On Saturday night, November 28, we noted that the Pennsylvania Supreme Court dismisses challenge to mail-in ballot procedures, vacates halt to certification. The basis for the PA Supreme Court ruling was that the petitioners had waited too long, and should have challenged mail-in ballot procedures prior to the election:

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

Note: This is not the same case as previously was before SCOTUS on the issue of mail-in ballots received after election day. This case involves the claim that the mail-in ballot procedure (so-called ‘no-excuse absentee voting’) passed by the legislature violated the PA Constitution.

In reviewing the posture of the case, which turned on state law issues, I expressed doubt the U.S. Supreme Court would take the case:

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.

We should find out soon if I was overly pessimistic. The petitioner’s have filed an Emergency Application for Writ of Injunction:

Applicants (“Petitioners”) respectfully request an immediate, emergency writ of injunction to prevent the Respondents, the Commonwealth of Pennsylvania, Governor Thomas W. Wolf, and Secretary of the Commonwealth Kathy Boockvar (“the Executive-Respondents”) from taking any further action to perfect the certification of the results of the November 3, 2020, General Election (the “Election”) in Pennsylvania for the offices of President and Vice President of the United States of America or certifying the remaining results of the Election for U.S. Senators and Representatives. More specifically, Petitioners seek an injunction that prohibits the Executive-Respondents from taking official action to tabulate, compute, canvass, certify, or otherwise  inalize the results of the Election as to the federal offices and that prohibits the Executive-Respondents from undertaking the following actions ….

To the extent that the above-prohibited actions have already taken place, Petitioners seek an injunction to restore the status quo ante, compelling Respondents to nullify any such actions already taken, until further order of this Court.

Petitioners also ask the Court to consider this Application as a petition for certiorari, grant certiorari on the questions presented, treat the Application papers as merits briefing, and issue a merits decision as soon as practicable.

The following questions are presented if the Supreme Court were to hear the case:


1. May a legislature violate its state constitution’s restrictions on the lawmaking power when enacting legislation for the conduct of federal elections pursuant to Article I, § 4, and Article II, § 1 of the U.S. Constitution?

2. Did the Pennsylvania Supreme Court violate Petitioners’ rights under the First and Fourteenth Amendment of the U.S. Constitution by dismissing with prejudice the case below, on the basis of laches, thereby foreclosing any opportunity for Petitioners to seek retrospective and prospective relief for ongoing constitutional violations?

The application goes, in the first instance, to Justice Alito, who is the Justice assigned to the Third Circuit (covering PA). He could grant it on his own, which seems unlikely, or refer it to the full court, which seems more likely.

The problem with getting SCOTUS to take the case is that the state supreme court is the final arbiter of state law. The petitioners try to turn that state law issue into a federal question because it concerns a federal election and arguably implicates federal rights. I’m not familiar enough with the issue to say definitively whether that will work, but there are other reasons SCOTUS may not want to hear the case.

In the end, the Petitioners are seeking to invalidate millions of votes, and throw the issue presumably to the state legislature as to selecting electors, where there is no allegation that those mail-in voters did anything wrong. They relied on a procedure passed by the legislature, used in prior elections, and not even challenged prior to this election. As a practical matter, I can’t see a court doing that.

Remember, for SCOTUS even to take the case, four Justices need to so vote. If I guessed now, I wouldn’t think there are four votes there. Roberts, Breyer, Sotomayor, and Kagan would be certin no votes. I’d be surprised if 4 of the 5 conservatives would vote to take the case, or that all 5 would vote to overrule.


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