Pennsylvania supreme court throws out Republican bid to reject 2.5m mail-in votes
Judge says plaintiff ‘failed to allege that even a single mail-in ballot was fraudulently cast or counted’
Pennsylvania’s highest court has thrown out a lower court’s order that was preventing the state from certifying dozens of contests from the 3 November election.
In the latest Republican lawsuit attempting to thwart president-elect Joe Biden’s victory in the battleground state, the state supreme court unanimously threw out the three-day-old order, saying the underlying lawsuit was filed months after the law allowed for challenges to Pennsylvania’s year-old mail-in voting law.
Justices also remarked on the lawsuit’s staggering demand that an entire election be overturned retroactively. “They have failed to allege that even a single mail-in ballot was fraudulently cast or counted,” justice David Wecht wrote in a concurring opinion.
The state’s attorney general, Democrat Josh Shapiro, called the court’s decision “another win for democracy”.
The week-old lawsuit, led by Pennsylvania Republican congressman Mike Kelly, had challenged the state’s mail-in voting law as unconstitutional.
As a remedy, Kelly and other Republican plaintiffs had sought to either throw out the 2.5m mail-in ballots submitted under the law – most of them by Democrats – or to wipe out the election results and direct the state’s Republican-controlled legislature to pick Pennsylvania’s presidential electors.
The request for the state’s lawmakers to pick Pennsylvania’s presidential electors also flies in the face of a nearly century-old state law, which grants the power to pick electors to the state’s popular vote, Wecht wrote.
While the high court’s two Republicans joined the five Democrats in opposing those remedies, they split from Democrats in suggesting that the lawsuit’s underlying claims – that the state’s mail-in voting law might violate the constitution – are worth considering.
On Wednesday, commonwealth court judge Patricia McCullough, elected as a Republican in 2009, had issued the order to halt certification of any remaining contests, including apparently contests for Congress.
A day earlier, Democratic governor Tom Wolf said he had certified Joe Biden as the winner of the presidential election in Pennsylvania. Biden beat president Donald Trump by more than 80,000 votes in Pennsylvania, a state Trump had won in 2016.
Wolf had appealed McCullough’s decision to the state supreme court, saying there was no “conceivable justification” for it.
The defeat followed Friday’s decision by a federal appeals court to dismiss a separate challenge to the Pennsylvania result and back a district judge who likened the president’s evidence-free and error-strewn lawsuit to “Frankenstein’s monster”.
The three-member federal panel confirmed unanimously a lower court’s decision last week to rebuff the arguments made by Trump’s legal team, led by former New York mayor Rudy Giuliani, that voting in Pennsylvania was marred by widespread fraud.
“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here,” judge Stephanos Bibas wrote for the 3rd US circuit court of appeals.
The judge denounced as “breathtaking” a Republican request to reverse certification of the vote, adding: “Voters, not lawyers, choose the president. Ballots, not briefs, decide elections. [The] campaign’s claims have no merit.”
The ruling, which was the Trump team’s 38th court defeat in election lawsuits nationwide, reaffirmed US district judge Matthew Brann’s earlier view of Giuliani’s complaint, delivered after he listened to five hours of oral arguments last week. The lawsuit, Brann said, was: “like Frankenstein’s Monster … haphazardly stitched together.”
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