STATEMENT: Commonwealth Court Decision on Act 77 Points To Crisis of Democracy


For Immediate Release
January 28, 2022
Contact: Kirstin Snow

STATEMENT: Commonwealth Court Decision on Act 77 Points To Crisis of Democracy

The party-line Commonwealth Court decision declaring mail-in ballots unconstitutional is immediately outrageous and portends a deepening crisis in our democracy.

The decision is outrageous for two reasons. As Justice Wojcik’s dissenting opinion clearly demonstrates, it is based on a one-sided analysis of the Constitution and case law. The majority opinion contains a close and highly textured reading of the Constitution and case law that, however, outrageously leaves out of consideration a critical amendment to Article VII section 6 of the Constitution. Taking that amendment into account undermines the reasoning of the majority opinion.

Second, the majority opinion outrageously disregards the non-severability clause in Act 77 that would require it to declare the entire Act unconstitutional if any part of it is so declared. Act 77 was a compromise in which Republicans accepted vote by mail in return for Democrats accepting the elimination of straight-ticket voting. Declaring vote by mail unconstitutional while allowing the elimination of straight-ticket to stand turns a delicate political compromise into a Republican rout by judicial fiat. That is not the role for the courts to play.

That the Republicans on the Commonwealth Court are willing to interject themselves into critical election issues in such a partisan way suggests that they, along with the Republicans in the General Assembly—who voted for Act 77 and now have sought to declare it unconstitutional as part of an attempt to discredit the 2020 election—have dispensed with an effort to govern by principle and reasoned debate. The Republicans on the court have now joined Team MAGA in believing that the only thing that counts is taking and holding power.

Representative democracy can survive only if every branch of government—and especially the courts—acts on the basis of principle, a willingness to see multiple points of view, and a willingness to compromise in the interest of the common good. If and when representative democracy collapses in Pennsylvania, historians will look back at this decision as a fatal step that led to that sad result.

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