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    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.
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    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.]


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    Republicans dominate Democrats in the Pennsylvanian Hose by a margin of 109 – 93

    Republicans hold a margin of 28 – 21 over the Democrats in the state Senate.

    This REPUBLICAN controlled legislature passed Act 77, the legislation whose constitutionality has been called into question by this lawsuit. And within Act 77 is a clause that says when such challenges may be brought. This is from Law360 blog by Matthew Santoni:

    *********************Begin Quote********************

    A Republican member of Congress’ last-minute bid to throw out about 3 million mail-in votes in Pennsylvania came more than a year and two elections too late, the state and its Republican-majority Legislature told a Keystone State court on Monday.

    The lawsuit claiming Pennsylvania’s new “no-excuse” mail-in voting violated the state constitution’s limitations on absentee voting was filed outside a 180-day challenge period laid out in the law, Act 77 of 2019, which also said such challenges belonged in the Supreme Court of Pennsylvania and not the Commonwealth Court, the respondents wrote in filings made public Tuesday.

    “Petitioners filed their suit challenging the constitutionality of Act 77 on November 21, 2020, 387 days — and two elections — after the governor signed Act 77 into law. Petitioners’ more-than-one-year delay is a quintessential failure to act diligently,” said a brief from Gov. Tom Wolf, Secretary of the Commonwealth Kathy Boockvar and the state. “More than two weeks after millions of Pennsylvanians cast votes, petitioners seek to disenfranchise every single voter who participated in the November 3, 2020 presidential election. Disenfranchising voters for no fault of their own is as prejudicial as it is antithetical to our democracy.”

    That brief and one from the General Assembly argued the suit should be dismissed for lack of standing, for being brought in the wrong court, for being brought outside the legislation’s statutory window for challenges and for being barred by the doctrine of laches, which prohibits sitting on claims that could have been brought sooner when the delay causes prejudice. . . .

    But the legislature joined the state Monday night in deriding the suit as being filed too late and to the wrong court. Act 77 said that challenges to its constitutionality had to be filed within 180 days and that the state Supreme Court had exclusive jurisdiction over cases involving the law, the General Assembly’s brief said. It pointed to pre-election suits the Commonwealth Court had transferred to the Supreme Court for the same reason.

    “If the [Commonwealth] Court were to proceed further, despite the plain words of Act 77, there is a substantial risk that the Supreme Court may ultimately rule that this court’s efforts — though well-intentioned — were a nullity,” it said. . . .

    The state’s brief also said that beyond coming outside the law’s prescribed window for challenges, the suit came too late under the doctrine of laches. The law’s constitutionality could have been questioned months before a single vote was cast, instead of coming after it appeared that President Donald Trump had lost his reelection bid based in part on his loss of Pennsylvania as the counting of mail-in ballots erased his lead in in-person votes.

    “Petitioners’ grounds for challenging Act 77 are no different today than they would have been on the day of enactment; the Constitution has not changed since Act 77 became law, meaning petitioners have no possible legitimate excuse for delaying,” the state’s brief said. “Petitioners were not diligent in bringing their claim and they seek to disenfranchise millions. There is no better candidate for laches than this case.”

    The challengers’ response said laches didn’t apply, in part because the alleged harms of mail-in voting didn’t become apparent until after the election results became known.

    ****************END QUOTE******

    So to sum up, the REPUBLICAN controlled legislature passed a law expanding the right to vote. Within that law was a clause providing a 180-day window to challenge the legitimacy of the law. The Republican plaintiffs in this case did not challenge the law during the window of opportunity provided by the law. They waited 387 days to challenge the Constitutionality of the law and only did so after they saw that their candidate lost. And now that they see that the election didn’t go their way they are trying to disenfranchise millions of voters to throw the election to Trump. You know damn well as I do that they would not have brought this challenge had Trump won Pennsylvania.

    And to top all this off—the extra icing on the cake—are all those Trump supporters who are claiming that this somehow shows that the DEMOCRATS are trying to steal the election—that Act 77 was some sort of nefarious act by the Democrats to illegally win the election. The Republicans had plenty of opportunity to prevent this. They didn’t. Equity would demand that the millions of votes cast in good faith by voters who mailed in their ballots be counted. Anyone who says otherwise is only showing contempt for our democracy.

      Zumkopf in reply to RobinMessing. | November 28, 2020 at 10:43 am

      Unconstitutional on day 180 doesn’t become Constitutional on day 181 simply because the people who attempted to pass the Unconstitutional law also attempted to limit challenges to it. There is no “laches” exception to the Constitution or the Bill of Rights.

        hbk314 in reply to Zumkopf. | December 2, 2020 at 4:23 am

        If the law was to be found unconstitutional, the only reasonable remedy at this point would be to eliminate it going forward. The 2.5+ million voters who voted by mail in good faith cannot be disenfranchised.

        This is yet another example of the GOP’s primary election strategy: disenfranchising voters more likely to vote for Democrats. The difference here is that they KNOW who the votes went for.

        At what point does the GOP try winning elections the right way by having a platform that a majority of voters approve of? Rather than modify their unpopular positions, they simply try to block people who don’t support them from voting. Actions like limiting all counties in Texas to a single ballot dropbox or trying to sue to throw out drive-in ballots after 100k+ people have voted that way make that indisputably clear. GOP-passed voter ID laws have the same goal. Numerous states passed strict voter ID laws while simultaneously closing DMVs or limiting their hours. Allowing concealed carry licenses to be used but not student IDs is another transparent effort. Not to mention the fact that the only issue that voter ID laws could possibly solve, in person voter impersonation, is a nonexistent issue.

        It is absolutely mind-boggling that the country that consistently puts party over country continues to get as many votes as it does. They were swept out of statewide offices in Wisconsin in 2018 and spent the lame duck session passing legislation to limit the power of the incoming Democrats, blatantly subverting the will of the voters. With the exception of Mitt Romney, they completely violated their oaths to the United States with their predetermined acquittal of Trump during his impeachment.

        At least the Republican-led state legislature in this case had the integrity to correctly advocate for the dismissal of the suit. It’s nice to see not every Republican isn’t a democracy-hating scumbag like Mike Kelly.

      CommoChief in reply to RobinMessing. | November 28, 2020 at 11:19 am


      Ok for argument sake, let’s agree to stipulate that PA legislature is barred via timeframe. The doctrine of Latches for goodness sake? But ok under certain conditions lets try this out.

      I will happily give you act 77 in exchange for following the same logic regarding changes made by the PA SoS or local precincts or County election officials.

      Now under these conditions defend the legality of every ballot in PA. Every I dotted and every T crossed. Every ballot observed from receipt, thru recording, thru verification, thru challenge, thru tabulation, thru retention of ballot and envelopes for audit. No discretion, no deviation, no inconsistent application between precincts. Letter of the law only.

      Somehow I don’t believe you will agree to undertake that.

      Concise in reply to RobinMessing. | November 28, 2020 at 1:26 pm

      The simple answer is that the 180 day time constraints are just as unconstitutional as the substantive portions of the law. IF the legislature has no authority to pass a law in contravention of their constitution they have no authority to shield the law from review.

    So the legislature is now doing so they are supposed to be doing, passing a law to enact a “thing”. Funny how that works isn’t…its almost as if that’s what legislatures should be doing instead of by executive order.

    Russ Armstrong | November 28, 2020 at 10:08 am

    Just like the US Constitution, the Pennsylvania Constitution was written by the sovereign people of the Commonwealth, who were relinquishing a fraction of their freedoms in recognition of the necessity of providing an orderly society. However, such relinquishment of their rights was limited as much as possible to avoid tyranny. Thus, the authors required that voting be done in person on a specified day, subject to limited and well-defined exceptions. The only way those exceptions could be exceeded would be to amend the Pa. Constitution. It is beyond the power of any of Pennsylvania’s three branches to arbitrarily amend that Constitution.

    Russ Armstrong | November 28, 2020 at 10:18 am

    Regarding the US Supreme Court, the US Constitution provides in Article 4, Section 4 that “The United States shall guarantee to every state in this Union a republican form of government …” No, that doesn’t mean the Republican party. It is a term used to define a form of government in which the people elect their rulers. The people do this by voting, and the Supreme Court has held that one man gets one vote. If a state government fails to adhere to that provision, the United States must intervene in order to honor its guarantee.

    inspectorudy | November 28, 2020 at 11:14 am

    The problem for Trump is that this is a state constitution issue and not the US. This means that the highest court in PA is their supreme court and they are elected Dems. They will not allow this to stand.

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