Fresh off another rejection in Pennsylvania’s courts, Republicans on Thursday again asked the US Supreme Court to block President-elect Joe Biden’s victory in the battleground state, while the state’s lawyers say fatal flaws in the original case mean justices are highly unlikely to grant it.
Republican US Representative Mike Kelly of northwestern Pennsylvania and the other plaintiffs are asking the high court to prevent the state from certifying any contests from the November 3 election, and undo any certifications already made, such as Biden’s victory, while its lawsuit is considered.
They maintain Pennsylvania’s expansive vote-by-mail law is unconstitutional because it required a constitutional amendment to authorise its provisions.
However, in a sign that the case is likely too late to affect the election, Justice Samuel Alito ordered the state’s lawyers to respond by December 9, a day after what is known as the “safe harbor deadline”.
Rick Hasen, a law professor at the University of California, Irvine, argues: “The timing here matters.”
“Any final determination of the slate of electors made in a state by the so-called ‘safe harbor deadline’ under the federal Electoral Count Act is entitled to be conclusively accepted as valid by Congress,” Hasen writes on his blog about election law. “This year that deadline is [December 8]. The electors themselves vote on December 14. By setting the deadline for a response as December 9, this means that the Supreme Court won’t act until well after the safe harbor deadline has closed, making it even less likely that the Supreme Court would overturn the results in Pennsylvania.”
Biden beat President Donald Trump by more than 80,000 votes in Pennsylvania, a state Trump had won in 2016. Most mail-in ballots were submitted by Democrats.
Pennsylvania’s Supreme Court threw out the case on Saturday. Kelly’s lawyers sought an injunction on Tuesday in the US Supreme Court, then withdrew it while they asked the state’s high court to halt any certifications until the US Supreme Court acts. The state’s justices refused on Thursday, and Kelly’s lawyers promptly refiled the case in the US Supreme Court.
In the state’s courts, justices cited the law’s 180-day time limit on filing legal challenges to its provisions, as well as the staggering demand that an entire election be overturned retroactively.
In addition to challenging the state’s mail-in voting law, Kelly’s lawyers question whether the state’s justices violated their clients’ constitutional rights by throwing out the case on the basis of time limits and barring them from refiling it on the same grounds.
Trump’s frantic effort in the courts to delegitimise an election he lost has come no closer in a month to reversing any results.
Lawyers for Trump and his allies have asked judges in several states to take the drastic and unprecedented step of setting aside Biden’s wins.
But the quantity of affidavits, lawsuits and claims made by Trump belies that they are spurious or often repetitive of arguments already rejected by judges and elections officials, some of them Republicans.
Here is a look at where the legal action stands in other key states:
A judge was holding a trial beginning on Thursday brought by state Republican Party chair Kelli Ward alleging irregularities in signature verification on mail-in ballots. The judge let Ward’s lawyers and experts compare the signatures on 100 mail-in ballot envelopes with signatures on file to determine whether there were any irregularities. Ward’s lawyers found two problems: One person’s vote for Trump was ultimately recorded as a vote for Biden, and another person’s Trump vote was cancelled because the ballot had votes for both Trump and a write-in candidate.
Courts there have already dismissed four other cases. Arizona Governor Doug Ducey, a Republican, certified Arizona’s results on Monday. In a touch of symbolism, he declined a phone call from Trump while signing the certification papers. Lawyer Sidney Powell, who was recently kicked off Trump’s legal team and has been pushing wild conspiracy theories about the election, has also filed a lawsuit there.
Six cases brought by Trump and Republican allies in Michigan have either been rejected or dropped. On Wednesday, Giuliani appeared at a public meeting with legislators and urged activists to pressure, even threaten, the GOP-controlled Legislature to “step up” and award the state’s 16 electoral votes to Trump despite Biden’s 154,000-vote victory.
The state’s Supreme Court on Thursday refused to hear Trump’s lawsuit seeking to overturn his loss in the battleground state. In a divided decision, the court did not rule on the merits of the claims but said the case must first wind its way through lower courts. Trump wants to disqualify more than 221,000 ballots in the state’s two biggest Democratic counties, alleging irregularities in the way absentee ballots were administered. In urging the Supreme Court to hear the case, Trump’s lawyers said they did not have enough time to start in a lower court.
Trump’s attorney Jim Troupis said he would immediately file the case in circuit court and expected to be back before the Supreme Court “very soon”.
Trump’s campaign filed a similar lawsuit in federal court Wednesday. Two other lawsuits filed by conservatives are still pending with the Wisconsin Supreme Court. Powell has also filed a lawsuit seeking an order to decertify the election results in the state.