The good news for Rep. Mike Kelly, Sean Parnell, et al: Justice Samuel Alito has decided to review their appeal of the Pennsylvania state supreme court decision. That ruling tossed out their attempt to challenge Act 77’s mass mail-in balloting as in direct contradiction to the state constitution. Relying on the doctrine of laches, the court arguably set up an impossible catch-22 in attempting to deal with an arguably unconstitutional law (via The Right Scoop):
Fresh off another rejection in Pennsylvania’s courts, Republicans on Thursday again asked the U.S. Supreme Court to block President-elect Joe Biden’s victory in the battleground state, while the state’s lawyers say fatal flaws in the original case mean justices are highly unlikely to grant it.
Republican U.S. Rep. Mike Kelly of northwestern Pennsylvania and the other plaintiffs are asking the high court to prevent the state from certifying any contests from the Nov. 3 election, and undo any certifications already made, such as Biden’s victory, while its lawsuit is considered.
There’s, er, just one catch:
However, in a sign that the case is likely too late to affect the election, Justice Samuel Alito ordered the state’s lawyers to respond by Dec. 9, a day after what is known as the safe harbor deadline. That means that Congress cannot challenge any electors named by this date in accordance with state law.
Why six days out? Why not just demand the state respond before the Safe Harbor date? Via Right Scoop again, Supreme Court reporter Steven Mazie points out that this is an eternity in such a case coming before SCOTUS:
Six days from now is an eternity on the electoral clock: Safe-harbor deadline (by which states must confirm results to make them “conclusive”) is Dec. 8, electoral college votes on Dec. 14. By the time Kelly files final brief on Dec. 10 or so, the challenge will be moot.
— Steven Mazie (@stevenmazie) December 4, 2020
That’s not entirely true. The challenge won’t be moot at all, at least not on the core issue of Act 77. It’s the remedies that would be mooted by pushing this past the Safe Harbor date. Kelly, Parnell et al want to invalidate half or all of the votes in the election and have the legislature appoint electors directly to the Electoral College. That’s already functionally moot anyway, as the Republican legislature leaders have announced they are adjourned and won’t come back before January. Plus — as the state supreme court explained in its dismissal — the Federal Elections Act doesn’t allow for legislatures to act in that manner after an election.
So why hear the case at all? Alito didn’t explain himself in the case, but it appears that he believes — as I did — that laches arguably applies only to the remedies demanded, but not to the issue of unconstitutionality. Remember that two of the seven justices on the state supreme court dissented on this point and wanted the complaint sent back to the commonwealth (appellate) court for consideration with the remedies precluded, on which the justices were unanimous. Ted Cruz’ Twitter amicus brief seemed calculated the same way — addressing the core issue while ignoring the call to throw out the election.
Not everyone sees this as a pressing question, of course:
Election experts have called the lawsuit, which seeks to throw out all mail-in ballots in the state in the 2020 election, ridiculous. They panned the chances that the Supreme Court would agree to hear it.
Election law expert Rick Hasen, a professor at the University of California, Irvine School of Law, wrote about it with this title: “Perhaps the Dumbest Argument Ever Made in Emergency Petition to the Supreme Court Appears in Pennsylvania Election Case.”
If you separate the issue presented from the remedies demanded, though, the case does raise an important question. How can courts refuse to address the constitutionality of a law based on (a) a curious ‘challenge period’ set up by the legislature and (b) a definition of standing that creates a catch-22 by not recognizing it before the exercise of a law but then applying laches after it? There has to be a way to allow for challenging unconstitutional laws in the courts.
Jonathan Adler said yesterday that this may not be as compelling a question as one would think:
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
And maybe that’s what Alito will find, too. He might also decide that this isn’t a federal issue and tell the plaintiffs to have the legislature deal with Act 77. Even if he could find a federal-constitutional issue in this case that would justify a referral to the full court, it won’t impact this election if he does, at least not on this rather relaxed schedule.
This is where we get to see whether this is a principled stand or just a desperate Hail Mary on Donald Trump’s behalf. If the plaintiffs are interested in curing the conflict between Act 77 and the state constitution, they have an opportunity to see this all the way through. If all they care about is throwing out this particular election’s results, we’ll know that soon enough if they drop the case. Personally, I’d hope they see it through, as their core complaint is a worthy question … while their proposed remedies left a great deal to be desired.
Update: More from Adler this morning:
Kelly suit says legislature cant depart from state constitutional constraints. Yesterday, Prof Eastman told GA legislators the opposite in urging new slate of electors. 2/2
— Jonathan H. Adler (@jadler1969) December 4, 2020
Lawyers being inconsistent in different courts is not exactly a new phenomenon. They’re playing to win in court, not on TV … well, most of them, anyway. It’s a good point, though, especially given the desperation of the case in Georgia at the moment.