Bonner v. Chapman — Vote by Mail, Severability (PA)
On June 27, 2023, Pennsylvania’s Commonwealth Court upheld Act 77, rejecting a challenge from current and former GOP lawmakers. The court held that the non-severability provision was not triggered by recent court opinions interpreting provisions within Act 77.
Previously, on July 20, 2022, Republican members of the Pennsylvania House of Representatives filed a lawsuit against then-Acting Secretary of the Commonwealth of Pennsylvania Leigh M. Chapman and the Pennsylvania Department of State (“DOS”) challenging Act 77 of the Pennsylvania Election Code. The petitioners sought a declaration that all of Act 77 (providing for no excuse mail-in voting) is void. They argued that the U.S. Court of Appeals for the Third Circuit’s decision in Migliori—which found that mail-in and absentee ballots without a handwritten date on the return envelope should be counted—invalidated the provisions of Act 77 related to ballot dating.
Petitioners argued that all of Act 77—including provisions unrelated to mail-in voting—are void because the Act contains a “nonseverability clause,” which states that if any part of the Act is found to be invalid, the whole statute must be void. Oral arguments were held in the case on October 12, 2022.
States United served as pro-bono counsel for Acting Secretary Chapman and the DOS, and was co-counsel with Hangley Aronchick Segal Pudlin & Schiller and the Pennsylvania Office of the Attorney General.