UDATE: Rep. Mike Kelly’s attempt to overturn the election result in Pennsylvania failed when the following order was released: The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied.
The U.S. Supreme Court now has the reply brief in the challenge to election law and results in Pennsylvania. Justice Samuel Alito originally scheduled the brief to be due by Dec. 9 but later changed it to Dec. 8. The Commonwealth of Pennsylvania already had trashed the petition of Representative Mike Kelly (R-PA), saying it was legally and procedurally wanting in the extreme. Because of the timing of the post-election validation process, we should expect an order from the U.S. Supreme Court without delay.
This case brought by Pennsylvania Republicans led by Kelly claims that the expansion of absentee voting was unconstitutional under state law. The emergency request seeks an order from the U.S. Supreme Court preventing Pennsylvania authorities from taking any further steps to certify the results of the Nov. 3 election.
A Switch in Time Saves….
The due date for this reply brief is significant because of the so-called safe-harbor deadline, which is Dec. 8 this year. Under the federal Electoral Count Act, elections settled by this date will be treated by Congress as presumptively valid. By setting the deadline for a response as Dec. 9, the Supreme Court would have acted after the safe-harbor deadline had closed, making it less likely that it would overturn the results in Pennsylvania.
Constitutional law professor Josh Blackman speculated on the reason behind the switch in Reason magazine:
“What happened here? I can think of two options. First, Circuit Justice Alito didn’t realize the significance of setting the response due after the safe harbor date. In other words, he did not recognize that this deadline amounted to a de facto denial of the application. I think this option is unlikely. Alito is a sharp guy. This could not have evaded his review. Second, Circuit Justice Alito realized the significance of that date, and didn’t care because the application was frivolous, but another Justice objected.”
Patently Spurious and Unworthy of Review
The reply brief attacks the emergency request from multiple angles, including that there is no federal question present for the U.S. Supreme Court to rule on. The Pennsylvania Supreme Court relied on the doctrine of “latches” to dismiss the claim Kelly made in the state courts. In a nutshell, that claim goes like this: If Republicans think the law (Act 77) challenged is unconstitutional or otherwise illegal, they shouldn’t have waited so long to challenge it. The petitioners have the power to bring their challenge when they choose, and their delay can’t accrue to their legal benefit.
The reply says, “From the moment Act 77 was signed in October 2019, not to mention the June 2020 primary conducted under Act 77’s mail-in voting regime, Petitioners have had the incentive and wherewithal to investigate the validity of Act 77.” Latches, a doctrine under Pennsylvania law and that of other states, was the sole basis of the Pennsylvania Supreme Court’s dismissal of this case.
Justice Alito may rule on this issue himself, because of how the Supreme Court handles emergency orders, or he may refer it to the full court for action on the petition. Given the time crunch related to the safe-harbor provisions in the law, we should expect a decision on the request sooner rather than later.
Read more from Scott D. Cosenza.
