Pa. Justices Sink Suit Seeking To Toss All Pa. Mail-In Votes

Law360 (November 29, 2020, 1:44 PM EST) -- The Supreme Court of Pennsylvania threw out a lawsuit seeking to declare that all 2.6 million mail-in votes cast in the General Election were illegal under the state constitution, finding that the Republican voters, candidates and the member of Congress who filed the suit had waited too long to challenge the law expanding voting by mail.

In a three-page unsigned order Saturday, the Keystone State's highest court said the suit challenging Act 77 of 2019 was barred by the doctrine of laches, which holds that plaintiffs can't sit on claims they could have made earlier if delaying a lawsuit prejudices the defendants.

"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," said the per curiam order issued Saturday. "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."

The court agreed to use its power to take jurisdiction over important cases from lower courts, vacated Commonwealth Court Judge Patricia McCullough's Wednesday order pausing any remaining steps to the process of certifying Pennsylvania's votes, and dismissed the suit with prejudice.

U.S. Representative Mike Kelly, R-Butler County, along with Pittsburgh-area U.S. Congressional candidate Sean Parnell, Philadelphia State Senate candidate Wanda Logan and five other voters had filed the lawsuit Nov. 21, arguing that Act 77's creation of "no-excuse" mail-in voting violated the limited circumstances under which the state constitution said voters could cast an absentee ballot.

By way of relief, the challengers sought to prevent the state from including any mail-in votes in its official totals, or asked to have the Republican-led state legislature — which had passed Act 77 in the first place — appoint electors instead.

Judge McCullough had granted a temporary injunction Wednesday that briefly halted any further steps in certifying Pennsylvania's final election results, though the state had already certified the Presidential race results Tuesday.

She wrote in an opinion issued Friday that she believed the challengers had established a likelihood to succeed. If mail-in votes were unconstitutional, Judge McCullough said, they would be "diluting" the in-person and other absentee votes and threatening the concept of "one person one vote," so the sheer number of mail-in votes would not be a reason not to throw them out. But she expressed unease with throwing out all the election results and letting the legislators choose a winner, saying that would disenfranchise those who had voted in person as well.

The challengers had argued in briefs that they had to wait until after the election to show that they had been harmed by the allegedly unconstitutional voting law, when they or their preferred candidates had lost after the mail-in ballots were counted, but the state Supreme Court rejected that argument.

"The claims … 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," wrote Justice David N. Wecht in a concurring statement. "And yet, petitioners did nothing. … Even worse, at least one petitioner actively encouraged his supporters to cast mail-in ballots for him in his bid for Congress."

The substantial prejudice of that delay -- that millions of Pennsylvanians had already voted under the state's rules and now stood to lose their votes — shut the door on the case, the justices said.

"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," he wrote. "Unsatisfied with the results of that wager, they would now flip over the table, scattering to the shadows the votes of millions of Pennsylvanians."

Chief Justice Thomas G. Saylor, joined by Justice Sallie Updyke Mundy, wrote that while the lawsuit had raised "troublesome questions" about the constitutionality of Act 77 — particularly a clause that ostensibly limited the window in which it could be challenged to 180 days after its enactment — but agreed that the remedy the challengers sought was too drastic. If the challengers wanted to bring the suit again in the Commonwealth Court, Chief Justice Saylor wrote in his concurring and dissenting opinion that he would have allowed it to proceed on remand.

"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," he wrote. "I believe that, to the extent possible, we should apply more ordinary and orderly methods of judicial consideration, since far too much nuance is lost by treating every election matter as exigent and worthy of this court's immediate resolution."

Justice Wecht heaped extra scorn on the challengers' suggestion that the court could toss the selection of the state's electors to the General Assembly, noting that even though the U.S. Constitution generally gives state legislatures the power to choose how their electors are selected, the General Assembly had long ago passed laws that said the state's electoral votes would follow the popular vote.

"Conspicuously absent from the Election Code are any mechanisms by which to circumvent these procedures so as to permit the General Assembly to substitute its preferred slate of electors for that 'elected by the qualified electors of the Commonwealth,'" he wrote. "To persist in seeking to overturn the result of any election by legislative putsch is a fool's errand — and an arguably unconstitutional one at that."

Pennsylvania Attorney General Josh Shapiro said on Twitter Saturday that the state had just "notched another win for democracy" with the court's ruling.

Counsel for the challengers did not immediately respond to requests for comment.

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.

Gov. Tom Wolf, Secretary of the Commonwealth Kathy 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 cases are Kelly et al. v. Pennsylvania et al., case number 620 MD 2020, in the Commonwealth Court of Pennsylvania, and case number 68 MAP 2020, in the Supreme Court of Pennsylvania.

--Editing by Sarah Golin.

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

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