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Pro-Trump Congressman Sues State Officials, Asks Judge to Declare Pennsylvania Election Unconstitutional

Rep. Mike Kelly, who touts himself as a pro-Trump Pennsylvania Republican, on Saturday joined a group of other plaintiffs to file a lawsuit against the Commonwealth of Pennsylvania; its General Assembly; its governor, Tom Wolf (a Democrat); and Secretary of the Commonwealth Kathy Boockvar.

The lawsuit alleges that the named defendants violated the commonwealth’s constitution by allowing universal mail-in voting to occur for the 2020 election pursuant to a state law which Kelly and the other plaintiffs claim conflicts with, and therefore violates, the state constitution.

The plaintiffs assert that they are “qualified electors” — that is, they can legally cast ballots — in Pennsylvania elections. They claim that the 2020 election scheme promulgated by the legislature through its so-called Act 77 functioned to “fundamentally overhaul the Pennsylvania voting system . . . absent any constitutional authority.” The constitutional clause cited, Art. VII, § 14, allows absentee ballots to be cast under several conditions, none of which the plaintiffs argue are congruent with Act 77.

More precisely, Kelly and the plaintiffs argue the state constitution allows either in-person voting or “four limited, exclusive circumstances” where “absentee voting is authorized.”  The relevant portion of the state constitution reads as follows:

The Legislature shall, by general law, provide a manner in which, and the time and place at which, qualified electors who may, on the occurrence of any election, be absent from the municipality of their residence, because their duties, occupation or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability or who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of election day duties, in the case of a county employee, may vote, and for the return and canvass of their votes in the election district in which they respectively reside.

Act 77 is a 2019 Pennsylvania law described by the governor as a “bipartisan compromise.” It predates the COVID-19 pandemic. The law aimed to increase access to voting by, in part, creating so-called “no excuse mail-in voting.” The Act also provided money for counties to purchase elections equipment which, when implemented, would create “a paper trail that strengthens the security of our elections.”

According to state legislative record, the bill which led to the Act, SB421, passed the senate 35 to 14 and passed the house 138 to 61.

Kelly and his cohort argue that the provisions of the state constitution which allow absentee or mail-in voting are only “limited circumstance[s]” which require “mandatory protocol requirements” which must be “strictly followed” by elections officials and, concomitantly, by people casting ballots. Since Act 77 is a statute, not a constitutional amendment, the plaintiffs argue that the legislature botched the procedure for passing the Act and, therefore, that Act 77 does not create a valid vehicle for voting by mail.

Accordingly, Kelly and the other plaintiffs are asking a state court judge to strike down Act 77 as unconstitutional. As the lawsuit notes, some state lawmakers made a similar argument when passing the measure.

Generally, legislative acts are presumed to be constitutional, but the plaintiffs in this case claim subsequent attempts by the legislature to amend the state constitution to bend in compliance with Act 77 are evidence that the legislature knew it messed up procedurally.

The lawsuit seeks also to have a judge declare any certification of votes invalid, plus attorneys’ fees and costs. It also rather strikingly declares that “[t]here is no adequate redress at law” for the harm of certifying collected votes” and that only an “[i]njunction will restore the status quo.” The injunction requested would prevent any defendants from certifying election results, would “compel[]” the defendants to certify only the “legal votes,” or to “direct[] that the Pennsylvania General Assembly choose Pennsylvania’s electors.”

In other words, the lawsuit tacitly asks the judge to hand the election to Donald Trump.

Though not cited in the lawsuit, another provision of the state constitution reads as follows:

Every citizen 21 years of age, possessing [residency] qualifications, shall be entitled to vote at all elections subject, however, to such laws requiring and regulating the registration of electors as the General Assembly may enact.

And, elsewhere:

Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.

[Photo by Alex Wong/Getty Images.]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is a former anchor and executive producer for the Law&Crime Network who now contributes to the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.