The Republican congressman and congressional candidate have challenged Pennsylvania’s postal ballot paper, which resulted in more than 2.6 million such votes in the Nov. 3 election, seeking emergency action to stop verifying the state’s election results.
U.S. MP Mike Kelly, R-Butler, and Sean Parnell, who ran against Democratic Republic’s current MP Conor Lamb, claimed in a first complaint to the Commonwealth Court that the Republican-controlled postal voting system as a whole by state legislation in October 2019 was unconstitutional.
He seeks to discard all postal votes or, in the alternative, to ask the General Assembly to elect Pennsylvania voters.
Jerry Dickinson, a professor of law at the University of Pittsburgh who specializes in constitutional law, said the Kelly trial is unlikely to succeed.
“This would effectively relieve voters of their electoral rights,” he said.
In their motion filed on Sunday, the petitioners argued that Act 77, which extended absenteeism and postal voting, bypassed the state’s constitution and that any changes to Pennsylvania’s absentee voting were necessary to amend the constitution.
The lawsuit names the Commonwealth, the General Assembly, Governor Tom Wolf and Secretary of State Kathy Boockvar as defendants.
In a 44-page prospectus, Gregory H. Tuefel, a Pittsburgh attorney, called Act 77 “blatantly unconstitutional” and “a violation of the protection enshrined in the Pennsylvania Constitution.”
“This court must intervene immediately in order to prevent further, irreparable damage resulting from errors resulting from elections for an unconstitutional and invalid postal voting system,” the plaintiffs wrote.
In order to obtain an order, the parties must show the relief necessary to prevent irreparable damage; that greater harm will result if it is not provided; that the plaintiff is likely to succeed on the merits; and this public interest is not harmed if granted.
The applicants’ brief account begins with an explanation of the history of absenteeism, adopted in 1813, and the employment of soldiers who served more than 2 miles from their place of election on election day.
Any amendment to the vote in absentia, it has been written, will require a constitutional amendment.
But Dickinson says that’s not true. Changes in public order, such as the implementation of postal voting, can be made by legislation, such as Act 77, or by amending the Constitution.
“You can do both,” he said.
In their pleadings, the plaintiffs stated that it was essential to stop justifying the election.
“Without immediate interim action, relief becomes impossible and the damage becomes irreparable,” they wrote. “Once the election has been verified and the electors have been appointed, the court will be able to revoke this certification and provide representation for the November 3, 2020 general election.”
The petition also notes that the new Pennsylvania General Assembly will be on December 1
The Democratic National Committee, which asked to intervene in the case, wrote briefly that the Commonwealth Court’s case was only about “ending the disenfranchisement” of millions of voters in Pennsylvania.
The DNC described the remedy for the discarding of votes cast by post as “draconian”.
“It’s unbelievable that a sitting U.S. congressman would allow such an action to be brought on his behalf,” DNC wrote, citing Kelly.
The DNC asked the court to close the case quickly.
Dickinson said there is a concept in the law called the theory of the interest of reliability that applies specifically to elections. This theory, he argues, is the ability of voters to learn the rules of the game at a given moment.
With Pennsylvania’s general election, millions of voters could rely on two things, said Dickinson, Act 77 passed by the state legislature, and the state Supreme Court, which upheld postal voting.
Voters understood that postal voting was a legal and viable option for them.
Dickinson called Kelly and Parnell’s request “very problematic.”
Furthermore, Dickinson noted, as the DNC said, that any challenge to Act 77 should have been brought long before the election.
As for the request to delay proof or throw out the state mail, Dickinson said he said the plaintiffs had no chance of doing so.
“The courts will give a brief answer on this type of lawsuit, taking into account all that is at stake here,” he said. “They are fighting a real upward battle to convince the court weeks after the election that they must comply with that request.”
Paula Reed Ward is a Fellow of the Tribune-Review. You can contact Paula by email at [email protected] or via Twitter .
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