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Alito Move Makes U.S. Supreme Court Action on Pennsylvania Suit Possible

Dec. 7, 2020 (EIRNS)—Supreme Court Justice Samuel Alito has changed the deadline for the State of Pennsylvania’s response to Rep. Michael Kelly’s appeal to the Supreme Court (SCOTUS), from Dec. 9 to 9:00 a.m. EST on Dec. 8. This would mean the case can be argued, and could be decided by SCOTUS, on the “safe harbor” date by the end of which “controversies concerning the appointment of all or any of the electors ... by judicial or other methods or procedures” must be settled—“at least six days before the time fixed for the meeting of the electors,” which this year is Dec. 14. This according to Law & Crime.

This case was rejected with prejudice by the Pennsylvania Supreme Court on Nov. 28. The previous SCOTUS deadline for Pennsylvania’s response to the appeal, Dec. 9, would have rendered the appeal essentially moot; whereas this change means it is at least possible that the Justices are considering accepting and perhaps deciding the case.

According to Kelly’s filing, Pennsylvania’s “no-excuse mail-in” voting privilege should apply only in a limited number of circumstances, and its people must vote in person unless one of a narrow list of excuses applies to them. Thus, Act 77, passed in late 2019, and related election access laws should be invalidated—along with votes cast under it in the 2020 election. Law & Crime says:

“In strict theory, the U.S. Supreme Court has no jurisdiction to settle Pennsylvania constitutional issues, such as whether the state statute at question (Act 77) violates the state constitution. Generally, such matters are the exclusive realm of a state supreme court. But there are exceptions to that general concept, Kelly argues, including here. Because the state is acting under a ‘direct grant of authority’ from the U.S. Constitution to manage federal elections, the U.S. Supreme Court can become involved, he argues, and can determine whether the Pennsylvania statutory and constitutional regime of laws violates the U.S. Constitution. Kelly invites the U.S. Supreme Court to conclude as such....”

We will learn more on this development Tuesday morning.

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