Will SCOTUS Overrule the Pennsylvania Supreme Court?

Will SCOTUS Overrule the Pennsylvania Supreme Court? By Michael Iachetta.

It’s likely that the Supreme Court will overturn a critical Pennsylvania State Supreme Court ruling on account of the state court’s incorrect use of the legal doctrine of laches (pronounced like latchkeys but without the “k”). This could return the electoral votes of Pennsylvania back to President Trump. …

The 2019 Pennsylvania vote-by-mail law clearly violates Article VII, sec. 14 of the Pennsylvania Constitution …

In late November, Rep. Mike Kelley (PA-R) and several other Pennsylvania voters challenged the law and lost when the Pennsylvania Supreme Court ruled that — whatever the merits of the plaintiff’s case — it was too late to challenge the constitutionality of the law. In other words, the court dismissed the case under the equitable doctrine of laches, which states that if you wait too long to claim your legal rights have been violated, that’s too bad for you. …

Which is compelling for violations of ordinary laws, but not for violations of the constitution:

The doctrine of laches cannot rightly be used to dismiss an allegation that a statute violates constitutional provisions — and this is precisely what Kelley et al. allege. …

The Pennsylvania law is not only clearly in violation of the Pennsylvania Constitution but almost certainly of the U.S. Constitution as well. If a state legislature creates an election law that violates its own state constitution, and this unconstitutional law contributes to determining the outcome of a presidential election, this becomes the concern not only of the people of Pennsylvania but of all Americans. …

There can be no statute of limitations when it comes to challenging the law in federal court as a violation of the U.S. Constitution. Think about it: do you recall any liberal judges, attorneys, or law professors raising the doctrine of laches when someone suddenly realizes that a decades or century old state law violates the provisions of the Constitution? Me neither. …

Trump victory possible:

There is reason to hope that the plaintiffs’ suit will result in a Trump victory at the U.S. Supreme Court. Justice Alito has already ordered that all absentee ballots in Pennsylvania be sequestered. The Court now has nine justices and Justice Barrett said repeatedly in her confirmation hearings that she was committed to following the law. So, there are now potentially five votes to overturn the Pennsylvania law expanding absentee voting as a violation of the U.S. Constitution.

According to the official Pennsylvania election website, President Trump received 2.7 million in person votes and Joe Biden received 1.4 million in person votes in Pennsylvania. Of the mail-in ballots, Trump received 595,538 votes and Biden received 1,995,691.

According to WHYY, under the previous rules concerning voting by mail, civilians cast 266,208 absentee ballots in 2016 in Pennsylvania and 248,561 absentee ballots in 2012. So, even if we generously assume that there were 500,000 civilians in Pennsylvania in 2020 who cast absentee votes in accordance with the provisions contained in the Pennsylvania Constitution, and that they all cast their votes for Biden, Trump would still win Pennsylvania by a landslide. This would justify a U.S. Supreme Court ruling in favor of Kelley et al. and a decision to assign the electoral votes of Pennsylvania to President Trump.

But what about Pennsylvania voters who voted absentee in good faith based on a Pennsylvania law that violated the Pennsylvania Constitution? They would have good reason to be angry (and this is assuming that these were actual votes cast by actual Pennsylvanians), but they will have no one to blame but the Pennsylvania legislators themselves, who could not have been unaware that they did not have the authority to pass the vote by mail law in the first place.

Let’s see what happens, December 8 (Tuesday) US time.

via Tip of the Spear