Pennsylvania Supreme Court Dismisses Lawsuit Seeking to Throw out Mail-in Ballots
By Delphine Luneau / The Center Square
HARRISBURG, PA – The Pennsylvania Supreme Court on Saturday threw out a case brought by Republican U.S. Rep. Mike Kelly that sought to overturn about 2.6 million mail-in ballots cast in the Nov. 3 election.
Kelly and his co-plaintiffs, including two Republican candidates who lost their races, had argued that the 2019 state law that allowed widespread mail-in voting was unconstitutional. They argued that the mail-in ballots should be thrown out, making President Donald Trump the winner of Pennsylvania’s 20 electoral votes instead of presumed President-elect Joe Biden.
The lawsuit said that, if the mail-in ballots could not be separated from the votes cast at the polls on Nov. 3, the entire result should be thrown out and the winner decided by the Republican-controlled Legislature.
A Commonwealth Court had ruled Wednesday that the lawsuit was likely to succeed and ordered that all certifications of election results be put on hold. But state elections officials appealed immediately to the state Supreme Court.
In a 5-2 ruling Saturday evening, the state’s highest court dismissed the case “with prejudice,” meaning that it cannot be re-filed. The order stated that the plaintiffs had ample opportunity between the time the law was passed in 2019 and the election this year to challenge its constitutionality and that filing suit only after they became displeased with the results was insufficient grounds.
“Petitioners filed this facial challenge to the mail-in voting statutory provisions more than one year after the enactment of Act 77,” the four of the five justices wrote in an unsigned opinion. “At the time this action was filed on Nov. 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.”
Chief Justice Thomas G. Saylor and Justice Sallie Updyke Mundy, the two Republicans on the otherwise Democrat-controlled court, dissented in the ruling. In his minority opinion, Saylor writes that he agreed with allowing the certification of votes to go forward but would have sent the case back to the Commonwealth Court for further consideration.
“I find that the relevant substantive challenge raised by Appellees presents troublesome questions about the constitutional validity of the new mail-in voting scheme,” Saylor wrote.
Justice David Wecht voted with the majority but issued his own concurring opinion.
State Sen. Sharif Street, D-Philadelphia, hailed the dismissal.
“Another win for democracy, and another loss for Trump and his crackpot team,” Street wrote on Twitter. “2.5 million votes won’t be thrown out. The elections will be certified, not overturned.”
It was not clear Saturday evening whether Kelly and his co-plaintiffs would attempt to take their case to federal courts, as was done with the Trump campaign’s lawsuit on similar grounds. The latter lawsuit was dismissed by a federal judge Nov. 21, and that dismissal was upheld by a panel of appellate judges Friday; the Trump campaign has vowed to appeal to the U.S. Supreme Court.
