Bid To Toss Mail-In Votes Is Two Elections Too Late, Pa. Says

Law360 (November 24, 2020, 6:00 PM EST) -- 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.

The Commonwealth Court had set an expedited briefing schedule for the lawsuit, which sought to halt the state's certification of votes — which went ahead and was announced late Tuesday morning, with President-elect Joe Biden winning the state by about 81,000 votes. The respondents had to file their preliminary objections by late Monday night, and they were made public Tuesday morning.

U.S. Rep. Mike Kelly, R-Butler County, had joined with Republican congressional candidate Sean Parnell, state House of Representatives candidate Wanda Logan and five voters from around the state to file the lawsuit in the Commonwealth Court of Pennsylvania early Saturday morning.

Their suit claims Pennsylvania's constitution set limited circumstances in which a nonmilitary voter can cast an absentee ballot, pointed to how past efforts to change absentee voting required constitutional amendments, and said Act 77's new category of mail-in voting didn't follow those limits and was unconstitutional. It sought to stop certification of any mail-in votes or to have the legislature decide who gets Pennsylvania's electoral votes.

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 legislature also defended Act 77's constitutionality, arguing that the lawsuit's "aged authorities" only dealt with absentee ballots cast by those who were out of state, while Act 77 concerned in-state mail-in voting. The law did not change the definition of who was allowed to vote, it merely changed the methods they were allowed to use, the brief said.

The state's brief also claimed the Republican candidates and voters lacked standing to sue, citing the lack of particularized harm from their claims that the system was broadly illegal.

The plaintiffs filed a response brief Tuesday morning saying they could amend their complaint to show the voters had been harmed and had standing because their preferred candidate had lost when all the allegedly unconstitutional mail-in ballots were counted. Kelly won reelection in his Butler County district, but both Parnell and Logan might have won their races in suburban Pittsburgh and Philadelphia, respectively, without the mail-in votes, the brief said.

"It was not alleged in the petition, but could easily be alleged in an amended petition or be found through judicial notice based on public election results that ... if only the constitutionally permitted ballots are included in the certification, Ms. Logan would have the most votes of any candidate in her race," 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.

Counsel for the parties did not immediately respond to requests for comment Tuesday.

The plaintiffs are represented by Gregory Teufel of OGC Law LLC and Brandon M. Shields of Gabriel & Shields.

The Pennsylvania General Assembly is represented by Jonathan F. Bloom, Karl S. Myers, Spencer R. Short and Melissa L. Perry of Stradley Ronon Stevens & Young LLP.

Wolf, Boockvar and the state are represented by Michele D. Hangley, Robert A. Wiygul and John G. Coit of Hangley Aronchick Segal Pudlin & Schiller, Barry H. Berke and Dani R. James of Kramer Levin Naftalis & Frankel LLP and Karen M. Romano, Keli M. Neary, Nicole M. Boland and Stephen M. Moniak of the Pennsylvania Attorney General's Office.

The case is Kelly et al. v. Pennsylvania et al., case number 620 MD 2020, in the Commonwealth Court of Pennsylvania.

--Editing by Brian Baresch.

For a reprint of this article, please contact reprints@law360.com.

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