreting Pennsylvania Constitution to mean “…that the voter, in propria persona, should offer his vote in an appropriate election district…”). 

[15] McLinko v. Dept. of State, 270 A.3d 1243, 1251 (Pa. Cmmw. 2022) (quoting Chase v. Miller, 41 Pa. 403 (1862)). 

[16] Id. at 1252. 

[17] Id. 

[18] Id.

[19] Chase v. Miller, 41 Pa. 403, 428 (1862). 

[20] The most recent constitutional amendment that expanded absentee voting in Pennsylvania was adopted in 1985 and gave the legislature authority to provide an alternative method of voting to citizens unable to attend their polling place because of a religious holiday or because of Election Day duties. McLinko v. Commonwealth, 270 A.3d 1243, 1259 (Pa. Commw. Ct. 2022) (citing Pa. Const. Art. VII, § 14). 

[21] McLinko v. Commonwealth, 270 A.3d 1243, 1253 (Pa. Commw. Ct. 2022) (discussing 1923 Absentee Voting Act).

[22] McLinko v. Commonwealth, 270 A.3d 1243, 1253 (Pa. Commw. Ct. 2022) (citing In re Contested Election, 126 A. 199, 200 (Pa. 1924)). 

[23] Id.

[24] Id.

[25] See, In re Contested Election of Fifth Ward of Lancaster City, 126 A. 199 (Pa. 1924).

[26] McLinko v. Dept. of State, 270 A.3d 1243, 1260 (Pa. Cmmw. 2022) (citing Pa. Const. art. VII § 14(a)). 

[27] Respondent DOS claimed that Act 77 was exempt from constitutional challenges given the Legislature provided a 180-day window after the Act passed, for challengers to seek declaratory judgments on the Act’s constitutionality in the Pennsylvania Supreme Court. The Commonwealth Court opinion strongly disagreed that the legislature could ever insulate itself from the scrutiny of a court with jurisdiction. According to Judge Leavitt, the 180-day limit on declaratory judgments in the Supreme Court was simply a provision addressing subject matter jurisdiction for a prescribed amount of time, not a statute of limitations for constitutional challenges. DOS also argued unsuccessfully that standing and laches bared Petitioners’ claims. See, McLinko v. Dept. of State, 270 A.3d 1243, 1265 – 1272 (Pa. Cmmw. 2022). 

[28] Resp.’s Mem in Opp. at 32 – 46.

[29] Id.

[30] Resp.’s Mem in Opp. at 49. 

[31] Id. 

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