Pennsylvania Election Lawyers Urge Supreme Court Justice Alito to Reject GOP Lawsuit

December 8, 2020 Updated: December 8, 2020

Pennsylvania officials on Tuesday filed a brief in a GOP appeal to the U.S. Supreme Court that contests the state’s election results.

Lawyers for Democratic Gov. Tom Wolf’s administration said Rep. Mike Kelly (R-Pa.), Republican candidate Sean Parnell, and other Republicans are attempting to “undertake one of the most dramatic, disruptive invocations of judicial power in the history of the Republic.”

“No court has ever issued an order nullifying the governor’s certification of presidential election results,” the lawyers added, arguing that it could set a precedent for the “judicial invalidation” of a presidential election. Furthermore, it would create a “loss of public trust in our constitutional order,” the lawyers quoted a Wisconsin court order as saying.

It came about two days after Supreme Court Associate Justice Samuel Alito ordered Pennsylvania officials, including Secretary of State Kathy Boockvar’s office, to respond to Kelly’s challenge a day earlier than previously scheduled, because Tuesday, Dec. 8 is the “safe harbor” deadline for electors.

Kelly’s lawsuit is seeking to have the Supreme Court throw out all of Pennsylvania’s mail-in ballots—tantamount to hundreds of thousands of votes—because the move to expand the practice, known as Act 77, violates the commonwealth’s Constitution. If successful, his lawsuit would most likely secure a victory for President Donald Trump in the Keystone State.

In 2019, lawmakers in Pennsylvania approved Act 77 to expand mail-in voting. But Kelly argued it conflicts with a far narrower voter provision contained within Pennsylvania’s Constitution. The lawyers said the move should require a constitutional amendment, which includes approvals by two consecutive legislatures followed by a successful statewide referendum.

“Beginning with the Military Absentee Ballot Act of 1839, the Pennsylvania Supreme Court consistently rejected all attempts to expand absentee voting by statute—uniformly holding that a constitutional amendment is required to expand absentee voting beyond the categories provided in the Pennsylvania Constitution,” their Supreme Court petition stated.

According to attorneys for Wolf and other Pennsylvania officials, Kelly’s lawyers have not been able to “explain how a remedy premised on massive disenfranchisement would accord with the Due Process Clause, which requires the counting of votes cast in reasonable reliance on existing election rules as implemented and described by state officials.”

“Nor do [Kelly’s lawyers] seek to square their position with the separation of powers, the Twelfth Amendment, or basic principles of federalism—all of which foreclose the injunctive relief that Petitioners seek here,” the lawyers said.

The Pennsylvania Commonwealth Court on Nov. 25 ordered state officials to not take any steps to perfect the certification of the election pending a resolution to the Republican lawsuit. The Pennsylvania Supreme Court overrode the injunction three days later, leading the plaintiffs to appeal to the nation’s highest court.

As Kelly sought to appeal to the Supreme Court, lawyers asked the Pennsylvania Supreme Court to stay its own decision in a bid to prevent Wolf and Boockvar from taking further steps to certify the election. It was rejected.