A glimmer of hope for Donald Trump et al, or yet another oncoming train? The judge who ordered Pennsylvania to halt its election certification processes on Wednesday filed an opinion backing up the action yesterday. Judge Patricia McCullough argued that the plaintiffs’ argument that mass mail-in voting violates the state constitution is “viable,” and that a short delay won’t hurt while courts sort out the challenge.

Legal Insurrection’s William Jacobson reports on the filing:

The case has been somewhat under the radar, because it doesn’t involve claims of fraud. It appears to be a pretty straight legal argument. This is not the federal court case that has received a lot of press attention and in which the Third Circuit Court of Appeals denied relief.

The issue in this case is whether legislative expansion of absentee balloting to broad mail-in balloting violated the Pennsylvania Constitution. It’s not clear what the relief would be; the petitioners seek to preclude the Secretary of State from transmitting the certification or otherwise perfecting the electoral college selections.

Earlier in the week, Judge Patricia McCollough issued a temporary halt to the certification process, and that now is on appeal to the PA Supreme Court. The Judge issued this Opinion to extend that halt pending further hearings, and to set forth the basis for the injunction, which could be relevant to the appeal[.]

This might already be a moot point, as the stay ordered by Judge McCullough on Wednesday has apparently been eclipsed by an automatic counter-stay at the Pennsylvania supreme court. This case hasn’t received a lot of attention, but the Washington Post did cover it Wednesday evening after the state immediately appealed McCullough’s decision. That touched off an automatic stay of the stay, it seems:

Republicans faced another procedural setback in a Pennsylvania lawsuit seeking to invalidate more than 2.5 million votes, as a temporary order blocking further certification of election results was stayed on appeal from state officials who had already formalized President-elect Joe Biden’s win the day before. …

In the Pennsylvania case, Republican plaintiffs are retroactively challenging the state’s mail-voting system, calling into question virtually every contest that took place there on Nov. 3 and asking for judges to take the unprecedented step of voiding election results across the state.

On Wednesday morning, Commonwealth Court Judge Patricia A. McCullough, who was elected as a Republican in 2009, placed a hold on the certification process for down-ballot races pending an evidentiary hearing. State officials appealed to the Pennsylvania Supreme Court later Wednesday, which triggered an automatic stay of McCullough’s order. They then asked the state high court to step in and dismiss the case altogether.

“The Commonwealth Court’s Order threatens to disrupt the certification of every race in the 2020 general election; foreclose the seating of elected representatives; indefinitely postpone the December 1 start of the General Assembly’s term; undermine the will of the voters; and cast a wholly unwarranted cloud over Pennsylvania’s election results,” lawyers for the state wrote in a filing.

McCullough’s thirteen-page order serves as a response of sorts to that appeal and dismissal motion. In her memorandum opinion (published by Jacobson), McCullough argued that plaintiffs have “a viable claim” that the October 2019 law that allowed for mass mail-in balloting violates the state constitution. McCullough believes they have a “likelihood to succeed” in proving that claim, too:

Additionally, Petitioners appear to have established a likelihood to succeed on the merits because Petitioners have asserted the Constitution does not provide a mechanism for the legislature to allow for expansion of absentee voting without a constitutional amendment. Petitioners appear to have a viable claim that the mail-in ballot procedures set forth in Act 77 contravene Pa. Const. Article VII Section 14 as the plain language of that constitutional provision is at odds with the mail-in provisions of Act 77. Since this presents an issue of law which has already been thoroughly briefed by the parties, this Court can state that Petitioners have a likelihood of success on the merits of its Pennsylvania Constitutional claim.

As long as this gets resolved before the Safe Harbor deadline of December 8, McCullough notes, then no one suffers any harm with a stay. If certification proceeds and relief is then required, McCullough argues, then irreparable harm will have been done to the plaintiffs — none of whom, we should note, are Donald Trump or his campaign.

However, as Prof. Jacobson points out, this isn’t a ruling on the merits. It’s a defense of McCullough’s decision to issue the stay on certification, intended to set a marker for the appeal to the state supreme court. They will need that as a record for their hearing, presumably to take place in the next couple of days.

Even if the plaintiffs succeed on the merits, McCullough’s not sure what the remedy would be. She seems to lean toward Trump’s favored option, emphases in the original:

That being said, this Court is mindful that one of the alternative reliefs noted by Petitioners would cause the disenfranchisement of the nearly seven million Pennsylvanians who voted in the 2020 General Election. Specifically, Respondents claim that a temporary stay would disenfranchise voters as the legislature would appoint the electors to the Election College. However, as noted, the legislature is not authorized to appoint the electors to the Electoral College until December 8, the “Federal Safe Harbor” date for certifying results for presidential electors. The Court agrees it would be untenable for the legislature to appoint the electors where an election has already occurred, if the majority of voters who did not vote by mail entered their votes in accord with a constitutionally recognized method, as such action would result in the disenfranchisement of every voter in the Commonwealth who voted in this election – not only those whose ballots are being challenged due to the constitutionality of Act 77. However, this is not the only equitable remedy available in a matter which hinges upon upholding a most basic constitutional right of the people to a fair and free election. Hence, Respondents have not established that greater harm will result in providing emergency relief, than the harm suffered by the public due to the results of a purportedly unconstitutional election.

McCullough seems to be hinting that the legislature might well end up picking the electors. That will no doubt raise some eyebrows at the state supreme court, and might make them even more likely to dispose of this case rather than leaving it with McCullough.

If so, that would be a shame, because the petitioners do seem to have a good argument about the unconstitutionality of the mass mail-in process. However, they have a bigger problem that is likely to leave them without immediate remedy — the fact that they waited over a year to challenge it. The state legislature authorized this system on Halloween 2019 (pre-pandemic!), giving those who truly objected on the basis of constitutional insult many months to sue before Pennsylvania voters relied on that process, emphasis mine:

In the Petition, Petitioners allege that the Act of October 31, 2019, P.L. 552, No. 77 (Act 77), which added and amended various absentee and mail-in voting provisions in the Pennsylvania Election Code (Election Code),1 is unconstitutional and void ab initio because it purportedly contravenes the requirements of the Pennsylvania Constitution. Petitioners allege that Article VII, section 14 of the Pennsylvania Constitution provides two exclusive mechanisms by which a qualified elector may cast his or her vote in an election: (1) by submitting his or her vote in propria persona at the polling place on election day; and (2) by submitting an absentee ballot, but only if the qualified voter satisfies the conditions precedent to meet the requirements of one of the four, limited exclusive circumstances under which absentee voting is authorized under the Pennsylvania constitution. (Petition, ¶16.) Petitioners allege that mail-in voting in the form implemented through Act 77 is an attempt by the legislature to fundamentally overhaul the Pennsylvania voting system and permit universal, no-excuse, mail-in voting absent any constitutional authority.

McCullough might not consider this an issue, but the state supreme court most certainly will. To succeed in a challenge like this, especially when seeking such a drastic remedy, plaintiffs have to challenge a violation immediately. In this case, it looks very much like the plaintiffs didn’t formally object by suing the state until it appeared that they lost. By delaying their challenge in that manner, the plaintiffs participated in the system to which they now object — and allowed Pennsylvania voters to rely on that system to cast their ballots. It’s a little late for a relief that unjustly penalizes those voters by either throwing out their mail-in ballots, or by the even more extraordinary remedy of throwing out everyone’s ballots and handing the power to select electors to the legislature rather than the people.

The best remedy available now would probably be revoking the authority to conduct mass mail-in voting. That would be valuable in itself, as mass mail-in voting is very problematic and hardly the best method of ensuring votes succeed. It seems very doubtful that even McCullough would order any other relief, let alone the state supreme court or the federal courts, where any order to invalidate mass numbers of ballots or ignore election results will get immediate and highly skeptical attention.

Update: The “laches” doctrine may well apply in this case. Having raised no objection before the election, the plaintiffs have participated in the alleged violation, which would impact their standing to demand relief:

The theory behind allowing the defense is that the law shouldn’t aid those who “sleep on their rights”. For a defense of laches to succeed, it must be proven that the party invoking the doctrine has changed its position as a result of the delay, resulting in being in a worse position now than at the time the claim should have been brought. For example, the delay in bringing the claim may have caused much larger potential damages to be awarded; the ability to pay the claim is lacking due to assets being otherwise used in the meantime; the property sought to be recovered has already been sold; or evidence or testimony may no longer be available to defend against the claim.

In this case, however, there is still the continuing question of whether to allow such ballot processes in the future absent an amendment to the state constitution. For that reason, the case should be adjudicated, but not with the remedies sought by the plaintiffs or envisioned by McCullough.

Update: Also in regard to the laches doctrine, don’t forget that Pennsylvania also used this system in its June 2 primary. Allahpundit touches on that in another context in an upcoming post, but 1.5 million Pennsylvania voters used mail-in ballots in the June contest (1.82 million requested such ballots). Why didn’t these plaintiffs object before the primary? And why didn’t they object immediately after the primary? They instead participated twice in the system to which they now object, which may not impact its constitutionality but will almost certainly impact the remedy a court would be willing to provide even in a successful challenge.

Update: A Twitter follower wondered whether the laches doctrine has ever been used in an issue of constitutionality. Indeed it has — and in fact, on election matters to boot. In 2012, several Republican presidential candidates sued Virginia over their exclusion from the primary ballot, arguing that the residency requirement for petition circulators violated the First Amendment. Although both the district court and the Fourth Circuit felt that challenge was otherwise viable, they threw the case out on the basis that the plaintiffs had waited too long in the process to challenge the constitutionality of that law:

We find no abuse of discretion on the part of the district court in denying this motion for a preliminary injunction on the basis of the equitable doctrine of laches. It is too late in the day to grant Movant’s requested emergency relief upon appeal. We do not address in any fashion the merits of Movant’s constitutional challenge to Virginia’s circulator residency requirement because as the district court noted, “a decision on laches resolves the motion” due to the fact that it operates as an affirmative defense. For even if we assumed for purposes of argument that the residency requirement violated the First Amendment, laches would still preclude us from granting the emergency relief that Movant seeks. For the reasons expressed herein, the court denies Movant’s request for an injunction ordering respondents either to place his name on the ballot or to refrain from printing or mailing ballots until the conclusion of these proceedings.

This case, Perry et al v Virginia Board of Electors, took place in another federal circuit, so it doesn’t have explicit precedential weight in Pennsylvania. Nonetheless, courts in Pennsylvania will no doubt be reminded of this, especially since the plaintiffs in this case had a full year and an intervening exercise of this system to raise their objections.

Worth noting: Allahpundit wrote about this decision at the time, and was somewhat surprised to see laches applied in a constitutional issue. It will be fascinating to see whether it plays out in this case, and how.