And maybe the Supreme Court should — at least in part. Late yesterday, Rep. Mike Kelly, Sean Parnell, and other Republican plaintiffs filed an emergency injunction request with Justice Samuel Alito to stay certification of the election in Pennsylvania. They want the Supreme Court to review the state supreme court’s unanimous dismissal of their complaint against Act 77, by which they hoped to overturn the election and put the choice of electors in the hands of legislators.
It’s no surprise to see the appeal to the Supreme Court, but it’s a very adept appeal on the issues, if not the remedies. The application is too long and detailed to excerpt here, although the legal analysis of the dismissal by our RedState colleague Shipwreckedcrew predicted the challenge in detail. More interesting, though, is the endorsement they picked up overnight from Senator Ted Cruz. He distills the appeal down to a compelling arguments about the laches doctrine and the Catch-22 in which plaintiffs find themselves:
“In the current appeal, the Pennsylvania Supreme Court dismissed the claim based on a legal doctrine called ‘laches,’ which essentially means the plaintiffs waited too long to bring the challenge. But, the plaintiffs reasonably argue that the Pennsylvania Supreme Court has not applied that doctrine consistently and so they cannot selectively enforce it now.
“Even more persuasively, the plaintiffs point out that the Pennsylvania Supreme Court has also held that plaintiffs don’t have standing to challenge an election law until after the election, meaning that the court effectively put them in a Catch-22: before the election, they lacked standing; after the election, they’ve delayed too long. The result of the court’s gamesmanship is that a facially unconstitutional election law can never be judicially challenged.
“Ordinarily, the U.S. Supreme Court would stay out of election disputes, especially concerning state law. But these are not ordinary times.
“As of today, according to Reuters/Ipsos polling, 39 percent of Americans believe that ‘the election was rigged.’ That is not healthy for our democracy. The bitter division and acrimony we see across the nation needs resolution. And I believe the U.S. Supreme Court has a responsibility to the American people to ensure that we are following the law and following the Constitution. Hearing this case-now, on an emergency expedited basis-would be an important step in helping rebuild confidence in the integrity of our democratic system.”
Note well that Cruz doesn’t mention a word about the remedies sought in this case, and for good reason. The Federal Election Act requires electors to be appointed by a method the state originally chose, which in all fifty states is a popular vote. Legislatures can’t change that after that method has been exercised. To do so would put the state at high risk of not having their electors count at all. Furthermore, this is moot anyway now, since the state legislature isn’t in session and won’t return until after the first of the year, weeks after the Electoral College meets. And the state has already certified the presidential election results for that matter, too.
However, that still leaves the issue of Act 77 and its apparent violation of the state constitution. The state supreme court applied laches in its dismissal, but that really only relates in this case to the remedies demanded, not the core issue of the law’s constitutionality. Both the appeal and Cruz point out that applying laches to the latter creates an impossible Catch-22 for anyone who wants to challenge it. The justices ruled that the plaintiffs could have challenged the law before the election, but they and Cruz note that they wouldn’t have had standing without showing some sort of injury. After an election, the court applies laches. So when can the law be challenged — only while the vote is being counted?
It could be answered that at least one of the plaintiffs, Wanda Logan, lost a special election in late February in which Act 77 was in force. She could have had standing at that point to challenge the law, and laches would not have applied. The law itself also allowed for a kind of “free standing” period for challenges to it in its first 180 days of effectiveness, during which any of the plaintiffs could have filed suit to stop mass mail-in ballots. However, that still leaves the problem of having a potentially unconstitutional law on the books with no way to challenge it — another kind of Catch-22.
Had the court followed the advice of the two partial dissenters, it would have remanded the constitutional issue back to the commonwealth (appellate) court while denying the election-related remedies up front. That may be what Alito does with this appeal, too. It seems very unlikely that Alito would risk Pennsylvania’s Safe Harbor date of December 8 by stopping the entire process and even hinting that the court might throw out the election. He could, however, enjoin any further use of Act 77 and recommend cert for the underlying core issue on an expedited basis. This is an issue that deserves to be heard, even if not for the stakes on which these plaintiffs might desire in the moment.
Update: Legal expert Jonathan Adler is very skeptical about this argument:
Sounds rather ridiculous to me. (We actually see parallel kssue in admin law all the time, and the solution is to file the early suit, lose, and then fact of prior suit overcomes laches/waiver claim).
— Jonathan H. Adler (@jadler1969) December 2, 2020
That’s another reason for Kelly, Parnell, et al to pursue the appeal. If nothing else, they arguably establish some standing to challenge Act 77 in the next election cycle.