Parsing Out Pennsylvania

If you want to see how a U.S. Supreme Court, packed to 13 or 15 with Joe Biden appointees, would act, then look at the Pennsylvania Supreme Court, which is dominated by five elected Democrats.

In February 2018, the PA Court threw out the existing congressional district map and re-drew it according to its notion of "fairness."

In July 2020, the PA Supreme Court ruled in favor of Democrat Governor Wolf to continue his China virus emergency declaration.

In September 2020, the Court rewrote Pennsylvania election law to allow ballots received three days after Election Day, even without a postmark, to be counted.  Further, it kicked off the ballot the Green Party candidate, who normally takes away votes from the Democratic candidate.  The Court rewrote the clear language of the statute:

Deadline.--Except as provided under 25 Pa.C.S. § 3511[24] (relating to receipt of voted ballot), a completed mail-in ballot must be received in the office of the county board of elections no later than eight o'clock P.M. on the day of the primary or election.

This case is on appeal to the U.S. Supreme Court on the argument that only the Legislature can set the rules for a federal election:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing* Senators. 

On November 27, 2020, Judge McCullough of the PA Commonwealth Court issued a preliminary injunction to stop certification of the vote pending review because the Pennsylvania statute, Act 77, enacted on October 31, 2019, which provided for "no-excuse" mail- in voting, changed the Pennsylvania constitution.  Amending the PA Constitution requires that the Legislature pass the law in two sessions, and then the amendment is voted upon by the voters.  This was not followed in enacting Act 77.  The case is Mike Kelly, Sean Parnell, et al. v. Commonwealth of Pa, Governor Thomas Wolf, et al.

On Saturday, November 28, 2020, the Pennsylvania Supreme Court overruled Judge McCullough.  The vote was 7-0, with the two Republicans joining in the decision with the exception that the two Republicans wanted to keep the case open to decide the constitutionality of the statute.

The two Republicans should have dissented to state that the election was held under an unconstitutional and therefore an illegal statute.  They should have stated that Gov. Wolf, his Democrat secretary of state, and Democrat attorney general Josh Shapiro allowed the election to proceed under a statute they knew was unconstitutional.  All three are sworn to uphold the laws and constitutions of Pennsylvania and the United States.

Senator Kelly filed an emergency appeal to Judge Alito of the U.S. Supreme Court requesting an injunction to bar the certification.

The issues raised by Kelly are as follows:

1. May a legislature violate its state constitution's restrictions on the lawmaking power when enacting legislation for the conduct of federal elections pursuant to Article I, § 4, and Article II, § 1 of the U.S. Constitution?

 2. Did the Pennsylvania Supreme Court violate Petitioners' rights under the First and Fourteenth Amendment of the U.S. Constitution by dismissing with prejudice the case below, on the basis of laches, thereby foreclosing any opportunity for Petitioners to seek retrospective and prospective relief for ongoing constitutional violations?

On December 8, Justice Alito issued a one-sentence order to deny the request for an injunction.

Senator Kelly has the right to file a Petition for Writ of Certiorari, which is a request to the Supreme Court to hear the case.  But since the Court denied the request for an injunction, the Court will not hear the case.  If it wanted to hear the case, it would have issued an injunction to stop the certification.

The PA Supreme Court did not question whether Act 77 is constitutional.  Instead, the Court ruled that the plaintiffs waited too long to sue, relying on a legal doctrine of "laches," which means a party did not act promptly to file suit.

The Pennsylvania law on laches is as follows:

Laches is an equitable doctrine[.] ... [I]ts purpose is for the repose of title, claims and demands for peace and order in society[.] ... The question of its application does not depend upon the fact that a certain definite time has elapsed since the cause of action accrued, but rather whether, under the circumstances of the particular case, the complaining party or parties are chargeable with want of due diligence in failing to institute or prosecute the claim[.] ... [I]t must further appear that injury or material prejudice has resulted to the defendant through the delay.

The harm is not to the defendants, among them Governor Wolf, but to the voters who relied on the system created by Wolf.

Laches is a judge-created "law" that gives a judge wide discretion to dismiss a suit if he believes that the litigant did not promptly sue.

Judges usually reject laches because the legislatures have enacted laws specifying the statute of limitations for the deadlines to file suit and to proceed once suit is filed.  To apply laches requires an evidentiary hearing for the plaintiffs to explain why they waited to file suit so the judge has facts upon which to decide whether to apply laches and how the defendants are harmed.

The Court did not hold an evidentiary hearing to question why Wolf allowed the election to proceed pursuant to a statute he knew was unconstitutional.

Further, the Republicans have a majority in the Senate and House of the PA Legislature.  Why did the Republicans in the Legislature vote for Act 77 to allow no-excuse mail-in voting?

The votes of voters who voted in person were not treated equally because the no-excuse mail-in voters voted pursuant to an unconstitutional law.  This is a denial of equal protection and due process.

As Judge McCullough stated:

[A] mail-in voting process that would exceed the limits of absentee voting prescribed in PA Const. Article VII sec 14 could be construed as violating the "one person one vote."  In that event, the sheer magnitude of the number of mail-in ballots would not be a basis to disregard not only this provision of the Pennsylvania Constitution but also the "one person, one vote" doctrine established by Reynolds, one of the bedrock decisions of the U.S. Supreme Court.

The PA Supreme Court also said the mail-in voters would be disenfranchised.  But that is the fault of Wolf and his secretary of state, who created the problem, not the fault of those challenging an unconstitutional law.

Senator Ted Cruz urged the U.S. Supreme Court to review Kelly's appeal.

The PA Supreme Court ruled to protect the "win" by Biden.  This is consistent with its decision to rewrite the law to allow unlimited mail-in ballots received after the election date.

Two of the plaintiffs, Sean Parnell and Wanda Logan, may have lost because of the mail-in ballots.

The PA Court did not rule on the constitutionality of Act 77 because it knows that it is unconstitutional.  It dismissed with prejudice on flimsy reasoning of laches without an evidentiary hearing on who was at fault in having an election based on an unconstitutional law.

The only hope is the suit filed by Texas and joined by 17 other states.  The suit raises similar issues raised in the Kelly-Parnell suit: the election laws were changed unlawfully by the courts, the Legislature in PA, and the secretaries of state.  The bottom line is that states that followed a constitutional system do not have their voters' votes treated equally because Pennsylvania and the other three states held an unconstitutional election.

The difficulty for the Supreme Court is the remedy.  If this involved an election to a minor local office, the Court would do its constitutional duty to set aside the election.

The Texas suit requests an injunction to stop certification and that the vote of the electors not be counted, or that electors be appointed in a constitutional manner.

But since the Court denied Kelly's request for an injunction, it appears that the Court does not want to decide who won the election.

The Court cannot just set aside the election in the four states — Pennsylvania, Georgia, Michigan, and Wisconsin — to resolve the issue of the proper electors for the presidential race because the elections involved many local races, state races, and House and Senate congressional races.

The Court will most likely rule that this is a political question that should be decided by the legislatures of Pennsylvania, Georgia, Michigan, and Wisconsin because the Constitution states that each state Legislature shall select the electors.  The Court will pass the buck back to the politicians in the four states.  This means that the Legislature of each state should investigate the election and make the decision.

*original spelling in Constitution

Image: Rlibrandi via Wikimedia Commons (cropped), CC BY-SA 3.0.