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Justices won’t stop Pennsylvania from certifying election for Biden

The Supreme Court on Tuesday turned down a request from Pennsylvania Republicans to block the state from certifying the results of the Nov. 3 election for President-elect Joe Biden. With less than eight hours remaining before the “safe harbor” deadline for states to finalize the post-election certification of their votes in the Electoral College, the court issued a one-sentence order denying the plea to intervene from Rep. Mike Kelly and other allies of President Donald Trump. There were no recorded dissents.

Kelly had challenged Pennsylvania’s expansion of mail-in voting as unconstitutional and sought a court order voiding millions of ballots that were cast by mail. The Pennsylvania Supreme Court ruled on Nov. 28 that Kelly had waited too long to go to court – a legal doctrine known as laches – because he failed to bring his challenge until after the election.

Justice Samuel Alito, who has primary responsibility for emergency requests that arise from Pennsylvania, originally instructed the state to respond on Wednesday, Dec. 9, but that deadline was later moved up a day. The change likely reflected a desire to act on the case before the expiration of the Dec. 8 safe harbor — the deadline in federal law by which states are supposed to resolve any election-related disputes.

In its filing on Tuesday morning, Pennsylvania urged the justices to turn down Kelly’s request, telling them that his claims were “fundamentally frivolous” and would result in “one of the most dramatic, disruptive invocations of judicial power in the history of the Republic.”

Just a few hours later, the court did exactly that. The order indicated that Alito – who could have acted on Kelly’s request himself – had referred the request to the full court, which declined to stop the certification.

The justices still have another election case from Pennsylvania pending: the challenge to a ruling by the Pennsylvania Supreme Court that extended the deadline for absentee ballots until three days after Election Day. The Supreme Court declined to fast-track the petition by Pennsylvania Republicans to allow the justices to consider the case before Election Day; the justices will likely consider the case early next year.

Also on Tuesday, Texas filed a long-shot lawsuit in the Supreme Court against Pennsylvania and three other states seeking to upend those states’ election results.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Justices won’t stop Pennsylvania from certifying election for Biden, SCOTUSblog (Dec. 8, 2020, 6:09 PM),