On November 21, 2020, Petitioners U.S. Rep. Mike Kelly, U.S. Rep. candidate Sean Parnell and four other members of the Republican Party filed suit against Pennsylvania seeking an injunction against certification of election results and declaratory relief regarding the unconstitutionality of a new law, Act 77, that provided for no-excuse mail-in voting. Petitioners claim Act 77 is unconstitutional because it is a legislative change to voting options rather than a constitutional amendment as required by the Pennsylvania State Constitution. It also goes against 158 years of standing legal precedent. On November 22, Petitioners filed for preliminary injunctive relief to prevent unlawful mail-in ballots to be included in the certification.
When Act 77 was first proposed in March 2019, it addressed judicial retention and not absentee voting. However, after it had passed the Senate in October 2019, it went into committee in the state house and emerged with an additional phrase “further providing for absentee voting.” Technically and in keeping with the Pennsylvania Constitution, this addition required a majority vote in both the house and the senate and approval by the majority of the electors. In other words, Pennsylvania voters need to weigh in on whether to allow no-excuse absentee voting.
The Commonwealth Court issued an order enjoining the Respondents from taking any further official action to finalized the election. Writing for the court, Judge Patricia McCullough wrote,
“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. Petitioners appear to have a viable claim that the mail-in ballot procedures set forth in Act 77 contravene Pa. Cons. Article VII Section 14 as the plain language of that constitutional provision is at odds with the mail-in provisions of Act 77. Since this presents an issue of law which has already been thoroughly briefed by both parties, this Court can state that Petitioners have a likelihood of success on the merits of its Pennsylvania Constitutional claim.”
Respondents appealed the preliminary injunction to the Pennsylvania Supreme Court and also filed an application to the same court to exercise extraordinary jurisdiction and act as a trial court. The Pennsylvania Supreme Court was comprised of five Democrats and two Republicans at the time of these proceedings.
The Pennsylvania Supreme Court granted Governor Wolf and Secretary of State Boockvar’s motion to vacate the lower court’s injunction on certifying votes and dismissed with prejudice the plaintiffs’ motion for review. The court applied the doctrine of laches and held that a dismissal was warranted “based upon Petitioners’ failure to file their facial constitutional challenge in a timely manner,” since the challenge was filed after an election in which millions of voters cast mail-in votes and more than a year after the enactment of Act 77.
Pennsylvania Chief Justice Saylor dissented in part, noting that questions still remained about the constitutional validity of the new mail-in voting provision, writing,
“…[O]ngoing amendments to an unconstitutional enactment so insulated from judicial review may have a compounding effect by exacerbating the disparity between what the Constitution requires and the law as it is being enforced. Thus, Appellees raise a colorable challenge to the viability of this sort of limitation, which can result in effectively amending the Constitution via means other those which the charter itself sanctions.”
On December 1, US Senator Ted Cruz (TX) issued a press release urging the US Supreme Court to hear this case on appeal. He wrote, in part,
“[T]he plaintiffs point out that the Pennsylvania Supreme Court has also held that plaintiffs don’t have standing to challenge an election law until after the election, meaning that the court effectively put them in a Catch-22: before the election, they lacked standing; after the election, they’ve delayed too long. The result of the court’s gamesmanship is that a facially unconstitutional election law can never be judicially challenged.”
On December 3, Mike Kelly and the other Petitioners filed an emergency writ of injunction to prevent the Respondents from taking any further action to perfect the certification of election results. On December 6, Justice Samuel Alito asked Pennsylvania officials to file their briefs by the morning of December 8. Justice Alito referred the request for injunctive relief to the U.S. Supreme Court but was denied.
Petitioner Kelly then petitioned the U.S. Supreme Court to review the decision of the Pennsylvania Supreme Court, presenting two questions:
- Do the First and Fourteenth Amendments of the United States Constitution permit Pennsylvania to rely on the laches doctrine to bar all forms of equitable relief for substantive constitutional challenges to election laws?
- Do the Elections and Electors Clauses of the United States Constitution permit Pennsylvania to violate its state constitution’s restriction on Pennsylvania’s lawmaking power when enacting legislation for the conduct of federal elections?
The argument in favor of the U.S. Supreme Court taking this case is two-fold. First, Petitioners state that the Pennsylvania Supreme Court ‘s reliance on the doctrine of laches as a bar to relief for a “substantive constitutional challenge to election law” was indefensible as it conflicted with precedents set by this Court as well as numerous Circuit and State courts. In support of this position, the petition includes examples of these precedential cases.
Second, Petitioners argue that Pennsylvania violated their First and Fourteenth Amendment rights because it dismissed the lower court case with prejudice and prevented adjudication of the constitutionality of Act 77. This type of dismissal was equivalent to deciding the case on its merits as if there were a trial with a full presentation of facts from both sides. As a remedy to this “deprivation of access to courts,” Petitioners called on the U.S. Supreme Court to step in as it had in the past. Citing Boddie v. Connecticut (1971), the petition continues, when
“the legitimacy of the State’s monopoly over techniques of final dispute settlement [becomes problematic], the judicial proceeding becomes the only effective means of resolving the dispute at hand and denial of a defendant’s full access to that process raises grave problems for its legitmacy.”
Lacking the authority to do so, the Pennsylvania Supreme Court amended its constitution by allowing Act 77 to go forward, without addressing the merits, by applying laches. The petition supports this claim by explaining the starting point for Pennsylvania’s election code and then describing all the changes that were enacted via constitutional amendments.
Article VII § 14 mandated in-person voting with only four exceptions for absentee voting: “(1) absence from municipality due to duties, occupation, or business; (2) illness or physical disability; (3) observance of a religious holiday; or (4) county election day duties.” Over the years, amendments were made to allow absentee voting for people who were bedridden or hospitalized war veterans, and for people with physical disabilities or unavoidable absences. A final amendment came in 1997 to allow people to vote by absentee ballot when they were outside their municipality on election day – an expansion from a previous exception for people who were outside their county of residence.
The Petition was scheduled to be “distributed for conference” the week of 2/19/21 when the U.S. Supreme Court would decide whether to grant the writ of certiorari.
On February 22, 2021, the U.S. Supreme Court denied the petition to hear this case.
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