Thus endeth the end run around Pennsylvania’s election. The Pennsylvania supreme court has dismissed with prejudice a challenge to its mail-in ballot system, ruling that the challenge came far too late for any remedy that involved invalidating ballots in the 2020 general election. On that point, the court was unanimous, although two justices on the seven-member panel would like a lower court to look at the challenge to Act 77’s constitutionality for future elections.
In the per curiam order, the court ruled that the plaintiffs should have challenged the law at some point before participating in it, and allowing millions of voters to rely on it:
The want of due diligence demonstrated in this matter is unmistakable. 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.4
In case you missed this point earlier, read what I wrote this morning about the doctrine of laches. Even in constitutional challenges, plaintiffs have to act in a timely manner to challenge processes and laws. By not acting in a timely manner — Act 77 was signed into law on Halloween 2019 and was used in the June primary without any challenge — the plaintiffs forfeited any right to a remedy in the election they just completed. This was a much more obvious laches problem than Perry et al v Virginia Elections Board, in which the 4th Circuit denied Republican candidates’ challenge to a ballot access law because their lawsuit came too close before the primary.
Justice Wecht points out that three of the plaintiffs participated in the system prior to the general election without complaint:
Respondents’ recitations lay bare Petitioners’ want of diligence in this case. Petitioners could have brought this action at any time between October 31, 2019, when Governor Wolf signed Act 77 into law, and April 28, 2020, when this Court still retained exclusive jurisdiction over constitutional challenges to it. See Act 77 § 13(2)-(3). The claims then could have been adjudicated finally before the June primary, when no-excuse mail-in voting first took effect under Act 77—and certainly well before the General Election, when millions of Pennsylvania voters requested, received, and returned mail-in ballots for the first time. Petitioners certainly knew all facts relevant to their present claims during that entire period. Indeed, “the procedures used to enact [Act 77] were published in the Legislative Journal and available to the public” since at least October 2019. See Stilp, 718 A.2d at 294. Likewise, “[t]he provisions of the Constitution that the [General Assembly] purportedly violated were also readily available.” See id. And yet, Petitioners did nothing.3 Petitioner Wanda Logan ran and lost in a special election in February after Act 77 took effect. And not only she, but U.S. Representative Mike Kelly and congressional candidate Sean Parnell also participated in the 2020 primary elections under Act 77, as modified by Act 12,4 in June of this year.5 But it occurred to none of them to challenge the constitutionality of Act 77 before then, or indeed before participating in and contemplating the results of the 2020 General Election.
Besides, Wecht writes, the plaintiffs might have an argument on constitutionality, but otherwise they have no evidence that the ballots themselves were fraudulent or otherwise in error:
Petitioners cannot carry their enormous burden. They have failed to allege that even a single mail-in ballot was fraudulently cast or counted. Notably, these Petitioners sought to intervene in a federal lawsuit in which the campaign of President Donald J. Trump—an ostensible beneficiary of Petitioners’ efforts to disenfranchise more than onethird of the Commonwealth’s electorate—explicitly disclaimed any allegation of fraud in the conduct of Pennsylvania’s General Election. See Donald J. Trump for President, Inc. v. Secretary Commonwealth of Pennsylvania, No. 20-3371 (3d Cir. Nov. 27, 2020), slip op. at 2 (“[A]s [Trump Presidential Campaign] lawyer Rudolph Giuliani stressed, the Campaign ‘doesn’t plead fraud. . . . [T]his is not a fraud case.’” (quoting Mot. To Dismiss Hr’g Tr. 118:19-20, 137:18)). The absence of fraud allegations from this matter—not to mention actual evidence of fraud—alone is fatal to Petitioners’ claims. …
Having delayed this suit until two elections were conducted under Act 77’s new, no-excuse mail-in voting system, Petitioners—several of whom participated in primary elections under this system without complaint—play a dangerous game at the expense of every Pennsylvania voter. Petitioners waived their opportunity to challenge Act 77 before the election, choosing instead to “lay by and gamble upon receiving a favorable decision of the electorate.” Toney v. White, 488 F.2d 310, 314 (5th Cir. 1973) (en banc). Unsatisfied with the results of that wager, they would now flip over the table, scattering to the shadows the votes of millions of Pennsylvanians. It is not our role to lend legitimacy to such transparent and untimely efforts to subvert the will of Pennsylvania voters.12 Courts should not decide elections when the will of the voters is clear.
That dispenses with the remedies. What about the core complaint of Act 77’s unconstitutionality? Chief Justice Saylor and Justice Mundy also agree that the court isn’t about to overturn an already completed election. They would have preferred a remand to the commonwealth court (Pennsylvania’s appellate bench) for a review of the complaint without the remedies sought by the plaintiffs. That is, if the plaintiffs still had any interest in the constitutional issues:
That said, there is a component of Appellees’ original complaint, filed in the Commonwealth Court, which seeks declaratory relief and is unresolved by the above remedial assessment. Additionally, I find that the relevant substantive challenge raised by Appellees presents troublesome questions about the constitutional validity of the new mail-in voting scheme…
To the degree that Appellees wish to pursue this challenge in the ordinary course, upon the realization that their proposed injunctive remedies will be considered no further, I would allow them to do so in the Commonwealth Court upon a remand. In this regard, relative to the declaratory component of the request for relief, I also would not invoke the doctrine of laches, since the present challenge arises in the first election cycle in which no-excuse mail-in voting has been utilized.
If the interest is truly in constitutional order — and that seems like a stretch here — a new set of plaintiffs could file suit to overturn Act 77. Saylor and Mundy are correct in noting that there does seem to be a serious question about its standing, and it is a question that should be heard by the court at some point. It is not, however, a reason to disenfranchise nearly seven million voters with a complaint long after the implementation and two full exercises of that system simply because one side doesn’t like the outcome.
Update: It’s perhaps possible that the plaintiffs will try appealing this to federal courts, but there doesn’t appear to be any federal issue in play here. The lawsuit cited issues in the state constitution with Act 77, not the US constitution. There doesn’t seem to be any reason for a federal court to accept such a case, especially after the Third Circuit just shredded Rudy Giuliani’s case earlier in the week.