Led by U.S. Rep. Mike Kelly, unsuccessful candidates Sean Parnell and Wanda Logan, and a handful of voters petitioned Justice Samuel Alito Jr. for an injunction to block and/or undo certification of Pennsylvania's federal election results pending the high court's determination of whether the Supreme Court of Pennsylvania violated their constitutional rights when it tossed their suit, or if the Republican-led state legislature violated the Pennsylvania Constitution by allowing "no-excuse" mail-in voting in the 2020 elections.
"Petitioners seek relief for violation of their due process rights and rights to petition under the Fourteenth and First Amendments to the U.S. Constitution, effected by the Pennsylvania Supreme Court's decision," said the emergency petition to the U.S. Supreme Court. "Pennsylvania's General Assembly exceeded its powers by unconstitutionally allowing no-excuse absentee voting, including for federal offices, in the election. The opinion below forecloses any means of remedying petitioners' injuries."
The emergency petition asked for Justice Alito, who is assigned to hear emergency applications from the Third Circuit, to order Pennsylvania Gov. Tom Wolf and Secretary of the Commonwealth Kathy Boockvar to halt or reverse the certification of the state's votes and to also treat the filing as a request to have the case heard by the full court on its merits.
"Petitioners seek an injunction that prohibits the executive-respondents from taking official action to tabulate, compute, canvass, certify, or otherwise finalize the results of the election as to the federal offices," the petition said. "To the extent that the above-prohibited actions have already taken place, petitioners seek an injunction to restore the status quo ante, compelling respondents to nullify any such actions already taken, until further order of this court."
Though the federal courts usually defer to state courts on cases interpreting their own state constitutions, the GOP appeal said Pennsylvania's Act 77 had also violated the U.S. Constitution, which had given local legislatures the ability to set how their state's electors are chosen.
"The U.S. Constitution delegates the power to determine the manner of holding federal elections and to select presidential electors in Pennsylvania to the Pennsylvania General Assembly. … In exercising those delegated powers, the General Assembly is constrained by restrictions imposed onto it by the Pennsylvania constitution," the petition said. "When a state legislature violates its state constitution, purportedly in furtherance of its plenary authority to regulate federal elections and appoint electors, it also violates the U.S. Constitution."
The challengers had filed their lawsuit Nov. 21 — days before the deadline for counties to certify their election results — claiming the 2019 law allowing any voter in the state to apply for a mail-in ballot violated the limited circumstances under which the state constitution allowed "absentee" voting. The distinction the law drew between absentee voting and the much more open mail-in voting was irrelevant, since the latter effectively replaced the former, the suit said, and the courts should bar approximately 2.6 million votes cast by mail from being included in any official tally.
A judge in Pennsylvania's Commonwealth Court, where the suit was originally filed, granted a temporary injunction pausing further certification of votes the day after the state officially gave its presidential electors to President-elect Joe Biden. But the Supreme Court of Pennsylvania used its power to instantly elevate the case and dismissed it Saturday under the doctrine of laches, ruling that the challengers had waited too long — more than a year after the voting expansion's enactment, and weeks after the general election — to file their suit.
In their briefs and in Tuesday's petition, the challengers argued they couldn't have brought the suit any sooner, since it took losing their elections or having their preferred candidate lose through the counting of mail-in votes to establish that they'd been harmed by the allegedly unconstitutional rules, giving them standing to sue.
Kelly had won his race for reelection in the Pittsburgh suburbs but was also suing in his capacity as a voter; Parnell lost his race for Congress in another part of Pittsburgh and Logan lost her race for state Senate in a district representing part of Philadelphia. The two candidates argued that, were it not for counting the mail-in votes, they might have won their respective races.
The challengers maintained that expanding mail-in voting required an amendment to the state constitution that had been started but left unfinished when it was replaced by Act 77, and the Pennsylvania justices' denial "with prejudice" on the basis of the challengers' delay had blocked them from ever getting a court to weigh in on the merits of their claim.
"Should petitioners want to raise the issue of constitutionality of Act 77 in 2021, in anticipation of the November 2022 election, res judicata would bar petitioners from raising the same facial constitutional challenges to Act 77," the petition said.
Justice Alito had previously sided with Pennsylvania Republicans in another case over whether counties could accept mail-in ballots that were sent by the end of Election Day but arrived up to three days later. Although he said it was too late to hear the matter before the election, he ordered that those ballots be kept separate and not counted in case the justices took up the case later. But Pennsylvania officials said there weren't enough ballots affected by the one-time state Supreme Court order extending the deadline to make a difference in Biden's 80,000-vote lead over President Donald Trump.
"The petitioners have appealed to the U.S. Supreme Court, because Pennsylvania law would not have given them standing to file suit before the election," said Gregory Teufel of OGC Law, representing the challengers. "It violates their federal constitutional rights to deny them any meaningful opportunity to contest the state election laws as contrary to the state constitution."
Representatives of Wolf, Boockvar and the General Assembly did not immediately respond to requests for comment Tuesday.
The challengers are represented by Gregory H. Teufel of OGC Law LLC.
Counsel information for the state and legislature was not immediately available.
The case is Kelly et al. v. Commonwealth of Pennsylvania et al., case number unavailable, in the Supreme Court of the United States.
--Editing by Orlando Lorenzo.
For a reprint of this article, please contact reprints@law360.com.
