President Donald Trump’s terrible week in court continued Saturday with yet another adverse ruling from a Pennsylvania court.
The Pennsylvania Supreme Court ruled unanimously that a suit brought by Rep. Mike Kelly and other Republicans challenging the state’s mail-in voting law — passed in October 2019 — was filed too long after the law was passed, and because of that, rejected a requested review of the law.
“The want of due diligence demonstrated in this matter is unmistakable,” the court wrote in an unsigned per curiam opinion. “Petitioners filed this facial challenge to the mail-in voting statutory provisions more than one year after the enactment of Act 77.”
The lawsuit was filed by several Republicans including Rep. Mike Kelly and congressional candidate Sean Parnell. The justices pointed out that allowing the petition to move forward would result in the disenfranchisement of millions of PA voters. Here’s the full order pic.twitter.com/zpn46G7CgT— Aaron Martin (@WPXIAaronMartin) November 28, 2020
The court also overturned a lower court injunction blocking Pennsylvania from moving ahead with certifying its election. The suit was dismissed with prejudice, putting a permanent end to that avenue of challenge.
As Democratic voting-rights lawyer Marc Elias pointed out on Twitter, the lawsuit, had it succeeded, would have had an additional, likely unintended effect: It would also have blocked certification of Kelly’s own election results in Pennsylvania’s 16th District.
Pennsylvania certified its presidential election results on Tuesday, sealing President-elect Joe Biden’s win in the crucial swing state. But a judge instituted a temporary injunction on the certification that same day — one the secretary of state planned to challenge in the state Supreme Court. With Saturday’s ruling, that certification is cleared to proceed. Biden beat Trump by more than 80,000 votes in the final tally to claim Pennsylvania’s 20 electoral votes.
Kelly was joined in the suit by onetime Pennsylvania congressional candidate Sean Parnell and six other state residents, including a state House candidate who claimed just 5.5 percent of the vote in her last race. The plaintiffs alleged that the state’s mail-in voting law was flat-out unconstitutional, and proposed two possible remedies: either the invalidation of all mail ballots cast in the election or allowing the Republican-controlled Pennsylvania general assembly to select a slate of presidential electors, rather than Pennsylvania voters.
Either remedy would have disenfranchised voters on a scale unprecedented in the modern era, while handing the state to Trump — and both were rejected out of hand by the court.
“It is beyond cavil that Petitioners failed to act with due diligence in presenting the instant claim,” the court wrote. “Equally clear is the substantial prejudice arising from Petitioners’ failure to institute promptly a facial challenge to the mail-in voting statutory scheme, as such inaction would result in the disenfranchisement of millions of Pennsylvania voters.”
The Trump campaign can’t stop losing in court
As Pennsylvania Lieutenant Gov. John Fetterman pointed out in a tweet after the state Supreme Court decision was published, Saturday’s ruling is by no means the only recent loss by the Trump campaign and GOP members looking to overturn the results of the 2020 presidential election.
If the President’s campaign doesn’t stop losing, the Cleveland Browns are gonna sue for trademark infringement. https://t.co/vmKT9Hsiyv— John Fetterman (@JohnFetterman) November 28, 2020
In Pennsylvania alone last week, the Trump campaign lost twice in quick succession in federal court. Most recently, a Trump-nominated judge on the Third Circuit Court of Appeals, Stephanos Bibas, wrote in a scathing decision that the president’s lawsuit challenging Pennsylvania election results had “no merit.”
“Free, fair elections are the lifeblood of our democracy,” Bibas wrote in the 21-page unanimous decision. “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
In total, the president’s flailing legal strategy has resulted in a 1-39 record before various state and federal courts around the country, according to Elias. No evidence of voter fraud or other irregularities has surfaced anywhere, despite false claims by Trump and his allies otherwise, and a federal election certification deadline on December 8 is closing in.
That, however, hasn’t put a damper on the president’s nonsensical arguments about election fraud.
“The number of ballots that our Campaign is challenging in the Pennsylvania case is FAR LARGER than the 81,000 vote margin. It’s not even close. Fraud and illegality ARE a big part of the case,” Trump wrote on Twitter Saturday, though there is no evidence of any fraud or illegality and Pennsylvania has already certified its election results.
The number of ballots that our Campaign is challenging in the Pennsylvania case is FAR LARGER than the 81,000 vote margin. It’s not even close. Fraud and illegality ARE a big part of the case. Documents being completed. We will appeal!— Donald J. Trump (@realDonaldTrump) November 28, 2020
Even as Republican court challenges fail, other potential avenues for Trump to overturn the election results — and the democratic process — are fading fast.
In particular, one fringe theory promulgated by Trump holds that Republican-controlled state legislatures, like the one in Pennsylvania, can appoint their own slate of Trump electors, regardless of how the state voted. Trump tweeted as much last week, writing that “hopefully the Courts and/or Legislatures will have the COURAGE to do what has to be done,” and Republicans hoped the Pennsylvania Supreme Court would pave the way for the legislature to get involved there.
It’s not, however, a feasible scheme. Beyond the fact that the court rejected the idea, the theory isn’t backed by anything “even remotely close to a relevant majority” of state lawmakers, and even if it were, it would certainly face a veto from Pennsylvania’s Democratic governor and a swift series of legal challenges.
That the US Supreme Court might somehow overturn the election results — a strategy alluded to by Trump senior legal adviser Jenna Ellis in a Friday tweet after the campaign’s Third Circuit loss — is also vanishingly unlikely to succeed. According to University of Texas law professor Steve Vladeck, “the Trump campaign has the right to ask #SCOTUS to review this decision, and it has the right to ask the Court for an injunction pending appeal. But as Judge Bibas’s opinion makes clear, try as they might, this lawsuit has no chance of succeeding.”
The Trump campaign has the right to ask #SCOTUS to review this decision, and it has the right to ask the Court for an injunction pending appeal. But as Judge Bibas's opinion makes clear, try as they might, this lawsuit has no chance of succeeding.— Steve Vladeck (@steve_vladeck) November 27, 2020
Ultimately, the Trump campaign never had evidence for its claims of fraud, as a number of judges and justices have now pointed out. And its other efforts have failed, or are actively in the process of failing, as states move forward with certifying their election results. The president may keep tweeting otherwise — but starting at noon on January 20, 2021, he won’t be the president any longer. Biden will be.