A new report from the non-profit Protect Democracy emphasizes the importance of voting in judicial elections in Pennsylvania, highlighting the ways in which the state’s high courts have played an instrumental role in upholding democracy following the attempted subversion of the 2020 presidential election.
Titled “Democracy on Trial: The Role of Pennsylvania’s High Courts in 2024 and Beyond,” the report calls attention to the upcoming judicial elections in November and makes the case for why voters should pay attention to them and vote all the way down the ballot.
According to the report, Pennsylvania’s high courts can ensure election results are respected, protect voting rights and ballot access, and uphold checks and balances, citing several examples in which the courts have already done so. Despite conspiracy theories of widespread election fraud and partisan attempts to invalidate absentee and mail-in ballots and decertify voting machines, the Commonwealth Court and state Supreme Court have both largely interpreted election law in a way that did not disenfranchise voters or undermine the democratic process.
Kyle Miller, Protect Democracy’s state policy advocate in Pennsylvania and one of the co-authors of the report, says he and his colleagues were motivated to write this after hearing concerns that there wasn’t “enough attention being paid to the state Supreme Court race” this fall. As a result, the paper provides voters with a basic understanding of why these judicial elections matter to democracy and voting rights, as well as many other issues, and explains how the courts have previously worked to protect democracy in an age of rampant election denialism and subversion.
“What we’re seeing is the court being that real bulwark of upholding the law and really deciding to uphold more universal principles of law, siding with enfranchisement rather than some kind of immaterial rules, like we saw with the the early decisions on missing or improperly dated ballots,” Miller told the Bucks County Beacon. “The courts are responsible for ensuring that the law is interpreted in a way that is consistent with our state constitution and with the US Constitution.”
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Miller says this includes upholding the rights of voters and keeping ballot access as broad as possible. He states that the courts are not legislators and, therefore, do make policy or administer the law, but says that they do play a rather important role in “interpreting the law when there are disputes about its meaning and disputes about how it’s been applied.”
One prime example the report mentions are the legal challenges to Act 77 – Pennsylvania’s no-excuse mail-in voting law. Passed in October 2019, the law allows Pennsylvania voters to vote by mail for any reason and was first employed during the 2020 election. Shortly after the election, however, the results of which were highly contested, Republican state lawmakers filed a lawsuit challenging Act 77 requesting that the entire law be void, even though many had voted for it in the first place.
“When the legislature adopts a law, it has a very strong presumption of constitutionality,” Miller said. “And something that really struck me in that case was the plaintiffs, who themselves have voted for the law, were unhappy with the administration of the law and yet challenged the law on its constitutional basis.”
While the plaintiffs alleged that the Pennsylvania legislature didn’t have the power under the state constitution to allow voters to cast mail-in ballots without having an approved excuse, the state Supreme Court ultimately rejected this argument, ruling that the law is constitutional.
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These types of cases, which Miller says are decided based on a “fundamental understanding of the law and precedent” instead of “partisan rationale,” require judges and justices to be relatively impartial. However, he notes that impartiality can be difficult to prove, especially when judicial candidates run on a partisan basis in Pennsylvania. That being said, he encourages voters to look up candidates’ stances on issues and keep an eye out for those who emphasize impartiality and “considering cases on their merit” to help get a sense of their judicial temperament. “The most important thing for justice is for it to be blind,” Miller said.
Kadida Kenner, the CEO of the New Pennsylvania Project, told the Bucks County Beacon that her organization is focusing on voter registration and civic education to help increase voter turnout and fight voter apathy. In anticipation of the upcoming judicial elections, which generally don’t draw as much as attention as midterm and presidential races, Kenner encourages voters to “do their due diligence” and research candidates before they vote, adding that it could be as a simple as a Google search or by going to trusted sources like Ballotpedia.
Too often, Pennsylvanians “don’t vote all the way down the ballot because they don’t know who they’re voting for,” she says, which is why it’s crucial for people to inform themselves on candidates’ names and positions so they “feel confident” when they go to fill out their ballots. “It’s really important that people know when they go to cast that ballot for the Supreme Court that they’re casting a ballot for someone to protect their voting rights, someone to ensure that this Commonwealth is not gerrymandered again … and protect our access to abortion,” she said.
Kenner also argues for the need for Pennsylvania to diversify its high courts, noting that while “Pennsylvania does a phenomenal job of electing women,” there is plenty of room for improvement when it comes to electing people of color.
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“It took until the last judicial election to put the second person of color on the bench,” she said. “That’s out of 31 appellate court judges, two out of 31. Pennsylvania demographically is more than 25 percent people of color, yet the diversity of the courts is less than 10 percent.”
According to Kenner, diversity of race, gender, and even profession all matter because judges and justices “bring their lived experiences” with them to the bench. “And if we are living in a society in which we do today, where not everybody truly believes that justice is blind or that it is working for everyone,” she continues, “it is absolutely important for people of color to see themselves represented in the halls of justice.”
