Trump campaign senior legal advisor Jenna Ellis provided more fodder on Tuesday for critics who have claimed that the self-proclaimed “constitutional law attorney” has no business using such a moniker. Ellis falsely claimed that Pennsylvania Rep. Mike Kelly’s (R-Pa.) election challenge was “still pending” before the U.S. Supreme Court not long after the justices denied Kelly’s emergency application for injunctive relief.
The high court on Tuesday unceremoniously rejected Kelly’s bid to overturn Pennsylvania’s election results in a one-sentence order, stating: “The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied.”
After the court shut the door on a congressional ally in President Donald Trump’s Hail Mary bid to claim victory in Pennsylvania, Ellis levied a baseless attack on journalists, erroneously informing her 780,000 followers and beyond that Rep. Kelly’s petition was “still pending” before the court.
“IMPORTANT POINT REPORTERS ARE MISSING IN PA SUIT: The Supreme Court only denied emergency injunctive relief,” Ellis asserted, incorrectly adding, “In the order, it did NOT deny cert. Mike Kelly’s suit is still pending before the U.S. Supreme Court.”
It seems that Ellis either didn’t understand that Kelly didn’t file for a petition of certiorari or she was intentionally misinforming the public as to the implications of the order.
Kelly filed an emergency application for injunctive relief to prevent Pennsylvania from perfecting certification of its election results. But did he actually file a petition for a writ of certiorari? The Supreme Court docket that Ellis linked to in her tweet didn’t say so, but who better to ask than Rep. Kelly’s lawyer about what they did, right?
Law&Crime reached out to Gregory H. Teufel, the founder of the Pennsylvania-based law firm OGC Law, LLC, and we asked him if he could confirm that Rep. Kelly only filed an application for an injunction and never did a file a petition for a writ of certiorari with the Supreme Court.
“Correct, sort of,” he began, before clarifying. “We did ask that the Court treat our application for writ of injunction as a petition for certiorari, but the Court has declined to do so, so now we need to separately file a petition for certiorari, which we are preparing now and will file ASAP.”
It is true that the emergency application for a writ of injunction did ask the Supreme Court to treat the application as a petition for a writ of certiorari: “Petitioners also ask the Court to consider this Application as a petition for certiorari, grant certiorari on the questions presented, treat the Application papers as merits briefing, and issue a merits decision as soon as practicable.”
But SCOTUS denied the application and did not treat it as a petition for certiorari. Ellis nonetheless said the case was “still pending” before the court. In other words, Ellis gave the Twittersphere and the president’s supporters the impression that a petition for a writ of certiorari had been filed and was still before the Court. But that was not so.
SCOTUS did not deny a petition for certiorari because Rep. Kelly did not file a petition for certiorari. Kelly did ask the court in its discretion to treat the application as such, but the court did not do so.
Law&Crime asked Teufel for some clarification on a final point. We asked if it was right that he needs to file a petition for a writ of certiorari separately now in order for it to be true that the case is “still pending” before the court, as Ellis said.
“Correct. Functionally [Ellis] is not wrong that the case is not over and will still proceed,” Teufel answered. “Still pending is technically not correct until we get the petition filed.”
University of Texas law professor Steve Vladeck explained why Ellis was wrong by mimicking the formula of her media criticism tweet.
“Important point [Jenna Ellis] is missing in PA suit: [Mike Kelly] hasn’t even *filed* a petition for certiorari in his case; he had sought an injunction pending a *future* appeal. So there was nothing else for SCOTUS to deny,” Vladeck noted. “Kelly asked the Court to treat his application for an injunction as a petition for certiorari *in the alternative,* and that’s what was denied. There’s no separate filing, and so #SCOTUS’s denial of the application means that there is nothing else pending from Kelly at the Court.”
Kelly asked the Court to treat his application for an injunction as a petition for certiorari *in the alternative,* and that’s what was denied. There’s no separate filing, and so #SCOTUS’s denial of the application means that there is nothing else pending from Kelly at the Court.
— Steve Vladeck (@steve_vladeck) December 8, 2020
UC Irvine professor of law and CNN election law analyst Rick Hasen and former federal prosecutor Elie Honig similarly corrected Ellis.
— Rick Hasen (@rickhasen) December 9, 2020
IMPORTANT POINT YOU ARE MISSING:
Wrong. It’s not “pending.” He hasn’t filed for cert. — there's nothing pending. Show us what's pending on the Supreme Court docket. (Hint: nothing)
And now it’s after the safe harbor. (Meaning – if he does file, he’ll lose unanimously, again).
— Elie Honig (@eliehonig) December 9, 2020
[image via screengrab/Centennial Institute/YouTube]
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