THE PENNSYLVANIA SUPREME COURT RULING ON MAIL-IN BALLOTS IS ITSELF UNCONSTITUTIONAL
Julio Gonzalez, M.D., J.D.
Last week, the Pennsylvania lower courts considered an anti-mail-in ballot case so compelling as to be indisputable. Predictably, the argument made its way to the Pennsylvania Supreme Court where on Sunday, by a unanimous vote, it threw out the case. The only problem is that this unanimous outcome simply cannot possibly result from a good faith consideration of the facts. Here's why.
The suit, brought by Republican Congressman Mike Kelly and others, did not make a voter fraud case. It made a state constitutionality argument.
On October 31, 2019, the Pennsylvania legislature passed Act 77 allowing for the state to engage in mail-in balloting. As has been discussed previously, mail-in voting refers not to absentee voting, but specifically to voting in an election with unsolicited ballots that were first mailed to the voter and then mailed back by those voters to the local polling station. This method of voting has been frowned upon by Republicans and Democrats alike to the point that even former President Jimmy Carter, in a 2005 report, warned of its dangers. Nevertheless, in 2019, the Pennsylvania legislature passed A-77, and the use of mail-in ballots was allowed during the 2020 election for the first time in Pennsylvania's history.
The Pennsylvania Constitution specifically discusses the manner in which votes are to be cast. First, of course, is the in-person ballot. This manner of voting is not in dispute. The state constitution also allows the legislature to prescribe a manner of delivering votes during an election when a qualified elector will be absent from the municipality of his or her residence because of one of four reasons: 1) their duties, occupation or business require them to be elsewhere; 2) illness or physical disability; 3) the observance of a religious holiday; or 4) election day duties.
That's it. Those are the four possible reasons prescribed in Pennsylvania's Constitution by which qualified electors may cast a ballot in a manner other than in-person. Because these conditions are constitutionally prescribed, the Pennsylvania legislature cannot change them through statute. In fact, the Pennsylvania Constitution prescribes the manner by which it may be amended such that a proposed amendment must first be passed by the legislature twice, advertised in two county newspapers, and then proposed in the form of a referendum on which the public may vote. Only if it passes a general vote would the change be inscribed into the state's constitution.
The plaintiffs correctly argue that the legislature did not comply with this process and that therefore all mail-in ballots are unconstitutional and should be discarded. It's a pretty open and shut case, right? Well, not for the Pennsylvania Supreme Court.
As noted previously, the Supreme Court of Pennsylvania considered and dismissed the case in a unanimous decision. What is peculiar is that it did not set aside the case because of the invalidity of the arguments; rather it dismissed it because in the Court's opinion, the case was filed too late. You see, Act 77 included a 180-day time limit for challenges to the law, and since that time limit has since expired, the Court reasoned that the plaintiffs would no longer be in a position to challenge the law.
The problem is that the Supreme Court's reasoning is spurious. First, there is no time limit to challenging the constitutionality of a law. The supreme law of each American state is its constitution superseded only by the restrictions placed upon it by the Constitution of the United States.[i] Therefore, the review of a law's constitutional compliance can never be chronologically limited. Doing so would allow for the nonsensical conclusion that a statute would supersede the constitution. Think about it. Merely because 180 days have passed, you are no longer allowed to claim that a law is unconstitutional? Really?
Second, it is imperative that a constitution not be made subject to amendment without the direct approval of the general public because doing so would make Constitution inferior to the amending party, in this case the legislature. The hallmark of every "constitutional" dictatorship or monarchy is that government may affirmatively change its constitution. If the United States were to adopt this path, it would a) cease being a constitutional republic as guaranteed in our own United States Constitution; and b) the various jurisdictions would be able wield their power in whatever manner they saw fit. In short, we would officially become a Banana Republic.
Finally, there is a third precept ignored by the Pennsylvania Supreme Court. An unconstitutional law is void from the moment it was conceived. It is not that the law is active until such time that the courts find it to be unconstitutional, it is that the moment the law is considered unconstitutional, it is void, much as is the difference between a divorce and annulment. Striking a law down as unconstitutional is saying that it never could have existed. Thus, if Act 77 was unconstitutional, it never had any power and neither did a statute of limitations provisions attached to it.
In short, the Pennsylvania Supreme Court's opinion itself is unconstitutional and all six justices ought to have known this from the moment they passed their constitutional law class in law school.
Generally, the Supreme Court of the United States does not strike down a state ruling when the court rules on a matter of the state's constitution. It refuses to do this because it believes the state's justices to be more aware of state law than the federal justices. In this case, however, the ruling by these justices represents a direct affront to the federal constitution's guarantee of a republican form of government and to the equal protection guarantees inherent to it. The Pennsylvania Supreme Court's ruling in the Kelly case is not just an affront to Pennsylvanians, but to all Americans. The plaintiffs owe it to all of us to petition the Supreme Court of the United States for a review of the Pennsylvania ruling, which will, God willing, find the ruling itself unconstitutional.
Dr. Julio Gonzalez is an orthopaedic surgeon and lawyer living in Venice, Florida. He served in the Florida House of Representatives. He is the author of numerous books including The Federalist Pages, The Case for Free Market Healthcare, and Coronalessons. He is available for appearances and book signings, and can be reached through www.thefederalistpages.com.
[i]This hierarchical relationship is upside down compared to the Framers' original design and is the direct result of the three Civil War amendments.
Dr. Julio Gonzalez is an orthopedic surgeon living in Florida. He is a lawyer, author, and former member of the Florida House of Representatives. He is available for speaking engagements at firstname.lastname@example.org