Pennsylvania Supreme Court Should Stay Its Own Ruling Over Appeal: GOP Challengers

Supporters of President Donald Trump gather outside of the Wyndham Hotel before a Pennsylvania State Senate Majority Policy Committee hearing, in Gettysburg, Pa., on Nov. 25, 2020. (Julio Cortez/AP Photo)

Two Republicans who appealed to the U.S. Supreme Court to block steps to certify Pennsylvania’s election results said there is a possibility the high court will take up their case, arguing that the Pennsylvania Supreme Court should grant an emergency stay.

Rep. Mike Kelly (R-Pa.), Republican congressional candidate Sean Parnell, and other Republicans asked the Pennsylvania Supreme Court to grant a delay of its ruling that allowed officials to complete the certification of election results. They said that the status quo is necessary as they appeal to the U.S. Supreme Court.

Their reasoning, according to a court filing on Wednesday, is that there is a “reasonable possibility” the U.S. Supreme Court takes up the appeal, adding there is a “fair prospect” that the nation’s highest court will reverse Pennsylvania’s decision.

The Pennsylvania Supreme Court’s “decision violates Petitioners due process rights and rights to petition under the Fourteenth and First Amendments to the U.S. Constitution and also does not reach the critical issue that Pennsylvania’s General Assembly exceeded its powers by unconstitutionally allowing no-excuse absentee voting, including for federal offices,” during the Nov. 3 elections, according to their court filing.

Officials in Pennsylvania have said that certification for Democrat Joe Biden’s victory in the state is complete. The Electoral College will vote to certify the election on Dec. 14.

The GOP appeal to the U.S. Supreme Court argued that a 2019 expansion of mail-in ballots—known as Act 77—in Pennsylvania violated the state’s Constitution.

Lawyers for Pennsylvania Secretary of State Kathy Boockvar and Gov. Tom Wolf, both Democrats, responded in a court filing of their own later Wednesday, arguing that the Supreme Court will not likely take up their case.

“It is simply too late to invoke the U.S. Constitution now; they have waived their arguments. For this reason, and because the fatal flaws in Petitioners’ original case mean that the Supreme Court of the United States is highly unlikely to grant relief, this Court should deny Petitioners’ Application,” according to the filing.

But Kelly and Parnell got a significant voice of support on Tuesday when Sen. Ted Cruz (R-Texas), a former solicitor general in Texas, called on the Supreme Court to hear their case.

Cruz, namely, took issue with the Pennsylvania Supreme Court’s move to dismiss their claim under procedural grounds, rather than of the merit of their arguments.

“In the current appeal, the Pennsylvania Supreme Court dismissed the claim based on a legal doctrine called ‘laches,' which essentially means the plaintiffs waited too long to bring the challenge. But, the plaintiffs reasonably argue that the Pennsylvania Supreme Court has not applied that doctrine consistently and so they cannot selectively enforce it now,” the Republican senator opined.

The state court, he said, ensnared the GOP plaintiffs in a proverbial “Catch-22” because if they filed before the election, “they lacked standing.” But when filing a lawsuit after the election, “they’ve delayed too long,” Cruz said.

“The result of the court’s gamesmanship is that a facially unconstitutional election law can never be judicially challenged,” he said. “Ordinarily, the U.S. Supreme Court would stay out of election disputes, especially concerning state law. But these are not ordinary times.”