Bagel Bites and the Law: Does Pennsylvania’s Constitution Really Prohibit No Excuse Mail In Voting?

Trust me, in a minute this will all make sense.

In this election made bitter by a President who refuses to concede, despite needing to win futile challenges in multiple states, the vote in Pennsylvania is among the most contested. The Trump Team is galled that late night counting of mail in ballots erased a 600,000+ vote lead Trump and they refuse to believe it was fair.

Since the election at least 31 lawsuits have been filed challenging Pennsylvania’s election. Most have already been dismissed or withdrawn. The one gathering the most attention involved Rudy Giuliani presenting bumbling arguments to a Federal District Court before being smacked down by a lifelong Republican judge. The case was then appealed to the Third Circuit, where a Trump appointed judge writing for a unanimous panel of Republican appointed judges, again smacking down the case.

Garnering not quite the attention is a case filed in Pennsylvania Court captioned Kelly v. Pennsylvania. The “Kelly” is United States Representative Mike Kelly, an ultra-conservative Republican previously most known for his whacky Deep State conspiracy theories and mocking now President Elect Biden’s stutter.

Almost three weeks after the election, on November 21st, Kelly filed this lawsuit claiming Pennsylvania’s statute expanding absentee voting to allow no excuse mail in voting violates the Pennsylvania Constitution. As a remedy Kelly demanded that the Court order all mail in ballots to be invalidated, or in the alternative, that the entire election be invalidated, with the Court ordering that the selection of the State’s electors be thrown into the State’s Republican controlled legislature.

This statute was not passed in response to Covid. Pennsylvania’s Governor, Tom Wolf, signed it into law on October 31, 2019, over a year before the election. Representative Kelly chose to ignore its supposed enactment in violation of the Pennsylvania Constitution, for over a year, until after this election, and after it was clear Biden won the State of Pennsylvania.

That delay proved fatal to his case. Last night the Pennsylvania Supreme Court struck down the lawsuit (read the decision here). The Pennsylvania Supreme Court was properly appalled that Representative Kelly demonstrated “unmistakeable” lack of due diligence in sitting on the issue for over a year and waiting to bring this claim only after millions of Pennsylvania citizens voted in good faith reliance on the existing law of the state.

This decision, rooted in the equitable doctrine of laches (lacking of diligence in asserting a claim loses the claim, particularly when the lack of diligence prejudices the rights of others) did not address the substantive question of whether the statute violates the Pennsylvania Constitution. I shall attempt to explain why I believe it does not, and (I promise) it does involve Bagel Bites.

In his complaint Kelly cites Article VII, Section 14(a) of the Pennsylvania Constitution as allowing only four classes of voters to vote absentee, or by mail. Let’s take a close look to that provision to see what it actually says, and does not say (note: in this provision “electors” is the word used for “voters”).

Under the interpretation advanced by Kelly this provision of the Constitution restricts voting remotely to four classes of people:

1. Those whose business or duties require them to be somewhere else.

2. Those with illness or disability making them unable to go to the polls.

3. Those whose religion observances interfere with voting at the polls.

4. County employees whose election duties preclude them from voting at the polls.

But does this provision really say what Kelly says it says? I don’t think it does. On its face it is not a statement of what the legislature can provide for, but rather a statement of what the legislature must provide for. It limits the discretion of the legislature only in the following way: The legislature shall not fail to provide a means for those four classes of people to vote remotely. Stating that the legislature must provide that floor of options for voters does not mean that the legislature cannot do more.

A metaphor may help with this. I am responsible for doing the grocery shopping in our household. My wife hands me a grocery list with four items on it, milk, bread, potato and frozen peas. She tells me, “when you to the grocery you shall get these items.” I go to the grocery store and I pick up all four items she ordered, but I also pick up Bagel Bites (because I like them). Now we have a very simple question. By adding Bagel Bites to my shopping cart did I violate the directive given me by my wife? I think not.

Indeed, when I get home and my wife unpacks the shopping bag she sees the Bagel Bites, and she says, “I didn’t tell you to get these.” To which I respond, “you didn’t tell me not to either.” [Note: this exact conversation has occurred in our home].

In addition to the Bagel Bite metaphor, I believe my interpretation is supported by Article VII, Section 4 of the Pennsylvania Constitution which states:

This provision is a broad grant of authority to the legislature to prescribe law allowing “ballot or by such other method” so long as secrecy is preserved. It’s the equivalent of my wife saying, “I don’t care what you get at the store so long as you get these four things.”

That’s my conclusion, and I recommend Representative Kelly go buy some Bagel Bites and stuff them in his “Deep State.”

Retired lawyer & Army vet in The Villages of Florida. Lifelong: Republican (pre-Trump), Constitution buff, science nerd & dog lover. Twitter: @KeithDB80