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    Pennsylvania: Emergency Injunction Sought From SCOTUS To Halt Any Further Certification Actions

    Pennsylvania: Emergency Injunction Sought From SCOTUS To Halt Any Further Certification Actions

    Seek “an immediate, emergency writ of injunction to prevent” PA officials “from taking any further action to perfect the certification of the results of the November 3, 2020, General Election …
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    On Saturday night, November 28, we noted that the Pennsylvania Supreme Court dismisses challenge to mail-in ballot procedures, vacates halt to certification. The basis for the PA Supreme Court ruling was that the petitioners had waited too long, and should have challenged mail-in ballot procedures prior to the election:

    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

    Note: This is not the same case as previously was before SCOTUS on the issue of mail-in ballots received after election day. This case involves the claim that the mail-in ballot procedure (so-called ‘no-excuse absentee voting’) passed by the legislature violated the PA Constitution.

    In reviewing the posture of the case, which turned on state law issues, I expressed doubt the U.S. Supreme Court would take the case:

    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.

    We should find out soon if I was overly pessimistic. The petitioner’s have filed an Emergency Application for Writ of Injunction:

    Applicants (“Petitioners”) respectfully request an immediate, emergency writ of injunction to prevent the Respondents, the Commonwealth of Pennsylvania, Governor Thomas W. Wolf, and Secretary of the Commonwealth Kathy Boockvar (“the Executive-Respondents”) from taking any further action to perfect the certification of the results of the November 3, 2020, General Election (the “Election”) in Pennsylvania for the offices of President and Vice President of the United States of America or certifying the remaining results of the Election for U.S. Senators and Representatives. More specifically, Petitioners seek an injunction that prohibits the Executive-Respondents from taking official action to tabulate, compute, canvass, certify, or otherwise  inalize the results of the Election as to the federal offices and that prohibits the Executive-Respondents from undertaking the following actions ….

    To the extent that the above-prohibited actions have already taken place, Petitioners seek an injunction to restore the status quo ante, compelling Respondents to nullify any such actions already taken, until further order of this Court.

    Petitioners also ask the Court to consider this Application as a petition for certiorari, grant certiorari on the questions presented, treat the Application papers as merits briefing, and issue a merits decision as soon as practicable.

    The following questions are presented if the Supreme Court were to hear the case:


    1. May a legislature violate its state constitution’s restrictions on the lawmaking power when enacting legislation for the conduct of federal elections pursuant to Article I, § 4, and Article II, § 1 of the U.S. Constitution?

    2. Did the Pennsylvania Supreme Court violate Petitioners’ rights under the First and Fourteenth Amendment of the U.S. Constitution by dismissing with prejudice the case below, on the basis of laches, thereby foreclosing any opportunity for Petitioners to seek retrospective and prospective relief for ongoing constitutional violations?

    The application goes, in the first instance, to Justice Alito, who is the Justice assigned to the Third Circuit (covering PA). He could grant it on his own, which seems unlikely, or refer it to the full court, which seems more likely.

    The problem with getting SCOTUS to take the case is that the state supreme court is the final arbiter of state law. The petitioners try to turn that state law issue into a federal question because it concerns a federal election and arguably implicates federal rights. I’m not familiar enough with the issue to say definitively whether that will work, but there are other reasons SCOTUS may not want to hear the case.

    In the end, the Petitioners are seeking to invalidate millions of votes, and throw the issue presumably to the state legislature as to selecting electors, where there is no allegation that those mail-in voters did anything wrong. They relied on a procedure passed by the legislature, used in prior elections, and not even challenged prior to this election. As a practical matter, I can’t see a court doing that.

    Remember, for SCOTUS even to take the case, four Justices need to so vote. If I guessed now, I wouldn’t think there are four votes there. Roberts, Breyer, Sotomayor, and Kagan would be certin no votes. I’d be surprised if 4 of the 5 conservatives would vote to take the case, or that all 5 would vote to overrule.


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    Katy L. Stamper | December 1, 2020 at 8:39 pm

    Like many people, my major in college was political science.

    If you read some of the historical documents, you know the purpose of the electoral college electors voting in their home states was to keep them from being intimidated or influenced as a group. Back then, travel was slow and had been the same for millenia.

    The next part of electors’ role was to act as a SAFETY on the presidential election. If a candidate was unsuitable due to bad character or being in the pocket of a foreign sovereign, they were to BREAK with the election result, and choose the wisest candidate for the office.

    Those who have spoken of “faithless” electors ignore this fact.

    I am not smarter than the Founders or the Anti-Federalists.

    It is time to call upon the Electors to fulfill their role as designed by the Founders, and to refuse to cast their votes for the candidate that WE ALL KNOW IS IN CHINA’S POCKET.


    Electors should vote for Trump, no matter how voters in their states voted.




    China is a country that will remove your organs while you’re conscious to sell, and not think even once about it.

    Electors must be asked to perform their obligation to their countrymen to save us from domination by China.

    I have never criticized “faithlessness” by electors, though I have criticized their choices when I believed them unwise.

    I hope others will sound off on the historical reason we have electors, and ENCOURAGE THEM TO FULFILL THAT FUNCTION WE NOW SEE IS ESSENTIAL.


    The time has come for us to recognize the Founders’ tremendous design. It took a couple of centuries for this problem to appear, and here it is. Not counting Lincoln. They never should have selected Lincoln.

    But China, this is a whole other ruthless barbaric threat.

      Milhouse in reply to Katy L. Stamper. | December 2, 2020 at 12:18 am

      1. What were you saying four years ago when people were calling on Trump electors to vote for Clinton?

      2. Unfortunately the supreme court ruled a few months ago that states can compel electors to vote as they’re told to. I think that was a wrong decision, but it was a unanimous vote so the current law is their way.

        Katy L. Stamper in reply to Milhouse. | December 2, 2020 at 10:12 am

        Mr. Milhouse, I’m as consistent as this year has been too long.

        I never condemn “faithless” electors. I do condemn idiot electors.

        Again, anyone that thought Hillary Clinton was a good choice for America was a sick puppy.

        But the left is full of sick puppies. Most of them need therapy.

      hbk314 in reply to Katy L. Stamper. | December 2, 2020 at 5:48 am

      Why do you hate America?

      The voters have spoken. You’re proposing the end of the United States as a nation with free and fair elections.

        stablesort in reply to hbk314. | December 2, 2020 at 10:04 am

        There is no proof that any ‘mail-in’ votes are legitimate. Using the legal standard of innocent until proven guilty should not apply to votes.

        An in-person election can be trusted must more than leaflets dropped by helicopter throughout the land.

        Katy L. Stamper in reply to hbk314. | December 2, 2020 at 10:13 am

        HBK314, are you speaking to me?

        If so, you are another of the sick puppies that need therapy.

        To all that were abused as children:

        it was not your fault. You can get better. Therapy helps.

    CommoChief | December 1, 2020 at 8:48 pm

    The disenfranchise argument is a bit too rich. The states are required to mail out absentee ballots to military members who request them not later than 45 days prior to the election.

    That isn’t a negotiable date. It isn’t up for discussion. That is the black letter requirement. In the previous decades there have been multiple instances involving a late change in the ballot by several states.

    Where was the outrage then? These military members were not provided the election day ballot. They were disenfranchised.
    In effect this 45 day requirement should be the brake on changes to a ballot. Your candidate died was indicted? Tough nuggies, that name stays on the ballot.

    Even with the 45 day requirement getting the ballot in the hands of a service member in a remote location is iffy. I don’t recall voting other than using a federal absentee ballot which doesn’t include state, local, judicial or constitutional amendments. How did that not disenfranchise me and many others?

    If one is truly concerned about disenfranchised voters then they have a CV reflecting their prior work to ensure Joe on some mountain in Afghanistan or some small village in Iraq received their complete ballot in a timely manner. For.those.without that…get bent you didn’t care then and you don’t care now. You want an excuse to retain political power.

    caseoftheblues | December 1, 2020 at 9:50 pm

    Basically then cheating and fraud are fine…doesnt matter if its blatant and provable and discovered…its just too “upsetting” to the system to not let the guy with the fake win be given the office…to hell with the actual 75 million voters who actually voted for the real winner. Seriously what use is our legal system from top to bottom at this point?

    where there is no allegation that those mail-in voters did anything wrong

    Why should that matter? The ballot pool is tainted because the ballots weren’t properly segregated. All of them need to be thrown out if you can’t ascertain how many improper ballots there were. That there are legitimate votes in the pool is irrelevant.

    I recognize the double-edged sword here. If that’s the rule then there is incentive for Democrat vote fraudsters to very publicly taint the ballot pool in Republican districts.

      Milhouse in reply to randian. | December 2, 2020 at 12:20 am

      This case has nothing to do with segregated ballots. It’s about the validity of Act 77 and the voters who relied on it in good faith.

        RNJD in reply to Milhouse. | December 2, 2020 at 3:51 am

        I hope you have this response in a cut-and-paste document someplace so you don’t have to keep retyping it multiple times to respond to people who don’t understand it the first time(s) you post it. 🙂

        stablesort in reply to Milhouse. | December 2, 2020 at 9:57 am

        This judge is involved in both cases and both cases involve this election. A pint of blood here, a pint of blood there and soon the patient has passed.

    daniel_ream | December 2, 2020 at 2:29 am

    At this point, the one thing I’m taking away from all this is that it no longer matters what the plain text of the law – any law – is. I think this has been true for some time, but it’s now reached the point where it is starkly and undeniably obvious to at least 50% of the US electorate.

    I’m honestly not sure what could possibly be done to restore confidence in the rule of law. Increasingly it feels like there are only two ways forward: Chile or Venezuela, and I don’t think Trump has it in him to be a Pinochet.

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