The nation’s top court had previously rejected the group’s request for immediate injunctive relief to block Pennsylvania from taking further steps to certify the 2020 election results. At the time, the group’s lawyer, Greg Teufel, said the case was not over because his clients were planning to file a formal petition to ask the court to review the lawsuit, which they hadn’t filed the first time.
The lawyer filed a petition for a writ of certiorari on Dec. 11, docketed by the court on Dec. 15, which argues that the Pennsylvania Supreme Court was wrong when it dismissed their case because the justices thought the plaintiffs filed their case with unreasonable delay.
“This Court should not turn a blind eye to unconstitutional election laws that permit massive vote dilution and have a significant impact on election outcomes, as the Pennsylvania Supreme Court did,” the petition (pdf) states.
The case at hand—cited as Kelly v. Pennsylvania—argues that Act 77, a law that made voting by mail without an excuse legal in Pennsylvania, was enacted in violation of Pennsylvania’s constitution. The state constitution, the plaintiffs argue, prohibits absentee voting in Pennsylvania except for four limited circumstances.
The lawsuit alleges that the state law is “another illegal attempt to override the limitations on absentee voting prescribed in the Pennsylvania Constitution, without first following the necessary procedure to amend the constitution to allow for the expansion.”
The lawsuit was filed by a Republican lawmaker Rep. Mike Kelly (R-Pa.) and several GOP congressional candidates.
In late November a Pennsylvania commonwealth judge, Patricia McCullough, issued a temporary injunction that would have prevented the state from taking further steps to complete the certification of the presidential race. She argued that “petitioners appear to have established a likelihood to succeed on the merits because petitioners have asserted the Constitution does not provide a mechanism for the legislature to allow for expansion of absentee voting without a constitutional amendment.”
She also opined that the “petitioners appear to have a viable claim that the mail-in ballot procedures set forth in Act 77 contravene” the plain language of the provision of the Pennsylvania Constitution, which deals with absentee voting.
However, the Pennsylvania Supreme Court ruled that the plaintiffs waited too long before the county of boards of election were required to certify the election results to bring the case, which could “result in the disenfranchisement of millions of Pennsylvania voters” who voted by mail.
In the petition, the lawyer argued that it was a no-win situation for his clients, who wanted to bring the case against the law.
“Pennsylvania does not permit electors and candidates to bring substantive constitutional challenges to laws governing the conduct of federal elections. An elector or candidate may not bring a challenge prior to an election for failure to meet standing requirements,” he wrote, referring to the legal right—or standing—to bring the case.
“To overcome such speculative harm requires waiting until after the election takes place. But now that harm has materialized and is no longer speculative, it is too late,” he added.
The group has asked the court to declare Act 77 as unconstitutional in order to prevent future harm resulting from the law. It also asks the court to grant injunctive relief to mitigate current harms already caused by the state law.
They argued that when the Pennsylvania Supreme Court dismissed the case they had “insulated the legislation from any attack” and indirectly “amended” the Pennsylvania Constitution despite not having the authority to do so.
“Such attempted de facto constitutional amendment is itself unconstitutional,” they argued.
This case is cited as Kelly v. Pennsylvania (20-810).