Government

PA Supreme Court Benchslaps GOP Legislators' Suit Accusing Themselves Of Conducting Illegal Election

And they would have gotten away with it if it weren't for those meddling justices!

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Laches, FTW!

This weekend, the Pennsylvania Supreme Court ruled that the state’s Republican politicians couldn’t wait until two elections had been conducted using mail-in ballots to decide that the process violated the state’s constitution, because you can’t sleep on your rights and then go running to the court to vindicate them when you don’t like the results.

Before this year, the state only allowed voters to cast absentee ballots in very limited circumstances. But in October of 2019, Republicans led the effort to expand mail-in ballot access to all voters, passing Act 77 by a vote of 138-61 in the Pennsylvania House and 35-14 in the Senate.

At the time, Democrats predicted long lines at the polls after Governor Tom Wolf gave up straight-ticket voting to get the bill through. Who could guess that the president would wage a protracted campaign against absentee ballots, while Democrats aimed to get all their votes in before November 3.

In any event, mail-in ballots from Democrats ensured Joe Biden’s victory, and Pennsylvania Republicans came to the belated realization that voting by mail is unconstitutional actually, despite it having been successfully employed in the June primary and the November general elections.

“Act 77 is another illegal attempt to override the limitations on absentee voting prescribed in the Pennsylvania Constitution, without first following the necessary procedure to amend the constitution to allow for expansion,” wrote the plaintiffs in a complaint seeking to toss out the 2.5 million mail-in ballots, handing the state’s twenty electoral votes to Donald Trump.

In their telling, there was nothing for it but to certify the election based solely on the in-person vote, or for the court to declare the election a nullity, turning the state’s electoral votes over to the legislators to do with what they wished, the will of the voters be damned.

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On November 24, the state certified its presidential election results. But the next day Judge Patricia McCullough of the Commonwealth Court issued a preliminary injunction ordering officials not to certify those results any further and barring them certifying the results of down ballot races pending the results of an evidentiary hearing.

Trump’s victory was short-lived, however, because Saturday, the state’s highest court delivered a stinging slapdown accusing the plaintiffs of sleeping on their rights.

“Petitioners’ challenge violates the doctrine of laches given their complete failure to act with due diligence in commencing their facial constitutional challenge, which was ascertainable upon Act 77’s enactment,” the court noted in a per curiam opinion.

You may have forgotten about the doctrine of laches during that wildass, post-bar exam bender. But the judges on Pennsylvania’s Supreme Court remember it well.

The want of due diligence demonstrated in this matter is unmistakable. Petitioners filed this facial challenge to the mail-in voting statutory provisions more than one year after the enactment of Act 77. At the time this action was filed on November 21, 2020, millions of Pennsylvania voters had already expressed their will in both the June 2020 Primary Election and the November 2020 General Election and the final ballots in the 2020 General Election were being tallied, with the results becoming seemingly apparent. Nevertheless, Petitioners waited to commence this litigation until days before the county boards of election were required to certify the election results to the Secretary of the Commonwealth. Thus, it is beyond cavil that Petitioners failed to act with due diligence in presenting the instant claim.

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And so another Trump election lawsuit meets its ignominious end, with Marc Elias moving another case back into the win column.

So much for the Keystone coup.

Order [Kelly, M, Hon., et al. v. Cmwlth, et al., Aplts – No. 68 MAP 2020]

Elizabeth Dye lives in Baltimore where she writes about law and politics.

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