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PA Election Lawyers Urge Justice Alito to Reject One of the Most ‘Dramatic, Disruptive’ Cases of All Time

WASHINGTON, DC - MARCH 07: U.S. Supreme Court associate justices Samuel Alito (L) and Elana Kagan testify about the court's budget during a hearing of the House Appropriations Committee's Financial Services and General Government Subcommittee March 07, 2019 in Washington, DC. Members of the subcommittee asked the justices about court security, televising oral arguments and codes of ethics for the court. (Photo by Chip Somodevilla/Getty Images)

Justice Samuel Alito

Lawyers representing the Commonwealth of Pennsylvania on Tuesday morning filed court papers before U.S. Supreme Court Justice Samuel Alito to oppose a lawsuit filed by U.S. Rep. Mike Kelly, a Republican from that state who zealously supports President Donald Trump. Kelly’s lawsuit argues that Pennsylvania’s supreme court violated the U.S. Constitution when it failed to rule recently that state election law violated the Pennsylvania constitution. In Kelly’s view, Pennsylvania’s bipartisan decision to expand the use of mail-in ballots via a 2019 law known as Act 77 conflicts with more narrow absentee voter provisions contained in the state constitution. In summary, Kelly’s case seeks basically to flip the election in Trump’s favor in Pennsylvania.

The Commonwealth’s attorneys minced no words in a scathing opening paragraph:

Petitioners [Kelly and others] ask this Court to undertake one of the most dramatic, disruptive invocations of judicial power in the history of the Republic. No court has ever issued an order nullifying a governor’s certification of presidential election results. And for good reason: “Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. . . . The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.

The response in opposition highlights the severity of the relief Kelly seeks while simultaneously scuttling the way his lawyers pressed their case. Kelly’s claims, the Commonwealth says, are not of the “utmost constitutional gravity” but are instead “fundamentally frivolous.” According to the Commonwealth, Kelly’s lawyers failed to “explain how a remedy premised on massive disenfranchisement would accord with the Due Process Clause, which requires the counting of votes cast in reasonable reliance on existing election rules as implemented and described by state officials.”

“Nor do [Kelly’s lawyers] seek to square their position with the separation of powers, the Twelfth Amendment, or basic principles of federalism—all of which foreclose the injunctive relief that Petitioners seek here,” the Commonwealth continued.

Its lawyers also picked apart the way Kelly’s attorneys made their arguments:

The first question—which seeks to raise Elections and Electors Clause challenges to Act 77—is not actually presented by this case. And the second question—which argues that the Pennsylvania Supreme Court violated the First and Fourteenth Amendments in its application of laches—asks this Court to constitutionalize huge swaths of state procedural law without any credible basis in constitutional principles or this Court’s precedents.

They then trolled Kelly’s legal team with words from the Third Circuit Court of Appeals in a recent Trump decision:

These failings also explain why equity stands as an insuperable obstacle to Petitioners’ application. “Democracy depends on counting all lawful votes promptly and finally, not setting them aside without weighty proof. The public must have confidence that our Government honors and respects their votes.” (Citation omitted.) But Petitioners would throw all that to the wind. 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. They make that request without any acknowledgment of the staggering upheaval, turmoil, and acrimony it would unleash. In issuing equitable relief, this Court rightly seeks to avoid inflaming social disorder. So to say that the public interest militates against Petitioners would be a grave understatement. Their suit is nothing less than an affront to constitutional democracy. It should meet a swift and decisive end.

The Commonwealth further argued in support of its election law scheme.  “The mail-in voting system created by Act 77 requires voters to apply for a ballot from the voter’s county board of elections,” the attorneys said.  “A voter must provide proof of identification when requesting a ballot and will not be sent a ballot unless approved as a qualified voter.”  The Commonwealth further said that Act 77 pertains to “mail-in” ballots, not “absentee ballots,” a distinction it says Kelly erroneously blurs.

The response also slams Kelly’s attorneys for relying on antiquated cases which pertain to earlier versions of the Pennsylvania Constitution — and failed to properly argue that the constitution had since been amended.

A bevy of Pennsylvania state lawmakers separately filed an amicus argument suggesting Act 77 was constitutional when passed but that the law was gutted by the “intervening actions” of the state supreme court and the Secretary of the Commonwealth. Those actions “fundamentally altered the original meaning of key provisions of Act 77” shortly before the election, thereby raising serious questions, they argued, against the laches argument the state supreme court used when terminating Rep. Kelly’s action at the state level.

Read the entire response in opposition below.

Kelly v Commonwealth of Pennsylvania – Response in Opposition by Law&Crime on Scribd

[Photo by Chip Somodevilla/Getty Images]

Editor’s note:  This piece began as a breaking news report.  It has been updated several times since its initial publication.

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University. He is a former anchor and executive producer for the Law&Crime Network and is now deputy editor-in-chief for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only. You should not rely on it for legal advice. Reading this site or interacting with the author via this site does not create an attorney-client relationship. This website is not a substitute for the advice of an attorney. Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.