The Commonwealth of Pennsylvania submitted a blistering brief in state court on Monday evening that calls out a Republican elected official for effectively filing a sore-winner lawsuit that, for some reason, seeks to throw out millions of mail-in ballots.
As Law&Crime previously reported, Rep. Mike Kelly (R-Pa.) leads a group of GOP plaintiffs who claim Governor Tom Wolf (D) and Secretary of State Kathy Boockvar (D) violated the Keystone State constitution by allowing any resident to cast their ballot by mail during the 2020 general election.
Their proposed remedy is an injunction that would bar Pennsylvania election authorities from “certifying collected votes” and, in the alternative, asks for the Commonwealth Court to “direct that the Pennsylvania General Assembly choose Pennsylvania’s electors.” Both forms of relief would, in effect, hand Pennsylvania’s 20 electoral votes to the loser, President Donald Trump.
Attorneys for Pennsylvania savaged those decidedly extreme and unlikely-to-be-granted requests in their Monday filing.
“The relief [Kelly and the GOP] seek is simply breathtaking,” the reply brief begins. “They ask this court to invalidate Pennsylvania’s voting laws, undo the results of Pennsylvania’s general election, and disenfranchise several million voters. While draped in the driest of historical arguments, [their] claim is audacious; to grant it would undercut the very foundations of Pennsylvania’s democracy and snatch the most basic of rights from its people.”
The filing lists several reasons the complaint should be dismissed:
If it were ever possible to allege a harm serious enough to justify such a remedy, no such allegation has been made here. Instead, Petitioners’ claim has no merit at all, and must be dismissed at the pleading stage. First, Petitioners lack standing. They allege no particular harm from the supposed constitutional violation they allege; therefore, they have no right to pursue their claim in court. Second, this Court lacks jurisdiction. Pennsylvania’s Election Code prescribes particular and specific procedures for altering or overturning election results, and precludes all other remedies. Third, Petitioners have waited for far, far too long to bring this claim. They should have brought it, if at all, within the 180 days provided in the statute at issue.
The statute at issue here is a 2019 Pennsylvania law called Act 77 which created “no excuse mail-in voting” and provided money to county election administrations in order to purchase elections equipment which, if and when implemented, would create “a paper trail that strengthens the security of our elections.”
Kelly and the GOP argue, however, that the state constitution only allows for mail-in voting under “limited circumstance[s]” that require a series of strict “mandatory protocol requirements” which were not followed by the legislature when the law was passed.
But, according to Pennsylvania, Kelly is confused about what the state’s constitution actually says and he filed the lawsuit far too late to complain about the statute–or mail-in voting–now.
“Instead, they waited until well past the last minute—after the election had taken place, the votes had been counted, and election administrators were in the process of certification—to spring their claim at a time when it could inflict maximum damage,” the reply brief notes. “Finally, even if Petitioners could surmount all these problems, their claims have no merit. The Pennsylvania Constitution simply does not mean what Petitioners say it means, and presents no barrier to the enactment and implementation of mail-in voting.”
The filing goes on to note that the statute was also passed with companion legislation that forecloses against exactly the kind of lawsuit filed by Kelly:
In passing Act 77, the legislature was undoubtedly well aware that implementing such a significant overhaul of Pennsylvania’s voting laws would be a lengthy and complex endeavor, and that challenges to the law’s constitutionality therefore should be brought and addressed before this implementation began. Accordingly, the legislature included a provision that required all constitutional challenges to be brought within 180 days of its effective date. See Section 13(3) of Act 77 (“An action under [certain enumerated provisions, including the mail-in ballot provisions] must be commenced within 180 days of the effective date of this section,” or April 28, 2020.).
The Section 13(3) deadline came and went without any facial challenge to the constitutionality of Act 77’s provisions.
Pennsylvania officials want to know why Kelly didn’t make this argument until now.
“At no time during the 180-day period, the runup to the primary election, or the runup to the general election did petitioners (or anyone else) claim in any proceeding whatsoever that Act 77 was unconstitutional on its face,” the brief continues. “In fact, three of the petitioners here, Congressman Kelly, Mr. [Sean] Parnell, and Ms. [Wanda] Logan, ran in the 2020 primary and general election, presumably garnering votes cast on the same mail-in ballots that they now claim to be unconstitutional.”
The fact that several of the Republican Party plaintiffs ran for office under the auspices of the law they now claim is unconstitutional was not only noted by the state defendants but, they went on to argue, instrumental as to why the entire case should be tossed forthwith.
Again the reply brief at length [emphasis in original]
[The lawsuit] pleads no facts whatsoever showing any particularized, substantial interest held by any of the petitioners. Indeed, the only interest the [lawsuit] alleges will be harmed is the “interest of all citizens in having others comply with the law.” The [lawsuit] could not be clearer on this point: the only two paragraphs that come close to identifying an alleged “injury” confirm that the interest asserted by petitioners is an abstract interest in compliance with the law.
The [lawsuit] identifies no other purported harms. Two of the petitioners, Representative Mike Kelly and Sean Parnell, are alleged to bring the lawsuit as candidates for federal office as well as voters/citizens. But the [lawsuit] nowhere alleges that they sustained any particularized injury as a result of Act 77. Not only that, but the Petition specifically avers that Representative Kelly was “re-elected” in the November 2020 election that was conducted under Act 77. Without well-pleaded facts showing a particularized, cognizable injury, there is no standing.
In other words, Kelly won his election and regardless of the legal niceties concerning the law itself, Act 77 clearly did not cause him any form of injury–legal or otherwise–according to Pennsylvania.
The reply brief goes on to argue that Kelly’s claims should also be dismissed because the lawsuit fails to state a claim, because the common law concept of “laches” precludes any relief for the plaintiffs and because the court itself lacks the jurisdiction, under the state election code, “to either change the general election’s results or halt certification of those results.”
[image via Alex Wong/Getty Images]
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