Supreme Court shuts down Trump campaign's last-ditch Pennsylvania appeal
The U.S. Supreme Court declined Tuesday a request to block the certification of Pennsylvania’s election results, a decision that could spell the end of the Trump campaign’s meritless efforts to overturn the presidential election results.
In an order issued late Tuesday afternoon, the court denied a petition for injunctive relief from U.S. Rep. Mike Kelly, R-Pa., in a case that was dismissed last month by the Pennsylvania Supreme Court. The decision comes on “safe harbor day,” the federally mandated deadline by which states must resolve legal challenges to the certification of presidential elections.
Kelly’s case claimed that the Pennsylvania Legislature improperly expanded mail-in voting, violating the Pennsylvania Constitution and the U.S. Constitution.
“Beginning with the Military Absentee Ballot Act of 1839, the Pennsylvania Supreme Court consistently rejected all attempts to expand absentee voting by statute — uniformly holding that a constitutional amendment is required to expand absentee voting beyond the categories provided in the Pennsylvania Constitution,” the petition said.
As was the case in most states, mail-in ballots in Pennsylvania strongly favored Joe Biden. Throwing some or all of them out could result in President Trump winning the state’s 20 Electoral College votes — although by itself that would not be enough to hand Trump a second term.
On Nov. 28, the Pennsylvania Supreme Court vacated an order from a lower court that had prohibited state officials from taking any further action regarding the certification of the results; the higher court essentially ruled that Kelly’s challenge had come too late. “The Pennsylvania Supreme Court violated petitioners’ right to petition and right to due process, guaranteed by the First and Fourteenth Amendments of the U.S. Constitution,” the petition said.
Legal experts had predicted the Supreme Court would decline to hear the case.
“The [plaintiff] wants an order from the U.S. Supreme Court nullifying the effect of the certification of the electors,” Richard Hasen, an election law professor at the University of California, Irvine, wrote in his election law blog on Dec. 1. “It is not clear that this kind of remedy is even available. But I do not expect this case to go anywhere at the Supreme Court.”
The Trump campaign has indicated it wants to bring a case before the Supreme Court, which has a conservative majority including three justices appointed by Trump himself, after enduring losses in more than 40 cases in federal and state courts. Judges appointed by both Republican and Democratic presidents have almost unanimously rejected their arguments, sometimes in scathing terms.
Kelly’s case is not the only one that was put on the court’s docket. On Monday, Texas Attorney General Ken Paxton sued Pennsylvania, Georgia, Michigan and Wisconsin, seeking to prevent those states — all of which voted for Biden — from appointing Democratic electors and asking to delay the Electoral College meeting, which will happen on Dec. 14.
Paxton’s case alleges that the states violated the Electors Clause of the U.S. Constitution — which allows each state to appoint a number of electors based on the number of senators and representatives the state has in Congress, and empowers state legislatures to determine the manner of choosing them — by “taking non-legislative actions to change the election rules that would govern the appointment of presidential electors,” specifically actions regarding the casting and counting of ballots.
The complaint alleges that the states “gutted the safeguards for absentee ballots through non-legislative actions, despite knowledge that absentee ballots are ‘the largest source of potential voter fraud,’” according to the complaint.
Harvard University law professor and leading constitutional scholar Laurence Tribe told Yahoo News on Tuesday that the case, like the one in Pennsylvania, has no merit.
“There’s clearly no legal procedure by which states can ask the Supreme Court to jump in and allow each of them to challenge the way others are picking their electors,” Tribe said. Article II of the Constitution says each state, through its legislature, determines how its electors are to be chosen. “Texas has no say in the matter of how Pennsylvania or Michigan or Wisconsin chooses its electors,” Tribe said. “The attorney general of Texas should be ashamed of himself.”
Thumbnail credit: Jacquelyn Martin/AP
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