Earlier in the week, a state court in Pennsylvania had issued a preliminary injunction halting further certification of the presidential election in PA based on a lawsuit filed by Trump allies, including Representative Mike Kelly (R-PA). The suit was attempting to raise state constitutional questions about the vote by mail system that the state legislature had put in place. Some details here from Law and Crime (it is difficult to excerpt, for reasons that will become obvious if you surf over). One can also get a sympathetic run-down here from law professor William Jacobson.
The Pennsylvania Supreme Court, in a per curiam decision, has ruled against Kelly and his allies. The opinion can be found here.
Upon consideration of the parties’ filings in Commonwealth Court, we hereby dismiss the petition for review with prejudice based upon Petitioners’ failure to file their facial constitutional challenge in a timely manner. 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.
For a run-down of the doctrine of laches, see this post by Rich Hasen, but here it is in a nutshell:
The bottom line is that if you think there is a problem with how an election is being run, you need to go to court at that point to sue about it; you can’t wait to see how the election turns out and then do it.
The pièce de résistance of the whole thing is that Kelly and several of the petitioners participated in elections using mail-in ballots, a fact not lost on the court, including this from a concurrence by Justice Wecht:
Petitioner Wanda Logan ran and lost in a special election in February after Act 77 took effect. And not only she, but U.S. Representative Mike Kelly and congressional candidate Sean Parnell also participated in the 2020 primary elections under Act 77, as modified by Act 12,4 in June of this year.5 But it occurred to none of them to challenge the constitutionality of Act 77 before then, or indeed before participating in and contemplating the results of the 2020 General Election.
Not to mention this from one of the footnotes:
Even worse, at least one Petitioner actively encouraged his supporters to cast mail-in ballots for him in his bid for Congress. See Ryan Deto, Sean Parnell is suing Pa. over mail-in voting, even though he praised mail-in voting earlier this year, PITTSBURGH CITY PAPER (Nov. 21, 2020), h
So 10 out 10 for gumption, but minus several million for basic fairness and understanding of the law.
And these clowns want to overturn the will of the voters in their state and substitute their own preferred outcome. Thankfully the courts are thwarting this nonsense, but Kelly will still be going back to the House for another term, which is shameful given his behavior here.
More here from the Philadelphia Inquirer: Pennsylvania Supreme Court tosses GOP congressman’s suit seeking to throw out all ballots cast by mail.
The dismissal of his lawsuit brings to an end all legal challenges brought by the Trump campaign and its GOP allies filed in state and federal courts in Pennsylvania, which President-elect Joe Biden won by roughly 81,000 votes.
In addition to Kelly, who was reelected this year based in part on 35,000 mail ballots, the plaintiffs also include five GOP voters from Erie, Mercer and Allegheny Counties as well as two losing Republican candidates for office — Sean Parnell, who lost his Congressional bid to incumbent U.S. Rep. Connor Lamb (D., Pa.), and Philadelphian Wanda Logan, who was beaten by Democrat Amen Brown in a state House race.
