US supreme court rejects Republican challenge to Pennsylvania’s election result

Plaintiffs asked court to nullify mailed ballots after the fact or to direct legislature to pick electors

The request that the supreme court intercede had faced substantial legal hurdles, as it was filed long after the enactment of the challenged statute that allowed mailed ballots and was based on questions of state rather than federal law. Photograph: Mandel Ngan/AFP via Getty

The request that the supreme court intercede had faced substantial legal hurdles, as it was filed long after the enactment of the challenged statute that allowed mailed ballots and was based on questions of state rather than federal law. Photograph: Mandel Ngan/AFP via Getty

 

The US supreme court on Tuesday refused a request from Pennsylvania Republicans to overturn the state’s election results. The justices said they would not block a ruling from Pennsylvania’s highest court that had rejected a challenge to the use of mail ballots in the state. The supreme court’s order was all of one sentence, and there were no noted dissents.

The request that the supreme court intercede had faced substantial legal hurdles, as it was filed long after the enactment of the challenged statute that allowed mailed ballots and was based on questions of state rather than federal law. In late November, the Pennsylvania supreme court ruled against the plaintiffs, led by Rep Mike Kelly, a Republican, on the first ground, saying they could have challenged a 2019 law allowing vote by mail for any reason more than a year ago.

“At the time this action was filed on November 21st, 2020, millions of Pennsylvania voters had already expressed their will in both the June 2020 primary election and the November 2020 general election,” the court said.

“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.”

The plaintiffs had asked the state court to nullify mailed ballots after the fact or to direct the state legislature to pick Pennsylvania’s electors. The filing in the US supreme court sought an order telling state officials not to take further actions to certify the vote in Pennsylvania or “to nullify any such actions already taken” while the plaintiffs pursued an appeal. The request was directed to Justice Samuel Alito, the member of the court responsible for emergency applications concerning rulings in the state.

Unconstitutional request

The filing took issue with the Pennsylvania supreme court’s interpretation of state law. The US supreme court does not ordinarily second-guess such rulings. In urging the justices not to intercede, lawyers for the state said the Republicans’ requests were “an affront to constitutional democracy”.

“Petitioners ask this court to undertake one of the most dramatic, disruptive invocations of judicial power in the history of the Republic,” they wrote. “No court has ever issued an order nullifying a governor’s certification of presidential election results.”

They said there were four flaws in the challengers’ arguments. In the US supreme court, the challengers said the state law was at odds with federal constitutional provisions governing elections. But they had not squarely made that argument in their main filings in the state courts, and the supreme court does not ordinarily decide questions not first decided by a lower court.

Moreover, lawyers for the state wrote, the Pennsylvania supreme court’s decision turned on a question of state law. That “adequate and independent state-law ground” for the decision, they wrote, bars US supreme court review.

They added that the challengers had not suffered the sort of concrete injury that would give them standing to sue and that the 2019 law was not at odds with the state constitution. In any event, lawyers for the state wrote, the matter is largely moot, as the state’s election results in favour of Joe Biden have been certified and submitted.

The challengers’ remaining argument, they wrote, is that the supreme court should simply overturn the state’s election results. That request, they wrote, was breathtaking and unconstitutional.