The seven Republican congressmen from Pennsylvania who supported a lawsuit that would have thrown out their own state’s votes in the presidential race had little to say about the final outcome after the U.S. Supreme Court flatly rejected their effort and the Electoral College certified President-elect Joe Biden as the winner Monday.
Three of the seven, Reps. Fred Keller, Dan Meuser, and Scott Perry, issued statements saying the amicus brief they signed, which supported a Texas lawsuit targeting Pennsylvania’s votes, was only trying to ensure the proper procedures were followed. Aides to the four others, Reps. John Joyce, Mike Kelly, Guy Reschenthaler, and Glenn Thompson, did not respond to emails and phone calls Monday and Tuesday requesting comment.
None formally acknowledged what the Electoral College confirmed and has been clear for weeks: that Biden won. Perry has previously said he will mount a long-shot effort to block Pennsylvania’s presidential electors when Congress formally receives them Jan. 6. It’s unclear if others from the state will join him.
Senate Majority Leader Mitch McConnell (R., Ky.) congratulated Biden as the president-elect on the Senate floor Tuesday morning.
The Texas lawsuit sought to dismiss the 6.9 million presidential votes cast in Pennsylvania and allow the GOP-controlled state legislature to instead award the state’s 20 Electoral College votes. The suit, supported by 126 House Republicans and 18 state attorneys general, sought similar remedies in Georgia, Michigan, and Wisconsin, also key battlegrounds Biden won.
Several of the Pennsylvania congressmen who joined the brief are seen as potential candidates for Senate or governor in 2022.
The legal filing they supported, seeking a drastic remedy that would disenfranchise their own constituents, repeated misrepresentations about the vote in Pennsylvania. For example, it falsely claimed that Philadelphia and Allegheny Counties disobeyed state law regarding observers at their vote counts, and that guidance from Secretary of State Kathy Boockvar for how counties could help voters fix flawed mail ballots was applied unevenly. It was issued statewide.
Two of the state’s nine GOP congressmen, Reps. Brian Fitzpatrick and Lloyd Smucker, declined to support the Texas lawsuit, which the Supreme Court rejected late Friday, saying Texas “has not demonstrated a judicially cognizable interest in the manner in which another state conducts its elections.”
In response to questions about the suit, Keller issued a statement Monday and aides to Meuser and Perry pointed to previous statements defending their amicus brief, saying they were hoping to ensure the integrity of the election rules.
In each, the congressmen argued that Boockvar and the state Supreme Court, which has a Democratic majority, overstepped their bounds by taking steps to make it easier to vote by mail. Boockvar issued guidance that counties could allow eligible voters to “cure” mail ballots with technical flaws — such as missing signatures — and the state Supreme Court extended the deadline for receiving mail ballots to three days after Election Day.
Those rules should have been set by the state legislature, the Republicans argued, making the entire election in Pennsylvania unconstitutional. They said the state legislature had set the rules to ensure against potential voter fraud.
“I signed on to the amicus brief supporting Texas’ lawsuit because it encouraged the U.S. Supreme Court to uphold the clear authority of state legislatures to set the rules for how states choose their electors,” Keller said in a statement Monday. “The U.S. Supreme Court’s decision not to take up Texas’ case sets a dangerous precedent that governors can change election law without the consent of state legislatures, leaving open the possibility that future elections will be as controversial and chaotic as this one.”
There is no evidence of widespread election fraud in Pennsylvania or elsewhere, and Republicans in the case focused on procedure and did not present evidence of any fraud. There was also no evidence presented that the outcome was altered by those procedural changes. For example, in Pennsylvania the order extending the ballot deadline affected about 10,000 votes in a state Biden won by 81,000.
The solution proposed by the Texas attorney general would have thrown out not just those votes, but all of Pennsylvania’s. The congressional GOP brief supporting the suit did not explicitly endorse that solution but also did not reject it.
“It is actually unbelievable that attorneys general and members of Congress, who swore an oath to the U.S., would act like they swore an oath to Trump. I don’t know if they need a surgeon to fix their spines or repair their heads, but something is wrong,” Pennsylvania Attorney General Josh Shapiro, a Democrat who opposed the Texas lawsuit on the state’s behalf, said in a statement. (Shapiro himself is seen as a likely candidate for governor in 2022.)
In one such case, decided in federal District Court in Pennsylvania, Judge Matthew W. Brann, the former GOP chairman in Bradford County, ruled in November that Boockvar’s guidance was lawful and that the Trump campaign’s allegations were based on speculation “unsupported by the evidence.”
“This cannot justify the disenfranchisement of a single voter, let alone all the voters in [the] sixth most populated state,” Brann wrote in a withering opinion.
Boockvar’s guidance applied to counties across the state, though some Republican county officials declined to allow voters to “cure” flawed mail ballots. Even those instances in which “curing” wasn’t allowed would have disproportionately affected Democratic voters, since they voted by mail more than Republicans, even in conservative counties.
“We can’t have arbitrary and irregular actions taken and then think we have integrity in our election process — they don’t mix,” Meuser said in a statement released Friday, and which his aides pointed to in response to questions this week. “We must have consistent rules, laws and requirements for what constitutes a legal vote.”
He hinted at the reality that Biden had won, but did not directly say it: “The amicus brief merely states our belief that the broad scope of the various allegations and irregularities in the subject states merits careful, timely review by the Supreme Court. There will be a smooth transition of power to the next administration, whatever the outcome of the court’s decision.”
Elections officials in both parties have said the election proceeded smoothly, especially considering the pandemic. The controversy has been stirred almost entirely by unfounded claims of fraud, which have been rejected by courts across the country and Attorney General William Barr, a staunch Trump supporter.
A Perry spokesperson pointed to a statement from the congressman last week in which he derided the guidance from state officials and the state Supreme Court ruling as an “unconstitutional process by which it bypassed a statewide ballot to change the election laws.”
Al Schmidt, a Philadelphia city commissioner and a Republican, tweeted Tuesday, “I hope all the public officials who worked so hard to undermine confidence in the outcome of this election are prepared to help clean up the mess they created now that everyone is *finally* accepting the truth.”
Though legal scholars almost universally saw the Texas challenge as a stunt certain to fail, Shapiro said the impacts could be long lasting.
“This is a cancer that will require all of us to repair when the President leaves office on January 20, this damage will still exist,” he said. “It’s sad, and scary, and should be a wake-up call to this country that there’s work to do.”