Welcome to The Ballot Bulletin, where we track developments in election policy at the federal, state, and local levels. In this month’s issue:

1. Pennsylvania court strikes down state’s no-excuse absentee/mail-in voting law
2. Federal court blocks Alabama’s congressional redistricting plan
3. Mississippi enacts new congressional map
4. Ohio Supreme Court strikes down congressional district plan

Pennsylvania court strikes down state’s no-excuse absentee/mail-in voting law

On Jan. 28, the Pennsylvania Commonwealth Court struck down Act 77, which made absentee/mail-in voting available to all eligible voters, as a violation of the Pennsylvania Constitution. The court voted 3-2, with Judges Mary Hannah Leavitt, Patricia McCullough, and Christine Fizzano Cannon (all Republicans) forming the majority and Judges Michael Wojcik and Ellen H. Ceisler (both Democrats) dissenting.

As a result, and pending action by the state supreme court, absentee/mail-in voting eligibility in Pennsylvania is governed by Article VII, Section 14, of the state constitution. This section allows absentee/mail-in voting for “qualified electors who may, on the occurrence of any election, be absent from the municipality of their residence, because their duties, occupation, or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability or who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of election day duties, in the case of a county employee.”

The court’s analysis

Leavitt, writing for the majority, analyzed Act 77 within the context of three provisions of the state constitution:

• Article VII, Section 1, of the Pennsylvania Constitution says a voter must have “resided in the election district where he or she shall offer to vote at least 60 days immediately preceding the election[.]” Leavitt said, “Our Supreme Court has specifically held that the phrase ‘offer to vote’ requires the physical presence of the elector, whose ‘ballot cannot be sent by mail or express, nor can it be cast outside of all Pennsylvania election districts and certified into the county where the voter has his domicile.'” Leavitt added, “There is no air in this construction of ‘offer to vote.’ … Our Supreme Court has further directed that before legislation ‘be placed on our statute books’ to allow qualified electors absent from their polling place on Election Day to vote by mail, ‘an amendment to the Constitution must be adopted permitting this to be done.”
• Article VII, Section 4 establishes that “all elections by the citizens shall be by ballot or by such other method as may be prescribed by law,” provided “that secrecy in voting be preserved.” Leavitt said, “To read Section 4 as an authorization for no-excuse mail-in voting is wrong for three reasons. First, no-excuse mail-in voting uses a paper ballot and not some ‘other method.’ Second, this reading unhooks Section 4 from the remainder of Article VII as well as its historical underpinnings. It ignores the in-person place requirement that was made part of our fundamental law in 1838. Third, it renders Article VII, Section 14, surplusage.”
• Article VII, Section 14, allows absentee/mail-in voting for “qualified electors who may, on the occurrence of any election, be absent from the municipality of their residence, because their duties, occupation, or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability or who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of election day duties, in the case of a county employee.” Leavitt wrote, “Section 14 can only be understood as an exception to the rule established in Article VII, Section 1, that a qualified elector must present herself at her proper polling place to vote on Election Day, unless she must ‘be absent” on Election Day for the reasons specified in Article VII, Section 14(a).”

In a dissenting opinion, Wojcik disputed the majority’s reading of Section 4 specifically: “[The] plain language of article VII, section 4 specifically empowers the General Assembly to provide a distinct method of casting a ballot for electors who are present in their municipality on a primary, general, or municipal election day by permitting the use of no-excuse mail-in ballots. This method is distinct from an elector’s appearance at his or her district of residence to cast a ballot as provided in article VII, section 1, either by paper ballot or by the use of a machine pursuant to article VII, section 6, or the use of an absentee ballot by an elector who is absent from his or her municipality on the day of a primary, general, or municipal election as provided in article VII, section 14.”

Reactions

State Senate President Pro Tempore Jake Corman (R) said, “Today’s ruling should serve as a call to action to open up a serious conversation about the reforms necessary to make voting both accessible and secure for all Pennsylvanians. Governor Wolf has ignored this debate for over a year, but hopefully this ruling will help bring him to the table so we can address concerns about our election system once and for all. ” State Sen. Doug Mastriano (R) said, “I welcome the end of ‘no-excuse’ mail-in voting in Pennsylvania and I introduced legislation this session that does just that.”

Attorney General Josh Shapiro (D) said, “This opinion is based on twisted logic and faulty reasoning, and is wrong on the law. It will be immediately appealed and therefore won’t have any immediate impact on Pennsylvania’s upcoming elections.” Gov. Tom Wolf (D) also criticized the ruling: “The strength of our democracy and our country depends on eligible voters casting their ballot and selecting their leaders. We need leaders to support removing more barriers to voting, not trying to silence the people.”

Context

Seven states (shaded in blue on the map below) conduct their elections predominantly by mail (i.e., all voters automatically receive mail-in ballots. Twenty-five states (shaded in yellow) allow all voters to vote absentee/by mail, but voters must request a ballot themselves. The remaining states (shaded in gray) allow voters meeting specific eligibility criteria to vote absentee/by mail. 

Redistricting round-up: Congressional map update

In today’s round-up, we take a look at the following recent developments involving congressional district maps: 

• Federal court blocks Alabama’s congressional redistricting plan
• Mississippi enacts new congressional map
• Ohio Supreme Court strikes down congressional district plan
  

Federal court blocks Alabama’s congressional redistricting plan 

On Jan. 24, A three-judge panel of the U.S. District Court for the Northern District of Alabama  issued a preliminary injunction barring Alabama Secretary of State John Merrill (R) from conducting the state’s 2022 congressional elections using the redistricting plan adopted on Nov. 4, 2021.

The court ruled unanimously that the plaintiffs in Milligan v. Merrill are substantially likely to establish “that Black Alabamians are sufficiently numerous to constitute a voting-age majority in a second congressional district.” The court also found it likely that plaintiffs would prevail in proving that “Black voters have less opportunity than other Alabamians to elect candidates of their choice to Congress,” in violation of Section 2 of the Voting Rights Act.

The court also postponed the qualifying deadline for U.S. House candidates from Jan. 28 to Feb. 11. The court directed the state legislature to devise a new congressional redistricting plan “that includes either an additional majority-Black congressional district, or an additional district in which Black voters otherwise have an opportunity to elect a representative of their choice.”

The panel’s three judges were Senior Justice Stanley Marcus of the 11th Circuit Court of Appeals, and District Court Judges Anna Manasco and Terry Moorer. Marcus was first appointed to the federal bench by Ronald Reagan (R) in 1985; he was elevated to the 11th Circuit by President Bill Clinton (D) in 1997. Manasco and Moorer were appointed by President Donald Trump (R) in 2020 and 2018, respectively.

A representative for Alabama Attorney General Steve Marshall (R) said, “The Attorney General’s Office strongly disagrees with the court’s decision and will be appealing in the coming days.”

For more information about redistricting in Ohio, click here.

Mississippi enacts new congressional map 

On Jan. 24, Gov. Tate Reeves (R) signed the state’s congressional redistricting plan (House Bill 384) into law. The state House of Representatives approved the plan, 75-44, on Jan. 6, with 73 Republicans, one Democrat, and one independent voting in favor and 41 Democrats, two Republicans, and one independent in opposition. The state Senate approved the new congressional map 33-18 on Jan. 12, with 33 Republicans voting in favor and 16 Democrats and two Republicans in opposition.

The Mississippi Clarion Ledger’s Lee Sanderlin said, “The bill preserves the current balance of congressional power in Mississippi, keeping three seats for Republicans and one for lone Democrat Bennie Thompson, D-Bolton.” Sanderlin added, “This is the first time since the 1965 passage of the Voting Rights Act … [that] Mississippi’s redistricting will go on without federal oversight after a 2013 Supreme Court decision ended the requirement [that] certain states get federal approval for redistricting changes. A federal judge drew the congressional districts in 2002 because legislators could not agree on a map, and again in 2011 because legislators felt they didn’t have enough time to do it during session.”

For more information about redistricting in Mississippi, click here.

Ohio Supreme Court strikes down congressional district plan 

On Jan. 14, the Ohio Supreme Court voted 4-3 to strike down the state’s enacted congressional map and ordered the Ohio Legislature to adopt a remedial map. Writing for the majority, Justice Michael P. Donnelly (D) said, “When the dealer stacks the deck in advance, the house usually wins. That perhaps explains how a party that generally musters no more than 55 percent of the statewide popular vote is positioned to reliably win anywhere from 75 percent to 80 percent of the seats in the Ohio congressional delegation. By any rational measure, that skewed result just does not add up.” Justices Maureen O’Connor (R), Melody Stewart (D), and Jennifer L. Brunner (D) rounded out the court’s majority.  

Justices Sharon L. Kennedy (R), Pat Fischer (R), and Pat DeWine (R) jointly dissented, writing: “The majority today declares the congressional-district plan enacted by the legislature to be unconstitutional on the basis that it “unduly” favors a political party and “unduly” splits governmental units. It does so without presenting any workable standard about what it means to unduly favor a political party or divide a county.”

For more information about redistricting in Ohio, click here.

Status of congressional redistricting: Twenty-five states have adopted congressional district maps. One state has approved congressional district boundaries that have not yet taken effect. Courts have blocked previously adopted maps in two states. Fifteen states have not yet adopted congressional redistricting plans. Six states were apportioned one U.S. House district each, making congressional redistricting unnecessary.Congressional redistricting has been completed for 271 of the 435 districts (62.3%) in the U.S. House of Representatives.

Status of state legislative redistricting: Twenty-nine states have adopted district maps for both legislative chambers. One state has adopted maps that have not yet gone into effect. The state supreme court in one state has overturned previously enacted maps. Nineteen states have not yet adopted legislative redistricting plans. Nationwide, legislative redistricting has been completed for 1,217 of 1,972 state Senate seats (61.7%) and 2,775 of 5,411 state House seats (51.3%).