Update: Judge Alito orders a reply by December 8 on the Pennsylvania state court lawsuit and a stay order about certifying the election


By Robert Willmann

A request was made to the U.S. Supreme Court asking it to issue a stay order and to agree to hear the state court lawsuit from Pennsylvania about whether that state's 2019 mail-in voting law violates the Pennsylvania constitution, and therefore Article 1, section 4, and Article 2, section 1 of the U.S. Constitution on elections.  A docket sheet has been created in the Supreme Court Clerk's office, and an order appeared today by Judge Samuel Alito that the defendants are to file a response by 9:00 a.m. on Tuesday, 8 December 2020.  The document making the request asked for a stay order and an injunction that the State of Pennsylvania, Governor Tom Wolf, and Secretary of State Kathy Boockvar be blocked 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".  And, if actions were taken to do a certification of the election, an order is sought "to restore the status quo ante, compelling Respondents to nullify any such actions already taken, until further order of this Court"–


A 213-page appendix was filed with the request that contains papers from the Pennsylvania state court proceedings which were included in the article here from earlier today, plus sections of the U.S. and Pennsylvania constitutions.  Also included are the Pennsylvania voting law, Act 77, from 2019; a Pennsylvania law from 27 March 2020 that amended Act 77 and other election law; and sections from Title 3 of the U.S. Code–


The lawsuit as originally filed in the state court named the Pennsylvania General Assembly (the legislature) as a defendant, but the legislature did not join the appeal to the Pennsylvania Supreme Court that resulted in the dismissal of the case.  It will be interesting to see what position the Pennsylvania legislature will take in the U.S. Supreme Court, if it still considers itself a party to the case.

Since Judge Patricia McCullough did not allow the Democratic National Committee (DNC) to intervene in the case in state court and become a party to the lawsuit, and the Pennsylvania Supreme Court did likewise in its quick dismissal of the case, the DNC will not be able to try to muddy the waters unless it is allowed to intervene in any proceedings in the U.S. Supreme Court.


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5 Responses to Update: Judge Alito orders a reply by December 8 on the Pennsylvania state court lawsuit and a stay order about certifying the election

  1. Deap says:

    USC Art 2 Sec 1: Each State shall appoint, in such Manner as the Legislature thereof may direct, (electors)

  2. Deap says:

    USC Art 1, Sec 4: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof

  3. Deap says:

    California recently got in trouble on these very issues, but before the election – Gov Gavin Newsom, using his gubernatorial powers as “covid czar”, unilaterally changed state election laws.
    Calif Supreme Court struck them down – power to write election laws is reserved solely to the legislative branch. There is no “covid exception” allowing the governor to usurp this expressly designated power.
    Sounds like ad hoc election law changes were made by election officials that did not apply equally across the state in PA as well.

  4. FWH says:

    The Penn. judges could have said, “this state had foresight in requiring in person voting to help avoid the abuse that is alleged.” It could have said “any JUDICIAL remedy should not disallow thousands of otherwise lawful votes.” It could also have said, “proof of vote fraud should be aired to help protect elections for the state and country.”

  5. scott s. says:

    I’ve never seen anything substantive, but I infer from my reading that the power granted to state legislature in USCONS II/1 is subject to the specific powers provided in the state constitution. So I don’t know that a state legislature can act unilaterally unless provided for. Certainly in the normal course, state election law is created or amended the same as other law. (I had occasion as a non-lawyer citizen to try to understand the law in Hawaii while testifying in opposition to the “national popular vote compact” bill which was subsequently enacted over the governor’s veto as Act 62 Session Laws of 2008.)

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