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Pennsylvania Supreme Court dismisses challenge to mail-in ballot procedures, vacates halt to certification

Pennsylvania Supreme Court dismisses challenge to mail-in ballot procedures, vacates halt to certification

“Petitioners failed to act with due diligence in presenting the instant claim. Equally clear is the substantial prejudice arising from Petitioners’ failure to institute promptly a facial challenge to the mail-in voting statutory scheme, as such inaction would result in the disenfranchisement of millions of Pennsylvania voters.

okay to use screenshots video waj

As we covered yesterday, a state court judge in Pennsylvania upheld her prior halt to certification of the vote, finding a likelihood that the mail-in ballot procedure violated the state constitution.

I predicted the injunction would not survive the PA Supreme Court, and it hasn’t. The PA Supreme Court just issued an Order dismissing the case, and vacating the halt to certification, finding the petitioners waited too long (emphasis in original):

AND NOW, this 28th day of November, 2020, pursuant to 42 Pa.C.S. § 726,1 we GRANT the application for extraordinary jurisdiction filed by the Commonwealth of Pennsylvania, Governor Thomas W. Wolf, and Secretary of the Commonwealth Kathy Boockvar (“Commonwealth”), VACATE the Commonwealth Court’s order preliminarily enjoining the Commonwealth from taking any further action regarding the certification of the results of the 2020 General Election, and DISMISS WITH PREJUDICE the petition for review filed by the Honorable Mike Kelly, Sean Parnell, Thomas A. Frank, Nancy Kierzek, Derek Magee, Robin Sauter, and Wanda Logan (“Petitioners”). All other outstanding motions are DISMISSED AS MOOT…..

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. It is well-established that “[l]aches is an equitable doctrine that bars relief when a complaining party is guilty of want of due diligence in failing to promptly institute an action to the prejudice of another.” Stilp v. Hafer, 718 A.2d 290, 292 (Pa. 1998).

The want of due diligence demonstrated in this matter is unmistakable. Petitioners filed this facial challenge to the mail-in voting statutory provisions more than one year after the enactment of Act 77. At the time this action was filed on November 21, 2020, millions of Pennsylvania voters had already expressed their will in both the June 2020 Primary Election and the November 2020 General Election and the final ballots in the 2020 General Election were being tallied, with the results becoming seemingly apparent. Nevertheless, Petitioners waited to commence this litigation until days before the county boards of election were required to certify the election results to the Secretary of the Commonwealth. Thus, it is beyond cavil that Petitioners failed to act with due diligence in presenting the instant claim. Equally clear is the substantial prejudice arising from Petitioners’ failure to institute promptly a facial challenge to the mail-in voting statutory scheme, as such inaction would result in the disenfranchisement of millions of Pennsylvania voters.4

Accordingly, we grant the application for extraordinary jurisdiction, vacate the Commonwealth Court’s order preliminarily enjoining the Commonwealth from taking any further action regarding the certification of the results of the 2020 General Election, and dismiss with prejudice Petitioners’ petition for review. All other outstanding motions are dismissed as moot.

Justice Wecht issued a Concurring opinion:

Petitioners could have brought this action at any time between October 31, 2019, when Governor Wolf signed Act 77 into law, and April 28, 2020, when this Court still retained exclusive jurisdiction over constitutional challenges to it. See Act 77 § 13(2)-(3). The claims then could have been adjudicated finally before the June primary, when no-excuse mail-in voting first took effect under Act 77—and certainly well before the General Election, when millions of Pennsylvania voters requested, received, and returned mail-in ballots for the first time. Petitioners certainly knew all facts relevant to their present claims during that entire period… And yet, Petitioners did nothing.3 …

Having delayed this suit until two elections were conducted under Act 77’s new, no-excuse mail-in voting system, Petitioners— several of whom participated in primary elections under this system without complaint—play a dangerous game at the expense of every Pennsylvania voter. Petitioners waived their opportunity to challenge Act 77 before the election, choosing instead to “lay by and gamble upon receiving a favorable decision of the electorate.” Toney v. White, 488 F.2d 310, 314 (5th Cir. 1973) (en banc). Unsatisfied with the results of that wager, they would now flip over the table, scattering to the shadows the votes of millions of Pennsylvanians. It is not our role to lend legitimacy to such transparent and untimely efforts to subvert the will of Pennsylvania voters.12

Courts should not decide elections when the will of the voters is clear.

Chief Justice Saylor, joined by Justice Mundy, filed a concurring and dissenting opinion, agreeing that it was too late to prevent certification of a completed election based on mail-in procedures the public relied upon, but writing that there is a remaining issue of whether the law is valid moving forward. He also expressed concern about the validity of the law.

I agree with the majority that injunctive relief restraining certification of the votes of Pennsylvanians cast in the 2020 general election should not have been granted and is unavailable in the present circumstances. As the majority relates, there has been too much good-faith reliance, by the electorate, on the no-excuse mail-in voting regime created by Act 77 to warrant judicial consideration of the extreme and untenable remedies proposed by Appellees.1 Accordingly, I join the per curiam Order to the extent that it vacates the preliminary injunction implemented by the Commonwealth Court.2

That said, there is a component of Appellees’ original complaint, filed in the Commonwealth Court, which seeks declaratory relief and is unresolved by the above remedial assessment. Additionally, I find that the relevant substantive challenge raised by Appellees presents troublesome questions about the constitutional validity of the new mail-in voting scheme.

The question on everyone’s mind is whether the U.S. Supreme Court would take the case. My first reaction is that it’s hard to see on what basis SCOTUS would take the case given the nature of the ruling and the posture of the case. Unlike claims of fraud or other problems with voting that violated legislative enactments, here the mail-in provisions of the legislation itself is being challenged. But it is only challenged after the vote has taken place, unlike the late-ballot and other provisions that were challenged in advance, and unlike claims of fraud or miscount.

Two things are possible: The mail-in procedures violated the PA Constitution, and the petitioners waited too long to raise that objection. As I’ve written many times, one of the Republican legal problems in these litigations is what the remedy would be. Throwing the case to the legislature based on the mail-in procedure after the vote is asking alot, perhaps too much.

In this circumstance, I think it will be hard for the petitioners to get four SCOTUS judges to hear the case, much less five to reverse. Maybe I’ll be surprised, but that’s my initial reaction.

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Comments

So cheating ok in this election since the right person won, but we may fix it in future elections if we deem it needs fixing. Gotta love those massive 4am ballot dumps that reverse the outcomes of elections. Nothing says election integrity better than that.

    Olinser in reply to Ghost Rider. | November 28, 2020 at 7:46 pm

    What’s utterly disgusting to me is how many RINOs at the state level are willing to just ignore this because they don’t like Trump.

    IOW, the PA Supreme Court has declared that… Sure it may be unconstitutional, but you waited too long to challenge it.

    Evidently in PA there is a short statute of limititations on unconstitutional voting laws that affect a national election. Evidently it’s about 18 months, or less.

      randian in reply to JHogan. | November 28, 2020 at 11:47 pm

      SCOPA has created a Catch-22 for Trump. He has no standing to challenge the law last year because he wasn’t in an election last year. This election gives him standing, so they rule he is now too late to challenge it.

      RoyalWulff55 in reply to JHogan. | November 29, 2020 at 3:46 pm

      Similar to SCOTUS’s ruling on the unconstitutional DACA.

      These aren’t rulings in law, but seem to be rulings in equity. To be awarded a ruling in equity a party must have clean hands. How is passing an unconstitutional election law the act of one with clean hands?

    Virginia42 in reply to Ghost Rider. | November 30, 2020 at 8:23 am

    Amen. This election was NOT legit. This sounds like legal mumbo jumbo.

Off we go to SCOTUS…..

    BillyHW in reply to Marcus. | November 28, 2020 at 7:22 pm

    Kaboom!

    UserP in reply to Marcus. | November 28, 2020 at 8:58 pm

    It would be good if it went to SCOTUS because the Supreme Court is now Ruth-less.

    JHogan in reply to Marcus. | November 28, 2020 at 10:41 pm

    The sooner the better. The PA Supremes, perhaps unitentionally, expedited the process.

    hbk314 in reply to Marcus. | December 2, 2020 at 4:46 am

    On what basis?

    This is a state law challenge based on the state constitution. No federal issue has been raised. The PA Supreme Court should be the final word on the state constitution.

    For the record I agree with the Chief Justice that a ruling should be issued on the legality of the law going forward, but retroactively declaring it unconstitutional and throwing out all non-absentee mail votes is NOT an option. This is a transparent attempt to steal the election because those challenging the law didn’t like the result.

Good. Now on to SCOTUS. This is a constitutional question as it bears directly on the US Constitutions requirement that state legislatures set the parameters of how votes are conducted. ALL the states that had governors or sec. of state unilateraly institute mail in voting procedures without legislative approval held unconstitutional elections. All those electoral votes are thrown out. Nobody has 270 votes. China joe doesn’t win based on electoral votes. On to the House to decide.

    Milhouse in reply to FiftycalTX2. | November 28, 2020 at 8:54 pm

    This is a constitutional question as it bears directly on the US Constitutions requirement that state legislatures set the parameters of how votes are conducted.

    It did. Who do you think passed Act 77? The question here is entirely about the state constitution, and there’s a good case to be made — for precisely the reason you point out — that the state constitution is irrelevant, and the act is valid even if it’s against the state constitution.

    ALL the states that had governors or sec. of state unilateraly institute mail in voting procedures without legislative approval held unconstitutional elections. All those electoral votes are thrown out. Nobody has 270 votes. China joe doesn’t win based on electoral votes. On to the House to decide.

    Garbage. If all those electoral votes are thrown out then the majority is much lower than 270, and Biden wins easily.

      Paul In Sweden in reply to Milhouse. | November 29, 2020 at 12:25 am

      Prof. Jacobson and Milhouse, My eyes are drawn toward Pennsylvania Act77. Was Act77 conducted honestly and in good faith without fraud? Was Act77 legislated to enable fraud? Did the plaintiffs question these in their pleadings? As a layman to the law and someone who foolishly still believes there is RIGHT and there is WRONG, JUSTICE and INJUSTICE but not knowing all the seemingly weasel words IMO the SCOTUS should hear this.

      As an American, I am personally offended that election ballots were sent out like JUNK MAIL ADVERTISEMENTS and the courts ruled that signatures did not matter. I feel very strongly that My Vote Does Not Matter. I feel that the rule of law is only applied against with significant reprisals with force by the government against those of us determined by those feeding at the government trough. If this is so, there is no law and there is no government.

      What am I to think?

      What Must I consider Doing?

      My options seem limited.

      What is the recourse?

      Prof. Jacobson and Milhouse (and all other lawyers and legal scholars of this website); you both tell me how things work legally. A lot of the times Prof. Jacobson and YOU, MILHOUSE, YOU take an unnecessary amount of GRIEF, spelling out reality, I hate you and I love you because you tell me how things are, and I do not like, like many people, being confronted with hard realities (don’t get any funny ideas here, Milhouse, I still don’t like you 😉 ). When things hit the proverbial fan, I do not give a FF about the little weasel words, I care about right and wrong. I am angry. I am beyond angry. I can only imagine what my fellow Americans, some that I know cannot hold their tongue or control their actions as well as I am struggling to do, are thinking and feeling right now.

      Professor Jacobson, I am angry. I believe I have just cause to be angry. I know fellow Americans are beyond angry. This scares me.

      Professor Jacobson, can you bring sanity to a world that seems bent on a downward spiral to chaos?

      -Paul In Sweden

      FiftycalTX2 in reply to Milhouse. | November 29, 2020 at 7:37 am

      I believe you are wrong about the “majority”. To wit; If no candidate receives a majority of Electoral College votes—which is 270 or higher—then the House of Representatives elects the president from the three candidates who received the most electoral votes. Each state delegation gets one vote (the District of Columbia does not receive a vote) and a candidate must receive at least 26 votes to be elected.

      And if votes are thrown out or changed, the NUMBER of votes remains the same and the “winner” HAS TO HAVE 270. Otherwise the House decides.

        Milhouse in reply to FiftycalTX2. | November 29, 2020 at 10:26 am

        I believe you are wrong about the “majority”. To wit; If no candidate receives a majority of Electoral College votes—which is 270 or higher—

        No, Fiftycal, if when Mike Pence counts the votes he does not count 538, then a majority is very obviously not 270.

        Really, how could you possibly think otherwise? Where in the constitution do you find the number 270? It says very clearly what happens: The electors meet in their various states, vote, their votes are sent to the capital, the vice president counts them, and if someone has a majority they are elected president. That is all. There is no dispute or controversy about this. Anyone who claims otherwise is not just giving another opinion, they’re simply ignorant on the subject.

          PaterNovem in reply to Milhouse. | November 29, 2020 at 3:08 pm

          The winner has to have the greatest number of votes [Elector votes; not cast votes] for President,…, if such number be the majority of the whole number of Electors appointed. Amendment 12.

          So, if a couple or several states have their processes declared invalid, do their electors still count towards the elector vote total? If a state is so buggered up that there is no path to have valid electors seated, then I imagine those electors don’t count towards the total evaluated by the president of the senate. Not sure how that would be resolved.

          With basically only two candidates, seems improbable that the vote would go to the house for resolution.

          The path for Trump victory then seems it would rest with the state houses growing a pair and retaking their power back from the secretary of state and governor in each case. But, I think that is highly unlikely. That will push Trump’s path to victory into 2024.

          Milhouse in reply to Milhouse. | November 30, 2020 at 2:09 am

          The winner has to have the greatest number of votes [Elector votes; not cast votes]

          That’s self-contradictory gobbledegook. A vote is one that is cast. If it’s not cast it’s not a vote.

          So, if a couple or several states have their processes declared invalid, do their electors still count towards the elector vote total?

          If a state doesn’t send in its electors’ votes then those votes don’t exist and obviously can’t be counted at all.

          The only way a presidential vote goes to the house is if there’s a tie, or if a third candidate gets enough votes that neither major candidate gets a majority. If 538 votes are received, but 268 vote for Trump, 269 for Biden, and 1 for George Floyd, it goes to the house. Ditto if they get 269 each. Otherwise, not.

          What’s unsettled and unknown is who has the authority to decide whether to count disputed electors. Suppose a state sends in two lists, or one list but it’s disputed, does the vice president decide what to do, or does congress get a say? The text of the constitution implies that it’s entirely up to the vice president, and congress has no say in the matter. But the congress of 1877 vigorously disputed that interpretation.

      I don’t think that Biden easily wins if the swing states are thrown out: right now the 538 votes are split by the MSM as: Biden 306, Trump 232. The states in question, and their (electoral votes) are:

      NV (6), AZ (11), WI (10), MI (16), PA (20) & GA (16)

      These total to 79. If these states are unable to certify/appoint, then Biden’s 306 is reduced by 79, i.e., 227.

      Thus total appointed electors would be Biden’s 227 + Trump’s 232, for total of 459. A majority would be 230. Trump wins with 232.

      What am I missing?

Let’s hope for a great ruling by SCOTUS. Then the Republicans will need to act and not let it slip away.

Hominem Humilem | November 28, 2020 at 7:22 pm

Because the people of Pennsylvania had a good faith expectation that their participation in an election under the law passed by their legislature was valid, it’s no surprise the state Supreme Court would allow the election to stand…I suspect it would stand at the US Supreme Court as well, for the same reason.

The interesting question is whether the apparent contravention of the State Constitution is allowed to continue going forward.

    Exactly.

    This is a transparent attempt to throw out votes after the fact because the challengers didn’t like the outcome. Voters who voted in good faith under the laws at the time cannot be disenfranchised. If that were to happen, we would cease being a democracy and look more like a banana republic.

      A Punk Named Yunk in reply to hbk314. | December 2, 2020 at 8:01 pm

      > we would cease being a democracy and look more like a banana republic.

      With the brazen ballot shipment and other cheating methods, we already do. 🙁

So who would have standing to sue prior to an election?

    Possibly a democrat. Certainly no one who was actually concerned with election integrity.

    You’ve put your finger on the fundamental dishonesty at work here.

    gwsjr425 in reply to stablesort. | November 28, 2020 at 7:41 pm

    The Trump campaign did sue before the election and this same court dismissed it then as well.

    Paul In Sweden in reply to stablesort. | November 29, 2020 at 4:02 am

    Me. You. And every other American whose vote does not count. We are the ones that have standing.

    Millions of ballots were sent out, like JUNK MAIL ADVERTISEMENTS and a judge ruled in Pennsylvania and Democrats de facto declined to match voter signatures.

    Jenna Ellis, a Trump Campaign Senior Legal Adviser and Attorney for President Trump I believe said during an interview that more than 100,000 voters in Pennsylvania alone were shocked and appalled to learn when they went to the polling stations that they had already voted, by MAIL. They did not vote by mail. They did not request to vote by mail. They were reluctantly given provisional ballots which were purposely not counted.

    My vote does not count. If rule of law does not apply equally to one and all, there is no rule of law.

      Millions of ballots were sent out, like JUNK MAIL ADVERTISEMENTS

      That only happened in a few states, and not in Pennsylvania or Georgia. Ballots were only sent to those from whom applications were received.

      And, in principle at least, the signature on the application was matched against the one in the registry. Yes, even in Georgia, where they loosened the rules so that the signature on the ballot could be matched to that on the application rather than the one in registry; the idea was that the signature on the application had already been checked. This was obviously a bad idea, but it’s not nearly as bad as sending out ballots without applications.

        hbk314 in reply to Milhouse. | December 2, 2020 at 4:52 am

        It depends on where the signatures they check against were collected. If it’s a DMV signature collected on one of those tiny pads where you barely have room to write, many people would be disenfranchised for non-matching signatures.

Sue before the election? Too soon, no one has been harmed.

Sue after the election? Too late, people might be harmed.

    That’s right. See, you have to sue DURING the election – you got one day.

    More than one day, and how the heck is the swamp/china/democrat/islamic axis supposed to steal an election?

    Speaking of complete sh-t: anyone seen or heard from Epstein’s and the Swamp protector, William Barr?

    UserP in reply to f2000. | November 28, 2020 at 9:27 pm

    The PA Supreme Court reminds me of the mugwump bird. He sits with his mug on one side of the fence and his wump on the other.

    JHogan in reply to f2000. | November 28, 2020 at 10:45 pm

    Roberts will buy it. Hopefully the remaining five won’t.

      MarkS in reply to JHogan. | November 29, 2020 at 6:57 am

      IMO, it will go like this: Roberts hates Trump and will vote accordingly, Kavanaugh is still suffering from Stockholm Syndrome, Gorsuch, imagines himself as Robert’s mini-me, ACB is a snake in the grass and will wanna show the world that she is not subservient to the man that appointed her, Alito and Thomas, will uphold the Constitution….which makes it 7-2 for a Biden presidency

        hbk314 in reply to MarkS. | December 2, 2020 at 4:55 am

        On the issue of whether to toss out over two million votes cast in good faith according to the law at the time, it should be a 9-0 rejection.

        The challengers are attempting to steal the election in Pennsylvania. They had plenty of opportunity to challenge the law previously, but they chose to wait until they didn’t like the result to try to retroactively disenfranchise millions. It’s the normal Republican election strategy on steroids. Instead of trying to get more people to want to vote for them, they try to disenfranchise those who won’t vote for them. It’s pathetic, anti-democratic and un-American.

    rmnewt in reply to f2000. | November 29, 2020 at 10:58 am

    There was much consternation with the election process before election day and you are right that time was not the only issue for legal action. Would there have also been other issues, like standing (who was affected) when they could only highlight the risk to fairness vice actual impropriety? It was/is a huge Catch 22.

    zevgadol in reply to f2000. | November 29, 2020 at 6:25 pm

    The suit is not about harm. It is about the use of no-excuse mail in ballots contrary to PA Constitution. SCOPA ruled Plaintiffs objected after the fact. They want to void the election after it was run when they had plenty of time to raise the issue for over 18 months.

One problem: this petition is based upon the Pennsylvania Constitution. The USSC can defer to the Pennsylvania Supreme Court in interpreting the commonwealth’s own law as they usually do in such cases. The Supreme Court of the U.S. can easily duck on any implied violation arising under the Federal Constitution, and rule that this petition is outside their jurisdiction, can’t they? What am I missing?

    Dusty Pitts in reply to HarvardPhD. | November 28, 2020 at 8:12 pm

    The Guarantee clause could offer an in — the U.S. Constitution requires that each state be guaranteed a republican form of government, and the Founders didn’t have a banana republican form of government in mind when they wrote that.

      Milhouse in reply to Dusty Pitts. | November 28, 2020 at 8:57 pm

      1. A republican form of government means an elected governor and legislature, and an independent judiciary. It has nothing to do with how they conduct elections.

      2. In any case, the supreme court ruled long ago that the republican guarantee clause is not justiciable. It’s entirely up to the political branches to enforce it or not, as they please.

        maxmillion in reply to Milhouse. | November 29, 2020 at 12:43 am

        Nah. Wrong again. “Republican form of government” presumes and nonfraudulent and unrigged democracy, and because you can hardly “guarantee a republican form of government” without that, the clause is invoked.

          Milhouse in reply to maxmillion. | November 29, 2020 at 1:03 am

          Sorry, that’s not what the term means. And in any case, as I said, it’s not justiciable. So in practice it means whatever the president and congress want it to mean.

      If Republicans can wait until they get a result they don’t like to sue and disenfranchise millions to steal an election, THAT would be a banana republic. Votes cast in good faith under the law cannot be thrown out. Ruling on the law for future elections is something that can be considered, but there’s no applying it retroactively.

    FiftycalTX2 in reply to HarvardPhD. | November 28, 2020 at 8:30 pm

    No, this is a NATIONAL question. The Constitution calls for each state legislature to set the parameters of the ONLY nationwide election. So SCOTUS has control. Because more than PA violated this clause and the governors found an “exception” because a “pandemic” that is 99.99% survivable somehow TRUMPS the Constitution. So EVERY state that exceeded the election mandates of the legislatures is VOID. So nobody has 270 electoral votes. Well, the Constitution has a remedy for this. The states decide. And there is no Constitutional mandate that “the people” VOTE for a president. The marxists/anarchists brought this on themselves.

      Milhouse in reply to FiftycalTX2. | November 28, 2020 at 9:00 pm

      You’re not paying attention. This is about Act 77, which was passed by the legislature. The only question at issue in this case was whether it is barred by the state constitution.

      In fact there’s a good case to be made that even if it does, it doesn’t matter, precisely because the US constitution gives this power entirely to the state legislature, so in exercising this power it needn’t obey the state constitution.

        So the case is pointless based on your comment. The US Constitution gives the Legislature the power to ignore the PA Constitution,the Governor,the SoS,and the SCOPA. Right?

          Milhouse in reply to aja57. | November 28, 2020 at 10:54 pm

          It appears so. It’s not clear cut. As far as the US is concerned, yes, it does. But there’s a case to be made that if a legislature purports to act against its own state constitution it hasn’t really acted at all.

          In any case, this particular suit is over. No federal court is going to interfere, because it’s entirely a question of state law.

        Dusty Pitts in reply to Milhouse. | November 29, 2020 at 1:07 am

        I would argue that unless there is a clear-cut conflict between the requirements of the U.S. Constitution and the state constitution, that the Legislature is still bound to exercise its responsibilities in accordance with the state’s own constitution.

    marybeth5025 in reply to HarvardPhD. | November 28, 2020 at 8:38 pm

    Bush vs Gore?

      Milhouse in reply to marybeth5025. | November 28, 2020 at 9:01 pm

      Bush v Gore wasn’t about whether a state law was consistent with the state constitution. It was about whether a recount that applied different standards within the same county violated the 14th amendment. The supreme court ruled 7-2 that it does.

    The part about when their election process, rules, and regulations, or lack thereof, whatever they may be, affect the outcome of a national election that directly affects the citizens in 49 other states.

      Milhouse in reply to JHogan. | November 29, 2020 at 1:06 am

      That’s completely irrelevant. Pennsylvania’s 20 electors are none of the rest of the country’s business. So long as they were chosen according to the rules the PA legislature set, and the PA judiciary is fine with that, those are the electors. If the PA judiciary were not fine with it, then it would become a federal issue, because Biden would be claiming that the legislature’s rules should prevail anyway, and Trump would be claiming they shouldn’t.

The “petitioner” sued to have the laws regarding mail-in ballots followed BEFORE the election and this same court told them no and allowed ballots to be collected without any of the security measures written into the law. Now they’re going with the “meh…election already happened” rationization?

    randian in reply to gwsjr425. | November 28, 2020 at 8:19 pm

    Yes. The PA SC is arguing out of both sides of their mouths: you can’t bring suit before the election because there has been no harm yet and thus no case or controversy, and you can’t bring suit after because it isn’t timely.

I love the Catch-22 implication of all these election suits. One can’t bring a suit based upon a hypothetical violation of voters’ rights that hasn’t actually occurred before an election—oh, and by the way, once an election has occurred any such suit is no longer timely.

—Since these ‘judges’ are elected, the GOP should mount massive campaigns to throw these hacks out at the first opportunity.

No surprise here; the Dem-dominated PA SCt hastily swatted this one down. I doubt that US SCt will entertain cert… But even a “Cert Denied” letter from Washington ought to mention that the Constitution empowers legislatures to construct voting regimes, and not state courts.

Let’s just change the rules even though we aren’t the branch of government that is responsible for changing the rules

So because of this “laches” nonsense the destruction of the republic is the appropriate remedy.

Huh?

    Milhouse in reply to fscarn. | November 28, 2020 at 9:04 pm

    Um, regardless of what you think about the election, the principle of laches is hardly nonsense. It’s a basic component of US law.

      rightway in reply to Milhouse. | November 28, 2020 at 11:12 pm

      Milhouse the thing about this that bothers me is the allegation was that the law was void ab initio. In other words, the law never existed. Does a court really have the equitable power to de facto declare a void law valid?

      Secondly, laches is an equitable defense in an equitable action. I am no expert in PA law, but is an action to have a law declared unconstitutional an equitable action in PA?

      Sometimes the courts have to accept that legislative actions lead to very undesirable results, it isn’t the court’s duty to “fix” mistakes by the legislature. The people of PA need to take it up with their legislators.

      Unfortunately, there is no one to reverse the PA Supreme lords on an issue of PA law.

        Milhouse in reply to rightway. | November 29, 2020 at 1:09 am

        My objection was to fscarn’s dismissal of “this laches nonsense”, as if it were something the PA court just invented. The laches doctrine is a basic part of US law. That is so whether or not it should have been applied here.

Clearly the notion of standing needs to be rethought here. In a constitutional republic, the mere existence of unconstitutional laws is a harm suffered by the entire body politic.

Courts need judges who can understand that.

    randian in reply to Dusty Pitts. | November 28, 2020 at 8:42 pm

    You’d think so, but it’s longstanding practice, at least in criminal cases, that an unconstitutional crime hasn’t harmed you until you’ve been convicted under it. This naturally ignores the problem of prior restraint: whatever behavior the law enjoins you cannot do without fear of prosecution.

I am not an atty but one thing that stood out was the option contained a reference that millions of voters cannot be disenfranchised. In my humble opinion the constitution comes first. An honest election doesn’t disenfranchise anyone.

    BillyHW in reply to GKD32. | November 28, 2020 at 8:43 pm

    If that’s an issue they can always redo the election lawfully this time. But the people still have representation in the state legislatures, even if it’s more indirect.

    hbk314 in reply to GKD32. | December 2, 2020 at 5:02 am

    This was an honest election.

    Republicans filing suit more than a year after the law was passed because they didn’t like the results is dishonest. Trying to disenfranchise 2+ million voters who voted in good faith according to the law is dishonest.

    The Chief Justice is right. Disenfranchising those voters is NOT an option, but the law can be examined for future elections.

See this Opinion of the US Court of Appeals for the 3th Circuit from early November: https://www.scribd.com/document/484162801/PA-Suit#download&from_embed . It says “Soon after Act 77’s passage, Donald J. Trump for President, Inc., the Republican National Committee (“RNC”), and several Republican congressional candidates and voters brought suit against Kathy Boockvar, Secretary of the Commonwealth of Pennsylvania, and all of Pennsylvania’s county boards of elections.” The case was slowwalked, then it was decided it was too close to the elections and the US Court Appeals opinion was issued right after the elections.

Catch-22 is not an instruction manual.

Seems some sort of pattern here:

Pa litigation Trump campaign Judge Brann: You do not have standing
Ga. litigation Lin Wood: Judge Grimberg: You do not have standing
Pa. litigation Mike Kelly: Pa. Supreme Court: You are too late

Multiple voting lawsuits prior to the election:

Every entity had standing…no one was late

https://www.brennancenter.org/our-work/court-cases/voting-rights-litigation-2020

    hbk314 in reply to catscradle. | December 2, 2020 at 5:05 am

    Really? Waiting more than a year and after multiple elections had occurred to challenge the law because they didn’t like the will of the voters isn’t too late in your opinion?

As long as an addled embezzling traitor and an unaccomplished common tramp are both on the democrat ticket, the fix is in.

Redstate: “But here are a couple questions to consider when taking into account of the language used by the Pennsylvania Supreme Court:

The defendants and allegedly bad actors in the allegations of the Complaint are Pennsylvania state officials. How are they injured here?

What does the application of the “doctrine of laches” do to vindicate their interest?

What interests do they have in operating a facially invalid election scheme?

What interests do the voters of Pennsylvania have in maintaining a facially unconstitutional voting scheme?”

“Joe Biden is an illegitimate President, but while the law may not allow him to be recognized as such, history will know.”

https://redstate.com/shipwreckedcrew/2020/11/28/pennsylvania-supreme-court-dismisses-challenge-to-mail-in-voting-on-equitable-doctrine-of-laches-n286450

If I understand this correctly, this ruling can’t stop the state legislature from assuming its constitutional responsibility of guaranteeing and certifying a fair election.

Even if the legislature fails to decertify the results, Trump appeals to the Supreme Court and wins. PA certified an election where every single procedure that was specified in the law to safeguard the integrity of the vote was disregarded. Not just one or two but EVERY. SINGLE. ONE. So the crooked State Supreme Court rules based on “too late”? Sure. That’ll fly with the SCOTUS. My bet is PA will simple lose its electoral votes for failure to conduct an honest election. That will be a very big problem for both parties in PA.

But that’s okay for Trump. His two-pronged strategy is to fight the cases into the SCOTUS and fight the state certification. If neither candidate wins 270 electoral votes, the issue goes to the House where each state has one vote. That gives the Republicans a 31-19 advantage.

Hard to see Trump losing at this point. I really doubt that this will be decided on a technicality where the RINOs ride in to save the Democrats. There are a lot of RINOs whose careers have ended or will soon end.

It’s not just the House Dems who are heading for an historic bloodbath in 2022. RINOs and Dems everywhere are going to be hounded and voted out of national and state offices.

Trump will survive the destruction of the both parties. The peasants will rejoice as the Titans are laid to waste by the Olympians’ Kraken. You heard it here now spread the word. Winning!!!

    If neither candidate wins 270 electoral votes, the issue goes to the House

    Where are people getting this nonsense from? Whoever told this to you was lying through their ****ing teeth. There is no such requirement as 270 votes. The requirement is a majority. If there are only 518 electors, then a majority is only 260. The fewer electors there are, the lower the majority is. And since the only electors that could possibly be excluded are ones Trump needs to win, if they’re all excluded Biden wins easily.

      So, looking at the actual Constitution, you are correct — but it depends on how you interpret the language. This is the relevant clause that I see:

      “if such Number be a Majority of the whole Number of Electors appointed;”

      If these states have their certification blocked and thus are not considered to have ‘appointed’ electors, you’re correct that the number for a majority would diminish. So part of the puzzle would be whether these electors are considered to have been ‘appointed’. Has this ever been adjudicated? Who or what would have jurisdiction?

      On the other part, that reducing the number of votes would make for an easier Biden victory — yes and no, because every state we’re talking about here has already been counted for Biden.

      But, here’s the rub: To reduce Biden’s electoral votes below Trump’s simply by removing states from play (i.e. decertifying them), you would have to take out Pennsylvania, Georgia, Michigan, Wisconsin, Arizona, and Nevada. All of them. That would take Biden down to 229 vs. Trump’s 232.

      I cannot see that happening.

      So it’s not nearly enough to take them away from Biden, you have to flip several of them to Trump. I don’t see a path to that either.

      But, just for fun, if this did go to the House? The new House will have even more Republican delegations (27), fewer Democratic (20), and 3 tied. I think the old House was 26-22-2.

      26026 in reply to Milhouse. | November 29, 2020 at 1:07 pm

      I don’t think that Biden easily wins if the swing states are thrown out: right now the 538 votes are split by the MSM as: Biden 306, Trump 232. The states in question, and their (electoral votes) are:

      NV (6), AZ (11), WI (10), MI (16), PA (20) & GA (16)

      These total to 79. If these states are unable to certify/appoint, then Biden’s 306 is reduced by 79, i.e., 227.

      Thus total appointed electors would be Biden’s 227 + Trump’s 232, for total of 459. A majority would be 230. Trump wins with 232.

      What am I missing?

    “Hard to see Trump losing at this point.” What planet are you living on?? The Supremes won’t touch these cases with a ten foot pole. There is no three dimensional chess legal strategy going on in Trump world. His team has lost almost every case (36 losses and counting) that they’ve brought thus far – and you think the Supreme Court will bail him out? It ain’t gonna happen. Even Professor Jacobson recognizes that fact. It’s time to get beyond the denial stage in your grief cycle, move toward acceptance, and work to make things better in the future. President Trump lost; recognize that, deal with it, and live in reality. It’s much better for your mental state.

      Milhouse in reply to RNJD. | November 29, 2020 at 10:31 am

      He hasn’t lost yet, and he’s right to keep fighting. The number of cases that he lost is irrelevant, because courts are not swayed by “momentum”. It doesn’t look good. You are right to criticize the claim that it’s “hard to see Trump losing”. On the contrary, it’s unfortunately very easy to see it. But that’s no reason to give up and pretend it’s already happened. When one is in danger one must not give up until the last chance is gone. You don’t go to hospice until you’ve exhausted every avenue to live.

        hbk314 in reply to Milhouse. | December 2, 2020 at 5:12 am

        No, he’s not right to keep fighting.

        This un-American attacking of our democracy has been one of the most shameful acts from an American president in our history, and it’s being enabled by scumbags like Lindsey Graham. It’s yet another example of the Republican Party putting its own interests over what’s best for the country.

        We’re nearly a month beyond Election Day and they still have yet to provide a shred of evidence of fraud in court. All of the contested states have certified their votes. Georgia has completed two recounts without changing the totals. Wisconsin completed the Trump-requested recount in Milwaukee and Dane Counties and Biden gained a few dozen votes. The winner of the election has been clear since November 5th or 6th.

Guys,

1. Calm down.
2. This was the expected result from the PA court.
3. This ruling is regarding Act 77; the no excuse mail vote.

Other challenges can and will be made. Here are a few off the top of my head.

1. Actions of the SoS and/or local election officials in PA to make changes or adjustments to election law/procedure without legislative consent.

2. Equal protection claims arising from unequal treatment of ballots between different precincts.

3. Maintenance provisions of Motor Voter regarding maintaining an accurate voter registration list; removing deceased registrants and those who moved out of state or otherwise became ineligible to vote.

4. Observers access. Previously ruled on but I can’t recall if that was by the PA Supreme court.

5. Retention of all envelopes for audit purposes.

6. Adherence to all the basic legal mechanics of the balloting process; signature verification, witness requirements, address requirements, ECT.

Getting the PA Supreme Court to agree with throwing out Act 77 was not a good bet. It’s a partisan court that was given just enough of an excuse by the legislature delay in filing post primary in June much less post general election in Nov, to provide adequate reason to deny the claim.

Would the court have ruled differently in say April or May? We will never truly know. They would have had to work much harder to deny it then.

Lots of other legal avenues of approach. Let it play out. Who knows maybe the legislature will take matters back into their hands regarding electors? They did hold an informal public hearing where they pretended to be outraged at the Team Trump presentation. So maybe… maybe not.

ThePrimordialOrderedPair | November 28, 2020 at 9:04 pm

The want of due diligence demonstrated in this matter is unmistakable. Petitioners filed this facial challenge to the mail-in voting statutory provisions more than one year after the enactment of Act 77

LOL … from the court that decided to write election law and amend Act 77 all on its own just about a month ago.

Our judiciary is a total joke. A mockery of law.

    JusticeDelivered in reply to ThePrimordialOrderedPair. | November 28, 2020 at 9:48 pm

    “Our judiciary is a total joke.”

    Which Trump’s admin has worked diligently to fix.

      Who’s laughing? Not the progressives!

      ThePrimordialOrderedPair in reply to JusticeDelivered. | November 28, 2020 at 9:58 pm

      Yep.

      Trump has worked diligently to fix everything he could … and he’s done an admirable job, to say the least. But he was up against massive forces … from both sides. ANd we were so far gone already it was amazing that he got anywhere, at all.

      Trump will go down as one of the greatest Presidents, ever. Without any doubt.

        lmfao

        While Trump does have a handful of achievements to point to, the bad FAR outweighs any good he’s done.

        The transparent corruption and illegal acts in office alone show as much. When you look at his failed COVID response and complete abdication of leadership, the excess deaths of tens of thousands of Americans on his watch will be his legacy. His failed economic policies won’t help him either (bankrupting farmers with his trade wars, among other issues). Even one of his signature accomplishments, the 2017 tax reform law, is primarily a tax cut for the wealthy on the backs of the working class. Now that he’s lost the election, he’s spent far more time golfing, watching TV, and tweeting out baseless attacks on our democracy than he’s spent doing his job.

        He’s going to go down as a bottom five president to date and may very well be the worst.

“Courts should not decide elections when the will of the voters is clear.”

How can the will of the voters be clear if the process was unconstitutional or corrupt in any way?

    rightway in reply to TX-rifraph. | November 28, 2020 at 11:18 pm

    Their was no election in PA since it seems likely it violated the PA Constitution. In the absence of a valid election I think the state legislature determines the electors for the electoral college. Which seems wrong since the problem was created by the PA legislature, but it isn’t the job of the PA Supreme Lords to fix it.

    randian in reply to TX-rifraph. | November 28, 2020 at 11:40 pm

    The penumbras and emanations make it clear.

    hbk314 in reply to TX-rifraph. | December 2, 2020 at 5:28 am

    Because there’s been no indication of fraud or corruption.

    There’s also no reason to suspect it was unconstitutional. The PA Constitution reads:
    “Text of Section 14:

    Absentee Voting

    (a) The Legislature shall, by general law, provide a manner in which, and the time and place at which, qualified electors who may, on the occurrence of any election, be absent from the State or county of their residence, because their duties, occupation or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability or who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of Election Day duties, in the case of a county employee, may vote, and for the return and canvass of their votes in the election district in which they respectively reside.”

    Stating that there need to be laws in place so people that meet those qualifications can vote DOES NOT preclude the state from allowing others to vote by mail.

SCOPA decides that PA doe not need a stinking Constitution. The law is whatever these masterminds create. They take a legislative act that never gets voted in approval by two consecutive legislative sessions, never gets passed in a general election voter referendum in order to amend the Constitution and then proceeds to modify the legislative act (ACT 77) which based on section 11 makes the entire ACT 77 null and void.
SCOPA truly jumped the shark. Judicial chutzpah.

    hbk314 in reply to aja57. | December 2, 2020 at 5:32 am

    The Constitution states that absentee balloting needs to be available for those that meet the qualifications in the text. It DOES NOT forbid others from voting by mail if the legislature chooses to allow it.

In the back of their minds is the same admonition given to the Michigan canvassers. Hold up the certification and there will be (“we will create”) violence affecting millions. We are in the “destroy the integrity of the vote and the Republic to save the integrity of the vote and the Republic.”

The Pa Supreme court allowed counting of ballots without signature or postmark arriving 3 days late…yet now there is no time. I can only hope that someday they recognize this travesty and have unending remorse. It is not just about Pennsylvania or the country, but for many other countries that will be sold out to the NWO…one totally foreign and unforgiving.

I had a very similar case once. And the court used laches the same way. Ignoring the impossibility of filing the claim earlier, pretending that they did not deny the claim earlier, the court ruled the elections claim was barred by laches even when filed in direct accordance of the statute. In fact the opinion even said I would have prevailed…but for their impossible rules.
In my case the issue was not corruption or vote fraud.

    novaculus in reply to puhiawa. | November 29, 2020 at 4:38 am

    Exactly. If they had filed immediately the PA Supreme Court would have ruled the case wasn’t ripe because no harm had yet occurred. And once the harm has occurred, it’s too late, because it would contravene the supposed will of the electorate, even if the election was so corrupted there is no way to tell if the result reflects the actual will of the people.

    hbk314 in reply to puhiawa. | December 2, 2020 at 5:31 am

    This was not the first election under the new law. They could have filed suit after the earlier election. They clearly didn’t have an issue with it until their favored candidate lost.

I can think of one rationale that justifies throwing out the electoral results and throwing it to the legislature.

If the electoral process was so compromised and corrupted that the purported results are unreliable, letting them stand risks allowing a fraudulent result to be certified.

Better to let the legislature, whose members were presumably NOT fraudulently elected, make the decision than to allow a probably fraudulent result be certified.

Posted yesterday at this exact time had 0 faith in the Pa SC reversing what they got us into in the first place.

These moot court debates are always depressing to me. What is going to carry the day in this fight is the enthusiasm of citizens to fight was is so glaringly corruption on a massive scale. It’s the passion of the people that will force these criminals to heel.

These pedantic back-and-forths arguing minutiae of law may be fine for law nerds who live alone in basements but for those of us who are blisteringly angry and ready for a fight, it just highlights once again why we always lose. We just refuse to visualize winning!!!

Trump has a seriously thought out game plan for addressing what he saw coming since 2016. Yet it is never acknowledged here in these pages and threads. And it is working! We are going to win either with SCOTUS or when the states (all GOP dominated) enforce their own laws.

Does anyone here understand the concept that the US Constitution is not a suicide pact? Neither are the state constitutions! If the states refuse to honor their own constitutions, and the 6-3 (or 5-4, take it outside) SCOTUS washes its hands of their own overriding constitutional responsibilities, it’s time to start blowing things up and killing people.

Please crawl out of your basements will you? It’s time to be torching some asses with flamethrowers! THAT is what is going to carry the day! Not pedantic lawyers arguing minutiae like it’s just a parlor game!

    Closing in on it. How many will come if called?

    alaskabob in reply to Pasadena Phil. | November 29, 2020 at 8:12 am

    That is an interesting “intersection” of Jefferson and Mao. The Left promised mayhem if not obeyed. All we wanted was an audit to assure a free and fair election and now deprived of that. An audit is a non-violent action protecting the electoral process….The integrity needed for evertyone. “No justice…no peace” the Left chants. Well…we see no justice.

Not a lawyer so pray excuse my ignorance, but could the petitioners have acted prior to the election since no harm had actually occurred? Wouldn’t any conflict between the law and the constitution be purely theoretical until an election was actually held? I have the impression, possibly mistaken, that any early challenges would simply have been tossed out of court for lack of standing until an election was held whereupon we’re back to the PA court ruling it’s now too late for a challenge – heads they win, tails you lose.

    Exactly. It is like the old literacy tests for voting. It doesn’t matter when they brought the suit and the merits of the suit don’t matter. We have known for a long time that our legal guild has totally abandoned the rule of law. Why do we pretend otherwise, now?

There is a plausible remedy if the authorities truly want to fix this mess. Check this out. https://the-asterisk.blogspot.com/2020/11/oh-what-mess-we-have-on-our-hands.html

We’ll see what happens, but I’m on the mind that all the PA Supreme Court has done is to fall into a clever trap laid by the plaintiffs who correctly assumed those robed demi-gods would dismiss the case because, well, gosh, they just can’t help themselves.

William, they did challenge these before the election and were told they didn’t have standing as no harm had been done…
https://www.axios.com/judge-dismisses-trump-campaign-lawsuit-pennsylvania-drop-boxes-b3479c07-0f61-4f93-957a-f6d2033a9011.html

People seem to think that all of a state’s votes have to be thrown out if only some are shown to have been tainted. There is no basis for this assumption.

Look, in WI, Mi, PA, GA and NV the documented election law violations, which would have facilitated fraud, as well as those instances of document probably fraudulent vote counting all took place in a few locales; 5-7. All were large Democrat cities. And, the votes cast in these locales can all be discarded or sequestered and not counted. Would this disenfranchise individual voters who had cast legal votes in these tainted vote pools? Yes. However, counting the all of the votes in these tinted vote pools would disenfranchise a number of voters of several orders of magnitude greater. So, if the illegal or improper votes, which should not have been tabulated and introduced into the vote pool in these locales in the first place, can no longer be identified, then entire pool of votes from these locales have to be discarded in order to protect the integrity of the election and to guarantee that those voters in other locations will not be disenfranchised. If one member of a sports team cheats, them that entire team can be disqualified and often is. The same applies here.

This would be a common sense remedy. However, such a remedy would defeat the purpose of the fraud to begin with and, therefor, will never be implemented. This leaves the aggrieved parties with no legal recourse. What do they do to achieve justice?

    mailman in reply to Mac45. | November 30, 2020 at 6:19 am

    I look at it from a slightly different angle Mac…what this fraud has done is to disenfranchise EVERY single American whether they voted for D, R or I…and that is far worse than merely disenfranchising voters from a single urban population centre.

    I also think the remedy HAS to be so bad that it forces those who support illegal voting (ie, FRAUD) to actually get their heads out of their arses and MAKE the system work as its supposed to work! The penalty has to be so severe as to make fraud not worth it. Until that happens Democrat sponsored fraud will continue because Democrats understand that they dont actually have to appeal to voters to win. They can just make shit up.

      Mac45 in reply to mailman. | November 30, 2020 at 12:30 pm

      There are two distinct, but related, things in play with the fraud.

      The first is providing redress for the fraud to those parties harmed by it. This includes the RNC, the President and all of the voters who cast legitimate votes for DJT and whose choice was negated by election fraud. This redress can be provided in one of three ways. The first would be to identify every single illegitimate vote and purge it from the totals. re-total and award the election based upon the revised totals. This, however, is likely impossible. The second method would be to strip likely blocks of illegitimate votes from the the vote totals and re-total. The third method would be to declare the election null and void and do it over. There are some serious problems with, this including time. The second method is the least intrusive and easiest to perform. By striking the tainted vote pools, where fraud had the largest impact, from the totals, this accomplishes the redress of grievances portions of the equation. And, as it is restricted to 5-6 jurisdictions, it has the least impact on the wider pool of legitimate votes cast.

      The second thing is identifying specific instances and mechanisms for fraud and those responsible for them. This is the penalty phase. Legal penalties would then be imposed, civil and/or criminal. Also, mechanisms to preclude such activities in the future can be designed and implemented during this period.

      So, first the redress phase has to be undertaken. Once that is accomplished, then the penalty phase can be pursued. But, in both cases, we have to use common sense and not throw out the baby with the bathwater. We must also recognize that untold millions of people have a RIGHT to redress, here. This can not simply be ignored. For, if it is, then our system of jurisprudence ceases to exist in any meaningful way.

        A Punk Named Yunk in reply to Mac45. | December 1, 2020 at 6:04 pm

        Mac said (in the last paragraph):
        > This can not simply be ignored.

        I suppose if it makes it to SCOTUS then it won’t be ignored. The PA high court didn’t ignore it; they waved away.

        Shoo! Shoo! You pesky evidence! It is not the policy of this court to dismiss legitimate claims. Therefore, this is not a legitimate claim.

        Feeling like Marvin in Hitchhiker’s Guide.

The court ruled too much time had passed.
But, doesn’t one have to be able to prove damages?

If there were no damages, there wouldn’t be a case?
And the damages were not done in a timely manner…

A Punk Named Yunk | November 30, 2020 at 10:29 am

My recollection is that as soon as the notion of mass-mailed absentee ballots was floated, Mr. Trump immediately called it out as a scheme to enable cheating. He didn’t file a legal challenge at that time? OUCH!

On the other hand, I recall another case where a legal challenge was indeed mounted to prevent the mass-mailings. In that case the judge dismissed it since the plaintiff had not shown that he was harmed by it. I don’t recall what state that was and I would appreciate if someone could post links to information on that case. If it *was* PA, then the court system itself had prevented timely legal challenge. Which would not be a surprise here.

We are in banana-republicdom. Anyone wanna move to Hungary?

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