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Pennsylvania Supreme Court rejects GOP challenge after judge said it had 'likelihood to succeed'

'...failure to file their facial constitutional challenge in a timely manner'

Getty Images/Chris Ryan

The Pennsylvania Supreme Court struck down a lawsuit late Saturday that challenged the legality of a new state law that allowed voters to obtain an absentee ballot for any reason.

What's the background?

As TheBlaze reported, Commonwealth Judge Patricia McCullough issued an injunction last Wednesday after Republicans made an emergency request to stop the certification of Pennsylvania's election results.

The central claim of the lawsuit was that Act 77, a law passed in Oct. 2019, violated the state constitution by allowing voters to obtain absentee ballots for any reason. The state constitution, on the other hand, specifies only a limited number of reasons for which an absentee ballot may be cast.

McCullough later issued an opinion on Friday explaining that the petitioners would likely win on the merits of their case.

Petitioners appear to have established a likelihood to succeed on the merits because Petitioners have asserted the Constitution does not provide a mechanism for the legislature to allow for expansion of absentee voting without a constitutional amendment. Petitioners appear to have a viable claim that the mail-in ballot procedures set forth in Act 77 contravene Pa. Const. Article VII Section 14 as the plain language of that constitutional provision is at odds with the mail-in provisions of Act 77. Since this presents an issue of law which has already been thoroughly briefed by the parties, this Court can state that Petitioners have a likelihood of success on the merits of its Pennsylvania Constitutional claim.

What did the state Supreme Court say?

The Pennsylvania high court — which is controlled by a 5-2 Democratic majority — unanimously dismissed the lawsuit, ruling the challenge came too late for a reasonable legal remedy.

The lawsuit had asked for the absentee ballots cast as a result of Act 77 to be invalidated.

"Upon consideration of the parties' filings in Commonwealth Court, we hereby dismiss the petition for review with prejudice based upon Petitioners' failure to file their facial constitutional challenge in a timely manner," the Pennsylvania Supreme Court wrote in a three-page opinion.

In fact, the court said the lawsuit violated the "doctrine of laches" because of the petitioners' "complete failure to act with due diligence in commencing their facial constitutional challenge, which was ascertainable upon Act 77's enactment."

The court explained:

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.

Meanwhile, Chief Justice Thomas Saylor and Justice Sallie Mundy filed a concurring and dissenting opinion suggesting that the constitutional merits of the case — that Act 77 may violate the state constitution — could be considered by a lower court at a different time. They agreed, though, that the current petitioners acted far too late.

Saylor and Mundy are the court's two Republican justices.

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