What Pennsylvania’s constitutional laboratory and its trailblazing experiments portend for 2024 • Pennsylvania Capital-Star

Lately, there has been a lot of talk about state supreme courts and state constitutions. The two don’t typically receive a whole lot of attention. But the post-Dobbs era of law and politics has shone a light on these obscure and forgotten jurists and documents.

Last week, for example, the U.S. Supreme Court overruled the Colorado state supreme court’s “monumental” decision to ban former President Donald Trump from the ballot. The Alabama supreme court ruled, a few weeks ago, that frozen embryos are considered unborn minor children under Alabama state law and that in vitro fertilization that destroys the embryos can lead to wrongful death lawsuits. And in late-January, the Pennsylvania state supreme court fell one vote short of finding a constitutional right to reproductive autonomy

These are highly sensitive social and political issues that are increasingly playing out in the trenches of state courts. The common thread in all these rulings is that the state high courts relied heavily on the provisions of their state, rather than federal, constitution to decide the issues. This raises many questions about the value and importance of state constitutions, especially in an era of hyper-polarization.

A little-known fact is that the Pennsylvania Constitution is one of most consequential legal documents that has shaped the U.S. Constitution and which has played a central role in preserving major tenets of American democracy.

The Pennsylvania Constitution was drafted and ratified in 1776, a decade before the U.S. Constitution came into existence. Our sacred document “became the laborator[y] for testing theories, trying the institutions in the various forms” that we presently cherish and enjoy in the federal Constitution. In fact, Pennsylvania’s constitutional experiment was one of several pre-Republic sources that the Framers consulted to draft many provisions in the federal Constitution. Most of the separation of powers and checks and balances we have come to enjoy and take for granted in the federal Constitution were copied and borrowed from the Pennsylvania Constitution of 1776. 

For example, the very notion of constitutional supremacy—that constitutions are supreme and legislation is subordinate to those constitutions—was a unique feature to the Pennsylvania version. It was so important a concept that the Delegates at the 1787 Constitutional Convention embodied the principle of supremacy into the U.S. Constitution by borrowing directly from the Pennsylvania Constitution. As Justice Robert Nix, Jr., Pennsylvania’s celebrated Black supreme court justice, once stated, the lengthy debates over the state constitution in 1776 “had undoubted influence upon constitutional thought at the time the federal Constitution was written.”

While there are many aspects of the Pennsylvania Constitution that were borrowed by the federal document, there are plenty of examples of provisions in the state constitution unique to Pennsylvania, and not found in the U.S. Constitution. 

Let’s take a step back to 2018 and 2020 to understand the significance of having a strong state constitution that embodies and protects principles of democracy and constitutional supremacy, especially as we head towards the 2024 presidential election where democracy will be on the ballot.

In 2018, the Pennsylvania supreme court was one of the first in the nation to strike down a partisan-gerrymandered congressional map. The Justices decided that the Free and Equal Elections Clause, unique to Pennsylvania (but absent in the federal Constitution), prohibited the Republican-dominated state assembly from drawing congressional maps that egregiously favored one political party (Republicans) over another (Democrats). The ruling resulted in a more evenly distributed map between the two major political parties. And because the decision was on state, as opposed to federal grounds, the U.S. Supreme Court could not overturn the decision. It was a victory for democracy.

Two years later, amid the unprecedented COVID-19 pandemic, the right to vote for Pennsylvanians was threatened by an inability to cast ballots in-person. The state assembly had passed a law a few years earlier that introduced universal mail-in voting. However, due to the pandemic, many mail-in ballots were delayed. This meant that some voters might not get their ballot counted. The court decided to use its extraordinary jurisdictional authority, called the King’s Bench Power, to unilaterally push back the deadline for receiving mail-in ballots by three-days after the November 2020 Election Day, thus overriding the state assembly’s original deadline. 

Relying on the Free and Equal Elections Clause, the Pennsylvania supreme court, in Pennsylvania Democratic Party v. Boockvar, explained that “all aspects of the electoral process [must] be kept open and unrestricted” to ensure a voter’s right to equal participation in the electoral process and to avoid disenfranchisement.

Not long after the Election Day in November 2020, the Pennsylvania Supreme Court was, once again, faced with anti-democratic behavior and called upon to protect democratic principles. This time Republican-affiliated litigants, including President Trump’s reelection campaign, sought to have thousands of ballots thrown out on the flimsy argument that the ballots were fraudulently casted when some voters mistakenly failed to handwrite names or addresses on mail-in envelopes. The court, again, leaned into the state constitution to thwart those efforts, explaining that the constitution requires the court to read election law statutes broadly and liberally, and in so doing, a voter’s failure to handwrite their name or address on the out envelope of the ballot was an immaterial issue that would not discount the ballot. 

And when state Republicans tried to overturn the 2020 Pennsylvania election results on the grounds that the constitution forbid mail-in ballots, the state supreme court, once again, was quick to remind the challengers that the state constitution protects the right to vote, and that their position “would result in the disenfranchisement of millions of Pennsylvania voters.”

What does all this portend for 2024?

We should recognize—and cherish—the significant contribution that our state constitution has bestowed upon the citizens of our Commonwealth. That sacred document—while imperfect and sometimes disjointed—has proven to be a bulwark to preserve democratic principles in our great State and to protect against anti-democratic behavior. As we head towards another contentious election season, we should brace for the perils of oppressive efforts to hijack free and fair elections, but remember the promise of our state constitution as a protector and defender of anti-democratic forces.

Originally published at penncapital-star.com,by Jerry Dickinson

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