The 32 Republican lawmakers asked to file an amicus brief with the Supreme Court in support of an injunction request and appeal led by U.S. Rep. Mike Kelly, which claimed that more than 2.5 million mail-in ballots cast under Pennsylvania's Act 77 of 2019 ran afoul of the state's constitution and should be barred from inclusion in the final count. Though the Republican-led state legislature had passed Act 77, the legislators joining the brief said the votes should be stopped from counting because of the Democratic-led executive branch and courts' interpretation of the law before and after the election.
"Members of the General Assembly were directly involved in the passage of Act 77 of 2019 and have a direct and substantial interest in ensuring that the province and duty of lawmakers and legislatures of each state to create laws is protected from overreach by the executive and judicial branches," the lawmakers' petition said. "Granting the application will send a clear message to the highly partisan judicial and executive usurpation of the lawmaking power by co-equal branches of the Pennsylvania government."
The petition and brief came the day after Justice Samuel Alito moved the deadline for the state to respond to the appeal up to 9 a.m. on Tuesday, Dec. 8, potentially giving the Supreme Court a few hours to weigh the case before the federal "safe harbor" deadline for states to appoint or change their electors. The response deadline had previously been Dec. 9, after the electoral results would be locked in.
"A new filing deadline changes nothing and is not a cause for concern," said Pennsylvania Attorney General Josh Shapiro in a tweet Monday. "This lawsuit — an attempt to throw out the legal votes of 2.5 million Pennsylvanians — is baseless. We're prepared, we're on it and we will ensure the will of the people is respected."
President-elect Joe Biden won Pennsylvania's 20 electoral college votes by about 80,000 votes after mail-in ballots were counted. Various efforts to chip away at that advantage in court have either been denied or have not involved nearly enough votes to erase Biden's lead, such as President Donald Trump's reelection campaign's appeal to the state Supreme Court on Friday to discredit about 2,000 ballots in Bucks County. Some of the same state legislators had added their names to a letter on Friday asking Pennsylvania's federal delegation to contest the election results, citing issues that had already been thrown out by state and federal courts.
Monday's amicus brief was signed by state Reps. Paul Schemel, Rob Kauffman, Jim Cox Jr., Frank Ryan, Stephanie Borowicz, Barbara Gleim, Kathy Rapp, Russ Diamond, David Maloney Sr., Dawn Keefer, Mike Jones, Cris Dush, David Zimmerman, David Rowe, Daryl Metcalfe, Dan Moul, Eric Nelson, Valerie Gaydos, Donald "Bud" Cook, Brett Miller, Tommy Sankey, Mike Puskaric, Jim Rigby, Matthew Dowling, Rich Irvin, Jerry Knowles and Aaron Bernstine, and state Sens. Kristin Phillips-Hill, Judy Ward, Mike Regan, Doug Mastriano and Dave Arnold Jr. Almost all of the signers who had been in office when Act 77 passed had voted in favor of it.
Kelly, along with Republican congressional candidate Sean Parnell, state House candidate Wanda Logan and other voters from around the state, had filed a suit on Nov. 21 challenging Act 77's implementation of "no-excuses" mail-in voting as illegal because it allegedly exceeded the limited circumstances under which the Pennsylvania constitution allowed absentee voting.
A lower court had briefly ordered a halt to Pennsylvania's vote certification after the presidential results had been formalized, but the Supreme Court of Pennsylvania took up the case and dismissed it with prejudice on Nov. 29 on the basis that the challengers had waited too long — more than a year after Act 77's passage and after both the primary and general elections.
The appeal was initially sent to the U.S. Supreme Court on Dec. 1, arguing that the state court had erred in tossing the suit with prejudice and that the legislature's alleged violation of the state constitution ran afoul of provisions in the U.S. Constitution allowing local legislatures to set how elections occur in their states. It paused for a formal rejection of a stay by the state court and was then formally filed with Justice Alito, who handles emergency petitions from the Third Circuit, on Dec. 3.
The legislators' amicus brief said that the state court's dismissal of the constitutional claims had not addressed how other actions by the courts and the secretary of the Commonwealth had changed the implementation of Act 77, or the challengers' argument that they would not have had standing to sue until after it was clear that they or their preferred candidates had lost the election.
"The orders and acts of the Supreme Court of Pennsylvania and the Department of State of Pennsylvania contravened, frustrated and substantially modified the express provisions of the Pennsylvania Election Code, as recently amended by the General Assembly," the brief said. "Such orders and acts were made in the days and weeks leading up to, and immediately after, Election Day, thereby affording the petitioners in this case little opportunity to raise their claim prior to Election Day."
Pennsylvania's legislators had an additional interest in the case, the brief said, because if the court grants the requested relief and orders the state's electoral results to be undone, the legislature could be called upon to decide who gets the state's votes. But state legislative leaders — who had not signed onto the brief — had issued a statement last week saying Pennsylvania law requires them to go along with the results of the popular vote when choosing electors.
Attorneys for the legislators on the brief and the legislators defending Act 77 did not immediately respond to requests for comment Monday. A representative for the Secretary of the Commonwealth declined to comment.
The amicus legislators are represented by Charles Gerow of public affairs company Quantum Communications.
The challengers are represented by Gregory H. Teufel of OGC Law, LLC.
The Pennsylvania General Assembly is represented by Jonathan F. Bloom of Stradley Ronon Stevens & Young.
Counsel information for the state was not yet available.
The case is Kelly et al. v. Commonwealth of Pennsylvania et al., case number 20A98, in the U.S. Supreme Court.
--Editing by Steven Edelstone.
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