Trump allies file emergency petition at Supreme Court over 2020 election

Lawsuit seeks to throw out all mail-in ballots in Pennsylvania in 2020 election

The emergency petition filed Thursday at the Supreme Court could not by itself change the outcome of the presidential race. (Bill Clark/CQ Roll Call file photo)
The emergency petition filed Thursday at the Supreme Court could not by itself change the outcome of the presidential race. (Bill Clark/CQ Roll Call file photo)
Posted December 3, 2020 at 7:58pm

Weeks after President Donald Trump said the Supreme Court should decide whether to throw out millions of ballots in what he dubbed a fraudulent election, and with state and federal courts rejecting nearly all his legal team’s lawsuits in multiple states, a case from Pennsylvania has limped meekly to the nation’s highest court.

The emergency petition filed Thursday is no Bush v. Gore, the 2000 case about the disputed Florida recount that determined who won the state’s electoral votes and therefore the White House. The dispute about Pennsylvania’s election results could not by itself change the outcome of the presidential race.

Instead, the appeal comes from Pennsylvania Republican Rep. Mike Kelly and other Trump allies, in a lawsuit they filed after the election to challenge a 2019 state law that allowed voters to cast mail-in ballots for any reason.

Election experts have called the lawsuit, which seeks to throw out all mail-in ballots in the state in the 2020 election, ridiculous. They panned the chances that the Supreme Court would agree to hear it.

Election law expert Rick Hasen, a professor at the University of California, Irvine School of Law, wrote about it with this title: “Perhaps the Dumbest Argument Ever Made in Emergency Petition to the Supreme Court Appears in Pennsylvania Election Case.”

On Saturday, the Pennsylvania Supreme Court threw out the lawsuit in a three-page ruling, essentially because it was filed too late. The state’s mail-in voting law had been in place for more than a year at that point, and had already been used in the June primary elections and November general elections.

The court pointed out that the Republicans also sought an outcome — invalidating all mail-in ballots from the 2020 election or directing the state legislature to appoint its own slate of presidential electors — that would “result in the disenfranchisement of millions of Pennsylvania voters.”

Hasen wrote that the emergency petition to the Supreme Court now argues that the state legislature failed to follow the state constitution when it created the mail-in ballot law, and that somehow violates the U.S. Constitution. The petition then points to part of the U.S. Constitution that gives state legislatures the power to set election rules.

“So how could that possibly be violated by a state legislature setting election rules?” Hasen wrote on his blog. “Even worse, the state supreme court is the ultimate arbiter of the meaning of the state constitution, not the U.S. Supreme Court, and so it is not for the U.S. Supreme Court to say if the PA legislature violated the PA constitution.”

The Supreme Court still has not acted on an appeal from Pennsylvania lawmakers in a separate case. They have asked the justices to decide whether the state can tally mail-in ballots that arrive up to three days after Election Day amid concerns that mail delivery has slowed.

State Democrats, in a filing Tuesday at the Supreme Court, said there weren’t ballots that arrived in that three-day period to make a difference in the outcome of the election.