Alito Demands Briefs in Pennsylvania Congressman’s Lawsuit to Flip the Election (UPDATED)
Supreme Court Justice Samuel Alito has asked Pennsylvania officials to file response briefs in a so-far-failed attempt by GOP Congressman Mike Kelly to flip Pennsylvania’s 2020 election results. Kelly, a loyal and longtime supporter of President Donald Trump, is asking the nation’s highest court to take up the same elections case the Pennsylvania Supreme Court summarily ejected with prejudice last weekend. Kelly’s 50-page application and 213-page appendix was submitted to Alito because he is the justice who oversees incoming matters from the Third Circuit, which includes Pennsylvania. Though Alito originally called for response arguments from the Commonwealth to be filed by 4 p.m. on Wednesday, Dec. 9th, the case docket was changed Sunday morning to move that deadline up to Tuesday, Dec. 8, by 9 a.m. The change is critical. Pennsylvania’s members of the electoral college are due to meet at noon on Dec. 14th in Harrisburg to cast their votes for president. As Law&Crime has previously reported, and as Kelly’s arguments point out, federal election law sets a so-called “safe harbor” deadline which requires controversies “concerning the appointment of all or any of the electors . . . by judicial or other methods or procedures” to be determined “at least six days before the time fixed for the meeting of the electors.” Alito’s original Dec. 9th deadline failed to take that window into account. His new deadline does.
The thrust of Kelly’s arguments is that a 2019 state election reform statute known as Act 77 violated both the state constitution and the federal constitution. Act 77, which predates the coronavirus pandemic, was described when signed into law as a “bipartisan compromise.” It created a so-called “no-excuse mail-in” voting regime that Kelly claims violates a provision of the state constitution. Kelly interprets the constitution as allowing only limited circumstances which qualify a voter to cast a ballot by mail. In other words, in Kelly’s view, people must vote in person unless they can take advantage of only a few, narrow excuses contained within the state constitution and, therefore, Act 77 and related election access laws must be struck down as invalid. Because the 2020 election was conducted under Act 77, its results are questionable, he claims. In strict theory, the U.S. Supreme Court has no jurisdiction to settle Pennsylvania constitutional issues, such as whether the state statute at question (Act 77) violates the state constitution. Generally, such matters are the exclusive realm of a state supreme court. But there are exceptions to that general concept, Kelly argues, including here. Because the state is acting under a “direct grant of authority” from the U.S. Constitution to manage federal elections, the U.S. Supreme Court can become involved, he argues, and can determine whether the Pennsylvania statutory and constitutional regime of laws violates the U.S. Constitution. Kelly invites the U.S. Supreme Court to conclude as such and, perhaps more dubiously, that the state court’s way of rubbishing the election violates his rights to petition the government and to receive due process under the First and Fourteenth Amendments thereto. He frames the issues this way (see image).
https://lawandcrime.com/2020-election/alito-demands-briefs-in-pennsylvania-congressmans-lawsuit-to-flip-the-election/
https://www.supremecourt.gov/DocketPDF/20/20A98/162573/20201203162757140_final%20appendix%20with%20TOC.pdf
https://www.supremecourt.gov/DocketPDF/20/20A98/162573/20201203162739451_Final_Emergency%20Application%20for%20Writ%20of%20Injunction.pdf