The high court's single-sentence order denied the application for injunctive relief sought by U.S. Rep. Mike Kelly, R-Pa., and candidates Sean Parnell and Wanda Logan, who lost their Pennsylvania congressional and state races, respectively. The challengers had sought to declare the state's rules for mail-in voting unconstitutional and asked the court to reverse the certification of votes for the presidential election. It did not note any dissents.
The denial came just before the Dec. 8 "safe harbor" deadline for states to make or change their electoral college votes, though other suits are still seeking to overturn the election results in Pennsylvania and other states that were key to President-Elect Joe Biden's win.
"SCOTUS has rejected Rep. Kelly's attempt to throw out the votes of 2.5 million Pennsylvanians," tweeted Pennsylvania Attorney General Josh Shapiro shortly after the order. "Laws matter."
President Donald Trump's post-election legal team issued a statement just before the ruling indicating that the Tuesday deadline would not stop its efforts to fight the results in court.
"The 'Safe Harbor Deadline' is a statutory timeline that generally denotes the last day for states to certify election results. However, it is not unprecedented for election contests to last well beyond December 8," said Trump campaign attorneys Rudy Giuliani and Jenna Ellis. … "The only fixed day in the U.S. Constitution is the inauguration of the president on January 20 at noon. Despite the media trying desperately to proclaim that the fight is over, we will continue to champion election integrity until every legal vote is counted fairly and accurately."
In their opposition brief Tuesday morning, attorneys for Pennsylvania Gov. Tom Wolf and Secretary of the Commonwealth Kathy Boockvar had argued that the challengers' suit should be tossed.
"In seeking such unprecedented relief, petitioners might be expected to present claims of the utmost constitutional gravity. Instead, the pair of claims they advance are fundamentally frivolous," the state's brief said. "Neither claim was pressed or passed upon below. Neither claim implicates a circuit split. Both claims are mired in procedural and jurisdictional defects that preclude this court's review. ... Granting an injunction would sow chaos and confusion across the nation while inflaming baseless concerns about electoral impropriety and ensnaring the judiciary in partisan strife."
Wolf had certified Pennsylvania's 20 electoral votes for Biden on Nov. 24, days after the lawsuit was initially filed in state court.
Kelly, Parnell and Logan's underlying suit claimed that the Republican-led state legislature's 2019 passage of Act 77, which allowed all qualified voters to apply for mail-in ballots, violated the Pennsylvania Constitution's limits on when people could use an absentee ballot. The Supreme Court of Pennsylvania had dismissed the suit with prejudice Nov. 29, and the challengers appealed to the U.S. Supreme Court.
Pennsylvania's brief said the state court had dismissed the suit solely on the doctrine of laches, the idea that it can be too late to file a lawsuit if the plaintiffs knew of the issues earlier and the delay had prejudiced the defendants. The case in the state court had been focused entirely on whether Act 77 was legal under Pennsylvania law, and since the challengers raised the federal-law claims for the first time with the U.S. Supreme Court, those claims were forfeited, the state argued.
"The court has long recognized that the laches doctrine constitutes an independent state law ground that adequately and independently supports a state court's judgment," the state's brief said. "Because the decision below rested purely on state law, this court has no power to review or otherwise opine on petitioners' forfeited claims under the elections and electors clauses."
Though the challengers had said laches didn't apply to constitutional claims, the state's brief said the case they cited actually held that the doctrine didn't apply to future or ongoing constitutional violations, but could still be applied to bar retrospective relief like undoing the election.
"The Pennsylvania Supreme Court, in Stilp v. Hafer
, recognized that although laches may not apply to a challenge 'to prevent an unconstitutional act from occurring,' laches does apply to a 'challenge to an act that already occurred,'" the state's brief said. "Here, petitioners seek to invalidate the already-passed November 3 general election. Laches forbids this relief."Denying the suit based on laches was not a violation of the challengers' federal due process rights or their right to petition the courts for relief, the state said.
"There is no federal constitutional right to sue whenever you want," the brief said. "Petitioners were well aware of respondents' laches defense in the Pennsylvania courts. But nowhere in the 155 pages of briefing that they filed in the state courts before first seeking emergency relief here is there any suggestion that it would somehow violate the Constitution to apply laches. This dooms petitioners' position."
Last, the state argued that the challengers' proposal for the court to toss votes — whether they were from the millions of people who voted by mail or the others whose votes would be discounted if the court undid certification — was itself unconstitutional and violated principles of federalism.
"Federal courts have repeatedly held that the due process clause requires the counting of votes cast in reasonable reliance on existing election rules as implemented and described by state officials — even if those rules are later held to be unlawful. The Constitution protects the right to vote — and to have votes counted," the brief said. "… A federal judicial intervention … on the improbable theory that the state legislature misapplied the state constitution in enacting a state election law — would be extraordinarily intrusive. Indeed, there are few conceivable federalism violations more substantial than the disenfranchisement of an entire state in the Electoral College."
The challengers filed a brief response Tuesday afternoon, contending that while the complaint in the state court had not specifically made claims related to the electors clause of the U.S. Constitution, it had "generically referenced" that they were seeking a declaration that Act 77 was "unconstitutional," even if its arguments had focused on the state constitution. They had also raised the federal questions when asking the state Supreme Court for a stay of its decision — having briefly retracted their filing with the federal high court until the state court denied the request — the reply brief said.
Counsel for the challengers did not immediately respond to requests for comment Tuesday.
Wolf and Boockvar are represented by Robert A. Wiygul, Michele D. Hangley, John G. Coit, Christina C. Matthias and John B. Hill of Hangley Aronchick Segal Pudlin & Schiller; Barry H. Berke, Dani R. James and Michelle Ben-David of Kramer Levin Naftalis & Frankel LLP; Joshua Matz, Raymond P. Tolentino and Harmann Singh of Kaplan Hecker & Fink LLP; and J. Bart DeLone, Sean A. Kirkpatrick and Daniel B. Mullen of the Pennsylvania attorney general's office.
The challengers are represented by Gregory H. Teufel of OGC Law LLC.
The case is Kelly et al. v. Commonwealth of Pennsylvania et al., case number 20A98, in the U.S. Supreme Court.
--Editing by Bruce Goldman.
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