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Pennsylvania State Judge Upholds Halt To Certification, Finds Likelihood Mail-In Balloting Procedures Violate PA Constitution

Pennsylvania State Judge Upholds Halt To Certification, Finds Likelihood Mail-In Balloting Procedures Violate PA Constitution

UPDATE 11-28-2020 7 p.m.: Pennsylvania Supreme Court dismisses challenge to mail-in ballot procedures, vacates halt to certification.

https://youtu.be/egKFCHn0GQE

UPDATE 11-28-2020 7 p.m.: Pennsylvania Supreme Court dismisses challenge to mail-in ballot procedures, vacates halt to certification

Earlier Coverage:

A Pennsylvania state court Judge has issued a preliminary injunction preventing Pennsylvania from taking any further steps to perfect its certification of the election, including but not limited to appointment of electors and transmission of necessary paperwork to the Electoral College, pending further court hearings and rulings. The ruling upholds an injunction from earlier in the week, and is significant because of the findings made in the Opinion released tonight.

You can read the Opinion here.

The case has been somewhat under the radar, because it doesn’t involve claims of fraud. It appears to be a pretty straight legal argument. This is not the federal court case that has received a lot of press attention and in which the Third Circuit Court of Appeals denied relief.

The issue in this case is whether legislative expansion of absentee balloting to broad mail-in balloting violated the Pennsylvania Constitution. It’s not clear what the relief would be; the petitioners seek to preclude the Secretary of State from transmitting the certification or otherwise perfecting the electoral college selections.

Earlier in the week, Judge Patricia McCollough issued a temporary halt to the certification process, and that now is on appeal to the PA Supreme Court. The Judge issued this Opinion to extend that halt pending futher hearings, and to set forth the basis for the injunction, which could be relevant to the appeal:

As this Court’s November 25, 2020, Order of an Emergency Preliminary Injunction has been appealed to the Pennsylvania Supreme Court, this opinion shall set forth the basis for said Order and shall also satisfy the requirements of Rule 1925 of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P. 1925….

(added) Ed Morrissey points out that an automatic stay pending appeal may apply to the prior order. However, it’s not clear to me whether and how such an automatic stay would apply to this new order. As of this writing, no decisions from the PA Supreme Court have been issued, and no new filings have been made regarding this new order. You can see the docket here.

Here is the Judge’s description of the claim:

In the Petition, Petitioners allege that the Act of October 31, 2019, P.L. 552, No. 77 (Act 77), which added and amended various absentee and mail-in voting provisions in the Pennsylvania Election Code (Election Code),1 is unconstitutional and void ab initio because it purportedly contravenes the requirements of the Pennsylvania Constitution. Petitioners allege that Article VII, section 14 of the Pennsylvania Constitution provides two exclusive mechanisms by which a qualified elector may cast his or her vote in an election: (1) by submitting his or her vote in propria persona at the polling place on election day; and (2) by submitting an absentee ballot, but only if the qualified voter satisfies the conditions precedent to meet the requirements of one of the four, limited exclusive circumstances under which absentee voting is authorized under the Pennsylvania constitution. (Petition, ¶16.) Petitioners allege that mail-in voting in the form implemented through Act 77 is an attempt by the legislature to fundamentally overhaul the Pennsylvania voting system and permit universal, no-excuse, mail-in voting absent any constitutional authority. Id., ¶17. Petitioners argue that in order to amend the Constitution, mandatory procedural requirements must be strictly followed. Specifically, pursuant to Article XI, Section 1, a proposed constitutional amendment must be approved by a majority vote of the members of both the Pennsylvania House of Representatives and Senate in two consecutive legislative sessions, then the proposed amendment must be published for three months ahead of the next general election in two newspapers in each county, and finally it must be submitted to the qualified electors as a ballot question in the next general election and approved by a majority of those voting on the amendment. According to Petitioners, the legislature did not follow the necessary procedures for amending the Constitution before enacting Act 77 which created a new category of mail-in voting; therefore, the mail-in ballot scheme under Act 77 is unconstitutional on its face and must be struck down. Id., ¶¶27, 35-37. As relief, Petitioners seek, inter alia, a declaration and/or injunction that prohibits Respondents from certifying the November 2020 General Election results, which include mail-in ballots that are permitted on a statewide basis and are allegedlyimproper because Act 77 is unconstitutional.

The Judge found, among other things, that the plaintiffs were likely to prevail on their PA constitutional claims, and that the matter was not moot even though PA had “certified” the results, because there were more steps to be taken [emphasis added]:

Accordingly, in careful consideration [on November 25] of the exigencies and time constraints in this matter of statewide and national import, and the longstanding constitutional mandate that every citizen of this Commonwealth is entitled to no less than a fair and free election, it was necessary [on November 25] to preliminarily enjoin, on an emergency and temporary basis, Executive Respondents from undertaking any other actions with respect to the certification of the results of the presidential and vice presidential elections, if indeed anything else needs to be done, pending an evidentiary hearing to ascertain the facts of this matter and to determine if the dispute is moot….

Based upon the record before it, this Court has sufficient grounds to enjoin Respondents from further certification activities on an emergency preliminary basis, pending the results of the evidentiary hearing it had scheduled for this date, after which the Court would have determined if a preliminary injunction should issue.4 Since the Court is sitting in equity it has the power to fashion such relief as it is vitally important that the status quo be preserved pending further judicial scrutiny….

Additionally, Petitioners appear to have established a likelihood to succeed on the merits because Petitioners have asserted the Constitution does not provide a mechanism for the legislature to allow for expansion of absentee voting without a constitutional amendment. Petitioners appear to have a viable claim that the mail-in ballot procedures set forth in Act 77 contravene Pa. Const. Article VII Section 14 as the plain language of that constitutional provision is at odds with the mail-in provisions of Act 77. Since this presents an issue of law which has already been thoroughly briefed by the parties, this Court can state that Petitioners have a likelihood of success on the merits of its Pennsylvania Constitutional claim.

The Judge expressed grave concern as to what a remedy would be if she were to rule the mail-in balloting unconstitutional, so even if she ruled for the petitioners on the merits, it’s not clear if that would change the result:

That being said, this Court is mindful that one of the alternative reliefs noted by Petitioners would cause the disenfranchisement of the nearly seven million Pennsylvanians who voted in the 2020 General Election. Specifically, Respondents claim that a temporary stay would disenfranchise voters as the legislature would appoint the electors to the Election College. However, as noted, the legislature is not authorized to appoint the electors to the Electoral College until December 8, the “Federal Safe Harbor” date for certifying results for presidential electors. The Court agrees it would be untenable for the legislature to appoint the electors where an election has already occurred, if the majority of voters who did not vote by mail entered their votes in accord with a constitutionally recognized method, as such action would result in the disenfranchisement of every voter in the Commonwealth who voted in this election – not only those whose ballots are being challenged due to the constitutionality of Act 77. However, this is not the only equitable remedy available in a matter which hinges upon upholding a most basic constitutional right of the people to a fair and free election. Hence, Respondents have not established that greater harm will result in providing emergency relief, than the harm suffered by the public due to the results of a purportedly unconstitutional election.5

The Judge concluded:

For all of the above reasons, the Court respectfully submits that the emergency preliminary injunction was properly issued and should be upheld pending an expedited emergency evidentiary hearing

This is not a final ruling on the merits. It’s meant to prevent PA from taking more steps until the court finally rules.

Given how the PA Supreme Court has ruled previously on election matters, expanding procedures beyond what even the legislature adopted, I don’t see how this survives the PA Supreme Court. From there, the next stop is the U.S. Supreme Court where we know John Roberts and the three liberal Justice will defer to the state supreme court. But the Court is now 6-3, so a Roberts defection would not result in a 4-4 deadlock again if the 5 conservative Justices voted together.

[The title has been updated to clarify that the Judge is upholding and continuing her prior halt to certification.]

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Comments

Oh my…

    notamemberofanyorganizedpolicital in reply to scooterjay. | November 28, 2020 at 1:42 am

    The DEMS are Plucked.

    DEMS Plucked themselves.

    Surely this principle applies to all states…..

    persecutor in reply to scooterjay. | November 28, 2020 at 7:14 am

    Is it just me, or does the fact that the legislature did this back in 2019 sound any warning bells as to a conspiracy cooked up by the DNC? Why the pressing need to do something so blatantly unconstitutional unless there was a Part II of this entire charade?

    I don’t understand why the judge is concerned about the remedy. The remedy seems simple: the unconstitutional mail-in ballots are thrown out. The legal votes are counted. What’s the confusion? Our voting system works by counting all constitutionally legal ballots and discarding the others. Am I missing something?

      felixrigidus in reply to dging. | November 28, 2020 at 11:48 am

      Yes, you’re missing something.
      There will be a not-insignificant number of voters who have availed themselves of the mail-in option in good faith.
      Throwing their votes out may ultimately be the only option but the fact is that any good faith mail-in voters whose ballot would be invalidated have been robbed of their vote. On the other hand, those that did vote in person are robbed of their vote if countless unconstitutional ballots are counted.
      The best option would be to repeat the election in a constitutional manner, but the time for that seems to be too short.

      All possible options are therefore horrible. If no electors are certified the legislature might send electors, but that is problematic as well.

        Jim Smith in reply to felixrigidus. | November 28, 2020 at 1:42 pm

        The solution is obvious: Simply provide a time period within which remote (mail-in) voters can appear at polling places or elsewhere to validate their ballots. Those ballots not so validated would be invalid.

          A Punk Named Yunk in reply to Jim Smith. | November 28, 2020 at 8:07 pm

          Jim Smith
          There was a limit. The rogue election officials ignored it an accepted the truckload(s) of “mailed-in” ballots.

          We need(ed) to station national guard troops at the counting centers at precisely closing time (8 PM in PA, I think) to keep all vehicles 100 yards away until the counting is complete.

        Observer in reply to felixrigidus. | November 28, 2020 at 4:30 pm

        Also missing: the fact that the PA Supreme Court is made up of a majority of Dim hacks (5 of the 7) who will be only too willing to overrule this lower court judge, in order to protect Joe Biden’s fraudulent “victory.”

      BD1957 in reply to dging. | November 28, 2020 at 2:28 pm

      By now, it may be impossible to determine which votes were mail and which ones weren’t – or which ones were “absentee which were proper under prior law” (they shouldn’t lose their vote), and which ones wouldn’t be . . .

      Bigger issue (I suspect); the Legislature, etc. told the voters of Pennsylvania “this was OK” and they relied on it being the case. While the “vote by mail scheme” is tailor made for fraud, “less than all of the voters” were fraudulent.

    This is off topic, but I can’t find the answer. Giuliani in his press conference said there were over 100,000 mail in ballots that had no application. WI law makes it illegal to accept a mail in ballot w/o out application. If this is true, there are over 100,000 ballots which should be thrown out (most of which, I assume, where for Biden). Where is the lawsuit? What happened to it? Why haven’t these ballots been thrown out and Trump declared the winner?

    I now COMPLETELY understand what is going on with PA. It has been a two-prong assault by the Trump forces to boil this down to whether the GOP even survives after this election. With all of the RINO legislators who will now have to publicly declare where they stand when they select their electoral delegates, everyone will know exactly who the traitors. We already know how popular Trump is in PA so we know these tudbolts will be voting for their own political survival. Trump wins PA which begins the dominoes falling.

    According to Steve Turley, Trump has probably already won the key battle leading to winning the war.

    https://www.youtube.com/watch?v=wMQ9a2mlsRw

    Must watch. Well-worth suffering through all of the ads.

    One of the best indicators of massive vote fraud is to compare the number of *officially reported* votes for Harris/Biden to the total number of votes for the Democrat senate candidate.
    . . .You’ think that anyone who voted for Harris/Biden would also vote to help their party win control of the Senate too. But take a look at Georgia, where there were two senate races: The *official, reported* results show Harris/Biden got 2,474,507 votes. But the Dem senate candidate in one of the races was officially reported to have gotten just 2,374,519 votes. Biden supposedly got virtually 100,000 MORE votes.
    . . .For this to have happened *without fraud,* we’re required to believe that 100,000 Democrats who took the time to vote for Biden didn’t give a damn about helping their party win the crucial senate. Does anyone believe that’s likely?
    . . .In the other senate race, the seven Dem candidates combined were offically reported as getting 2,378,312 votes, meaning Harris/Biden *reportedly* got 96,195 MORE votes than all Dem senate candidates combined. Again, for this to happen honestly requires you to believe 96,195 Dems who took the time to vote for Harris/Biden didn’t care about helping their party win control of the senate. Not plausible.
    . . .The two results above, showing Harris/Biden getting either 100,000 or 95,000 more votes than the party’s senate candidate, suggest that somewhere around 100,000 votes were fraudulently added to the Harris/Biden total count.
    . . .Compare the above results with the same matchup on the GOP side: The official state results show Trump with 2,461,837 votes, compared to 2,462,617 for the GOP’s senate candidate, meaning Trump got 780 FEWER votes than the senate cadidate. This is consistent with other states, in which roughly 2000 Republicans voted for the party’s senate candidate but found Trump just too icky to support. And even if we assume those finicky Republicans voted for Harris/Biden, it still leaves the reported Harris/Biden votes between 95,000 and 99,000 more than the total for the Dem senate candidate.

    . . .Another telltale: Republican senate candidate David Perdue got 88,000 more votes than his Democrat opponent–a strong indicator of the R vs D vote, and yet the *official* count has Harris/Biden wining by 12,000 votes.
    . . .Finally, if you total all the votes for R and D House candidates in all 14 districts, we find 2,490,326 votes for all GOP candidates combined, vs. 2,461,837 for Trump. That is, Trump got 28,489 FEWER votes than all GOP House candidates combined.
    . . .By contrast, Harris/Biden’s reported 2,474,507 votes exceeded the 2,393,089 total for all Democrat candidates by a whopping 81,418 votes. Again, not logical.

      Milhouse in reply to sf44. | November 28, 2020 at 10:16 pm

      It is completely normal and expected that a lot of people split their ticket, and that is what happened in Georgia. There were not 100,000 votes with Biden only, and the senate blank. There were tens of thousands of Georgians who voted Biden for president and for Republicans for the two senate seats. And there is no way those votes were fraudulent, because a fraud would have voted the same way on all races. Those were all genuine voters who deliberately decided to vote this way.

      I don’t know why this surprises you. Are you also surprised that Susan Collins got more votes than Trump did in Maine, or that John James got more votes that Trump did in Michigan?!

CNN discusses how Trump can win in the U.S. House.

hahahaha

https://www.thegatewaypundit.com/2020/11/black-friday-panic-cnn-airs-possible-path-trump-2020-win/

Also – GEORGIANS – Rally at Capitol Saturday at NOON. Tomorrow.

“A Pennsylvania state court Judge has issued a preliminary injunction preventing Pennsylvania from taking any further steps to perfect its certification of the election”

This sounds like a job for… (ta ra, ta raaaaah)
HawaiianJudge!

JusticeDelivered | November 27, 2020 at 11:32 pm

Great news, maybe the start of Dems getting throughly beat for their conduct.

I can smell the stink from the office of the President Elect. This is massive.

This is a very big deal. The list of those trying to intervene is as long as one’s arm. The DNC is beating on the door. This judge is over the target. Onward!

WINNING!

The court is not 6-3. It’s 5-4. William Jacobson is living on another planet if he thinks it’s 6-3.

    TheOldZombie in reply to BillyHW. | November 28, 2020 at 1:45 am

    I don’t think he’s living on another planet. It is 6-3 but I do support that we all should change it 5-4 and declare Roberts a lefty who sometimes votes on the right instead of a right who sometimes votes left. 😉

    amwick in reply to BillyHW. | November 28, 2020 at 5:44 am

    I believe he is living in Rhode Island. He has shared some pics… try to keep up.

    MarkS in reply to BillyHW. | November 28, 2020 at 9:32 am

    When it comes to Trump and the election, the Court is 7-2 against Trump

    Concise in reply to BillyHW. | November 28, 2020 at 1:11 pm

    Hold on a second. The claim is based on the PA Constitution? How exactly does this thing even get US S.Ct. review? What exactly is the US Constitutional issue here? That the state legislature violated their own constitution? Haven’t we claimed in other cases the legislature has the final say?

      Jim Smith in reply to Concise. | November 28, 2020 at 1:45 pm

      Yes, state legislatures have the last say, but they are not empowered to bypass their state constitutions in doing so. Thus sayeth the U.S. Supreme Court. Maybe.

        Milhouse in reply to Jim Smith. | November 28, 2020 at 10:19 pm

        1. At least as far as the US constitution is concerned, state legislatures are empowered to bypass their state constitutions in making the rules for choosing electors. So the US supreme court has said.

        2. In any case it’s not an issue for the federal courts.

          Ken in Camarillo in reply to Milhouse. | November 30, 2020 at 11:58 pm

          It becomes a federal issue if the state violates its own Constitution or laws (US guarantees each state a republican form of government), or the federal Constitution or federal laws (federal supremacy clause).

I’m sure it’s very difficult for a judge to discard votes that were cast because of what seems to be a technicality that the voters didn’t know when they chose to vote by mail. However, what other way is there to preserve and enforce the plain language of the constitution? If the mail in ballots are allowed to stand, then that provision in the constitution is effectively void as it is so easily circumvented.

In a criminal case, we would rather set a murderer free than allow him or her to be convicted based on evidence collected during an illegal search. That is the only type of penalty that can sufficiently deter such bad behavior. I think this case is similar, only by making it unprofitable to cheat the constitution will deter such actions in the future.

    rebelgirl in reply to james h. | November 28, 2020 at 9:00 am

    But at some point the courts need to say that voters (or the general public) need to be personally responsible for following the rules…Sorry if you don’t know the voting laws in your own state but there they are..

      Milhouse in reply to rebelgirl. | November 28, 2020 at 10:20 pm

      They followed the rules. The rules made by the legislature. It’s not their fault if the legislature violated the state constitution.

One thing that stands out to me about everything that is happening is how quiet Joe Biden, Kamala Harris, his campaign, and even the Democratic party are being about what is going on.

You don’t see fireworks that you would normally expect from them. I’d expect them to be in these states like PA and fighting tooth and nail to get certified.

But other than a few messages from alleged President-Elect Biden that no one, even his own side, watched they are quiet.

    TheOldZombie in reply to TheOldZombie. | November 28, 2020 at 1:56 am

    Also I think the way this race allegedly played out that there was no Blue Wave, the GOP dominated all over the place, and yet Trump allegedly lost tells me how the Democrats cheated.

    The Democrats, who live in so many bubbles bought their own lies and lying polls about a blue wave. They truly believed such a thing would happen. But they were scared that Trump would pull out a miracle win again like he did in 2016. Sure he got 304 electoral votes but a few thousand votes in a couple states and that election easily becomes President Clinton. Trump squeaked out wins in enough states to give him the electoral college because the Dems were stupid and concentrated on the popular vote.

    So they only cheated at POTUS in 2020 to ensure that he lost. This is why you see thousands of ballots in various places with only a vote for POTUS. You don’t see any votes for any other race on the ballot.

    On election night they realized however they cheated but by not enough. So they stopped counting all at the same time and everyone went home except for handfuls of people who stayed. Those people continued the cheating but were so bad at it that it stands out.

    But they couldn’t do anything about any other races. They had to accept those losses.

    So they are trying to force the country to believe that the GOP dominated the 2020 election BUT Trump still lost.

      notamemberofanyorganizedpolicital in reply to TheOldZombie. | November 28, 2020 at 2:08 am

      Someone on television about a week ago was also pointing out the same thing you have observed. All the big DEMS have been deadly silent.

      Also an expert has pointed out how Sniffin’ Biden and his Cheatin’ Team”s behavior betray them as the actual losers they are.

    The Democrats have been investing time, money and people in to critical positions within States and also has the media on their side.

    Basically Democrats don’t have to do anything other than ride this thing out and they will win the White House…amply aided by the Republicans who sided with them over their President.

Don’t have much faith in anything going to Pa State SC, they are one of the biggest problems in this mess. They are not going to suddenly change direction.
Have infinity more hope in the Pa State Legislature nullifying the voting and do it themselves.

This is what I have been arguing about. All these non legislative actors making changes to the election laws was going to end up with:

1. Chaos on/during the election
2. Courts left with stark choice

This was the d/progressive plan. These points are Features not bugs. They willingly and knowingly acted to make unconstitutional changes using ‘but Rona’ as the excuse.

For the d/progressive respondents to attempt to argue that in essence ‘yeah but…if you enforce the constitution then all these unconstitutionally cast ballots won’t be counted… despite the fact that the Plaintiffs and others repeatedly warned that this would happen ‘ is too effing much.

If I can figure this out and write here and elsewhere about it then tough nuggies. I am certainly not the most prominent voice trying to warn the d/progressive of their folly. Many more knowledgeable far more prominent than I have stated the same across multiple sites and venues.

This boils down to:

1. The d/progressive hatched a plan to make unconstitutional changes to election laws with mass mailing of ballots.

2. They, and the public were given fair warning that their actions would be challenged in court.

3. Court must either:
A. Rule the changes to election laws/procedures unconstitutional and the ballots that flowed from those changes as illegal
OR
B. Ignore the Constitution and let the unconstitutional changes stand and accepting that from now on no one will be bound by constitutional strictures.

That’s really all there is to these cases. The state legislature is the only entity authorized to make changes to election laws, at least for Presidential elections. If any other entity made a change then that change and every ballot cast resulting from that change is unlawful.

To any d/progressive reading this. It is that simple. Until you overcome that basic fact pattern don’t hand me esoteric arguments about ‘disenfranchised voters’. I, among others, told you it was going to end up in court and very likely overturned. You made this mess. You were told it was going to happen. You choose to do it anyway. Now you bear the consequences.

Speaking of consequences. I would urge every single person to look into the future and tell me if they want a court that upholds the constitution or a court that allows non legislative actors to make unconstitutional changes to our laws.

The result of trying once more to ‘get’ the orange man by ignoring the constitution to achieve your ends will be others ignoring the constitution to achieve their goals. This will not be a one way street.

Why should any court expect the Citizens to obey our constitution and the laws which flow from it if the court is unwilling to enforce the constitution in the case of the 2020 election?

If anyone believes that yet another instance of ‘yeah but Trump’ is going to pass muster then I want to take this opportunity to disabuse you of that notion. You have no idea how very wrong you are.

Please don’t let your short term political ends and hatred of Trump be responsible for tossing out our constitutional order and our Republic.

    TX-rifraph in reply to CommoChief. | November 28, 2020 at 7:47 am

    “3. Court must either:…”

    Yes.

    We either have rule of law or not. The Constitutions mean something or they do not. There is no middle ground. The Courts are on trial now. We already know the Democrats are guilty.

    Sociopaths/bullies don’t need no stinkin’ rules. They only need power derived from force not authority.

    snopercod in reply to CommoChief. | November 28, 2020 at 7:56 am

    Good analysis but maybe there’s a third resolution. Couldn’t the court just order the mail-in ballots to be removed from the tally?…assuming that’s possible.

      CommoChief in reply to snopercod. | November 28, 2020 at 9:03 am

      snopercod,

      Yes. Every ballot lawfully cast in person or under normal absentee ballot process should, IMO, count.

      However every ballot cast under some ‘but Rona’ designated process which the legislature of that state didn’t specifically authorize must, IMO, not be counted.

      Likewise with process and procedural issues. If the election laws call for mandatory observation of the receipt, handling, accountability, review for compliance and tally of the ballot then, where that wasn’t adhered to those ballots must, IMO, not be counted.

      The d/progressive plan was to sow chaos and confusion. The problem they have is that in these suspect precincts they are the officials with the duty to ensure all the ‘I be dotted and all the T crossed’.

      They knew that moving to widespread use of mail in ballots would create a logistical hurdle to compliance with all the various voter integrity/security laws. They chose to willingly ignore this reality.

      The deliberate and intentional failure of these precincts to create the logistical infrastructure in terms of numbers of observers or reducing the handling and counting to match the number of observers cannot be a reasonable argument that allows them to willingly and maliciously shirk their duties.

      Every ballot cast that didn’t comply with the legislative mandates for every procedure must be discarded. In contrast, every lawfully cast ballot should be counted.

      These local and state election officials can face the wrath of their electorate in their next election. That’s the just remedy for those voters whose ballot was discarded due to wilful incompetence of their own officials.

      Additionally I believe these cases in most if not every state will be resolved under the court’s power under equity. That makes things less easy to predict because, IMO, it gives the court latitude to make a ‘just’ finding. We shall see.

        TX-rifraph in reply to CommoChief. | November 28, 2020 at 11:51 am

        “Every ballot lawfully cast in person or under normal absentee ballot process should, IMO, count.”

        I agree. How do we do that?
        1) The identification of a legally cast ballot should be certain as it is when people show up in person, are identified, and poll is run by honest people. “Probable” is a low standard and the absurd leftist “prove the vote is not valid.” are not sufficient.
        2) Then how do we count the ballots? Dominion machines cannot be trusted under any circumstances. One must know all of the design details. I know from experience that secret functionality can be hidden in the semiconductor designs–functionality that can be triggered but not discovered. It is never documented anywhere.

        An election must be legitimate by design. It cannot be “repaired” unless one can reconstruct every step in detail. Can I add a poison to my beer and then later remove the poison so the beer is again safe to drink?

        The only path at this point is to discard the contaminated mess and use an alternative.

        I sure am glad the the Barr DOJ is all over this fraud. Oh, wait…

          CommoChief in reply to TX-rifraph. | November 28, 2020 at 2:44 pm

          TX-rifraph

          Ok a couple of key points.
          1. Elections are run in individual precincts.
          2. It is easy to isolate the activities in individual precincts.

          So your poison analogy is slightly flawed. The ‘poison’ was inserted into specific and identifiable cans of beer not into a single keg of beer for the whole state.

          If a particular precinct or precincts have so corrupted the tally at that/those precinct(s) then we toss those only. Every precinct which didn’t engage in corrupt practices is not tossed.

          So in Michigan for example if Wayne County (Detroit) is irredeemably corrupted then that County has it’s ballots tossed. The citizens of Wayne county can then hold their local leadership to task in the next local election. Those local leaders are the one’s responsible for the alleged corruption.

    Yes, it may be a stark choice for the court to be faced with but are the consequences so bad for the “disenfranchised” PA voters were the court to rule to disallow the unconstitutionally unqualified votes the worst consequence?

    Most PA voters surely realize by now they were already disenfranchised by the fraud itself. That fact should outweigh the threats and other political pressures the judge must surely be receiving. Maybe Trump would have lost in a fair election but with the evidence at large strongly arguing otherwise, the judge should declare that this is a PA problem for PA to address. The only fair solution is a political solution.

    By disallowing those votes, the court would be fixing the blame squarely on the dirty politicians. The day of reckoning would be when they have to face the wrath of PA voters. PA would be on its way to cleaning up its share of the corruption.

    By allowing the fraudulent results to stand would be to metastasize the cancer nationally and risk the eternal shame of a SCOTUS reversal.

    So do the right thing right now PA! Don’t leave it up to the GOP whose mantra is “It’s never EVER the right time to do the right thing!”

    Russ Armstrong in reply to CommoChief. | November 28, 2020 at 9:59 am

    Chief: The State Legislature did attempt to change the electoral statutes, by passing Act 77. The problem goes deeper, in that the Pennsylvania Constitution details the only exceptions to in-person voting, and Act 77 sought to expand those exceptions. That could only be done by amending the Pa. Constitution, which never happened.

      CommoChief in reply to Russ Armstrong. | November 28, 2020 at 10:59 am

      Russ,

      To be clear I understand that ACT 77 in PA isn’t constitutionally valid. Thanks for helping me make that clear.

      My point regarding non legislative actors making changes to election laws was intended broadly, to encompass all the disputed states.

      As an example:
      WI supposedly altered their cure procedures in some precinct/counties. Two issues there first is it wasn’t authorized by the legislature so it is illegal and secondly even if a change could be made by a non legislative actor it would have to be done statewide or run into equal protection violations.

      MI, GA, and PA have similar issues with cure procedures not being consistent throughout the state. Same with witness requirements and signatures.

      These are not small technical issues rather they are a pattern of consistently and wilfully ignoring the law in some precinct/counties. For anyone to say that these are small potatoes or garden variety fraud is incorrect.

      It’s like a general Mercantile store ‘looking the other way’ when the kid they know is homeless shop lifts a loaf of bread then telling the store owner they can’t ever get a prosecution for shoplifting when someone walks out with a high dollar item.

      Simply because we ‘know’ these issues exist in every election but are not followed up for prosecution doesn’t incorporate the illegal activity as an acceptable, legal or justified practice.

      The simple fact is the argument that the scale of the activity makes it immune is, IMO, ludicrous. Not that you are arguing that Russ.

Seems to me that there must be some way to argue the motive of ramming through unconstitutional voting procedures at the last minute. What other motive could there be but deceiving the voters of PA? What was the urgency of these changes other than panic that the side that affected these changes would otherwise lose?

Not being a lawyer, couldn’t this be a gateway for introducing the fraud that took place? Or are we just waiting for the court to make a final decision without further deliberation?

I can’t see this court torturing legal language to escape having to hake a hard decision on the obvious. This is an epic historical moment for that court, especially if they think SCOTUS will take the hit and side with them<

The Democrats knew that they couldn’t win so they had to cheat and now that they got caught it’s all the Republicans fault.

This is my first time posting

But per the Supremacy Clause, Article II, Section 1, Paragraph 2 of the U.S. Constitution allows the Pennsylvania legislature to determine the method of choosing electors for the U.S. presidency despite what the Pennsylvania Constitution says.

    Milhouse in reply to Gradivus. | November 28, 2020 at 10:28 pm

    Yes. Which is an argument for counting these ballots.

    On the other hand, a state legislature is entirely a creation of its state constitution, which sets forth how it should operate and what it is authorized to do. For instance if it says that anything the two houses of the legislature do must be presented to the governor, and without his assent it’s not an official act of the legislature, then there’s a good case to be made that the federal requirement would not be fulfilled. So in this case, if the state constitution says the legislature is not authorized to make the law that it purports to have made, then for federal purposes has it really made it anyway?

Republicans dominate Democrats in the Pennsylvanian Hose by a margin of 109 – 93
https://ballotpedia.org/Pennsylvania_House_of_Representatives

Republicans hold a margin of 28 – 21 over the Democrats in the state Senate.
https://ballotpedia.org/Pennsylvania_State_Senate

This REPUBLICAN controlled legislature passed Act 77, the legislation whose constitutionality has been called into question by this lawsuit. And within Act 77 is a clause that says when such challenges may be brought. This is from Law360 blog by Matthew Santoni:

https://www.law360.com/articles/1332028/bid-to-toss-mail-in-votes-is-two-elections-too-late-pa-says

*********************Begin Quote********************

A Republican member of Congress’ last-minute bid to throw out about 3 million mail-in votes in Pennsylvania came more than a year and two elections too late, the state and its Republican-majority Legislature told a Keystone State court on Monday.

The lawsuit claiming Pennsylvania’s new “no-excuse” mail-in voting violated the state constitution’s limitations on absentee voting was filed outside a 180-day challenge period laid out in the law, Act 77 of 2019, which also said such challenges belonged in the Supreme Court of Pennsylvania and not the Commonwealth Court, the respondents wrote in filings made public Tuesday.

“Petitioners filed their suit challenging the constitutionality of Act 77 on November 21, 2020, 387 days — and two elections — after the governor signed Act 77 into law. Petitioners’ more-than-one-year delay is a quintessential failure to act diligently,” said a brief from Gov. Tom Wolf, Secretary of the Commonwealth Kathy Boockvar and the state. “More than two weeks after millions of Pennsylvanians cast votes, petitioners seek to disenfranchise every single voter who participated in the November 3, 2020 presidential election. Disenfranchising voters for no fault of their own is as prejudicial as it is antithetical to our democracy.”

That brief and one from the General Assembly argued the suit should be dismissed for lack of standing, for being brought in the wrong court, for being brought outside the legislation’s statutory window for challenges and for being barred by the doctrine of laches, which prohibits sitting on claims that could have been brought sooner when the delay causes prejudice. . . .

But the legislature joined the state Monday night in deriding the suit as being filed too late and to the wrong court. Act 77 said that challenges to its constitutionality had to be filed within 180 days and that the state Supreme Court had exclusive jurisdiction over cases involving the law, the General Assembly’s brief said. It pointed to pre-election suits the Commonwealth Court had transferred to the Supreme Court for the same reason.

“If the [Commonwealth] Court were to proceed further, despite the plain words of Act 77, there is a substantial risk that the Supreme Court may ultimately rule that this court’s efforts — though well-intentioned — were a nullity,” it said. . . .

The state’s brief also said that beyond coming outside the law’s prescribed window for challenges, the suit came too late under the doctrine of laches. The law’s constitutionality could have been questioned months before a single vote was cast, instead of coming after it appeared that President Donald Trump had lost his reelection bid based in part on his loss of Pennsylvania as the counting of mail-in ballots erased his lead in in-person votes.

“Petitioners’ grounds for challenging Act 77 are no different today than they would have been on the day of enactment; the Constitution has not changed since Act 77 became law, meaning petitioners have no possible legitimate excuse for delaying,” the state’s brief said. “Petitioners were not diligent in bringing their claim and they seek to disenfranchise millions. There is no better candidate for laches than this case.”

The challengers’ response said laches didn’t apply, in part because the alleged harms of mail-in voting didn’t become apparent until after the election results became known.

****************END QUOTE******

So to sum up, the REPUBLICAN controlled legislature passed a law expanding the right to vote. Within that law was a clause providing a 180-day window to challenge the legitimacy of the law. The Republican plaintiffs in this case did not challenge the law during the window of opportunity provided by the law. They waited 387 days to challenge the Constitutionality of the law and only did so after they saw that their candidate lost. And now that they see that the election didn’t go their way they are trying to disenfranchise millions of voters to throw the election to Trump. You know damn well as I do that they would not have brought this challenge had Trump won Pennsylvania.

And to top all this off—the extra icing on the cake—are all those Trump supporters who are claiming that this somehow shows that the DEMOCRATS are trying to steal the election—that Act 77 was some sort of nefarious act by the Democrats to illegally win the election. The Republicans had plenty of opportunity to prevent this. They didn’t. Equity would demand that the millions of votes cast in good faith by voters who mailed in their ballots be counted. Anyone who says otherwise is only showing contempt for our democracy.

    Unconstitutional on day 180 doesn’t become Constitutional on day 181 simply because the people who attempted to pass the Unconstitutional law also attempted to limit challenges to it. There is no “laches” exception to the Constitution or the Bill of Rights.

      hbk314 in reply to Zumkopf. | December 2, 2020 at 4:23 am

      If the law was to be found unconstitutional, the only reasonable remedy at this point would be to eliminate it going forward. The 2.5+ million voters who voted by mail in good faith cannot be disenfranchised.

      This is yet another example of the GOP’s primary election strategy: disenfranchising voters more likely to vote for Democrats. The difference here is that they KNOW who the votes went for.

      At what point does the GOP try winning elections the right way by having a platform that a majority of voters approve of? Rather than modify their unpopular positions, they simply try to block people who don’t support them from voting. Actions like limiting all counties in Texas to a single ballot dropbox or trying to sue to throw out drive-in ballots after 100k+ people have voted that way make that indisputably clear. GOP-passed voter ID laws have the same goal. Numerous states passed strict voter ID laws while simultaneously closing DMVs or limiting their hours. Allowing concealed carry licenses to be used but not student IDs is another transparent effort. Not to mention the fact that the only issue that voter ID laws could possibly solve, in person voter impersonation, is a nonexistent issue.

      It is absolutely mind-boggling that the country that consistently puts party over country continues to get as many votes as it does. They were swept out of statewide offices in Wisconsin in 2018 and spent the lame duck session passing legislation to limit the power of the incoming Democrats, blatantly subverting the will of the voters. With the exception of Mitt Romney, they completely violated their oaths to the United States with their predetermined acquittal of Trump during his impeachment.

      At least the Republican-led state legislature in this case had the integrity to correctly advocate for the dismissal of the suit. It’s nice to see not every Republican isn’t a democracy-hating scumbag like Mike Kelly.

    CommoChief in reply to RobinMessing. | November 28, 2020 at 11:19 am

    Robin,

    Ok for argument sake, let’s agree to stipulate that PA legislature is barred via timeframe. The doctrine of Latches for goodness sake? But ok under certain conditions lets try this out.

    I will happily give you act 77 in exchange for following the same logic regarding changes made by the PA SoS or local precincts or County election officials.

    Now under these conditions defend the legality of every ballot in PA. Every I dotted and every T crossed. Every ballot observed from receipt, thru recording, thru verification, thru challenge, thru tabulation, thru retention of ballot and envelopes for audit. No discretion, no deviation, no inconsistent application between precincts. Letter of the law only.

    Somehow I don’t believe you will agree to undertake that.

    The simple answer is that the 180 day time constraints are just as unconstitutional as the substantive portions of the law. IF the legislature has no authority to pass a law in contravention of their constitution they have no authority to shield the law from review.

So the legislature is now doing so they are supposed to be doing, passing a law to enact a “thing”. Funny how that works isn’t…its almost as if that’s what legislatures should be doing instead of by executive order.

Just like the US Constitution, the Pennsylvania Constitution was written by the sovereign people of the Commonwealth, who were relinquishing a fraction of their freedoms in recognition of the necessity of providing an orderly society. However, such relinquishment of their rights was limited as much as possible to avoid tyranny. Thus, the authors required that voting be done in person on a specified day, subject to limited and well-defined exceptions. The only way those exceptions could be exceeded would be to amend the Pa. Constitution. It is beyond the power of any of Pennsylvania’s three branches to arbitrarily amend that Constitution.

Regarding the US Supreme Court, the US Constitution provides in Article 4, Section 4 that “The United States shall guarantee to every state in this Union a republican form of government …” No, that doesn’t mean the Republican party. It is a term used to define a form of government in which the people elect their rulers. The people do this by voting, and the Supreme Court has held that one man gets one vote. If a state government fails to adhere to that provision, the United States must intervene in order to honor its guarantee.

The problem for Trump is that this is a state constitution issue and not the US. This means that the highest court in PA is their supreme court and they are elected Dems. They will not allow this to stand.

Reviewing the preceding comments I make three observations. Despite the hysteria and regurgitation of Trump lawyers, there is no demonstrable fraud. Giuliani agreed: no fraud. The second is that the change in the absentee ballot law was a plot by the Dems to “steal” the Nov 2020 election is patently false. The third observation is the Commonwealth’s highest court is the arbiter of what is constitutional for the state. SCOTUS has the right (and duty) to review if the decision IF the state’s constitution is in conflict with the Federal constitution. Not whether SCOTUS disagrees with interpretation.

So it hen comes down to whether SCOTUS will disenfranchise millions of PA voters by declaring the results void from the start. After all the electorate reasonably relied on the state board of elections to cast absentee ballots without a demonstration or declaration that there was some urgency requiring voting by mail.
I don’t know whether SCOTUS will prostitute itself. It will be interesting. Of course, if PA outcome is irrelevant to the final outcome, they will likely abstain.

    TX-rifraph in reply to zevgadol. | November 28, 2020 at 2:03 pm

    “…there is no demonstrable fraud.”

    1) Stunning assertion. It is not a conclusion.
    2) The logical and legitimate burden is on the state to prove (clear and convincing evidence) that the ballots that are counted are cast by legally qualified voters and that the ballots are counted accurately. It is more than clear that these burdens cannot be met.

    The conclusion is that PA did not conduct an election. It was a sham in the tradition of the old Soviet “elections.”

      Jim Smith in reply to TX-rifraph. | November 28, 2020 at 2:23 pm

      Venezuela too! Because Venezuela used crooked Dominion machines and cooked Dominion software! But not here in America! Oh. Wait.

    CommoChief in reply to zevgadol. | November 28, 2020 at 2:24 pm

    zevgadol,

    Ok so you won’t mind stating as fact that in PA:
    1. No ballot was submitted by any ineligible person due to
    A. Residency in another State
    B. Stolen ballot/voter ID
    2. No one at any precinct conducted any pre canvas of ballots?
    3. No ballot was subjected to any more or less eligibility scrutiny than any other ballot at any other precinct?
    4. No ballot was cast in PA by any person who also cast a ballot in another State?

    All those issues happened in PA. They almost certainly happened in every State. All are fraud.

    If you won’t agree to those how about this; was every ballot for every step of the process observed by persons who can attest that every ballot made it’s way through the entire process in complete accordance with election laws of PA?

    I don’t think you are foolish enough to take that one on either so why don’t we simply agree that you can’t make a statement that there was ‘no fraud’ in PA?

      zevgadol in reply to CommoChief. | November 28, 2020 at 2:42 pm

      I stand by my original statement. There was no demonstrable fraud. Abuse of voting by individuals exists everywhere but is so deminimus as not to affect the outcome. There was no systemic fraud demonstrated. Giuliani admitted that.
      Trump supporters are absolutely convinced fraud occurred, but just can’t be proved. That doesn’t cause an election to be tossed because you don’t like the outcome.
      Down tickets went substantial more to the Republican side. If there was systematic fraud, Dems would have been much more successful.
      But believe what you may. Even if unsupported by fact except Honest Don told you he really won. And we Know Don never lies.

        CommoChief in reply to zevgadol. | November 28, 2020 at 3:01 pm

        zevgadol,

        Ok great, you concede fraud occurred, you are, like the rest of us, uncertain as to the scale of the fraud.

        One final point about observation of the process. These folks are prepositioned witnesses charged with the responsibility to make concurrence that the legal/procedural requirements are followed.

        Since they can’t attest to the efficacy of the process in some precincts because they were not allowed to do so due to logistically inadequate planning based on sheer increased volume of mail in ballots or concerns about ‘Rona’, that is a systemic and institutional failure impacting the potential of every ballot in that precinct.

        Both volume of mail in ballots and ‘Rona’ were well known issues that competent election officials who were committed to following the law would and should have planned for. The failure on this single point is IMO, spoilation.

    Milhouse in reply to zevgadol. | November 28, 2020 at 10:38 pm

    Giuliani agreed: no fraud.

    And, in reply to CommoChief

    There was no systemic fraud demonstrated. Giuliani admitted that.

    No, he did not. He said that particular suit was not about fraud. It wasn’t about fraud because the third circuit said they couldn’t argue fraud, so they took that out and went with their other arguments. If/when it gets to SCOTUS they will still argue fraud.

    But this suit that we’re discussing here is entirely about a state constitutional provision, and has nothing to do with fraud at all.

80-90 million Americans have been disenfranchised by Democrats ham-fisted attempt to steal the election…and that’s just those who voted against Democrat tyranny.

Because of Democrats thurst for power and fraud they have actually disenfranchised the entire country by making voting pointless.

“…there is no demonstrable fraud.”

1) Stunning assertion. It is not a conclusion.
2) The logical and legitimate burden is on the state to prove (clear and convincing evidence) that the ballots that are counted are cast by legally qualified voters and that the ballots are counted accurately. It is more than clear that these burdens cannot be met.

The conclusion is that PA did not conduct an election. It was a sham in the tradition of the old Soviet “elections.”

Didn’t Chief Justice John Roberts vote to overturn the Florida Supreme Court in 2000? Why wouldn’t he overturn the Pennsylvania Supreme Court?

It’s certainly a possibility.

    zevgadol in reply to mitchflorida. | November 28, 2020 at 2:29 pm

    Yes. It wasn’t to counter the FL court’s reading of FL constitution, it was a ruling that due process was being violated in the counting of questionable votes (remember hanging chads?). The two cases are not at all analogous.
    Will SCOTUS review PA court’s interpretation of PA Constitution?
    They’re not supposed to. But if SCOTUS needs to intervene, they will find a way at the cost of SCOTUS’s integrity. Roberts will not support. Other 5 conservative judges are likely to vote down PA election which is pretty severe. If PA is the only state in question and the bottom line is no change in the outcome, they might abstain. We live in highly partisan times.

    Mercyneal in reply to mitchflorida. | November 28, 2020 at 3:25 pm

    Robers wasn’t on the Supreme Court on 2000. Google is your friend

    Didn’t Chief Justice John Roberts vote to overturn the Florida Supreme Court in 2000?

    No, of course he didn’t. But 7 justices did.

    Why wouldn’t he overturn the Pennsylvania Supreme Court?

    Because this is about a question of state law. That wasn’t.

What is severe is allowing an obviously stolen election to be stolen.

As you are all about ensuring voters are respected then the obvious thing is to not disenfranchise ALL legal American voters by allowing to steal to actually take place.

Count only legal votes. Protect the value of one man, one vote.

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