Congressman returns to Pa. high court as Supreme Court considers mail ballot challenge

U.S. Rep. Mike Kelly has gone beyond filing an emergency appeal before the U.S. Supreme Court to try to upend the results of the presidential election in Pennsylvania. He has taken additional legal action.

A day after he took his case to the Supreme Court, Kelly, whose 16th District includes Erie, asked the Pennsylvania Supreme Court on Wednesday to temporarily set aside its Saturday order that tossed the lawsuit that Kelly and other Republicans filed to try to invalidate Pennsylvania’s more than 2.5 million mall-in ballots.

Kelly, an ally of President Donald Trump, wants the state Supreme Court to stay its unanimous order — which allowed the certification of the Nov. 3 vote to proceed — until the U.S. Supreme Court rules on whether it will accept Kelly’s appeal of the state Supreme Court’s decision.

Kelly is continuing to make his unprecedented requests to upend the election as similar challenges from Trump and his other allies have failed in the courts. Kelly’s congressional office said Kelly is suing as private citizen and that no taxpayer money is funding the suit.

Kelly’s lawsuit comes as Trump and his campaign continue to claim that the presidential election was somehow rigged against him and that Democrat Joe Biden is not truly the president-elect. Kelly’s office has not responded to requests for comment made through his office, but he has vowed on social media to question the election results.

“While I was growing up, my football coaches taught me to ‘play not just through the whistle, but through the echo of the whistle!’ ” Kelly posted on his campaign’s Facebook page on Nov. 5. “There’s no quitting. They said stay on it, stay on it, stay on it. Don’t ever quit!”

On Nov. 21, Kelly sued in the Pennsylvania appellate courts to get the more than 2.5 million mail-in ballots tossed, an outcome that would benefit Trump, who lost in Pennsylvania.

The state Supreme Court rejected Kelly’s claim that Pennsylvania’s universal, no-excuses mail-in voting system, which the GOP-controlled General Assembly approved with bipartisan support in 2019, is unconstitutional.

Kelly and the other petitioners in the case are up against the clock, according to their emergency application for a stay before the state Supreme Court.

They are asking the U.S. Supreme Court and the state Supreme Court to rule in ways that could deliver Pennsylvania’s 20 electoral votes to Trump before the state’s electors follow the results of the Nov. 3 election and cast their 20 votes for Democratic Joe Biden when the Electoral College meets on Dec. 14. But Trump still would not have enough electoral votes to defeat Biden in the presidential race even if he had won in Pennsylvania.

The administration of Gov. Tom Wolf, a Democrat, on Nov. 24 certified that Biden had defeated Trump by 80,555 votes in Pennsylvania, capturing the state’s 20 electoral votes.

“An injunction in this case is essential to protect the integrity of the Election and prevent further irreparable harm to Petitioners’ federally protected rights,” the lawyer for Kelly, Gregory Teufel, of Pittsburgh, wrote in the request for the emergency stay.

If the state Supreme Court fails to grant the stay, Teufel wrote, the Wolf administration and the “electors will take further actions to certify the results of the Election, potentially limiting this Court’s and the Supreme Court of the United States’ ability to grant relief in the event of a decision on the merits in Petitioners’ favor.

“Granting emergency relief is also necessary to avoid irreparable injury to the voters of Pennsylvania and to the Petitioners from the resulting wrongs of an election conducted pursuant to an unconstitutional and invalid no-excuse absentee voting scheme.”

Lawyers for the Wolf administration asked the state Supreme Court to reject the request for a stay, partly because, they said, Kelly and the others who sued with him were destined to lose before the U.S. Supreme Court because their case was based in state rather than federal law.

“Petitioners return to this Court to ask it to address issues of federal law that Petitioners have never raised before,” the lawyers wrote.

In dismissing Kelly’s case on Saturday, the state Supreme Court, made up of five Democrats and two Republicans, said Kelly and the others had waited too long to sue over the mail-in voting law, Act 77, passed in 2019 and effective in the spring primary, and the Nov. 3 election, in which Kelly won a sixth term as a congressman. Kelly argued that the only way that Pennsylvania could authorize universal mail-in voting is by amending the state constitution.

The state Supreme Court dismissed Kelly’s suit with prejudice, meaning its ruling was final and that Kelly and the other petitioners are prohibited from filing another suit based on the same grounds.

Kelly asked the U.S. Supreme Court to hear an appeal based on arguments that the state General Assembly violated the state constitution in authorizing universal mail-in ballots without a constitutional amendment. He is also claiming the state Supreme Court violated Kelly’s and the other petitioners’ federal constitutional rights to due process by dismissing their suit with prejudice.

In its order, the state Supreme Court found that Kelly and the other petitioners, by waiting to sue until the after mail-in ballots were cast, risked “the disenfranchisement of millions of Pennsylvania voters” who had already gone to the polls.

Kelly and the other respondents are also arguing that the state’s voters were damaged, though by the General Assembly authorizing mail-in ballots via legislation — Act 77 — rather than via a constitutional amendment. Unmentioned in their claims is that the mail-in ballots in Pennsylvania favored Biden over Trump and helped secure Biden’s victory in the key swing state.

“In so passing Act 77,” according to Kelly’s appeal request before the U.S. Supreme Court, “Respondents disenfranchised the entire Pennsylvania electorate, who were entitled to a constitutionally-mandated vote to approve this sweeping change to absentee voting before it was implemented.”

“There’s no quitting. They said stay on it, stay on it, stay on it. Don’t ever quit!”

— U.S. Rep. Mike Kelly in a tweet