The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, Representative Mike Kelly and several other members of Congress from Pennsylvania filed an application for injunctive relief with Associate Justice Samuel Alito, asking the Supreme Court to reverse a state supreme court ruling upholding the constitutionality of changes Pennsylvania made to its election laws in 2019. Justice Alito asked the Commonwealth of Pennsylvania to file a response, which was submitted this morning. (A few amicus briefs, available here, have also been filed.) Pennsylvania's filing is quite well done, and credibly explains why there is no basis for Supreme Court involvement in this case.
Rep. Kelly's suit claims that legislative changes to Pennsylvania's election laws in 2019 that, among other things, expanded absentee voting violated the U.S. Constitution because they violated the state constitution. Rep. Kelly's suit further claims that the plaintiff's constitutional rights were violated because the Pennsylvania Supreme Court ruled against them and concluded the claims were precluded by the doctrine of laches (basically, that the plaintiffs waited too long to file their challenges). The questions presented by the Kelly filing are as follows:
- Do the Elections and Electors Clauses of the United States Constitution permit Pennsylvania to violate its state constitution's restrictions on its lawmaking power when enacting legislation for the conduct of federal elections?
- Do the First and Fourteenth Amendments to the U.S. Constitution permit the dismissal of Petitioners' claims with prejudice, on the basis of laches, where doing so foreclosed any opportunity for Petitioners to seek retrospective and prospective relief for ongoing constitutional violations?
Today's responsive filing on behalf of Pennsylvania walks through all of the jurisdictional and other problems with Rep. Kelly's claims. The introduction is worth the read to get a sense of all the issues, and how they cut against the plaintiffs. As appellate practitioner Raffi Melkonian tweeted, it almost reads like a law school issue-spotting exam, "but one that is too easy."
With that in mind, here's the introductory portion to the responsive brief:
Petitioners ask this Court to undertake one of the most dramatic, disruptive invocations of judicial power in the history of the Republic. No court has ever issued an order nullifying a governor's certification of presidential election results. And for good reason: "Once the door is opened to judicial invalidation of presidential election results, it will be awfully hard to close that door again. . . . The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable." Order, Wis. Voters All. v. Wis. Elections Comm'n, No. 2020AP1930-OA, at 3 (Wis. Dec. 4, 2020) (Hagedorn, J., concurring).
In seeking such unprecedented relief, Petitioners might be expected to present claims of the utmost constitutional gravity. Instead, the pair of claims they advance are fundamentally frivolous. Neither claim was pressed or passed upon below. Neither claim implicates a circuit split. Both claims are mired in procedural and jurisdictional defects that preclude this Court's review. The first question—which seeks to raise Elections and Electors Clause challenges to Act 77—is not actually presented by this case. And the second question—which argues that the Pennsylvania Supreme Court violated the First and Fourteenth Amendments in its application of laches—asks this Court to constitutionalize huge swaths of state procedural law without any credible basis in constitutional principles or this Court's precedents.
Even if Petitioners could surmount these obstacles, they would still need to justify the relief they seek. This first-of-its-kind injunction raises major constitutional questions. Yet Petitioners address none of them. They do not explain how a remedy premised on massive disenfranchisement would accord with the Due Process Clause, which requires the counting of votes cast in reasonable reliance on existing election rules as implemented and described by state officials. Nor do they seek to square their position with the separation of powers, the Twelfth Amendment, or basic principles of federalism—all of which foreclose the injunctive relief that Petitioners seek here.
These failings also explain why equity stands as an insuperable obstacle to Petitioners' application. "Democracy depends on counting all lawful votes promptly and finally, not setting them aside without weighty proof. The public must have confidence that our Government honors and respects their votes." Donald J. Trump for President, Inc. v. Pennsylvania, No. 20-3371, 2020 WL 7012522, at *9 (3d Cir. Nov. 27, 2020). But Petitioners would throw all that to the wind. After waiting over a year to challenge Act 77, and engaging in procedural gamesmanship along the way, they come to this Court with unclean hands and ask it to disenfranchise an entire state. They make that request without any acknowledgment of the staggering upheaval, turmoil, and acrimony it would unleash. In issuing equitable relief, this Court rightly seeks to avoid inflaming social disorder. So to say that the public interest militates against Petitioners would be a grave understatement. Their suit is nothing less than an affront to constitutional democracy. It should meet a swift and decisive end.
To my mind, the biggest problem with this suit is the lack of a real federal question. Whatever one thinks of the state law questions, the attempts to make a federal case out of these state law claims is quite strained, and the existence of independent and sufficient state law grounds should insulate the Pennsylvania Supreme Court's decision from review.
It is also worth noting that the underlying theory of Rep. Kelly's suit is in tension with the theory underlying Texas Attorney General Paxton's latest suit and other recent election suits. Whereas others have claimed that state legislatures have near-plenary authority to determine the manner of selecting presidential electors–and therefore election law changes made by non-legislative actors are suspect–Rep. Kelly claims the state legislature is constrained by the state constitution, but not as interpreted by state courts. So whereas other suits complain about state election administrators or state courts altering state election law without legislative approval, this suit claims that the constitutional problem is that Pennsylvania state courts failed to overturn changes to state election law made by the legislature. It is almost as if the theories are not based on principled consideration of the underlying constitutional questions, but are instead constructed to ensure the desired outcome.
UPDATE: Tuesday afternoon, as predicted, the Supreme Court denied Rep. Kelly's application for injunctive relief without recorded dissent.