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    Pennsylvania Supreme Court dismisses challenge to mail-in ballot procedures, vacates halt to certification

    Pennsylvania Supreme Court dismisses challenge to mail-in ballot procedures, vacates halt to certification

    “Petitioners failed to act with due diligence in presenting the instant claim. Equally clear is the substantial prejudice arising from Petitioners’ failure to institute promptly a facial challenge to the mail-in voting statutory scheme, as such inaction would result in the disenfranchisement of millions of Pennsylvania voters.

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    As we covered yesterday, a state court judge in Pennsylvania upheld her prior halt to certification of the vote, finding a likelihood that the mail-in ballot procedure violated the state constitution.

    I predicted the injunction would not survive the PA Supreme Court, and it hasn’t. The PA Supreme Court just issued an Order dismissing the case, and vacating the halt to certification, finding the petitioners waited too long (emphasis in original):

    AND NOW, this 28th day of November, 2020, pursuant to 42 Pa.C.S. § 726,1 we GRANT the application for extraordinary jurisdiction filed by the Commonwealth of Pennsylvania, Governor Thomas W. Wolf, and Secretary of the Commonwealth Kathy Boockvar (“Commonwealth”), VACATE the Commonwealth Court’s order preliminarily enjoining the Commonwealth from taking any further action regarding the certification of the results of the 2020 General Election, and DISMISS WITH PREJUDICE the petition for review filed by the Honorable Mike Kelly, Sean Parnell, Thomas A. Frank, Nancy Kierzek, Derek Magee, Robin Sauter, and Wanda Logan (“Petitioners”). All other outstanding motions are DISMISSED AS MOOT…..

    Upon consideration of the parties’ filings in Commonwealth Court, we hereby dismiss the petition for review with prejudice based upon Petitioners’ failure to file their facial constitutional challenge in a timely manner. Petitioners’ challenge violates the doctrine of laches given their complete failure to act with due diligence in commencing their facial constitutional challenge, which was ascertainable upon Act 77’s enactment. It is well-established that “[l]aches is an equitable doctrine that bars relief when a complaining party is guilty of want of due diligence in failing to promptly institute an action to the prejudice of another.” Stilp v. Hafer, 718 A.2d 290, 292 (Pa. 1998).

    The want of due diligence demonstrated in this matter is unmistakable. Petitioners filed this facial challenge to the mail-in voting statutory provisions more than one year after the enactment of Act 77. At the time this action was filed on November 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. Nevertheless, Petitioners waited to commence this litigation until days before the county boards of election were required to certify the election results to the Secretary of the Commonwealth. Thus, it is beyond cavil that Petitioners failed to act with due diligence in presenting the instant claim. Equally clear is the substantial prejudice arising from Petitioners’ failure to institute promptly a facial challenge to the mail-in voting statutory scheme, as such inaction would result in the disenfranchisement of millions of Pennsylvania voters.4

    Accordingly, we grant the application for extraordinary jurisdiction, vacate the Commonwealth Court’s order preliminarily enjoining the Commonwealth from taking any further action regarding the certification of the results of the 2020 General Election, and dismiss with prejudice Petitioners’ petition for review. All other outstanding motions are dismissed as moot.

    Justice Wecht issued a Concurring opinion:

    Petitioners could have brought this action at any time between October 31, 2019, when Governor Wolf signed Act 77 into law, and April 28, 2020, when this Court still retained exclusive jurisdiction over constitutional challenges to it. See Act 77 § 13(2)-(3). The claims then could have been adjudicated finally before the June primary, when no-excuse mail-in voting first took effect under Act 77—and certainly well before the General Election, when millions of Pennsylvania voters requested, received, and returned mail-in ballots for the first time. Petitioners certainly knew all facts relevant to their present claims during that entire period… And yet, Petitioners did nothing.3 …

    Having delayed this suit until two elections were conducted under Act 77’s new, no-excuse mail-in voting system, Petitioners— several of whom participated in primary elections under this system without complaint—play a dangerous game at the expense of every Pennsylvania voter. Petitioners waived their opportunity to challenge Act 77 before the election, choosing instead to “lay by and gamble upon receiving a favorable decision of the electorate.” Toney v. White, 488 F.2d 310, 314 (5th Cir. 1973) (en banc). Unsatisfied with the results of that wager, they would now flip over the table, scattering to the shadows the votes of millions of Pennsylvanians. It is not our role to lend legitimacy to such transparent and untimely efforts to subvert the will of Pennsylvania voters.12

    Courts should not decide elections when the will of the voters is clear.

    Chief Justice Saylor, joined by Justice Mundy, filed a concurring and dissenting opinion, agreeing that it was too late to prevent certification of a completed election based on mail-in procedures the public relied upon, but writing that there is a remaining issue of whether the law is valid moving forward. He also expressed concern about the validity of the law.

    I agree with the majority that injunctive relief restraining certification of the votes of Pennsylvanians cast in the 2020 general election should not have been granted and is unavailable in the present circumstances. As the majority relates, there has been too much good-faith reliance, by the electorate, on the no-excuse mail-in voting regime created by Act 77 to warrant judicial consideration of the extreme and untenable remedies proposed by Appellees.1 Accordingly, I join the per curiam Order to the extent that it vacates the preliminary injunction implemented by the Commonwealth Court.2

    That said, there is a component of Appellees’ original complaint, filed in the Commonwealth Court, which seeks declaratory relief and is unresolved by the above remedial assessment. Additionally, I find that the relevant substantive challenge raised by Appellees presents troublesome questions about the constitutional validity of the new mail-in voting scheme.

    The question on everyone’s mind is whether the U.S. Supreme Court would take the case. My first reaction is that it’s hard to see on what basis SCOTUS would take the case given the nature of the ruling and the posture of the case. Unlike claims of fraud or other problems with voting that violated legislative enactments, here the mail-in provisions of the legislation itself is being challenged. But it is only challenged after the vote has taken place, unlike the late-ballot and other provisions that were challenged in advance, and unlike claims of fraud or miscount.

    Two things are possible: The mail-in procedures violated the PA Constitution, and the petitioners waited too long to raise that objection. As I’ve written many times, one of the Republican legal problems in these litigations is what the remedy would be. Throwing the case to the legislature based on the mail-in procedure after the vote is asking alot, perhaps too much.

    In this circumstance, I think it will be hard for the petitioners to get four SCOTUS judges to hear the case, much less five to reverse. Maybe I’ll be surprised, but that’s my initial reaction.


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    George_Kaplan | November 29, 2020 at 7:39 am

    Not a lawyer so pray excuse my ignorance, but could the petitioners have acted prior to the election since no harm had actually occurred? Wouldn’t any conflict between the law and the constitution be purely theoretical until an election was actually held? I have the impression, possibly mistaken, that any early challenges would simply have been tossed out of court for lack of standing until an election was held whereupon we’re back to the PA court ruling it’s now too late for a challenge – heads they win, tails you lose.

      Dathurtz in reply to George_Kaplan. | November 29, 2020 at 8:07 am

      Exactly. It is like the old literacy tests for voting. It doesn’t matter when they brought the suit and the merits of the suit don’t matter. We have known for a long time that our legal guild has totally abandoned the rule of law. Why do we pretend otherwise, now?

    There is a plausible remedy if the authorities truly want to fix this mess. Check this out.

    We’ll see what happens, but I’m on the mind that all the PA Supreme Court has done is to fall into a clever trap laid by the plaintiffs who correctly assumed those robed demi-gods would dismiss the case because, well, gosh, they just can’t help themselves.

    CraigStrange | November 29, 2020 at 3:51 pm

    William, they did challenge these before the election and were told they didn’t have standing as no harm had been done…

    People seem to think that all of a state’s votes have to be thrown out if only some are shown to have been tainted. There is no basis for this assumption.

    Look, in WI, Mi, PA, GA and NV the documented election law violations, which would have facilitated fraud, as well as those instances of document probably fraudulent vote counting all took place in a few locales; 5-7. All were large Democrat cities. And, the votes cast in these locales can all be discarded or sequestered and not counted. Would this disenfranchise individual voters who had cast legal votes in these tainted vote pools? Yes. However, counting the all of the votes in these tinted vote pools would disenfranchise a number of voters of several orders of magnitude greater. So, if the illegal or improper votes, which should not have been tabulated and introduced into the vote pool in these locales in the first place, can no longer be identified, then entire pool of votes from these locales have to be discarded in order to protect the integrity of the election and to guarantee that those voters in other locations will not be disenfranchised. If one member of a sports team cheats, them that entire team can be disqualified and often is. The same applies here.

    This would be a common sense remedy. However, such a remedy would defeat the purpose of the fraud to begin with and, therefor, will never be implemented. This leaves the aggrieved parties with no legal recourse. What do they do to achieve justice?

      mailman in reply to Mac45. | November 30, 2020 at 6:19 am

      I look at it from a slightly different angle Mac…what this fraud has done is to disenfranchise EVERY single American whether they voted for D, R or I…and that is far worse than merely disenfranchising voters from a single urban population centre.

      I also think the remedy HAS to be so bad that it forces those who support illegal voting (ie, FRAUD) to actually get their heads out of their arses and MAKE the system work as its supposed to work! The penalty has to be so severe as to make fraud not worth it. Until that happens Democrat sponsored fraud will continue because Democrats understand that they dont actually have to appeal to voters to win. They can just make shit up.

        Mac45 in reply to mailman. | November 30, 2020 at 12:30 pm

        There are two distinct, but related, things in play with the fraud.

        The first is providing redress for the fraud to those parties harmed by it. This includes the RNC, the President and all of the voters who cast legitimate votes for DJT and whose choice was negated by election fraud. This redress can be provided in one of three ways. The first would be to identify every single illegitimate vote and purge it from the totals. re-total and award the election based upon the revised totals. This, however, is likely impossible. The second method would be to strip likely blocks of illegitimate votes from the the vote totals and re-total. The third method would be to declare the election null and void and do it over. There are some serious problems with, this including time. The second method is the least intrusive and easiest to perform. By striking the tainted vote pools, where fraud had the largest impact, from the totals, this accomplishes the redress of grievances portions of the equation. And, as it is restricted to 5-6 jurisdictions, it has the least impact on the wider pool of legitimate votes cast.

        The second thing is identifying specific instances and mechanisms for fraud and those responsible for them. This is the penalty phase. Legal penalties would then be imposed, civil and/or criminal. Also, mechanisms to preclude such activities in the future can be designed and implemented during this period.

        So, first the redress phase has to be undertaken. Once that is accomplished, then the penalty phase can be pursued. But, in both cases, we have to use common sense and not throw out the baby with the bathwater. We must also recognize that untold millions of people have a RIGHT to redress, here. This can not simply be ignored. For, if it is, then our system of jurisprudence ceases to exist in any meaningful way.

          A Punk Named Yunk in reply to Mac45. | December 1, 2020 at 6:04 pm

          Mac said (in the last paragraph):
          > This can not simply be ignored.

          I suppose if it makes it to SCOTUS then it won’t be ignored. The PA high court didn’t ignore it; they waved away.

          Shoo! Shoo! You pesky evidence! It is not the policy of this court to dismiss legitimate claims. Therefore, this is not a legitimate claim.

          Feeling like Marvin in Hitchhiker’s Guide.

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