The Republican lawsuit challenged Act 77, the 2019 statute in Pennsylvania that allows voters to cast mail ballots for any reason. Their argument is that the law, passed by the Republican-led legislature and signed by the state’s Democratic governor, violated the state constitution’s requirements on who could receive a mail-in ballot.
Trump’s allies asked the state court to invalidate all votes cast by mail in the general election — more than 2.5 million in total — or direct the state legislature to appoint its own slate of presidential electors.
The state Supreme Court dismissed the case on Saturday, ruling that petitioners waited more than a year to sue, and only then after the results of the election were clear.
“The want of due diligence demonstrated in this matter is unmistakable,” the justices wrote, noting that some of the petitioners included candidates for office who had urged supporters to cast their ballots by mail.
The order blamed petitioners for a “complete failure to act with due diligence in commencing their facial constitutional challenge, which was ascertainable upon Act 77’s enactment.”
The filing aimed at the U.S. Supreme Court asks the justices to stop any further certification of the Pennsylvania vote. It is directed to Justice Samuel A. Alito Jr., who is the justice responsible for receiving emergency requests from the region.
Generally, the U.S. Supreme Court does not second-guess state courts when they are interpreting their own constitutions.
But the petitioners, led by Rep. Mike Kelly (R-Pa.), said that without the justices’ intervention, the commonwealth “will take further actions to certify the results of the election, potentially limiting this court’s ability to grant relief in the event of a decision on the merits in petitioners’ favor.”
The chief justice and one other justice of the Pennsylvania Supreme Court expressed some concern about the law, which contained a 180-day window in which objections could be filed. But both said there was no reason to grant the extraordinary relief challengers sought.
Another said it was clearly too late to bring those challenges now.
“Having delayed this suit until two elections were conducted under Act 77’s new, no-excuse mail-in voting system, petitioners — several of whom participated in primary elections under this system without complaint — play a dangerous game at the expense of every Pennsylvania voter,” wrote Justice David Wecht, a Democrat.
He said the petitioners want to change the rules after the election.
“It is not our role to lend legitimacy to such transparent and untimely efforts to subvert the will of Pennsylvania voters,” Wecht wrote. “Courts should not decide elections when the will of the voters is clear.”