The U.S. Supreme Court on Monday refused to take up two separate Pennsylvania elections cases, including a challenge filed by U.S. Rep. Mike Kelly.

Without providing any written explanation, the court issued an order denying a petition for certiorari by Kelly, R-Butler, challenging Pennsylvania’s mail-in voting system.

“It is astounding that our nation’s highest court was unwilling to hear arguments in a case that called on the court to require states to follow their own constitutions in the conduct of federal elections,” Kelly said.

It is astounding that SCOTUS was unwilling to hear arguments in a case that called on our nation's highest court to require states to follow their own constitutions. My statement on the decision in Kelly v. Commonwealth of Pennsylvania ➡️ https://t.co/HKhIlBxqyK

— Rep. Mike Kelly (@MikeKellyPA) February 22, 2021

He had asked the court to take up the case, contending that the state’s mail-in voting law was unconstitutional because it was not passed by a constitutional amendment.

Instead, the Republican-controlled state legislature in October 2019 passed Act 77, a package of voting reforms that included expanded mail-in voting, with bipartisan support.

Before going to the U.S. Supreme Court, Kelly tried to make the same claims through the Pennsylvania Supreme Court, but it threw out the petition, saying it was time-barred, because any such challenge to the act was required within 180 days of its passage.

“Act 77 expressly violates the Pennsylvania Constitution and the only court to consider the merits acknowledged the strength of our argument and said we were likely to succeed,” Kelly said in his statement. “I call on the governor and the General Assembly to do the right thing by repealing the no-excuse mail-in voting system, starting the constitutional amendment process, and letting Pennsylvania voters decide the issue.”

Kelly’s attorney, Gregory Teufel, initially asked the U.S. Supreme Court for an emergency injunction to attempt to have the court either throw out 2.6 million votes cast by mail-in ballots, or throw out the entirety of Pennsylvania’s elections results so the state Legislature could appoint the state’s electors for president.

President Joe Biden won Pennsylvania by about 81,000 votes.

The request for an injunction was denied, and the U.S. Supreme Court listed the Kelly petition to be distributed for conference on Friday.

Teufel said on Monday he was disappointed the court chose not to take their petition.

“Our case raised issues that are critical for election integrity nationwide in future elections, including the importance of ensuring that states follow their own constitutions in conducting federal elections,” he said. “Courts have an obligation to provide peaceful means of redress for legitimate election disputes.”

The U.S. Supreme Court on Monday also refused to take up a separate election case that challenged the Pennsylvania Supreme Court’s extension that allowed mail-in ballots to be counted up to three days after election day.

In a dissenting opinion on that case, Justice Clarence Thomas called the decision not to take up the election challenges now — two years ahead of the next federal election cycle — “befuddling.”

“One wonders what this court waits for. We failed to settle this dispute before the election, and thus provide clear rules,” he wrote. “Now we again fail to provide clear rules for future elections. The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us.”

Thomas acknowledged that there were too few votes received during the three-day extension to change the outcome of the federal election.

“But that may not be the case in the future,” Thomas wrote. “These cases provide us with an ideal opportunity to address just what authority non-legislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable.”

The unclear rules, he continued, sow confusion and lead to questions about the integrity and fairness of our elections.

In his dissent, Thomas addresses the lengthy legal challenges made by Republican candidate Nicole Ziccarelli in her bid to oust Democratic state Senator Jim Brewster.

Ultimately, Brewster was seated after legal challenges were made in four different courts.

“That is not a prescription for confidence. Changing the rules in the middle of the game is bad enough. Such rule changes by officials who may lack authority to do so is even worse. When those changes alter election results, they can severely damage the electoral system on which our self-governance so heavily depends. If state officials have the authority they have claimed, we need to make it clear. If not, we need to put an end to this practice now before the consequences become catastrophic.”

Justices Samuel Alito and Neil Gorsuch also dissented on the second Pennsylvania case, saying that it is likely these issues will arise again.

“A decision in these cases would not have any implications regarding the 2020 election,” Alito wrote. “But a decision would provide invaluable guidance for future elections.”

Duquesne University law professor Bruce Ledewitz said he expects that the high court will eventually take up a case challenging Pennsylvania’s mail-in voting system, but Kelly’s was not the right one.

What Kelly wanted, Ledewitz said, was for the court to tell the state legislature how to handle election law, which it will not do. Under the Constitution, he said, the state legislature is responsible for how Pennsylvania’s electors are chosen. It is not a decision to be made by the courts.

However, Ledewitz said he anticipates another challenge to Act 77 in the next couple years — and that it will be raised prior to the next presidential election. When that happens, he believes the court will take up the case because a constitutional amendment was required to change how the state’s mail-in voting is handled.

Ledewitz believes Act 77 could be unconstitutional based on existing case law.

The state legislature could address the underlying problem, he continued, by simply rewriting the statute to expand the reasons for absentee voting, which is how it is categorized in the constitution.

“It’s easy to rewrite the statute. You don’t have to lose mail-in voting. You just have to expand the reason you want an absentee ballot,” Ledewitz said.

For example, stemming from the pandemic, he said, the reason would be “to avoid getting sick.”

Law professor and election scholar Rick Hasen, like Ledewitz, sees the “ ‘independent state legislature’ doctrine [as] a ticking time bomb” that the court will have to resolve.

“The main issue is the extent to which state courts, relying on state constitutions, may change rules for federal elections put in place by state legislatures,” he wrote in a blog post on Monday.

Hasen, a professor at the University of California-Irvine, wrote he suspects the court chose not to take the Kelly case either because it is moot “(and the court would rather address the issue in the context of a live case, but with lower stakes) or because the Trump cases are somewhat radioactive at the court.

“Given former President Trump’s continued false statements that the election was stolen, the case would become a further vehicle to argue that the election results were illegitimate. It would thrust the court back in the spotlight on an issue the justices showed repeatedly they wanted to avoid.”

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