As I detailed in this earlier story, several individuals — led by GOP House Member Mike Kelly — filed suit in Pennsylvania state court alleging that the “no excuse” Absentee voting procedures adopted by the Pennsylvania General Assembly violate Sec. 14 of the Pennsylvania State Constitution. That provision establishes four narrow categories of “electors” who are eligible to request and vote by absentee ballot. The Plaintiffs — including two individuals who lost election contests for the United States House of Representatives and Pennsylvania House of Representatives — claim that all votes cast by individuals who were not eligible to vote under the provisions of the Sec. 14 of the Constitution, are invalid and should be removed from vote totals in all races.
The “no excuse” absentee ballot option was passed as part of Act 77. But at the same time, the legislators passed an identical amendment to Sec. 14 of the State Constitution to alter the language of that Section regarding authorized Absentee voting. The problem is that constitutional amendments must be passed in two successive sessions of the Pennsylvania Assembly, published in newspapers of general circulation in each County of Pennsylvania, and then be adopted by a majority of voters in the next general election before the Amendments become effective. The proposed amendments to Sec. 14 have only been passed in one session of the Assembly, and have never been published or voted on by the public. Nevertheless, the state government put the provisions of Act 77 into immediate effect as if Sec. 14 had been amended.
The case is filed in the Court of Common Pleas in Allegheny County. This is the trial court level of the Pennsylvania court system. The Judge assigned to the case is the Hon. Patricia McCullough.
As was reported earlier today by my RedState colleague Jennifer Oliver O’Connell, Judge McCollough issued an order early this morning in which she ordered the following:
- She set an evidentiary hearing for this Friday, November 27, 2020.
- To the extent there are any further steps to be taken in certifying the results of the Presidential election, the defendants — the State of Pennsylvania, the Pennsylvania General Assembly, Governor Frank Wolf, and Secretary of the Commonwealth Kathy Boockvar, are all enjoined from doing so pending the evidentiary hearing.
- Defendants are directed to file an answer and memorandum of law responding to the complaint by 5:00 pm today.
Among the curiosities of the Pennsylvania state court system is the fact that judges at all levels in the state judiciary are elected to office, and they do so as partisan members of political parties. Many other states elect judges — or re-elect judges after they are first appointed — but few have judgeships filled as a partisan political exercise with members of political parties competing with each other in a general election.
Allegheny County is an overwhelming Democrat county that voted 59% to 39% for Joe Biden.
Yet, Judge McCullough was elected as a Republican. She was first appointed to the bench in 2005 and was last re-elected in 2019. Her current term of office expires in 2030.
Even though the various defendants in the case have now be ordered by Judge McCullough to file an answer and memorandum of law in response to the Plaintiffs’ filing, on November 23 they opted to instead file a Response and Objections in the Commonwealth Court of Pennsylvania — which is one of two intermediate appeals courts in the Pennsylvania judicial system. The Commonwealth Court of Pennsylvania is given authority by statute to hear all appeals concerning of final orders of certain state agencies and certain designated cases from the Courts of Common Pleas involving governmental legal questions and regulations.
Again, the nine Judges of the Commonwealth Court are elected to those positions. Currently, there are seven Republicans and two Democrats on this Court.
The Response makes the following claims:
- The Legislature included in Act 77 a provision that any challenge had to be brought within 180 days of its passage, and that time period expired before this suit was brought.
- The plaintiffs lack standing because the complaint sets forth no particularized interest of the plaintiffs that is different than the generalized interest of all voters.
- Challenges to Act 77 on constitutional grounds could only be filed in the Pennsylvania Supreme Court pursuant to a provision in the statute.
- Resolutions and remedies in election disputes are provided for by statute, and no statute authorizes the remedy sought by plaintiffs.
- The equitable doctrine of “laches” bars relief — “laches” provides that a litigant cannot “sit on their rights” with regard to a known legal claim if the delay works to the unfair disadvantage of the opponent.
- Act 77 did not alter the provision of the Constitution for “absentee voting.” It simply created a new class of electors in Pennsylvania — those who prefer to vote by mail and not physically appear at voting precincts.
As noted, it was after this Response was filed in the Commonwealth Court that Judge McCullough issued her order directing the defendants to file a response in her Court. The first issue that is going to need to be resolved is where this litigation will take place.
As for the claims raised by the defendants, it strikes me as odd — as a legal matter — that a legislature can place some meaningful time limit on the ability of litigants to challenge the constitutionality of legislation. If it was unconstitutional when passed, it doesn’t become constitutional by virtue of the passage of time. If Act 77 runs contrary to the provisions of the Pennsylvania Consitution, it did so no less on day 181 than it did on day 1 following passage. I think the same response would apply to the “laches” defense.
It should be cut and dried… but in today’s courts, nothing is certain.
I am afraid the Shipwreckedcrew are on the rocks!
The timing of the filing of this lawsuit is a perfect example of the doctrine of laches, which the Crew skated around with the silky, smoothness of an Olympic figure skating couple.
The disputed statute was passed in October 2019 and, setting aside the 180 day challenge clause, although it gives fair warning, this provided the plaintiffs with more than a year to bring suit challenging the constitutionality.
However, the plaintiffs sat quiet as proverbial church mice through that year.
Did they rise in constitutional indignance when the statute passed? No!
Did they fly to the courthouse when there was hue and cry about mail in ballots and their legality in the local, national and international media of all stripes; left, right, print, internet, cable, free-to-air, and social media. No, the plaintiffs kept their powder dry, waiting.
Did the plaintiffs take the court steps in large leaps and bounds when the ballots were mailed out, to an unsuspecting public. No, still they waited, quietly, quietly chatchee monkey. Sshhhh!
Did the plaintiffs clamor at the clerk of the court’s office to file their suit against an uncontrolled State Congresses’ trampling of the Commonwealth’s constitution when the date rolled round to that when ballots could be mailed in. No, let Joe and Jane public follow the promulgated instructions provided to them by the State. Patience is after all a virtue, the plaintiffs piously intoned.
Did the plaintiffs, with the luxury of the intervening months, hone their legal briefs to a finely crafted argument, which at long last they filed as the Commonwealth rose yet again to national and international prominence, with both the Commonwealth’s Supreme Court and SCOTUS opining on the matter of counting mail-in ballots postmarked by the election date but received up to three days later. OH, NO! The plaintiffs’ tremulous voices shrieked!! And still they waited to spring the iron-jawed trap on over 600,000 unsuspecting Pennsylvanians’.
The election came and went. The mail-in ballots cast by the public, in accordance with the State’s instructions, having heard their legality go unchallenged, nay approved, by Supreme Courts, both State and Federal, were now being counted.
“NOW!!” yelled the plaintiffs, “SPRING THE TRAP!!” And so the lawsuit was filed, when it was too late for Joe and Jane to seek any remedy if the plaintiffs should succeed. Now Mr. Biden’s supporters could be disenfranchised in vastly greater numbers than the President’s, due to their respective lobbying for and against mail-in voting, making the outcome a certainty that any Vegas bookie would just love to have.
And that my dear readers is the very definition of the doctrine of laches. A victim, namely the Commonwealth and the citizens it represents, suffering greater damages due to the procrastination of the plaintiff.
That is why the current suit will fail, because of the adage on which the doctrine of laches is based, “Equity aids the vigilant and not those who sleep on their rights.”
@John G: The “no excuse” absentee ballot option was passed as part of Act 77. But at the same time, the legislators passed an identical amendment to Sec. 14 of the State Constitution to alter the language of that Section regarding authorized Absentee voting. The problem is that constitutional amendments must be passed in two successive sessions of the Pennsylvania Assembly, published in newspapers of general circulation in each County of Pennsylvania, and then be adopted by a majority of voters in the next general election before the Amendments become effective. The proposed amendments to Sec. 14 have only been passed in one session of the Assembly, and have never been published or voted on by the public. Nevertheless, the state government put the provisions of Act 77 into immediate effect as if Sec. 14 had been amended.
They broke the rules it never went to a vote, steam rolling the PA Constitution. Now that PA has has a taste of it, the no excuse ballot will not be voted into law.
There is a process to an amendment that was not followed, they were not asleep.
But we shall see how the SCOTUS will protect the citizens of PAs rights to vote on an amendment to their State constitution.
@John G: If it’s unconstitutional, it’s unconstitutional. If the state is required to pass the changes to their constitution in two consecutive legislation sessions AND have it approved through a referendum and they do none of that, it is unconstitutional no matter when it is challenged. None of that was done AND this was challenged in Pennsylvania prior to the election with the Pennsylvania SC striking the challenge down.
Technically, since it had not gone through the entire process, it wasn’t law and, thus, there was nothing to “challenge”.
Shouldn’t those Democrats have known that what they pushed was unconstitutional and would have resulted in challenges and possible defeat?