The U.S. Supreme Court declined to hear an appeal by several Republicans from a Pennsylvania Supreme Court decision last month that held that a constitutional challenge to the state’s vote-by-mail law was barred for having been filed too late.
As Breitbart News reported, several Republicans, led by Rep. Mike Kelly (R-PA), challenged the state’s Act 77 of 2019 as being in violation of the state constitution. Commonwealth Court Judge Patricia McCullough blocked the certification of the state’s election results, but was overruled by the Pennsylvania Supreme Court under the doctrine of “laches.” As reported:
On Saturday, the Pennsylvania Supreme Court overturned Judge McCullough’s order under the doctrine of “laches,” ruling that Rep. Kelly and others should have brought the constitutional challenge before the primary and general elections in 2020 — not after millions of voters in Pennsylvania had already cast their ballots:
Petitioners filed this facial challenge to the mail-in voting statutory provisions more than one year after the enactment of Act 77. At the time this action was filed on November 21, 2020, millions of Pennsylvania voters had already expressed their will in both the June 2020 Primary Election and the November 2020 General Election and the final ballots in the 2020 General Election were being tallied, with the results becoming seemingly apparent. Nevertheless, Petitioners waited to commence this litigation until days before the county boards of election were required to certify the election results to the Secretary of the Commonwealth. Thus, it is beyond cavil that 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 only two Republicans on the seven-member court, Chief Justice Thomas Saylor and Justice Sallie Mundy, issued a concurring and dissenting opinion, arguing that while the challenge came too late, it raised serious constitutional objections that should be considered in future elections.
According to the Washington Post, the Supreme Court declined to provide reasons for the appeal being declined. Sen. Ted Cruz (R-TX), a former solicitor general for the Lone Star State, had volunteered to argue the Republicans’ case.
A separate case was filed at the Supreme Court on Monday night, challenging results in several states as unconstitutional.
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His newest e-book is Neither Free nor Fair: The 2020 U.S. Presidential Election. His recent book, RED NOVEMBER, tells the story of the 2020 Democratic presidential primary from a conservative perspective. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.