Written by John E. Jones III
Judges are not interested in creating election laws. As a former federal judge who have been on the bench for almost 20 years, including litigation following the 2020 election, I can attest to this.
State lawmakers shouldn’t feel secure about the Commonwealth’s election laws, even though the 2024 contest has been much quieter for the courts. Instead, now that Harrisburg lawmakers are back in session, they should use this chance to amend Pennsylvania’s election legislation so that future elections won’t turn into legal battles where the outcome depends on the rulings of judges.
Act 77, an electoral reform bill passed by Pennsylvania in 2019, permitted mail-in voting without an excuse, among other things. Although this was a commendable and forward-thinking endeavor, serious problems with the law have surfaced and require legislative correction. These include allowing voters to correct flawed mail-in ballots, allowing provisional ballots, counting ballots that voters neglected to date on the outer envelope, and allowing ballot drop boxes.
The General Assembly of Pennsylvania has recognized the necessity of correcting the glaring errors in the Commonwealth’s election legislation. Because it required voter identification in every election, a remedial bill written by Republican lawmakers to amend the legislation was vetoed by then-Governor Tom Wolf in 2021. As far as I’m aware, this was the General Assembly’s final determined attempt to change Act 77.
Because of this failure in public policy, Pennsylvania’s state and federal courts have frequently been asked to decide cases involving divergent interpretations of the election law. These lawsuits led to a great deal of doubt among Pennsylvania’s 67 distinct county election bureaus and contradictory rulings. Notably, the Pennsylvania Supreme Court let voters whose mail-in ballots had errors to cast provisional ballots in the case of Genser v. Butler County Board of Elections, which made it all the way to the U.S. Supreme Court.
The Pennsylvania court’s order was not stayed by the top court. The question of whether or not undated ballots should be tallied also made its way up and down federal courts, with two different Third Circuit panels rendering contradictory decisions. It culminated in a succinct decision by the Pennsylvania Supreme Court on Nov. 1, shortly before the election, in the case of Baxter v. Philadelphia Board of Elections, which prohibited the counting of undated ballots in the election scheduled for Nov. 5. The matter of counting undated ballots in subsequent elections is still up for debate because the state Supreme Court did not rule on the case’s merits.
These disagreements represent only a sample of Pennsylvania’s recent election-related litigation, and decisions on the merits are still pending in nearly all of the cases. Two essential components of our democracy are the ability to hold free and fair elections and the right to vote. I am not aware of any judge in the world who would prefer that an election be decided by their decision over a contentious clause in a statute that is begging to be changed. However, I worry that unless there is a determined, bipartisan attempt to confront the clear issues with the current legislation, this is precisely where we are going.
These conversations might cover other election-related topics, like whether Pennsylvania, which is still one of just nine states in the US that hold closed primaries, should permit open primaries.
The General Assembly has plenty of time to take action on these issues during the upcoming legislative session. Since the courts are a very flawed means of resolving matters that are better addressed by the legislative process, I implore them to band together and take this action.
The president of Dickinson College in Carlisle, Pennsylvania, is John E. Jones III. In the past, he was the chief judge of the Pennsylvania U.S. Middle District Court. In 2002, former President George W. Bush appointed him to the bench.