Alito Moves Up Supreme Court Deadline in Key Pennsylvania Mail-In Ballot Case

Supreme Court Associate Justice Samuel Alito testifies in Washington on March 7, 2019. Chip Somodevilla/Getty Images

U.S. Supreme Court Justice Samuel Alito asked officials in Pennsylvania to file briefs by the morning of Dec. 8 in response to an emergency injunction petition filed by Republicans seeking to invalidate or rescind the results of the Nov. 3 presidential election in the Keystone State.

That day is the “safe harbor” deadline that requires controversies surrounding elections to be ended, so states can choose their electors before the Dec. 14 meeting of the Electoral College. Alito initially called for response arguments by Dec. 9, before moving the due date earlier by a day.

The new deadline signals that the Supreme Court intends to rule on the request for the injunction before the safe harbor deadline runs out.

Marc Elias, the top attorney leading the Democrats’ post-election legal effort and who last month called the same lawsuit “frivolous,” wrote on Twitter on Dec. 6 that he is “NOT worried about the date briefs are due” in the Supreme Court.

The Pennsylvania Commonwealth Court on Nov. 25 ordered state officials to not take any steps to perfect the certification of the election pending a resolution to the Republican lawsuit. The Pennsylvania Supreme Court overrode the injunction three days later, leading the plaintiffs to appeal to the nation’s highest court.

With the Supreme Court petition pending, the Republicans asked the state’s Supreme Court to stay its own decision. The court rejected the request.

U.S. Rep. Mike Kelly’s lawsuit argued that the Pennsylvania General Assembly illegally enacted Act 77, a measure that vastly expanded mail-in voting statewide. The act overrode provisions regarding limits to absentee voting outlined in the Pennsylvania Constitution, a change that requires going through the lengthy process of enacting a constitutional amendment, which includes approvals by two consecutive legislatures followed by a successful statewide referendum.

“Beginning with the Military Absentee Ballot Act of 1839, the Pennsylvania Supreme Court consistently rejected all attempts to expand absentee voting by statute—uniformly holding that a constitutional amendment is required to expand absentee voting beyond the categories provided in the Pennsylvania Constitution,” the Supreme Court petition states.

“Act 77 is the Commonwealth’s latest attempt to override through legislation the protective limitations on absentee voting contained in the Pennsylvania Constitution, as interpreted by the Pennsylvania Supreme Court over the last 158 years.”

Pennsylvania Commonwealth Judge Patricia McCullough sided with the plaintiffs on Nov. 25 and blocked the state from certifying the election. State officials had certified the results of the presidential election as McCullough was considering the case, creating the appearance that the state was attempting to preempt the court.

In explaining her decision for an injunction two days later, McCullough opined that the injunction was in order in part because the Republicans were likely to win the case.

The Democratic-dominated Pennsylvania Supreme Court struck down McCullough’s injunction on Nov. 28, arguing that the plaintiffs filed the challenge too late, a legal restriction called laches. Following the ruling, conservative radio host and constitutional scholar Mark Levin criticized the decision, noting that the plaintiffs couldn’t have sued prior to the election because they couldn’t establish standing without having suffered any harm.

One of the two questions now before the U.S. Supreme Court is whether the Constitution permits for the case to have been dismissed using the rationale that the challenge was filed too late.

Democratic Gov. Tom Wolf signed Act 77 into law on Oct. 31, 2019. Eight of the nine sponsors of the bill in the Pennsylvania Senate were Republicans. The state Supreme Court justices had opined that the plaintiffs had more than a year to file their challenge.

“Rather than provide clarity and address this vitally important, and valid constitutional question on the merits, the Pennsylvania Supreme Court exercised its extraordinary jurisdiction to take over the case and dismiss it on the basis of laches,” Kelly’s petition states. “In so doing, the Pennsylvania Supreme Court violated petitioners’ right to petition and right to due process, guaranteed by the First and Fourteenth Amendments of the U.S. Constitution, respectively, by closing all avenues of relief for past and future.”

The plaintiffs in the lawsuit include congressional candidate Sean Parnell and Pennsylvania House of Representatives candidate Wanda Logan, both Republicans. The defendants include Wolf, Secretary of State Kathy Boockvar, the Pennsylvania General Assembly, and the Commonwealth of Pennsylvania.

The Republicans seek an order to temporarily block Pennsylvania from certifying the results of the 2020 election before it’s too late. The injunction, if granted, would be in place while the full U.S. Supreme Court considers and resolves the Republicans’ appeal of the order by the state Supreme Court.

“Respondents have begun the steps necessary to certify the results of the Election, which was undertaken pursuant to an unconstitutional, no-excuse absentee voting scheme,” the petition states.

“Absent intervention by this Court, respondents will complete the process of certifying the results of an election, and potentially cast Electoral College votes for president and vice president, conducted in a manner which the Pennsylvania Supreme Court has long rejected as unconstitutional.”