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 .
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 .
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 . The next day the request for an emergency injunction was filed . 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 . 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 . 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 . 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 .
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.
 The preliminary injunction order issued by Pennsylvania Judge Patricia McCullough.
 The structure of the Pennsylvania state court system.
 The original petition and complaint challenging the constitutionality of the 2019 Pennsylvania Act 77, the law that dramatically changed voting in the state.
 The document requesting an emergency injunction order regarding the election in Pennsylvania.
The supplemental request for an emergency injunction order.
 The request by some known Republicans to file a friend of the court brief opposing the constitutional challenge to the 2019 Pennsylvania voting law.
 The four-judge majority Pennsylvania Supreme Court opinion dismissing and barring the state constitutional challenge to the 2019 voting law.
 The concurring opinion in the Pennsylvania Supreme Court.
 The concurring and dissenting opinion in the Pennsylvania Supreme Court.