Pennsylvania’s Commonwealth Court on Friday ruled that the state’s system of mail-in voting, passed in 2019, is unconstitutional and the only way to implement it is by constitutional amendment.

The court’s opinion said the decision “explains how a system of no-excuse mail-in voting may be constitutionally implemented in the commonwealth and expresses no view on whether such a system should, or should not, be implemented as a matter of public policy.”

The 3-2 Republican majority opinion was immediately appealed to the state Supreme Court, said Attorney General Josh Shapiro.

“This opinion is based on twisted logic and faulty reasoning, and is wrong on the law,” he said.

Act 77, which allowed any Pennsylvania voter to submit a mail-in ballot, was passed by a bipartisan group of lawmakers in October 2019.

Mail-in voting has been heavily used since the beginning of the pandemic in the spring of 2020. In that year’s general election, 2.6 million mail-in ballots were cast in Pennsylvania. As of August, there were more than 1.3 million voters on Pennsylvania’s permanent mail-in ballot list.

But Act 77 has been the subject of numerous court challenges, including up to and after the 2020 general election. In each of those, it was upheld.

In July, Bradford County Commissioner Doug McLinko filed a petition in Commonwealth Court — later joined with another filed by 14 members of the state House — arguing that Pennsylvania’s Constitution requires a voter to present their ballot in person at a designated polling place on Election Day, with only few exceptions for absentee voting.

Of the 14 Republican lawmakers who filed the Commonwealth Court challenge to Act 77, 11 of them voted in favor of it, including state Reps. Bob Brooks, R-Murrysville, and Donald “Bud” Cook, R-Bentleyville.

In defending Act 77, attorneys for the state argued the Pennsylvania Constitution allows elections “‘by ballot or by such other method as may be prescribed by law” as long as secrecy is protected. The Department of State further argued that McLinko lacked standing to challenge the law and that his petition was filed too late.

Act 77 included language that any constitutional challenge had to be filed with the state Supreme Court by April 28, 2020.

The Commonwealth Court ruled that McLinko did have standing as a local, elected official and member of his county election board.

As for the argument that his challenge was filed past the statute of limitations, the court majority found that McLinko is seeking prospective relief, not to throw out already cast votes, and that he is seeking “clarity” on whether Act 77 comports with the state constitution, “and the general assembly did not impose a time bar for seeking this clarity.”

Instead, they continued, the 180-day window gave exclusive jurisdiction for challenges to the state Supreme Court. Thereafter, the majority said, challenges could be filed with the Commonwealth Court, as was done in this case.

“The General Assembly cannot insulate Act 77 from judicial review,” they wrote.

In its opinion, the court wrote that acts passed by the Legislature are strongly presumed to be constitutional, and that they will not be declared otherwise “unless it clearly, palpably and plainly violates the constitution.”

In the case of Act 77, the Commonwealth Court majority said the only way no-excuse mail-in balloting can be legally accomplished in Pennsylvania is through constitutional amendment.

“No-excuse mail-in voting makes the exercise of the franchise more convenient and has been used four times in the history of Pennsylvania,” the opinion said.

“Approximately 1.38 million voters have expressed their interest in voting by mail permanently. If presented to the people, a constitutional amendment to end the … requirement of in-person voting is likely to be adopted,” they wrote. “But a constitutional amendment must be presented to the people and adopted into our fundamental law before legislation authorizing no-excuse mail-in voting can” be authorized.

In the past, absentee voting was allowed only for people who were unable to go to the polls because of illness or disability, or were away because of work, religious holiday or election day duties.

Reggie Shuford, executive director of the ACLU of Pennsylvania, called the lawsuit “an attack on the right to vote.”

“Vote-by-mail has been wildly successful, with millions of Pennsylvanians taking advantage of the option in 2020 during the worst pandemic in a century. We’re on the side of democracy. We believe that voting should be convenient and accessible,” he said. “By expanding mail-in voting to everyone, this law made that possible.”

The majority opinion was written by Judge Mary Hannah Leavitt and joined by Judges Patricia A. McCullough and Christine Fizzano Cannon. A dissenting opinion was written by Judge Michael H. Wojcik and joined by Judge Ellen Ceisler.

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