Pa. attorneys urge court to toss petition of Rep. Mike Kelly, Sean Parnell

Attorneys for Pennsylvania election and state government officials filed their response to a lawsuit by U.S. Rep. Mike Kelly, R-Butler, and Republican congressional candidate Sean Parnell, calling their request to throw out the results of Pennsylvania’s general election “simply breathtaking.”

“While draped in the driest of historical arguments, petitioners’ claim is audacious; to grant it would undercut the very foundations of Pennsylvania’s democracy and snatch the most basic of rights from its people,” wrote attorneys for Gov. Tom Wolf and Secretary of State Kathy Boockvar.

They wrote that the petitioners’ claim had no merit and ought to be dismissed.

Kelly and Parnell filed a petition in state Commonwealth Court on Sunday alleging that the entirety of Pennsylvania’s mail-in voting law, part of the Act 77 bill that was passed with bipartisan support in October 2019, is unconstitutional. Instead, they said that to broaden mail-in voting, a constitutional amendment was required.

Because of that, they wrote, the results of the Nov. 3 election, including more than 2.6 million mail-in ballots, should be tossed. In the alternative, they asked that the state legislature be able to appoint electors.

On Tuesday, Pennsylvania certified the results of the general election showing that Joe Biden won the presidency, earning 80,000 more votes than Donald Trump.

In their response to Kelly and Parnell, attorneys for the governor and secretary said that the men had no standing to file their petition and have not alleged any harm from the alleged constitutional violation.

The state’s attorneys also noted that the lawsuit wasn’t timely, and that any challenges should have been filed within the 180 days provided in the Act 77 statute.

When the act was passed, they wrote, the legislature included a provision requiring all constitutional challenges be brought in the state Supreme Court within 180 days of it taking effect, or April 28.

“Instead, they waited until well past the last minute — after the election had taken place, the votes had been counted, and election administrators were in the process of certification — to spring their claim at a time when it could inflict maximum damage,” attorneys wrote.

During that interim period, they continued, Pennsylvania had two elections — the June 2 primary and the general election.

“At no time during the 180-day period, the run-up to the primary election or the run-up to the general election did petitioners (or anyone else) claim in any proceeding whatsoever that Act 77 was unconstitutional on its face,” they wrote. “In fact, three of the petitioners here, Congressman Kelly, Mr. Parnell and Ms. (Wanda) Logan, ran in the 2020 primary and general election, presumably garnering votes cast on the same mail-in ballots that they now claim to be unconstitutional.”

The attorneys said the expansion of mail-in voting “has undeniably made it easier for all Pennsylvanians — including petitioners — to exercise their right to vote.”

Several former Republican officials and scholars, including former New Jersey Gov. Christine Todd Whitman, filed a friend-of-the-court brief on behalf of the government respondents in the case, urging the Commonwealth Court to throw out the petition.

“American courts have been resolving and remedying election challenges for centuries, and none has ever ‘disenfranchised almost 7 million voters,’ ” they wrote.