The Republican congressman and congressional candidate challenging Pennsylvania’s mail-in ballot system that led to more than 2.6 million such votes being cast in the Nov. 3 election are seeking an emergency injunction to halt the certification of the state’s election results.

An initial complaint filed with Commonwealth Court by U.S. Rep. Mike Kelly, R-Butler, and Sean Parnell, who ran against Democratic incumbent U.S. Rep. Conor Lamb, alleged that the entirety of the mail-in voting system approved by the Republican-controlled state legislature in October 2019 is unconstitutional.

It seeks to have all of the mail-in votes thrown out or, in the alternative, to have the General Assembly choose Pennsylvania’s electors.

University of Pittsburgh School of Law Professor Jerry Dickinson, who specializes in constitutional law, said that it is unlikely the Kelly lawsuit will succeed.

“It would effectively disenfranchise millions of voters,” he said.

In their motion for an injunction filed on Sunday, the petitioners claimed that Act 77, which expanded absentee and mail-in voting, circumvents the state constitution and that any changes to be made to absentee voting in Pennsylvania required a constitutional amendment.

The lawsuit names as defendants the commonwealth, the general assembly, Gov. Tom Wolf and Secretary of State Kathy Boockvar.

In a 44-page brief, Pittsburgh attorney Gregory H. Tuefel called Act 77 “flagrantly unconstitutional” and “an affront to the protections set out in the Pennsylvania Constitution.”

“This court must intervene immediately in order to prevent further, irreparable injury from the resulting wrongs of an election conducted pursuit to an unconstitutional and invalid mail-in voting scheme,” the plaintiffs wrote.

To obtain an injunction, the parties must show relief is necessary to prevent irreparable harm; that greater injury will occur from not granting it; that the plaintiff is likely to prevail on the merits; and that public interest will not be harmed if it is granted.

The plaintiffs’ brief starts out by explaining the history of absentee voting, which was passed in 1813 to apply to soldiers who were serving more than 2 miles away from their polling place on election day.

Any changes to absentee voting, they wrote, require a constitutional amendment.

But Dickinson said that’s not true. Changing public policy — such as implementing mail-in voting — can be done by either legislation, like with Act 77, or constitutional amendment.

“You can do both,” he said.

In their filing, the plaintiffs said that halting the certification of the election is essential.

“Without an immediate temporary injunction, therefore, relief becomes impossible, and the harm is rendered irreparable,” they wrote. “Once elections are certified and electors are appointed, the court’s ability to undo such certification and provide repressibility for the Nov. 3, 2020, general election becomes impossible.”

The filing also notes that the new Pennsylvania general assembly is to be seated on Dec. 1

The Democratic National Committee, which asked to intervene in the case, wrote in a brief that the case in Commonwealth Court is just the “latest attempt to disenfranchise” millions of Pennsylvania voters.

The DNC characterized the remedy of throwing out the mail-in votes as “draconian.”

“It is incredible that a sitting United States congressman would allow such a claim to be brought in his name,” the DNC wrote, referring to Kelly.

The DNC asked the court to dismiss the case quickly.

Dickinson said there is a concept in the law called reliance interest theory, which specifically applies to elections. That theory, he said, is the ability of voters to know the rules of the game at that given moment.

In the case of Pennsylvania’s general election, millions of voters were able to rely on two things, Dickinson said, Act 77, as passed by the state legislature, and the state Supreme Court, which upheld mail-in voting.

Voters understood that mail-in voting was a legal and viable option for them.

Dickinson called the request by Kelly and Parnell, “very problematic.”

Further, Dickinson noted — like the DNC said, as well — that any challenge to Act 77 should have been brought long before the election.

As for the request to either delay the certification or throw out the state’s mail-in ballots, Dickinson said he doesn’t think the plaintiffs have a chance at either.

“Courts will make short shrift of this type of claim given all that’s at stake here,” he said. “They have a real uphill battle to convince a court weeks after the election that they should grant this request.”

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