The Republican plaintiffs who are challenging legislation that allowed mail-in ballots from all comers in Pennsylvania, today filed a request to the Supreme Court to block the state from certifying the election.
The state Supreme Court had dismissed the case on Nov. 28, overturning a temporary block on election certification issued by a lower court.
Challenging that ruling, the emergency application for injunction, dated Dec. 1, asks the Supreme Court to prohibit the Pennsylvania governor and secretary of state from “taking official action to tabulate, compute, canvass, certify, or otherwise finalize the results of the election.”
“To the extent that the above-prohibited actions have already taken place, petitioners seek an injunction to restore the status quo ante, compelling respondents to nullify any such actions already taken, until further order of this court,” says the petition.
The emergency application essentially asks the court to put a temporary hold on certifying the state election pending the filing of a full writ of certiorari—asking the court to review the lower court decisions.
The case was filed by Rep. Mike Kelly (R-Pa.) and others. They claim that an act passed last year by the state legislature that allows voting by mail without excuse violated the state constitution.
The state Supreme Court dismissed the case with prejudice, saying that the lawsuit had not been filed in a “timely manner,” since the act in question was signed into law on Oct. 31, 2019.
That ruling, however, appears to leave open the broader merits of the case—that the law, Act 77, requires an amendment to the state constitution.
One of the plaintiffs, Republican congressional candidate Sean Parnell, told KDKA on Nov. 30: “While we believe that Act 77 is certainly a state issue, we also believe that there are very important federal questions nested within it. So what we’re doing is we’re looking to appeal to the Supreme Court on those federal questions.”
The petition, filed with Judge Samuel A. Alito, poses two questions for the Supreme Court to answer: Can a state violate its own constitutional restrictions without violating the U.S. constitutional clauses relating to elections and due process? And did the Pennsylvania Supreme Court violate the First and Fourteenth Amendments of the U.S. Constitution “by dismissing with prejudice the case below, on the basis of laches, thereby foreclosing any opportunity for petitioners to seek retrospective and prospective relief for ongoing constitutional violations?”
The state Supreme Court said on Nov. 28 that the petitioners waited until days before the county of boards of election were required to certify the election results, which could “result in the disenfranchisement of millions of Pennsylvania voters” who voted by mail.
“It is beyond cavil that petitioners failed to act with due diligence in presenting the instant claim,” the court wrote.
Parnell told KDKA that it was a “Catch-22” situation. “Had I filed it earlier, I would have probably not been able to bring the case into court because I wouldn’t have had legal standing,” he said. “So they would have probably said, ‘Well, the harm that you’re alleging is speculative.'”
Parnell said that the case was not about whether mail-in ballots are good or bad per se, but about state constitutional procedure.
“Democrat or Republican, if the citizen learns that his law is unconstitutional, it’s our duty and responsibility as citizens to challenge that law,” he said, noting that he was being criticized by some Republicans for his actions.
The lawsuit is filed against the state, the majority Republican general assembly, Gov. Tom Wolf, and Pennsylvania Secretary of State Kathy Boockvar.
In the state Supreme Court ruling, Chief Justice Thomas Saylor issued a separate opinion agreeing to reverse the preliminary injunction. However, Saylor said he believes the Republican petitioners should still be able to argue their case about the constitutional validity of Act 77.
“I find that the relevant substantive challenge raised by appellees presents troublesome questions about the constitutional validity of the new mail-in voting scheme,” Saylor wrote.
Janita Kan contributed to this report.