The Pennsylvania Supreme Court just threw out perhaps the most ambitious post-election lawsuit to date.
A group of Republican plaintiffs, including newly reelected Rep. Mike Kelly and defeated congressional candidate Sean Parnell argued before the Commonwealth Court of Pennsylvania that the state legislature’s pre-pandemic expansion of no-excuse absentee voting through Act 77 violates the state constitution, which explicitly lays out only four circumstances under which a person may vote absentee.
The plaintiffs asked the court for an order that prohibits the state from certifying the presidential election results, which include mail-in ballots that “Defendants improperly permitted on a statewide basis,” “compels Defendants to certify the results of the election based solely on the legal votes,” or directs the General Assembly to choose Pennsylvania’s electors.
They are all big asks, but the requests for a judicial blessing of none or only of certain mail-in ballots is especially ambitious: Nearly 2.6 million mail-in votes were cast for president.
The lower court judge said that the Republican petitioners “appear to have established a likelihood to succeed on the merits” and ordered the defendants (the state) to stop its work of certifying election results. The state appealed to the high court, which vacated the lower court’s order on Saturday.
There are at least two things to recognize with this case. The first is, several judges said that the Republican petitioners’ argument had weight. In addition to Judge Patricia McCullough, who delivered the initial order to stop certification, Chief Justice Thomas Saylor entertained that notion. “I find that the relevant substantive challenge raised by Appellees presents troublesome questions about the constitutional validity of the new mail-in voting scheme,” he wrote in a dissenting statement, with which Justice Sally Updyke Mundy concurred.
However, Saylor concurred with the court’s opinion vacating McCullough’s order. The second point is that voters relied upon the election law framework provided by Act 77. Saylor wrote, “As the majority relates, there has been too much good-faith reliance, by the electorate, on the no-excuse mail-in voting regime created by Act 77 to warrant judicial consideration of the extreme and untenable remedies proposed by Appellees.”
Even those judges who voice sympathies for originalist and textualist readings (Saylor also dissented from his court’s rewriting of election law to change the mail-in ballot received-by deadline) may be dissuaded from ruling in a post-election scenario the same way that he might in a pre-election scenario. Once millions of voters have exercised their franchise under a particular statutory framework, a strong deference is owed to those voters.
In an interview earlier in November, Republican Attorney General Mark Brnovich of Arizona, a state that was being hit with its own allegations of election rigging, fraud, and the like, told Fox News host Neil Cavuto, “If there is a problem, or you think there is a potential problem, the answer is, you don’t wait until it’s done to file a lawsuit. If you have problems with people on the voter rolls, you know, other issues, you need to address those problems prospectively instead of reactively.”
That seems to be the lesson this year: Fight your election cases before the election takes place, especially if they involve a year-old law. In the Pennsylvania case, it’s not so much that there was nothing to the Republicans’ argument. It’s that it came too late for even the explicitly sympathetic justices to get completely on board.
