Rep. Mike Kelly, Sean Parnell continue to pursue legal challenge to Pa. election results

A congressman and the challenger to Democratic incumbent U.S. Rep. Conor Lamb on Wednesday asked Pennsylvania’s highest court to stay its own order from last week as they wait to hear if the U.S. Supreme Court will take their case challenging the state’s mail-in voting law.

The Pennsylvania Supreme Court, in a unanimous decision Saturday, threw out an order from the Commonwealth Court that intended to stay the state’s certifying process for November’s general election.

U.S. Rep. Mike Kelly, R-Butler, and Sean Parnell, the Republican who ran against Lamb, filed a petition in Commonwealth Court on Nov. 22 alleging that the General Assembly illegally implemented statewide mail-in voting in October 2019. It suggested that either all mail-in ballots be disqualified, or alternatively, to throw out the entirety of Pennsylvania’s results in the general election so the legislature could appoint the state’s presidential electors.

In its decision, the state Supreme Court said that the petitioners should have filed any challenge to the mail-in voting law months earlier and not after two elections were conducted using it.

It also criticized the petitioners for the extreme remedy they sought.

In an emergency application filed with the Pennsylvania Supreme Court on Wednesday, the same petitioners argued that it would be reasonable to stay its previous order until the U.S. Supreme Court decides whether it will grant review of their case.

“In the meantime, Act 77 remains in effect and unconstitutional, and petitioners continue to suffer their harms without any ability to obtain relief,” wrote attorney Greg Teufel. “An injunction in this case is essential to protect the integrity of the election and prevent further irreparable harm to petitioners’ federally protected rights,”

He expects to file an application for writ of injunction with the U.S. Supreme Court on Thursday.

Kelly and Parnell argue there’s a reasonable probability the high court will take their case because the state Supreme Court violated their due process rights in its decision.

The filing goes back through the petitioners’ argument that the way the legislature enacted Act 77 was incorrect, and that a change to voting had to be done by constitutional amendment.

However, those are the same arguments that the state Supreme Court already rejected. The filing also suggests that, contrary to what the court ruled, that the petitioners lacked standing to challenge Act 77 prior to the general election.

In a response filed later Wednesday, attorneys for Gov. Tom Wolf, Secretary of State Kathy Boockvar and the General Assembly wrote that the petitioners failed to raise issues of federal law when they initially made their claims, and can no longer do so.

“It is simply too late to invoke the U.S. Constitution now; they have waived their arguments,” they wrote. “From the beginning to the end of this case, petitioners’ arguments were couched solely in terms of Pennsylvania law.”

The state’s attorneys also wrote that what the petitioners are asking for is impossible.

“There is no common law precedent for petitioning the Supreme Court of Pennsylvania to stay its own order pending a potential appeal to the Supreme Court of the United States either,” they wrote. “Simply put, the relief petitioners seek is unavailable under Pennsylvania law.”