The U.S. Supreme Court on Tuesday rejected a Republican congressman’s last-ditch effort to reverse the certification of President-elect Joe Biden’s victory in Pennsylvania, delivering what legal experts described as an ominous sign for the lingering legal challenges pushed by GOP allies of President Donald Trump.
The justices issued their decision, without comment, in a terse, two-line order dismissing the matter raised by Rep. Mike Kelly, the Butler County Republican who had argued that millions of votes in the state had been unconstitutionally cast by mail. Unlike in a previous Pennsylvania election dispute the justices considered this year, this time none of them publicly dissented in rebuffing the congressman’s arguments.
Their order came more than a week after Pennsylvania certified its results, declaring Biden the state’s victor by some 81,000 votes, and just hours before the federal deadline for states to lock in their slate of delegates for the convening of the Electoral College on Dec. 14.
It also served as a stinging reality check to the confidence with which the president and his attorneys had predicted the conservative justices Trump installed would ultimately come to his rescue.
“Pennsylvania had a fair and secure election,” Gov. Tom Wolf said in a statement. “It’s on all of us to stand up against these attacks on our democracy.”
Neither Trump nor his lawyers — who were not directly involved in Kelly’s case but had urged the court to consider its claims — immediately responded to the decision by Tuesday evening.
But earlier in the day, they repeatedly heaped praise upon another long-shot challenge filed before the justices — this one from Texas Attorney General Ken Paxton, who urged the Supreme Court in a filing late Monday to block results from Pennsylvania as well as Georgia, Michigan, and Wisconsin for what he described as “significant and unconstitutional irregularities.”
Paxton’s brief — riddled with factual errors and questionable legal arguments — was quickly panned by election-law experts from both sides of the partisan divide as “a publicity stunt masquerading as a lawsuit.”
And yet, the president interrupted a White House summit he had convened ostensibly to discuss progress on the coronavirus vaccine on Tuesday to urge the high court to consider the new petition.
“Let’s see whether or not somebody has the courage — whether it’s legislatures or a justice of the Supreme Court or a number of justices of the Supreme Court — let’s see if they have the courage to do what everybody in this country knows is right,” Trump said. “If somebody has the courage, I know who the next administration will be.”
Meanwhile, hobbled by COVID infections, shaky legal arguments, and a sharp admonishment Tuesday from a fellow Republican — Pennsylvania Sen. Pat Toomey — Trump’s own legal efforts appeared to be finally falling apart around him.
After suffering more than a dozen consecutive losses in his campaign’s court challenges, the president has not appealed any of his Pennsylvania-focused litigation to the Supreme Court, nor have his lawyers sought to join any of the more recent lawsuits brought by his GOP allies.
While his lawyers have let Trump’s court battles lie fallow for weeks, the president’s focus appears to have shifted instead toward a pressure campaign on lawmakers in Harrisburg and Washington to intervene, a strategy that Toomey decried in an interview Tuesday with The Inquirer.
“It’s completely unacceptable and it’s not going to work and the president should give up trying to get legislatures to overturn the results of the elections in their respective states,” he said.
As was the case when Trump previously deployed the tactic with elected leaders in Michigan and Georgia, Pennsylvania House Speaker Bryan Cutler rebuffed the president during two calls in the last week, saying the state legislature had no legal authority to interfere with the will of the voters in the state, the Washington Post reported.
However, in an effort that Trump praised Tuesday on Twitter, Cutler later signed a letter along with 63 other Republican colleagues in the state House urging Pennsylvania’s congressional delegation to reject the state’s Electoral College votes when Congress meets in January to approve them.
Many of the same lawmakers had filed a brief in support of Kelly’s suit before the Supreme Court, despite most of them voting just a year earlier for the very law the congressman was opposing.
Kelly had argued that widespread mail voting in Pennsylvania had been enacted through a statute that should have been subjected to the more rigorous process of an amendment to the state’s constitution. He had pushed for disqualifying every ballot cast by mail in the state, effectively disenfranchising 2.6 million voters.
Last month, Pennsylvania’s highest court balked at that request, with one justice describing it as “arguably unconstitutional” and a “legislative putsch.”
In urging the U.S. Supreme Court to ignore Kelly’s appeal, lawyers for the state on Tuesday noted that no court had ever issued an order nullifying a state’s certified vote and argued that the integrity of the judiciary and the sanctity of constitutional democracy were at stake.
They voiced similar critiques to the legal challenge from Texas, the only remaining case currently before the high court that seeks to overturn election results in battleground states.
“This isn’t a pick your own ending novel. This is democracy,” Pennsylvania Attorney General Josh Shapiro, a Democrat, said in a statement. “We should not allow this circus to continue.”
In his brief, Paxton, the Texas attorney general, argued that state elections officials had “exploited” the coronavirus pandemic to loosen restrictions around mail voting in the states and cited a series of complaints that have already been rejected by lower courts.
But many of its objections about Pennsylvania were speculative or simply false.
For instance, the suit alleges Philadelphia uses Dominion voting machines, the oft-maligned technology that has baselessly been targeted by Trump and conspiracy theorists on the right. The city does not use the machines and Trump won the vast majority of counties in Pennsylvania that did.
The filing also maintains that GOP monitors were barred from observing vote counting in Philadelphia and Pittsburgh — something even Trump’s own lawyers have admitted in court was not the case. Their complaints center instead on how close their monitors were able to get as ballots were being tallied, and multiple courts have upheld the process followed by officials in both cities. And courts have repeatedly found the restrictions the cities placed equal and lawful restrictions on partisan monitors.
Stephen Vladeck, an election-law scholar at the University of Texas, predicted the court’s decision Tuesday in Kelly’s case also spelled doom for Texas’ efforts.
“If the court had any interest in the issues raised in these cases, it would’ve stepped in” on Kelly’s, he said in a tweet. “That no justice publicly dissented here is a pretty clear message about where [the Texas] case is going, too.”