Most Read
    Image 01 Image 02 Image 03
    Announcement
     
    Announcement
     

    Pennsylvania State Judge Upholds Halt To Certification, Finds Likelihood Mail-In Balloting Procedures Violate PA Constitution

    Pennsylvania State Judge Upholds Halt To Certification, Finds Likelihood Mail-In Balloting Procedures Violate PA Constitution

    UPDATE 11-28-2020 7 p.m.: Pennsylvania Supreme Court dismisses challenge to mail-in ballot procedures, vacates halt to certification.

    https://youtu.be/egKFCHn0GQE
    Listen to this article

    UPDATE 11-28-2020 7 p.m.: Pennsylvania Supreme Court dismisses challenge to mail-in ballot procedures, vacates halt to certification

    Earlier Coverage:

    A Pennsylvania state court Judge has issued a preliminary injunction preventing Pennsylvania from taking any further steps to perfect its certification of the election, including but not limited to appointment of electors and transmission of necessary paperwork to the Electoral College, pending further court hearings and rulings. The ruling upholds an injunction from earlier in the week, and is significant because of the findings made in the Opinion released tonight.

    You can read the Opinion here.

    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 futher hearings, and to set forth the basis for the injunction, which could be relevant to the appeal:

    As this Court’s November 25, 2020, Order of an Emergency Preliminary Injunction has been appealed to the Pennsylvania Supreme Court, this opinion shall set forth the basis for said Order and shall also satisfy the requirements of Rule 1925 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925….

    (added) Ed Morrissey points out that an automatic stay pending appeal may apply to the prior order. However, it’s not clear to me whether and how such an automatic stay would apply to this new order. As of this writing, no decisions from the PA Supreme Court have been issued, and no new filings have been made regarding this new order. You can see the docket here.

    Here is the Judge’s description of the claim:

    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. Id., ¶17. Petitioners argue that in order to amend the Constitution, mandatory procedural requirements must be strictly followed. Specifically, pursuant to Article XI, Section 1, a proposed constitutional amendment must be approved by a majority vote of the members of both the Pennsylvania House of Representatives and Senate in two consecutive legislative sessions, then the proposed amendment must be published for three months ahead of the next general election in two newspapers in each county, and finally it must be submitted to the qualified electors as a ballot question in the next general election and approved by a majority of those voting on the amendment. According to Petitioners, the legislature did not follow the necessary procedures for amending the Constitution before enacting Act 77 which created a new category of mail-in voting; therefore, the mail-in ballot scheme under Act 77 is unconstitutional on its face and must be struck down. Id., ¶¶27, 35-37. As relief, Petitioners seek, inter alia, a declaration and/or injunction that prohibits Respondents from certifying the November 2020 General Election results, which include mail-in ballots that are permitted on a statewide basis and are allegedlyimproper because Act 77 is unconstitutional.

    The Judge found, among other things, that the plaintiffs were likely to prevail on their PA constitutional claims, and that the matter was not moot even though PA had “certified” the results, because there were more steps to be taken [emphasis added]:

    Accordingly, in careful consideration [on November 25] of the exigencies and time constraints in this matter of statewide and national import, and the longstanding constitutional mandate that every citizen of this Commonwealth is entitled to no less than a fair and free election, it was necessary [on November 25] to preliminarily enjoin, on an emergency and temporary basis, Executive Respondents from undertaking any other actions with respect to the certification of the results of the presidential and vice presidential elections, if indeed anything else needs to be done, pending an evidentiary hearing to ascertain the facts of this matter and to determine if the dispute is moot….

    Based upon the record before it, this Court has sufficient grounds to enjoin Respondents from further certification activities on an emergency preliminary basis, pending the results of the evidentiary hearing it had scheduled for this date, after which the Court would have determined if a preliminary injunction should issue.4 Since the Court is sitting in equity it has the power to fashion such relief as it is vitally important that the status quo be preserved pending further judicial scrutiny….

    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.

    The Judge expressed grave concern as to what a remedy would be if she were to rule the mail-in balloting unconstitutional, so even if she ruled for the petitioners on the merits, it’s not clear if that would change the result:

    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.5

    The Judge concluded:

    For all of the above reasons, the Court respectfully submits that the emergency preliminary injunction was properly issued and should be upheld pending an expedited emergency evidentiary hearing

    This is not a final ruling on the merits. It’s meant to prevent PA from taking more steps until the court finally rules.

    Given how the PA Supreme Court has ruled previously on election matters, expanding procedures beyond what even the legislature adopted, I don’t see how this survives the PA Supreme Court. From there, the next stop is the U.S. Supreme Court where we know John Roberts and the three liberal Justice will defer to the state supreme court. But the Court is now 6-3, so a Roberts defection would not result in a 4-4 deadlock again if the 5 conservative Justices voted together.

    [The title has been updated to clarify that the Judge is upholding and continuing her prior halt to certification.]

    DONATE

    Donations tax deductible
    to the full extent allowed by law.

    Comments



     
     0 
     
     0
    zevgadol | November 28, 2020 at 1:52 pm

    Reviewing the preceding comments I make three observations. Despite the hysteria and regurgitation of Trump lawyers, there is no demonstrable fraud. Giuliani agreed: no fraud. The second is that the change in the absentee ballot law was a plot by the Dems to “steal” the Nov 2020 election is patently false. The third observation is the Commonwealth’s highest court is the arbiter of what is constitutional for the state. SCOTUS has the right (and duty) to review if the decision IF the state’s constitution is in conflict with the Federal constitution. Not whether SCOTUS disagrees with interpretation.

    So it hen comes down to whether SCOTUS will disenfranchise millions of PA voters by declaring the results void from the start. After all the electorate reasonably relied on the state board of elections to cast absentee ballots without a demonstration or declaration that there was some urgency requiring voting by mail.
    I don’t know whether SCOTUS will prostitute itself. It will be interesting. Of course, if PA outcome is irrelevant to the final outcome, they will likely abstain.


       
       0 
       
       1
      TX-rifraph in reply to zevgadol. | November 28, 2020 at 2:03 pm

      “…there is no demonstrable fraud.”

      1) Stunning assertion. It is not a conclusion.
      2) The logical and legitimate burden is on the state to prove (clear and convincing evidence) that the ballots that are counted are cast by legally qualified voters and that the ballots are counted accurately. It is more than clear that these burdens cannot be met.

      The conclusion is that PA did not conduct an election. It was a sham in the tradition of the old Soviet “elections.”


       
       0 
       
       0
      CommoChief in reply to zevgadol. | November 28, 2020 at 2:24 pm

      zevgadol,

      Ok so you won’t mind stating as fact that in PA:
      1. No ballot was submitted by any ineligible person due to
      A. Residency in another State
      B. Stolen ballot/voter ID
      2. No one at any precinct conducted any pre canvas of ballots?
      3. No ballot was subjected to any more or less eligibility scrutiny than any other ballot at any other precinct?
      4. No ballot was cast in PA by any person who also cast a ballot in another State?

      All those issues happened in PA. They almost certainly happened in every State. All are fraud.

      If you won’t agree to those how about this; was every ballot for every step of the process observed by persons who can attest that every ballot made it’s way through the entire process in complete accordance with election laws of PA?

      I don’t think you are foolish enough to take that one on either so why don’t we simply agree that you can’t make a statement that there was ‘no fraud’ in PA?


         
         0 
         
         1
        zevgadol in reply to CommoChief. | November 28, 2020 at 2:42 pm

        I stand by my original statement. There was no demonstrable fraud. Abuse of voting by individuals exists everywhere but is so deminimus as not to affect the outcome. There was no systemic fraud demonstrated. Giuliani admitted that.
        Trump supporters are absolutely convinced fraud occurred, but just can’t be proved. That doesn’t cause an election to be tossed because you don’t like the outcome.
        Down tickets went substantial more to the Republican side. If there was systematic fraud, Dems would have been much more successful.
        But believe what you may. Even if unsupported by fact except Honest Don told you he really won. And we Know Don never lies.


           
           0 
           
           0
          CommoChief in reply to zevgadol. | November 28, 2020 at 3:01 pm

          zevgadol,

          Ok great, you concede fraud occurred, you are, like the rest of us, uncertain as to the scale of the fraud.

          One final point about observation of the process. These folks are prepositioned witnesses charged with the responsibility to make concurrence that the legal/procedural requirements are followed.

          Since they can’t attest to the efficacy of the process in some precincts because they were not allowed to do so due to logistically inadequate planning based on sheer increased volume of mail in ballots or concerns about ‘Rona’, that is a systemic and institutional failure impacting the potential of every ballot in that precinct.

          Both volume of mail in ballots and ‘Rona’ were well known issues that competent election officials who were committed to following the law would and should have planned for. The failure on this single point is IMO, spoilation.


       
       0 
       
       0
      Milhouse in reply to zevgadol. | November 28, 2020 at 10:38 pm

      Giuliani agreed: no fraud.

      And, in reply to CommoChief

      There was no systemic fraud demonstrated. Giuliani admitted that.

      No, he did not. He said that particular suit was not about fraud. It wasn’t about fraud because the third circuit said they couldn’t argue fraud, so they took that out and went with their other arguments. If/when it gets to SCOTUS they will still argue fraud.

      But this suit that we’re discussing here is entirely about a state constitutional provision, and has nothing to do with fraud at all.

    80-90 million Americans have been disenfranchised by Democrats ham-fisted attempt to steal the election…and that’s just those who voted against Democrat tyranny.

    Because of Democrats thurst for power and fraud they have actually disenfranchised the entire country by making voting pointless.


     
     0 
     
     0
    TX-rifraph | November 28, 2020 at 2:02 pm

    “…there is no demonstrable fraud.”

    1) Stunning assertion. It is not a conclusion.
    2) The logical and legitimate burden is on the state to prove (clear and convincing evidence) that the ballots that are counted are cast by legally qualified voters and that the ballots are counted accurately. It is more than clear that these burdens cannot be met.

    The conclusion is that PA did not conduct an election. It was a sham in the tradition of the old Soviet “elections.”


     
     1 
     
     0
    mitchflorida | November 28, 2020 at 2:10 pm

    Didn’t Chief Justice John Roberts vote to overturn the Florida Supreme Court in 2000? Why wouldn’t he overturn the Pennsylvania Supreme Court?

    It’s certainly a possibility.


       
       1 
       
       0
      zevgadol in reply to mitchflorida. | November 28, 2020 at 2:29 pm

      Yes. It wasn’t to counter the FL court’s reading of FL constitution, it was a ruling that due process was being violated in the counting of questionable votes (remember hanging chads?). The two cases are not at all analogous.
      Will SCOTUS review PA court’s interpretation of PA Constitution?
      They’re not supposed to. But if SCOTUS needs to intervene, they will find a way at the cost of SCOTUS’s integrity. Roberts will not support. Other 5 conservative judges are likely to vote down PA election which is pretty severe. If PA is the only state in question and the bottom line is no change in the outcome, they might abstain. We live in highly partisan times.


       
       0 
       
       0
      Mercyneal in reply to mitchflorida. | November 28, 2020 at 3:25 pm

      Robers wasn’t on the Supreme Court on 2000. Google is your friend


       
       0 
       
       0
      Milhouse in reply to mitchflorida. | November 28, 2020 at 10:40 pm

      Didn’t Chief Justice John Roberts vote to overturn the Florida Supreme Court in 2000?

      No, of course he didn’t. But 7 justices did.

      Why wouldn’t he overturn the Pennsylvania Supreme Court?

      Because this is about a question of state law. That wasn’t.

    What is severe is allowing an obviously stolen election to be stolen.

    As you are all about ensuring voters are respected then the obvious thing is to not disenfranchise ALL legal American voters by allowing to steal to actually take place.

    Count only legal votes. Protect the value of one man, one vote.


    Leave a Comment

    Leave a Reply

    You must be logged in to post a comment.

    Notify me of followup comments via e-mail (or subscribe without commenting.)

    Font Resize
    Contrast Mode
    Send this to a friend