On Sunday, U.S. Supreme Court Justice Samuel Alito moved up the deadline for officials in Pennsylvania to submit their responses to a lawsuit filed by U.S. Rep. Mike Kelly (R-Pa.), in a bid to overturn the state’s election certification and toss out mail-in ballots.
Alito, who oversees matters before the Third Circuit, which includes Pennsylvania, had originally called for response arguments from state officials to be filed by 4 p.m. on Wednesday, Dec. 9, but he changed that yesterday morning to Tuesday by 9 a.m., Law&Crime reported, adding the change is “crucial.”
Electors from each state are scheduled to meet in their respective capitals at noon on Dec. 14 to cast their presidential votes. At present, Pennsylvania officials have already certified their election for Democrat Joe Biden.
As noted by Kelly in his 50-page lawsuit application, federal election law establishes a “safe harbor” deadline that mandates controversies “concerning the appointment of all or any of the electors . . . by judicial or other methods or procedures” must be determined “at least six days before the time fixed for the meeting of the electors.”
The original deadline set by Alito — Dec. 9 — did not take into account that safe-harbor window, but his new deadline does.
In his lawsuit, Kelly argues that an election reform law passed in Pennsylvania before the COVID-19 pandemic known as Act 77, violates the state and federal constitutions. The law created a “no-excuse mail-in” voting system that Kelly says violates a provision of the Pennsylvania constitution that only allows for limited reasons for voting by mail. As such, he argues, the law must be struck down as invalid and the 2020 election, conducted under Act 77, tossed out as questionable.
The lawsuit was tossed out by the Pennsylvania Supreme Court, which ruled that Kelly should have brought his suit before the election. But Kelly and the other six plaintiffs argued that the election had to be held in order for the state constitution and the law to be violated.
In any event, some legal experts argue that Alito’s changing of the deadline won’t matter in the long run.
Prof. Steve Vladeck, who teaches at the University of Texas School of Law, wrote on Twitter Sunday that “none of this matters—or is going to matter.”
He argued that even if Kelly’s suit is ultimately successful before the U.S. Supreme Court and Biden’s 20 electoral votes from Pennsylvania are taken away, he would still have 286 — more than the required 270 to win the presidency.
2. First, there's the obvious point: Even if this gambit somehow succeeds (spoiler: it won't), the worst-case scenario is that PA's electoral votes get tossed.
In that case, Biden would *still* receive 286 electoral votes when the Electoral College votes on 12/14. He needs 270.
— Steve Vladeck (@steve_vladeck) December 6, 2020
Law & Crime also argued that the U.S. Supreme Court “has no jurisdiction to settle Pennsylvania constitutional issues, such as whether the state statute at question…violates the state constitution,” adding that “generally, such matters are the exclusive realm of a state supreme court.”
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But constitutional expert and Fox News host Mark Levin, on his Sunday evening program, disagreed.
After discussing how he believes Pennsylvania “abandoned its constitution” for the 2020 election in order to intentionally sway votes for Biden — by extending the date to receive mail-in ballots and by allowing mass mail-in voting — that creates “a potential constitutional crisis” for the U.S. as a whole since the state election involves the awarding of federal presidential electors.
“What we see here is fraud perpetrated against the people of Pennsylvania, against the American people and the Electoral College process by politicians who violated the constitution repeatedly, who have violated the rule of law by a rogue state supreme court,” Levin said.
“And unless the U.S. Supreme Court — as it did in Bush versus Gore — exercises legitimately its power of judicial review…we have a potential constitutional crisis in this matter,” he continued.
“And in one way or another, Congress will have to resolve it on January 6. But the U.S. Supreme Court shouldn’t just sit there and take a pass when in fact it is time for the U.S. Supreme Court to intercede, which is exactly what the petitioners are asking it to do,” he added.
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