The Pennsylvania Supreme Court’s Bad Voting Decision Is The Law’s Fault

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Another wrinkle emerged in the Pennsylvania electoral fight last week when the commonwealth’s supreme court ruled that ballots submitted by mail may not be rejected because of signature mismatches between the ballot and the voter registry. The decision was praised by Democrats, who generally prefer an insecure voting process, but in rendering the unanimous decision, the court followed the law as written. The result may be bad, but in this case, it is a result dictated by the law, not the court’s political whims.

That is not always the case in Pennsylvania. The state supreme court has had a Democratic majority since the 2015 election and has not hesitated to use it in rewriting laws to favor their side. In 2018, they seized the power to redraw congressional districts based on a vague interpretation of the “free and fair elections” clause of the state constitution, reading it in a way that no previous court ever had.

Earlier this month, they “interpreted” the state electoral law to read that, contrary to the written text, ballots could be accepted for three days after election day as long as they were postmarked on Nov. 3. If the postmark is missing or illegible? Don’t worry about it, the court said.

Those cases were egregious impositions of the judges’ politics over the text of the laws. In this most recent decision, though, the Democratic judges’ desired result happens to align with the law as written. That, perhaps, explains why this latest ruling was unanimous, with all seven justices agreeing to the result and six joining in the court’s opinion.

That there was a ruling at all illustrates one of the differences between the Pennsylvania supreme court and the federal version. Federal lawsuits require actual “cases and controversies,” which is to say that a wrong must have happened before a court can set it right.

Pennsylvania’s constitution, though, allows the courts an “extraordinary jurisdiction” so they may address an issue of “immediate public importance” even before it becomes a problem. That is what is happening here: some county election boards wanted to verify mail-in ballots’ signatures, and the secretary of the commonwealth, Democrat Kathy Boockvar, petitioned the court to rule on whether that was allowed.

They ruled that it was not. Their reasoning was hard to refute: Act 77 of 2019, which created the option for mail-in voting, does not contain any such provision. Other forms of voting do require signature verification.

If you’ve ever voted in Pennsylvania, you will know that signing the book is the first thing you do on Election Day. That has been part of the Election Code since 1937. But the 2019 expansion of voting options in the commonwealth created a parallel system of mail-in voting alongside the original in-person and absentee system. That parallel system has a different set of safeguards, which do not include signature verification.

This is not the case of a new law being rushed through the legislature to accommodate the changed conditions of the coronavirus response; Act 77 was passed the year before that plague came to these shores, a compromise voting reform measure to which both major parties agreed. So any sloppy drafting here is less understandable.

The mail-in voting procedures are not completely wide open, but their systems of verifying the voter’s identification are different from what Pennsylvanians are used to. When requesting a mail-in ballot, Pennsylvanians must provide their driver’s license number to verify their identity. If they have no license, they can provide a portion of their Social Security number. If they have neither, a photocopy of some other identification document can be mailed in.

That sounds pretty flimsy, but it’s not that much harder to fake than a signature, if someone were inclined to commit voter fraud. Like absentee ballots, mail-in ballots always entail a higher risk of fraud or coercion because there is no person looking at the voters when they arrive to cast the ballot. The ballot passes through an unknown number of hands between the voter and the county election center, increasing the possible occasions for fraud or mishandling. It adds steps to a process that is normally kept simple for just this reason, although neither version is as secure as it should be.

There are reasons to do it this way, mostly involving convenience. Pennsylvania’s legislature found those reasons compelling enough that they agreed to this new law. And that law, not the rightness of it, is what the court was required to analyze in Boockvar’s petition. In doing so, the Democrats and Republicans on the court agreed that “It is not our role under our tripartite system of governance to engage in judicial legislation and to rewrite a statute in order to supply terms which are not present therein, and we will not do so in this instance.”

Conservatives and originalists would be fully justified in laughing at the Democrats’ pious embrace of textualist principles, which they will abandon as soon as it is convenient. Had the law been written otherwise, they would no doubt have adopted some other reasoning to achieve the same result. But in following the text, they are ruling in exactly the way conservatives have always said they should. If the law is bad, so long as it does not violate the federal or state constitution, it is up to the legislature to fix it, not the courts.

Had the court ruled the other way, it would have created several problems. Someone would be required to write the signature verification provisions since the legislature declined to do so. The state supreme court could have done it themselves, copying the provisions from another section of the law, but that would have been the kind of “legislating from the bench” that violates the separation of powers.

They also could have left it up to the county boards of election. In fact, some county boards were already writing procedures, which is why Boockvar filed the petition. But if each of the commonwealth’s 67 counties writes its own version of the election law, that leaves voters in different counties voting under different systems, which could affect the statewide result. State election law is meant to be uniform, and this ruling preserves uniformity.

One hopes the election in Pennsylvania will not be close enough for any of this to matter. If it is, though, frustrated voters should blame the state legislature, not the court, for failing to include adequate security provisions in the 2019 election law.

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