The 64 state senators, representatives and members-elect of the General Assembly, including Speaker of the House Bryan Cutler and majority leader Kerry Benninghoff, issued a letter Friday asking Pennsylvania's congressional delegation to object to the 20 Electoral College votes certified by Gov. Tom Wolf for Biden. The letter argued that Congress has the power "to reject electoral votes that are not 'regularly given' or 'lawfully certified.'"
Two additional letters asked Pennsylvania Attorney General Josh Shapiro to appoint an independent prosecutor to investigate the election, and for Inspector General Lucas Miller to conduct a review of the Pennsylvania Department of State and the state's election procedures.
"In 2019 the Pennsylvania General Assembly enacted comprehensive changes to our Commonwealth's Election Code. ... Unfortunately, further changes were implemented to our elections and new guidance was issued just prior to the general election day," the letter to Shapiro said. "We ... urge you to appoint an independent prosecutor to review these election irregularities, to ensure the statutes governing our elections were not violated, and to make recommendations to the General Assembly concerning further internal control policies to prevent even the appearance of election manipulation in the commonwealth."
Later Friday, Shapiro responded on Twitter, "Neither the Pennsylvania Constitution or state law allows the attorney general to appoint an 'independent prosecutor' as called for by some Republican state lawmakers. The election in Pennsylvania was fair, secure, and carried out by local election officials of both parties. Pennsylvania's electors have been certified by the governor, and those electors will represent Pennsylvania on December 14 in the Electoral College."
Although every issue the letter to Pennsylvania's federal delegation cited had already been litigated and decided by state and federal courts, it claimed that Wolf and others had taken actions "undermining" the protections of the state's election law.
"The Pennsylvania Election Code requires that all mail-in ballots be received by 8 p.m. on Election Day; Governor Wolf ordered that this statutory deadline be waived in some counties during the primary election, then sought its waiver statewide for the general election," the letter said.
Later Friday, Wolf pushed back on Twitter, "This is a shameful attack on democracy. Pennsylvania had a fair and secure election. Pennsylvanians deserve better from their elected officials. It's time to move on."
Pennsylvania's Supreme Court in September had upheld the requirement that ballots be mailed or dropped off by the end of Election Day but granted a three-day extension for them to be received and counted to allow for potential delays in the Postal Service. That extension was challenged at the U.S. Supreme Court, which ordered such ballots sequestered. Those ballots have not been factored into the state's official count, which had Biden ahead of President Donald Trump by more than 80,000 votes.
"The Pennsylvania Election Code prohibits counties from inspecting ballots prior to 7 a.m. on Election Day; Pennsylvania's secretary of state issued guidance encouraging counties to ignore this prohibition, to inspect ballots, and to contact voters with deficient ballots prior to Election Day," the letter contended.
Trump's reelection campaign filed suit in federal court Nov. 9 claiming that the adoption of the "notice-and-cure" procedures by Democratic-leaning counties and their rejection by Republican-leaning ones had unfairly disadvantaged Republican voters, so the Democratic counties' votes should be tossed out. U.S. District Judge Matthew Brann dismissed those claims Nov. 21, ruling that some counties' efforts to expand voting did not create a federal equal-protection claim or justify disenfranchising voters.
Trump's campaign sought to appeal Judge Brann's ruling that it couldn't file a new complaint, but the Third Circuit turned it down.
"The Pennsylvania Election Code prohibits the counting of defective absentee or mail-in ballots," the legislators' Friday letter claimed. "Encouraged by the Department of State, some county boards of elections ignored this prohibition, and have proceeded to include thousands of defective ballots in the certified count."
As votes were being tallied, campaigns and numerous county boards questioned whether to count mail-in ballots that were missing certain information from their outer envelopes, such as the voter's handwritten name, their address, or the date that they signed their declaration of eligibility.
Appeals of these ballots went up to Pennsylvania's Supreme Court, which ruled Nov. 23 in favor of counting them, concluding that the instructions to "fill out" the envelope were not mandatory and the missing information was not part of any fraud prevention plan.
The Friday letter also repeated arguments about poll watchers that have failed in the courts. "The Pennsylvania Election Code authorizes poll watchers to be selected by candidates and political parties and to observe the process of pre-canvassing and canvassing absentee and mail-in ballots; certain counties in Pennsylvania prohibited these authorized individuals from meaningfully observing the pre-canvassing and canvassing activities," the letter said.
Both state and federal cases addressed the issue. The Trump campaign's state lawsuit seeking to allow poll watchers in Philadelphia to get closer to the counting had ups and downs, with a county court rejecting the claim on election night, the state's Commonwealth Court allowing watchers within six feet on appeal, and the Supreme Court of Pennsylvania ultimately ruling Nov. 17 that state law requires watchers to be in the room but says nothing of how close they can get or whether they're allowed to "meaningfully observe" the opening and counting of ballots.
The campaign then tried to turn the observation issue into federal claims in its lawsuit before Judge Brann, who dismissed them on the grounds that there was no evidence that Trump's observers were treated any differently than Biden's.
Cutler criticized the results in a statement accompanying the letters Friday. "The unconstitutional actions of an activist court created confusion and delays for every voter in Pennsylvania," he argued. "These letters are a continuation of actions the Legislature has taken for months to restore our election law, and the public's trust in our election process."
A representative for Cutler claimed the courts' rulings were "unlawful and unconstitutional" and the signers wanted the congressional delegation to hear it.
The Republicans' statements said they had no authority to appoint their own slate of electors, as some lawsuits have asked the courts to have them do. One such suit, claiming all mail-in ballots were unconstitutional, was filed by U.S. Rep. Mike Kelly, one of the recipients of the letter, and was rejected by the state justices. Kelly has appealed to the U.S. Supreme Court, but Justice Samuel Alito set the deadline for the state's reply on Dec. 9, which is after the "safe harbor" deadline for electors to be appointed.
"I am alarmed and incredibly concerned about the numerous process failures, mistakes and reports of misdeeds in the 2020 election," Benninghoff said in his own statement. "Regardless of their political affiliation, we want people to feel confident in the election process. While we constitutionally cannot act as a Legislature to fix these problems at this time, there is action that can be taken to ensure the integrity of our election is upheld and the voice of Pennsylvanians is heard."
Benninghoff and Cutler had co-signed another statement Thursday, along with state Senate President Pro Tem Jake Corman and Senate Majority Leader Kim Ward, calling for future election reforms but stating that they were unable to undo the election results.
"While we clearly recognize the need for legislative action to address the issues presented by the 2020 General Election, some of the actions requested by our residents would require us to disregard the statutes and Constitution we have fought so hard to protect during this pandemic," that statement said. "The General Assembly lacks the authority to take action to overturn the popular vote and appoint our own slate of presidential electors. ... The General Assembly has directed that the 'manner' of appointing electors is by the popular vote."
Representatives for the other signers did not immediately respond to requests for comment Friday.
--Editing by Brian Baresch.
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