Pennsylvania’s top court expected to act quickly on appeal to let state proceed with election certification

The Wolf administration is asking the state Supreme Court to dismiss a lawsuit seeking to invalidate mail-in ballots cast Nov. 3 or let the legislature pick Pa.'s electors.

  • Emily Previti

Gov. Tom Wolf and Secretary of State Kathy Boockvar say a court order to halt the next steps Pennsylvania’s election certification process could interfere with the state seating its electors – and they’re appealing to the state Supreme Court to intervene.

The appeal was among a succession of court actions Wednesday stemming from the lawsuit led by U.S. Rep. Mike Kelly (R-Butler) seeking to invalidate mail-in ballots cast in the Nov. 3 election or let the Republican-majority state legislature appoint Pa.’s presidential electors.

Kelly, who represents the state’s northwestern 16th district, filed the suit last weekend claiming Act 77 is unconstitutional. That’s the law enacted one year ago that let Pennsylvanians vote by mail without an excuse and ushered in other changes to election administration.

On Tuesday, Democratic Gov. Tom Wolf certified Pennsylvania’s election results. Secretary of State Kathy Boockvar signed the certificate of ascertainment for the slate of electors, awarding the state’s 20 electoral votes to Biden.

At the time, Boockvar’s office declined comment on why statewide certification happened one day before the last two of 67 counties were set to complete final certification. The announcement came within a couple hours of a filing deadline in the case in response to Kelly’s request that the court block or rescind certification, which Kelly’s attorneys claim prompted the state to rush the process. Lawyers for the state later denied that in court documents.

Then, on Wednesday, Republican Commonwealth Court Judge Patricia McCullough ordered Wolf’s administration to stop moving forward with steps in the certification process.

The administration says McCullough’s order could still interfere — without specifying how or why — with Pa. seating its electors by the so-called safe harbor deadline Dec. 8.

McCullough scheduled, then canceled, a hearing within hours Wednesday as the case was bumped up to the state Supreme Court after the Wolf and Boockvar appealed to the Democratic majority judicial panel, asking them to dismiss the case.

Former Commonwealth Court Judge Robert Byer tweeted Wednesday night that the commonwealth’s highest court will likely act quickly (and is designated to hear any Act 77 challenges, anyway). In the meantime, McCullough’s order is unenforceable – meaning DoS could choose to proceed with certification or wait for the outcome of their appeal, Byer wrote later in an email.

The complaint argues mail-in ballots, which don’t require an excuse, are unconstitutional and notes repeatedly that the state constitution provides for absentee voting by voters who have an excuse such as health or work. It does not explicitly state absentee ballots should still count if the plaintiffs win their case.

State election returns from DoS show nearly 2 million mailed ballots cast for president-election Joe Biden and just under 596,000 for President Donald Trump Nov. 3, but don’t distinguish between absentees and mail-in ballots.

During the June 2 primary, Pa. voters cast 349,709 absentees, or about 24 percent of all 1,459,555 mailed ballots, according to a DoS report released Aug. 1.

In addition to Kelly, plaintiffs named in the case include Sean Parnell, who waged an unsuccessful campaign this year to unseat U.S. Rep. Conor Lamb (D-Allegheny), and voters from Erie and Mercer counties plus one from Philadelphia.


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