In a one-line order, the justices denied an attempt by Rep. Mike Kelly and other Republican challengers to press a challenge to a Pennsylvania law that had expanded mail-in voting in the state. No justice indicated that they had dissented.
"The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied," the order stated.
State and federal judges in Pennsylvania have repeatedly rejected efforts by President Donald Trump and his supporters to challenge Biden’s win in the state. The president and his allies have lost a string of cases challenging specific sets of absentee ballots that were missing certain information on the envelope, and Trump lost a lawsuit in federal court seeking to invalidate millions of ballots statewide.
Leading up to Election Day and in the weeks after, Trump, his lawyers, and his allies have insisted that the results would wind up before the Supreme Court and that the justices would rule in his favor. Tuesday's order marked the first time the justices had considered one of the postelection legal challenges, and they swiftly rejected it. There are two other election-related cases pending before the court: a preelection case out of Pennsylvania involving a set of absentee ballots that wouldn't be large enough to overcome Biden's margin of victory, and an extraordinary action filed on Monday by Texas seeking to sue four other states where Biden had won over how they'd managed the election.
The case at issue in Tuesday's order involved a challenge to Act 77, a law that allows all eligible voters in Pennsylvania to apply to vote by mail without needing to provide a reason. The state legislature passed the law in October 2019, months before the coronavirus pandemic hit the US and prompted many states to adopt special voting procedures for elections this year.
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Trump’s campaign and the Republican National Committee challenged a slew of pandemic-related voting changes leading up to the election, with mixed results. But Kelly and the other Republican challengers in Pennsylvania didn’t bring their case objecting to Act 77 until Nov. 21 — three weeks after Election Day and more than a year after the legislature had passed the law.
Before Act 77, only specific categories of Pennsylvania voters — people who would be out of town on Election Day or who had a disability or illness, for instance — were eligible for an absentee ballot. Act 77 left the absentee voting rules in place but created a separate process for all other eligible voters. Kelly and the other Republican challengers claimed the law was an end run around the state constitution’s limits on absentee voting. The Pennsylvania legislature is in the process of amending the state constitution to merge the absentee and mail-in voting rules, but that hasn’t happened yet.
One day after filing suit in the Commonwealth Court of Pennsylvania, the Republican challengers asked for an immediate order blocking the state from certifying the results of the election. Biden won Pennsylvania by more than 80,000 votes, according to results posted by the secretary of state’s office. On Nov. 24, the secretary of state officially certified the results and Democratic Gov. Tom Wolf signed the certificate.
On Nov. 25, the Commonwealth Court judge handling the case issued an order that temporarily blocked Pennsylvania from taking any more steps to finalize the state’s election results while it was pending; the judge scheduled a hearing for later in the week. Lawyers for the state immediately petitioned the Pennsylvania Supreme Court to step in.
On Nov. 28, a majority of the state’s justices reversed the lower court judge’s decision and dismissed the challenge. In the three-page order, the court found that Kelly and the other challengers had simply waited too long to bring the case, violating what’s known as the doctrine of laches. They had “failed to act with due diligence,” the court concluded.
The Republican challengers’ delay in bringing the case caused “substantial prejudice,” the court found. By waiting until after the election to sue, the case “would result in the disenfranchisement of millions of Pennsylvania voters” if Kelly and the challengers got what they wanted, the justices wrote.
Two of the Pennsylvania justices partially dissented, but only on the grounds that they’d allow a lower court to consider the constitutional challenge to Act 77 going forward. They agreed with the rest of their colleagues, however, that the Republican challengers were not entitled to an emergency order that would affect the results of the presidential election, calling those requests “extreme and untenable.”
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The Republican challengers then took the case to the US Supreme Court. On Dec. 3, they filed a petition asking for an emergency order to nullify the state’s certification of election results and to block Pennsylvania officials from taking any other steps. They also asked the court to take up the merits of their challenge to Act 77. They argued that Pennsylvania lawmakers had violated the US Constitution — which gives state legislatures the power to set election rules — because they went beyond the limits of the state constitution.
Each justice handles emergency petitions from different parts of the country, and Justice Samuel Alito covers the 3rd Circuit, which includes Pennsylvania. He originally ordered Pennsylvania to respond to the petition by Dec. 9; that would have been one day after the “safe harbor” deadline for states to certify federal election results and get special protection against Congress stepping in to decide which presidential candidate gets a state’s electoral votes.
On Dec. 6, however, the docket changed to show that the deadline had changed and that Pennsylvania had until the morning of Dec. 8 to respond. Alito and the court didn’t provide an explanation for moving up the date. In their response, Pennsylvania’s lawyers argued that the Republican challengers were asking the court “to undertake one of the most dramatic, disruptive invocations of judicial power in the history of the Republic.”
“After waiting over a year to challenge Act 77, and engaging in procedural gamesmanship along the way, they come to this Court with unclean hands and ask it to disenfranchise an entire state,” Pennsylvania’s lawyers wrote. “They make that request without any acknowledgment of the staggering upheaval, turmoil, and acrimony it would unleash.”
Nearly two dozen Republican members of Congress filed a friend-of-court brief supporting Kelly and the other Republican challengers. Sen. Ted Cruz, the former Texas solicitor general, announced that he was prepared to argue the case on their behalf if the justices agreed to hear it. A coalition of former government officials and lawyers who served in Republican administrations filed a brief supporting Pennsylvania, as did the Pennsylvania General Assembly.