The powerful lawsuit in state court on the Pennsylvania voting process


By Robert Willmann

As the Trump Campaign unsuccessfully appealed a lawsuit over election problems in Pennsylvania to the federal Third Circuit Court of Appeals, an intriguing case filed in Pennsylvania state court by eight individuals represented by a Pittsburgh lawyer, Greg Teufel, produced a preliminary (temporary) emergency order blocking any remaining action "to perfect the certification of the results of the 2020 General Election", for the offices of president and vice president, until the completion of an evidentiary hearing that was scheduled for 27 November 2020 [1].

This state lawsuit presents a good, clean point that the 2019 law expanding absentee voting in Pennsylvania into mail-in voting for all voters violates the Pennsylvania constitution, which limits the scope of absentee voting in its Article 1, section 14.

The case is filed in the Commonwealth Court of Pennsylvania, which is a hybrid intermediate court of appeals that is "primarily responsible for matters involving state and local governments and regulatory agencies.  It also acts as a trial court when lawsuits are filed by or against the Commonwealth," the name for the state [2].

The eight people bringing the case as plaintiffs are:  a sitting Republican Congressman in the House of Representatives, Mike Kelly, who was re-elected; Sean Parnell, who ran for Congress in this election but has been behind in a close race against an incumbent; Wanda Logan, who ran for the Pennsylvania House of Representatives; and five others as private citizens.  The defendants are the Commonwealth of Pennsylvania (the state), the General Assembly (the legislature), Governor Thomas Wolf, and Secretary of State Kathy Boockvar.

Mike Kelly was elected to the U.S. House in 2010 and started in January 2011.  Sean Parnell fought in Afghanistan for over a year as an Army Ranger in the 10th Mountain Division, was wounded in 2006, and after completing the deployment, was medically discharged with the rank of captain.

The Pennsylvania constitution, which calls voters "electors", provides for in-person voting, and absentee voting in only four specific circumstances–

"(a) The Legislature shall, by general law, provide a manner in which, and the time and place at which, qualified electors who may, on the occurrence of any election, be absent from the municipality of their residence, because their duties, occupation or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability or who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of election day duties, in the case of a county employee, may vote, and for the return and canvass of their votes in the election district in which they respectively reside.  PA Const. Art. VII, section 14".

Act 77 of 2019, passed by the Pennsylvania legislature, expanded absentee voting into mail-in voting for everyone, but the constitution was not amended beforehand.  Act 77 required that all mailed ballots be received by 8:00 p.m. on election day.  But on 17 September 2020, the Pennsylvania Supreme Court changed that existing law such that "ballots are to be treated as timely if they are postmarked on or before election day and are received within three days thereafter".  And, "a ballot with no postmark or an illegible postmark must be regarded as timely if it is received by that same date", three days after the election.  

This new Pennsylvania lawsuit started on Saturday, 21 November, with the filing of the initial document, the Complaint for Declaratory and Injunctive Relief [3].  The next day the request for an emergency injunction was filed [4].  After becoming aware of the lawsuit, the Democratic National Committee (DNC) acted as if it had been shocked by a cattle prod, and by 12:59 p.m. on Monday, 23 November, it filed a request to intervene in the lawsuit. At 9:55 p.m. on the 23rd, in came an application to file a friend of the court brief (amicus curiae) from 17 denizens of The Swamp, including politicians Christine Todd Whitman, John Danforth, Lowell Weicker, and Christopher Shays (all Republicans), and other people from the Reagan and Bush administrations [5].  They wanted the requested injunction that would temporarily halt the certification of the election denied! They were stabbing their own political party in the back, by speaking against a lawsuit that would help the Republican candidate for president challenge the alleged voting results in Pennsylvania.

On Tuesday, 24 November, the DNC was allowed to file a friend of the court brief, but it was not allowed to intervene and become a party to the lawsuit.

The big day was Wednesday, 25 November, when the Commonwealth Court judge, Patricia McCullough, issued the order that blocked certification of the election. By 1:29 p.m. that day, the Secretary of State, Governor, and the State of Pennsylvania filed a notice of appeal to the state supreme court. But the legislature, which was also a defendant, did not file a notice of appeal! By 3:44 p.m., the three defendants who had appealed (excluding the legislature) filed a request asking the Pennsylvania Supreme Court, at its "discretion", to exercise "extraordinary jurisdiction" and take over the case, pulling it in outside of the normal process and procedure.

The day after Thanksgiving, Judge McCullough issued an opinion supporting her preliminary injunction, and it is worth reading as a thorough discussion of the situation–

By the night of Friday, 27 September, the DNC had filed in the state supreme court a request to intervene there, plus a "proposed joinder" with the three remaining defendants for purposes of extraordinary jurisdiction.  Among the lawyers representing the DNC as it scrambled to try to stop a focused lawsuit were two of the usual suspects– Mark Elias of Perkins Coie, and Seth P. Waxman of Wilmer, Cutler, Pickering, Hale & Dorr, both of whom are from Washington D.C. law firms.

Before midnight on Saturday, 28 September, the Pennsylvania Supreme Court, in a 5 to 0.5 to 2 decision, granted the request that it exercise extraordinary jurisdiction, refused to let other parties intervene in the case, vacated Judge McCullough's preliminary injunction, and dismissed the lawsuit "with prejudice", so that it would not otherwise proceed in the usual course and could not be re-filed [6].  Four of the judges issued the opinion, one made a "concurring statement" (that makes five votes), and a wishy-washy "concurring and dissenting statement" was made by the remaining two judges.

An average teenager can see that Act 77, which allowed mail-in voting by everyone in Pennsylvania, contradicts the Pennsylvania constitution, which restricts absentee-type voting to four specific situations.  Faced with the obvious, how was the Pennsylvania Supreme Court [sic] going to avoid the issue?  They dusted off an old "equitable doctrine" called "laches", which can stop a lawsuit from going forward because the party filing the case did not use "due diligence" and waited too long to file it, and that the failure to file the case earlier "prejudiced" the defendant.  Laches is not a statute of limitations passed by a legislature or Congress.  A statute of limitations creates a time period in which particular types of civil and criminal cases can be brought and filed, and the cases cannot be filed after the time period ends.  Some types of legal actions, such as the crime of murder, have no statute of limitations and can be started at any time.  Laches, on the other hand, is kind of like a free-floating statute of limitations of unknown length that is in the eye of the beholder.

According to a majority of the Pennsylvania Supreme Court, if you file a lawsuit on 21 November 2020 that challenges the constitutionality of a state voting law signed on 31 October 2019, you have waited too long to do so.

The concurring statement of Judge David Wecht tried to justify denying relief by providing more of an explanation, but he only dug the hole deeper than the other four did in their short opinion and order [7].  He gave the game away by saying at the beginning that, "… whatever the merits of Petitioners' claims regarding the constitutionality of Act 77, their request for retrospective relief … is barred by the doctrine of laches".  Wecht also brought up a section of Act 77 that said you had to file a constitutional challenge to the law within 180 days after it was signed on 31 October 2019, or you could not challenge the law after that.  Such a statement should cause a reader to roll on the floor laughing, because sometimes you can raise a constitutional issue for the first time on appeal, when you did not raise the issue earlier in the trial court.  The four-judge majority would not touch that 180-day foolishness with a 10-foot pole, as they said in their footnote 4:  "While the Commonwealth also relies upon Section 13(3) of Act 77, providing for a 180-day period in which constitutional challenges may be commenced, given our reliance upon the doctrine of laches, we do not speak to this basis for dismissal".

The concurring and dissenting statement of Judges Saylor and Mundy said they agreed that there should not be a restraining order or injunction against certifying the votes in the 2020 general election, as it would be "extreme and untenable", because there had been "good-faith reliance by the electorate" on the "no-excuse mail-in voting regime created by Act 77."  However, they would not permanently shut down the lawsuit by dismissing it with prejudice; instead, they would send it back to proceed in the normal course on the question of whether Act 77 violated the Pennsylvania constitution [8]. 

Remember that the Pennsylvania Supreme Court not only cancelled the preliminary injunction order, but it also dismissed the lawsuit and by that action prevented the evidentiary hearing that Judge McCullough had previously scheduled.

Like every case in the state and federal court systems to try to resolve a dispute, one issue is what remedy should exist on the facts for the matter in question.  This is a classic question and a big part of any election contest.

I started this article last weekend, but new developments emerged in the cases in Georgia, among other things.  It was my understanding last Sunday that attorney Greg Teufel was going to make a request to the U.S. Supreme Court to see if it would agree to hear the case, and he has since confirmed that course of action.  When a lawsuit based on state law knocks on the door of the Supreme Court, it has to present an issue involving the U.S. Constitution, a federal law, or some "federal question". 

As we have discussed here previously, a request for a stay order about a case in Pennsylvania can be presented to the U.S. Supreme Court judge assigned to the federal Third Circuit, which is Samuel Alito.  The request may have been sent to him by this time.

Patricia A. McCullough.  A judge on a hybrid intermediate state court and the only judge in the U.S.A. with the intellectual honesty and fortitude to issue a preliminary injunction order about an election and the issue of an obviously unconstitutional electoral process that has allowed, on evidence produced to date, significant voting fraud.

What about the federal judges?  The privileged group with a lifetime appointment and job, young lawyers as law clerks to help them with their work, beautiful courtrooms and offices, assistance from the U.S. Marshals Service, a generous pension and retirement program, and a much smaller case load than your state trial court judges.  As of this date and time, they are not rising to the occasion.

[1]  The preliminary injunction order issued by Pennsylvania Judge Patricia McCullough.

[2]  The structure of the Pennsylvania state court system.

[3]  The original petition and complaint challenging the constitutionality of the 2019 Pennsylvania Act 77, the law that dramatically changed voting in the state.

[4]  The document requesting an emergency injunction order regarding the election in Pennsylvania.

The supplemental request for an emergency injunction order.

[5]  The request by some known Republicans to file a friend of the court brief opposing the constitutional challenge to the 2019 Pennsylvania voting law.

[6]  The four-judge majority Pennsylvania Supreme Court opinion dismissing and barring the state constitutional challenge to the 2019 voting law.

[7]  The concurring opinion in the Pennsylvania Supreme Court.

[8]  The concurring and dissenting opinion in the Pennsylvania Supreme Court.


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12 Responses to The powerful lawsuit in state court on the Pennsylvania voting process

  1. JohninMK says:

    These are the first paras of the linked article.
    Supreme Court Justice Samuel Alito has made a critical decision which may signal that court’s willingness to hear a controversial case attempting to flip Pennsylvania’s 2020 election results.
    Originally, Alito set a Wednesday deadline for the state to respond to GOP Rep. Mike Kelly’s lawsuit alleging that a 2019 state election reform, known as Act 77, violates both the state and federal constitutions by creating a so-called “no-excuse mail-in” voting regime.
    Many took the Wednesday deadline as political theater, as it would place the case outside the “safe harbor” window which requirest that controversies “concerning the appointment of all or any of the electors . . . by judicial or other methods or procedures” to be determined” at least six days before the time fixed for the meeting of the electors,” according to Law & Crime.
    In other words, the Tuesday deadline may signal that the Supreme Court takes Kelly’s case, which was rejected by the Pennsylvania Supreme Court with prejudice last weekend.
    According to Kelly’s filing, the ‘no-excuse mail-in’ voting scheme should only apply in a limited number of circumstances, and that people must vote in person unless a narrow list of excuses applies. Thus, Act 77 and related election access laws should be invalidated – along with votes cast under it in the 2020 election.

  2. Deap says:

    National Vote at Home Institute pushes their agenda for “no excuses” all mail-in elections:
    How did this work out for them this time? Or do the mail-in interest group just own the media, who claims mail at home worked perfectly and there was zero no evidence of fraud. Especially since “signature verification was so robust.
    Was it the (1) balloting, the (2) verification of the balloting, or (3) counting the balloting that was most suspect this time?
    Paper ballots issued at polling places on one Election Day, hand counts with double to triple independent checking of ballots should be the Gold Standard. Anything else must be the exception; not the rule. Any other agenda is weak and suspect, no matter how nobly they try to dress it up.
    Voting is our one commonly shared duty – voting should be sacred and approached reverentially; not cheapened and handled expeditiously.

  3. Fred says:

    The supreme court is not bound by a safe harbor deadline. The PA law either violates the constitution or it doesn’t. If it does the resolution is turning the mater for selecting electors to the electoral college to the PA legislature. They, along with the governor and PA SC judges, were elected by the same voters, who can express their pleasure at this result in the next state election.

  4. lux says:

    Finally, a focused approach. I looked at PA, GA? elections laws … wondering.
    Admittedly the “good-faith reliance by the electorate” was on my mind too immediately. Even more considering the fact that Donald Trump started to speak out against the extension of mail-in voting starting in his Corona briefs in April. In other words had they moved earlier the “good-faith” wouldn’t be relevant before.
    But I agree, this is legally probably irrelevant.
    Elegant approach. Following Trump’s earliest statements, the only needed fraud that has to be kicked out is mail-in voting. This is based on careful analysis of events, and doesn’t even need allegations.

  5. lux says:

    “good-faith” wouldn’t be relevant before need to be considered anymore.

  6. Dennis Daulton says:

    October 31 2019 pre dates the COVID-19 issue and therefore means that the plan to steal this election was afoot and set into motion before the pandemic hit.

  7. lux says:

    The constitutional argument sounds very, very solid to me, what I find pretty curious though, maybe I have to read the whole decision to understand is this bit of …
    Legalese: If I vote by mail I dilute your votes more than if I vote personally? It remains one vote only one way or another? No?
    5. The U.S. Supreme Court has addressed various circumstances concerning disenfranchisement of votes. For instance, it has held the right to vote is foundational to our Republic and this fundamental right “can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555 (1964). Reynolds, which established the “one person, one vote” doctrine, is the seminal case on voter dilution. Under this concept, a mail-in voting process that would exceed the limits of absentee voting prescribed in Pa. Const. Article VII sec 14 could be construed as violating the “one person one vote.” In that event, the sheer magnitude of the number of mail-in ballots would not be a basis to disregard not only this provision of the Pennsylvania Constitution but also the “one person, one vote” doctrine established by Reynolds, one of the bedrock decisions of the U.S. Supreme Cour.

  8. Deap says:

    Teasing out this key argument above ( Thnx lux):
    ………. it has held the right to vote is foundational to our Republic and this fundamental right “can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise”……….

  9. Seamus Padraig says:

    @Dennis Daulton | 06 December 2020 at 07:07 PM

    October 31 2019 pre dates the COVID-19 issue and therefore means that the plan to steal this election was afoot and set into motion before the pandemic hit.

    Or just maybe, at some level, plans for Covid-19 itself were already afoot. After all, October 2019 was the very month that Bill Gates sponsored the Event 21 Conference, speculating on how governments should respond should a corona virus just ‘happen’ to render normal life impossible.

  10. Keith Harbaugh says:

    Something I notice: When a court decision goes against the desires and priorities of the left, and the judge or judges who authored the decision were appointed by Republicans, or ran for election as judges on the GOP ticket, this fact is invariably noted by the media and commentators, and used as evidence that this decision was influenced by politics, not the law and facts.
    However, in this PA decision, all five of the PA Supreme Court
    judges who sided with the Democrats ran for THEIR election on the Democratic platform!
    But this fact is ignored by the media and, surprisingly, Mr. Willmann.
    To the media, only Republicans can be accused of partisanship!

  11. LondonBob says:

    This is the case they really fear, they love crazy Lin Wood.

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