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Pennsylvania Supreme Court Argues ‘Oops—Filed Too Late!’ To Toss Challenge to Mail-In Ballots

Nov. 29, 2020 (EIRNS)—Pennsylvania’s Supreme Court has thrown out a challenge to mail-in ballots, based on the unconstitutionality of the legislation that allowed for mass use of absentee ballots. Commonwealth Court Judge Patricia McCullough, had prevented the certification of dozens of contests from Election Day and was prepared to move forward with the case. But the Supreme Court threw out McCullough’s ruling, using the argument of “Oops—too late!” The basis was that the suit was filed too late to challenge the 2019 law changing Pennsylvania’s mail-in voting regulations. (Had they filed before the election, would the court have denied them by saying they lacked standing?)

Justice David Wecht sniffed in a concurring opinion, “They have failed to allege that even a single mail-in ballot was fraudulently cast or counted.” He also wrote that the plaintiffs could have brought the action anytime between Oct. 31, 2019 and April 28, 2020, while the Court still had exclusive jurisdiction over challenges to the law.

The lawsuit, led by Republican Congressman Mike Kelly, sought to either throw out the 2.5 million mail-in ballots, or overturn the results and instruct the Republican-led state legislature to select Pennsylvania’s presidential electors. Wecht also wrote that such a request is counter to state law, which grants the power to select electors to the state’s popular vote.

However, the two Republicans on the state Supreme Court agreed with McCullough’s evaluation of the lawsuit’s underlying claims, the principle that the state’s mail-in voting law itself might violate the Constitution. Although the plaintiffs can’t reconfigure their complaints and try again, it might be possible to challenge the constitutionality of the changes to the state voting laws. President Donald Trump indicated in his interview with Maria Bartiromo this morning that he expects Kelly will take the case to the U.S. Supreme Court.

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