I asked the lawyer who previously reviewed Sidney Powell’s GA filing to look at the recent PA Supreme Court ruling. He graciously consented to share his thoughts, which follow.
So here’s my brief take on the Pennsylvania Supreme Court Decision. The usual disclaimers in this case are that I do not practice in Pennsylvania State courts, nor is election law my typical case. Nonetheless, several things stand out to me.
Before addressing those issues, let me clarify a few things. Court decisions must be interpreted in light of several factors, not least of which is: 1) what is the court that is issuing the opinion; and 2) what is the relief sought?
In this case, it is a Pennsylvania state court and the plaintiff were seeking an order prohibiting certifying the results of the election. Both of these are significant. It is significant that it is a state court because state courts generally are not viewed as intellectually rigorous as federal courts. Further, federal courts are viewed, rightly or wrongly, as less partisan than state courts. Federal courts also can address federal and state issues while state courts are typically limited to state issues. There are exceptions but I’m not going to go into them now.
The remedy at this point is also significant. Generally speaking, there are two types of remedies: legal and equitable. Legal remedies are usually monetary damages after something has occurred. Equitable remedies are court orders to make someone act in a certain way, either to do something or refrain from doing something. At common law, legal and equitable courts were different. In most US courts, whether federal or state, they are merged.
So the original PA complaint starts by saying, “The amendments to the mail-in voting rules were not lawfully passed. So, this court should not allow mail-in votes that were authorized under those statutes.” There was a flurry of filings and activity at the beginning of this week about that. In the middle of it, the PA Secretary of State ‘certified’ the ballot. Once that was done, the defendants tried to claim that the case was moot, or that there was no need to go further. The trial court said, “No, there are several other things the Secretary of State has to do before the certification is proper so it is not moot.”
The trial court judge is a Republican. PA as a state allows partisan elections for judges. The PA Supreme Court has 2 Republicans and 5 Democrats. The trial court judge ultimately found that the laws amending the mail-in ballots were not approved according to the rules for modifying PA statutes. So, she said, “You cannot count those votes.” The defendants appealed.
Here is where it gets interesting. At common law, equitable cases had a variety of doctrines and defenses that did not apply for legal remedies. As one example, one who seeks a suit in equity must come with ‘clean hands.’ So if you can show that the plaintiff engaged in illegitimate behavior, you can argue that the plaintiff should not get an equitable decision even if that decision might otherwise be justified.
Another equitable doctrine is ‘laches,’ which means that you have to timely act. It is a defense that essentially says, “Plaintiffs took too long to make their claim.” Note that a laches defense does not address the merits of the underlying argument. It is solely a procedural claim.
The Pennsylvania Supreme Court relied upon laches and said, “This law went into effect a year ago and none of the Plaintiffs did anything about it.” The opinion notes that the plaintiffs did nothing upon the law’s passing. The PA Supreme Court says, “They waited until millions cast their vote” so they will not allow the suit to go forward.
However, there is another legal doctrine, one called ‘standing’. Standing simply means that you yourself have to suffered an injury. Think of environmental groups that try to stop the Navy from using sonar to map the ocean floor because the use of sonar damages whales and dolphins. Courts typically say, “Even if you are 100{3aedcb51dac2fbb83a885d32b07950f3050377138d02430f831f0a3ede84357a} right, you aren’t being injured. And you do not have the capacity to sue for the whales and dolphins. You do not have standing to bring suit.” And they then dismiss the suit. No joke. There are several reported decisions about this.
The key to laches it that the delay has to be unreasonable. So if you learn that your city is going to bulldoze a public playground where you take your children, you cannot wait until the playground is razed and they start putting up the apartment complex to file your suit. The PA Supreme Court, without any discussion of the merits, just said, “You’re too late. You lose.” The PA Supreme Court has 5 Dems and 2 Rs. The Rs concurred but said there should be a hearing about the problems with the votes. They essentially said, “Voiding every mail in ballot is too much right now so we would void the trial court order, but we would let the claims go forward and see where that leads.” Put another way, if the evidence shows that X{3aedcb51dac2fbb83a885d32b07950f3050377138d02430f831f0a3ede84357a} of the mail-in ballots were fraudulent, we would not oppose striking those ballots, but we aren’t going to grant a blank check at this stage of the game.”
Realistically, given current standing doctrine, there is no way Plaintiffs could have succeeded if they raised this challenge prior to this election. Any potential injury would be too speculative. That is, if they filed suit in December, 2019, the ruling from the court would have been “Plaintiffs challenge how this became law but Plaintiffs do not allege that they are injured in any way. Some of the Plaintiffs announce their intention to run for office but it is not clear whether they will or if they will succeed in the primaries or if any votes would go their way or not. Because they cannot point to an actual injury, they lack standing to assert these claims. Case dismissed.”
Further, if a law is unconstitutional for whatever reason, it can be challenged at any given time. Constitutionality is like jurisdiction: one does not need to assert it to preserve it. So even if a case is tried and lost, you can raise jurisdiction on appeal and argue for the first time that the lower court had no jurisdiction. Not likely the best way to argue a case, and might have the courts thinking that such an argument is just a Hail Mary that won’t go anywhere, but arguing that the statute is unconstitutional will not be dismissed with a blithe “You’re too late” opinion from the court.
So where does this leave the Plaintiffs? There is now nothing preventing them from seeking Supreme Court review. This does not mean that the Supreme Court will take it but it does mean that there are enough opinions that the Supreme Court can take it. Will they?
Maybe. It comes from a state Supreme Court on an incomplete record. The trial court had issued an order and was anticipating hearings that would develop evidence. That did not happen and the PA Supreme Court certainly did nothing to develop a factual record. But the trial court did consider the evidence before it (primarily affidavits) and relied upon that evidence to issue an injunction. The Supreme Court could pass on this case. That does not mean they agree with the PA Supreme Court. It could just mean that there is an insufficient factual record for them to adequately rule.
The U.S. Supreme Court could revive the injunction, send it to the trial court with an order for further evidence and delay a final ruling until the evidence is developed so the parties can know which ballots are a real problem and which cannot be verified. The Supreme Court could also issue a ruling that problematic ballots cannot be counted and remand the matter to a trial court to determine what mail-in ballots did not comply with PA laws prior to the enactment of their new mail-in-balloting scheme.
There is a Third Circuit opinion that denied the Trump campaign’s petitions. That could be appealed as well. It could be that the Third Circuit case and this case are combined with directions on how to handle the PA issues.
Given the number of cases that are pending, I would bet that the USSC would take some type of case if for no other reason that it would give guidelines to lower courts, including appellate courts, for how to decide these cases in the future. In 2000, Bush v Gore was just the state of Florida. Here, we are dealing with Georgia, Pennsylvania, Michigan, Wisconsin, Arizona and Nevada. Those states have differing election laws and criteria. Realizing the challenging occurring elsewhere, it might be worthwhile for them to take PA now to issue rulings to guide other courts.
And if those other states are still in contention by December 8, those elections could be referred to their state legislatures for the legislature to appoint a board of electors.
I make no claim about what will happen. I know courts prefer to make as narrow ruling as possible, everything else considered. If the USSC can say, “PA’s rules about mail-in-ballots are not legitimate and so those votes cannot be counted,” that is far more limited than throwing out the whole election and they would prefer that if at all possible. Such a ruling could guide any number of states, including GA. Time is rapidly dwindling for courts to make a decision about whether they will decide the dispute or whether they will declare that state elections have not been decided and it goes to the state legislatures.
Until then, nunc pugnamus.
