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- In 2019, the GOP-led Pennsylvania General Assembly passed Act 77, which included no-excuse mail voting.
After Trump lost the Nov. 3 election, Republicans filed a case arguing that the mail-in ballot provisions were illegal. The state Supreme Court dismissed the petition as untimely.
A Pennsylvania court ruled Jan. 28, 2022, that Act 77 was unconstitutional and that establishing no-excuse mail voting would require a constitutional amendment. The ruling, which is being appealed, doesn’t change the fact that Biden won Pennsylvania.
A Pennsylvania court ruled that a 2019 change to the state’s mail-in voting rules was unconstitutional, prompting social media users to distort the ruling to falsely suggest that Joe Biden lost the battleground state in 2020.
"Pennsylvania had 2.6 million mail in votes that the court of appeals of PA held to be unconstitutional. Umm that alone means Biden lost PA. Will anything be done about this?" states a Jan. 28 Facebook post, the same day as the court ruling.
The post was flagged as part of Facebook’s efforts to combat false news and misinformation on its News Feed. (Read more about our partnership with Facebook.)
The post misstates what the ruling says, and what it means.
"Think of it this way: The court held the law to be unconstitutional, not the votes," said Bruce Ledewitz, an expert on the state and federal constitutions at Duquesne University School of Law in Pittsburgh.
If the author of the post is asking whether anything will be done related to Biden’s victory, the answer is no. Biden beat Donald Trump in Pennsylvania by about 80,000 votes, and the results were certified by the state and accepted by Congress. That final outcome still stands, regardless of the court ruling.
In October 2019, the Republican-led Pennsylvania General Assembly passed Act 77, which added no-excuse voting by mail, a provision pushed by Democrats. Republicans got one of their priorities included, too: elimination of straight-ticket voting.
Amid the pandemic in 2020, mail-in voting was a popular choice in Pennsylvania, where about 2.6 million cast their ballots by mail in the presidential election. Before and after Election Day, Trump and his allies spread falsehoods about mail-in voting, wrongly suggesting it was rife with fraud.
After Trump lost, U.S. Rep. Mike Kelly, R-Pa., and co-plaintiffs filed a case against state officials arguing that the Legislature illegally adopted an expansion of mail-in voting in Act 77 because it required a constitutional amendment. Kelly asked the court to block the certification of Pennsylvania’s presidential election results, or direct the GOP-controlled state Legislature to choose electors.
The state Supreme Court dismissed the petition as untimely, writing that the plaintiffs filed their case more than a year after Act 77 was enacted and as the final ballots "were being tallied, with the results becoming seemingly apparent." They did not rule on the merits of the law, or mail-in voting.
The latest ruling stemmed from consolidated cases brought by Bradford County Commissioner Doug McLinko and multiple Republican representatives. The Commonwealth Court of Pennsylvania didn’t rule on the merits of mail-in voting, but decided 3-2 to strike down the law. The judges said that if lawmakers want to change the rules for mail-in voting, they have to put it before the voters as a constitutional amendment.
The judges wrote that "no-excuse mail-in voting makes the exercise of the franchise more convenient" and that if presented to the people, it is "likely to be adopted."
The three judges in the majority who found the mail-in voting law unconstitutional are Republicans, while the two judges who dissented are Democrats.
The Facebook post is wrong to suggest that the ruling means anything for the 2.6 million ballots cast or the election outcome, said David Schultz, professor of political science and legal studies at Hamline University in St. Paul, Minnesota.
"It merely says going forward, if the Legislature wants to do this, they are going to have to go by route of constitutional amendment," Schultz said. "Congress has validated the results. No matter what the court said it can’t overturn the Pennsylvania election because Congress essentially said, ‘This is our count. We have accepted the electoral votes in Pennsylvania cast for Joe Biden.’"
Pennsylvania’s governor, attorney general and Department of State appealed the ruling to the state Supreme Court, which means the appellate court’s ruling is on hold.
A Facebook post said, "Pennsylvania had 2.6 million mail in votes that the court of appeals of PA held to be unconstitutional. Umm that alone means Biden lost PA. Will anything be done about this?"
A court ruled in January that the state’s passage of a law to allow no-excuse voting by mail was unconstitutional, and that such a change would require a constitutional amendment. But the court did not toss out the mail ballots cast or the election results, which were already accepted by Congress.
The ruling on the voting law is on hold pending an appeal, so the fate of the law remains unclear. But we do know that this fact stands: Biden won Pennsylvania.
We rate this statement False.
Facebook post, Jan. 28, 2022
Commonwealth Court of Pennsylvania, Ruling in consolidated cases about Act 77 provision on mail in voting, Jan. 28, 2022
Commonwealth Court of Pennsylvania, Mike Kelly vs. Commonwealth, 2020
Philadelphia Inquirer, Pa. court overturns mail vote law, Jan. 29 2022
Spotlight PA, Pennsylvania’s mail voting law ruled unconstitutional, but remains in place as Wolf appeals, Jan. 28, 2022
Washington Post, Pennsylvania court declares state’s mail-in voting law unconstitutional, in win for Republicans, Jan. 28, 2022
Pennsylvania Attorney General Josh Shapiro, Tweet, Jan. 28, 2022
Telephone interview, David Schultz, professor of political science and legal studies at Hamline University in St. Paul, Feb. 2, 2022
Email interview, Bruce Ledewitz, professor of law at Duquesne University School of law, Feb. 2, 2022
Email interview, Edward B. Foley, director of Election Law at Ohio State, Feb. 2, 2022
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