HARRISBURG — The Commonwealth Court of Pennsylvania heard arguments from both parties in a Bradford County commissioner’s lawsuit that challenges the constitutionality of “no excuse” mail-in voting last Wednesday.

Bradford County Commissioner Doug McLinko filed a lawsuit alleging that the 2019 “no excuse” mail-in voting is unconstitutional and he requests “a declaratory judgment as to the constitutionality of Act 77” for future elections.

As a member of the Bradford County Board of Elections, McLinko “believes that administering ballots pursuant to P.L. 552, No. 77 (Act 77) is unconstitutional and places him into an untenable position of acting unlawfully at the risk of disenfranchisement of voters,” according to court documents for “Doug McLinko vs. Commonwealth of Pennsylvania, Department of State and Veronica Degraffenreid.”

Walter S. Zimolong represented McLinko in court and stated that his client’s role as a Board of Elections member includes canvasing, computing and certifying election results and that Act 77 violates Article 7 Section 1 of the Pennsylvania Constitution, Section 14 of the Constitution and binding and definitive Supreme Court precedent.

“No excuse mailed voting in Pennsylvania pursuant to and created by Act 77 has placed McLinko into an absolute quagmire because the law that was brought forth through Act 77 conflicts with the Pennsylvania Constitution.”

He stated that Article 7 Section 1 sets qualifications to vote and what people can do once qualified.

“In the Lancaster City case, the Pennsylvania Supreme Court confirmed that the term offer to vote meant that a person was qualified to vote in an election district where the elector resided,” he said.

Zimolong replied to the respondent’s argument that the term offer to vote doesn’t mean how someone votes, but instead means someone resides in the district where they plan to vote by saying that the Lancaster City case examined the term as it appeared in the 1874 Constitution.

“They said that under the Supreme Court’s previous precedent in Chase v. Miller that it meant to vote in-person to present oneself at the polling place and offer to vote,” he said.

He stated that in the Lancaster City case, “the legislature by statute sought to expand the means of voting besides the previous means that was available which was in-person casting it at your proper polling place.”

“Article 7 section 14 authorizes absentee voting and it exists because the General Assembly contrary to the respondents’ arguments does not have the power to expand the means of voting to include something other than voting in person,” he said.

Zimolong insisted that offer to vote means in-person only and that absentee voting or expansion of voting has always been done with a constitutional amendment and that Act 77 was the first time it was expanded without one.

Robert Wiygul represented the Pennsylvania Department of State and Acting Secretary of the Commonwealth and responded to McLinko’s lawsuit in court.

“Petitioners ask this court to exercise the awesome power to strike down a law enacted by the people’s representatives and to do so not to protect individual rights, but to take them away,” said Wiygul.

He stated that proof of mail-in voting being unconstitutional must be done “beyond a reasonable doubt” and that the text of the constitution “simply does not contain any such prohibition.”

Wiygul argued that Section 14 of the Pennsylvania Constitution gives categories of people the constitutional right to vote absentee by mail or other methods and that right cannot be taken away and that Act 77 was created for all of the people that were not addressed, which includes anyone on vacation and any spouses of the military.

“How do you explain the 1985 amendment to Section 14, which was required in order to add the categories beyond disability, those who cannot be at the polling place because of a religious holiday or election day duties,” he asked. “What those amendments do is expand the categories of persons who have a constitutional right to vote absentee,” he said.

Wiygul stated that the authority to have no excuse mail-in voting comes from Section 4, which gives authority to permit any method as may be prescribed by law, which Act 77 does.

He also stated that the right to have no excuse mail-in voting comes from the inherent lawmaking authority of the Pennsylvania General Assembly.

“It derives from the sovereignty of the people which is vested in the legislative branch,” he said. “Section 4 makes it unmistakably clear that it does.”

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