Pennsylvania Supreme Court rejects GOP challenge after judge said it had ‘likelihood to succeed’

Pennsylvania Supreme Court rejects GOP challenge after judge said it had ‘likelihood to succeed’. By Chris Enloe.

Commonwealth Judge Patricia McCullough issued an injunction last Wednesday after Republicans made an emergency request to stop the certification of Pennsylvania’s election results.

The central claim of the lawsuit was that Act 77, a law passed in Oct. 2019, violated the state constitution by allowing voters to obtain absentee ballots for any reason. The state constitution, on the other hand, specifies only a limited number of reasons for which an absentee ballot may be cast.

McCullough later issued an opinion on Friday explaining that the petitioners would likely win on the merits of their case.

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. Const. 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 the parties, this Court can state that Petitioners have a likelihood of success on the merits of its Pennsylvania Constitutional claim. …

But the state Supreme Court overruled her, clearing the way for the state to certify the election:

The Pennsylvania Supreme Court struck down a lawsuit late Saturday that challenged the legality of a new state law that allowed voters to obtain an absentee ballot for any reason. …

The Pennsylvania high court — which is controlled by a 5-2 Democratic majority — unanimously dismissed the lawsuit, ruling the challenge came too late for a reasonable legal remedy. …

The court explained:

The want of due diligence demonstrated in this matter is unmistakable. Petitioners filed this facial challenge to the mail-in voting statutory provisions more than one year after the enactment of Act 77. At the time this action was filed on November 21, 2020, millions of Pennsylvania voters had already expressed their will in both the June 2020 Primary Election and the November 2020 General Election and the final ballots in the 2020 General Election were being tallied, with the results becoming seemingly apparent. Nevertheless, Petitioners waited to commence this litigation until days before the county boards of election were required to certify the election results to the Secretary of the Commonwealth …

Meanwhile, Chief Justice Thomas Saylor and Justice Sallie Mundy [the court’s two Republican justices] filed a concurring and dissenting opinion suggesting that the constitutional merits of the case — that Act 77 may violate the state constitution — could be considered by a lower court at a different time. They agreed, though, that the current petitioners acted far too late.

So the state’s constitution was violated, but that this not enough reason to invalidate those ballots. Essentially: you’re too late to complain, it’s done!

Therefore, if the swamp hustles through some fraudulent practices and wins, it’s too late to complain when you lose. Not sure this is credible. It condones cheating. The obvious problem is how to undo the effect of an unconstitutional law — what’s fair? Looks like this unconstitutional law will be in effect for exactly one Presidential election. Surprise! Cannot undo the result even though it’s wrong. So there.

Next stop? The Supreme Court of the United States.

Note however that this ruling is only about the validity of mail in votes, not whether fraud occurred. There are other cases.

hat-tip Charles