This is another long one so I split it in two: the state case and the federal case. This is the state case with Rep. Kelly where Judge McCullough initially blocked certification:

See the previous posts here for prior analysis of PA’s litigation and where you can find the actual court documents to review:

https://thedonald.win/p/11QS2z2lzk/overview-of-3rd-circuit-litigati/

https://thedonald.win/p/11QRyJVvSJ/overview-of-case-statuses-in-pen/

And the new update for the Third Circuit case here:

https://thedonald.win/p/11Ql1ecN7o/

This time we’re just looking at our two big updates: The PA Supremes ruling on Rep. Kelly’s case and the 3rd Circuit ducking.

REP. KELLY’S CASE

This one started out as a surprisingly strong win for the Trump Campaign. The Commonwealth Court, with Judge McCullough presiding, actually agreed to hear evidence. So what was Judge McCullough ruling on?

Rep. Kelly’s group has a pretty straight forward case. Kelly's group sought to void the entirety of Pennsylvania's mail in voting system (part of Act 77 of 2019) by arguing it was unconstitutional and void ab initio (legal for 'from the outset' i.e. it was always unconstitutional from the moment it was passed to present day). Kelly's group asked for two things from the courts (called relief). These were requested in the alternative, meaning they wanted the courts to pick one or the other but not both: 1. Throw out all mail in votes and only count in-person votes. 2. Throw out the whole election and throw it to the PA legislator to pick electors.

In Judge McCullough’s opinion, they actually had a pretty good argument for this so she initially granted an injunction pending the hearing (celebrated as a big win but actually pretty normal for a court to order things kept in stasis while it hears evidence). She then scheduled the evidentiary hearing, but, the defendants (PA Sec. State, PA Gov., e.t.c.) filed an emergency appeal to the PA Supreme Court. Judge McCullough noted that this appeal tied her hands (“it appearing that Respondents…have filed a notice of appeal from this Court’s November 25, 2020 order, the evidentiary hearing…is continued generally”).

The PA Supreme Court agreed to hear the emergency appeal (which they do not need to do and is a bit rare, normally you have to wait until a case is done to appeal it). They then took up the matter to…completely sidestep it and it's a big sidestep. They dismiss ALL issues as MOOT under the argument that the plaintiffs (led by Rep. Kelly) didn't bring their claim fast enough. Let's dig in.

The PA Supreme Court instead raised the doctrine laches to decide the issue without reaching the merits (that means they specifically didn't rule on whether Act 77 was constitutional and they didn't rule if there was or was not fraud). 'Laches' is a common law doctrine we inherited from England (so you won't find it in a statute anywhere, it's a tradition) and is French for 'dilatoriness'. To really understand it, I need to also explain how a court 'sits'.

In the common law tradition used in the U.S. and U.K., among others, courts can sit in two modes: courts of law and courts of equity. In the U.K., even to this day, these are physically separate courts with different judges. Equity courts deal with writs, injunctions, basically requiring people to actually do something besides pay money. Courts of law generally deal with property and money. Equity courts believe their mission is generally to promote justice and fairness more so than a court of law which will happily screw you if you signed a contract screwing yourself. Equity courts are where you'll more frequently hear fancy Latin legal doctrines as they're based more out of tradition and philosophy. In the U.S., all of our courts are courts of both equity and law. That means they're always doing both at the same time. Why is that important here? Because Kelly's group brought a question to a court of law (mail in voting is unconstitutional) and asked for relief of equity (stop the electors/throw out votes). The PA Supremes then used a doctrine of equity to completely avoid answering the question entirely.

Next question: what is laches then? In a court of law you can take as long as your statute of limitations to bring a claim and it's fine. If the statute of limitations is 2 years and you take 1.5, that's cool. It's your case. Laches says, 'alright, you may be in the statute of limitations, but you took too long in the judge's opinion and prejudiced the case'. To succeed on laches, you need to show that:

1. There was a delay in filing suit.

2. The delay was not reasonable or excusable.

3. The person bringing the lawsuit tacitly agreed with the conduct they now complain about OR the defense suffered prejudice as a result of the delay.

So the PA Supremes are basically acknowledging that Kelly's group is in their right to bring the suit, but took the position that they should of brought it sooner. They can do this as a matter of equity, not law. How much sooner are we talking? The PA Supremes say it should've been filed before the 2020 election, potentially even before 2020.

If you remember the discussions in the two previous posts, however, we talked a lot about standing. That is, you can't actually bring a lawsuit unless you have been hurt. American courts, unlike some European courts, do not offer speculative relief. They only cure wrongs actually brought. So let's assume Kelly's group had brought a lawsuit back in 2019 as the PA Supremes seem to be saying they should have, what's the hurdle they run into? Nobody was actually hurt yet, there was no harm to right. Jenna Ellis made a similar comment noting this conundrum. It effectively puts plaintiffs in a catch-22: bring your lawsuit before you're hurt and risk having it thrown out for standing or wait until you actually get hurt and have it thrown out for laches. Either way, the PA Supremes get to dodge making a hard decision.

Can This Go To SCOTUS?

Yeeessss, technically, but it'll be hard. When it comes to election litigation the PA Supremes have been very careful to issue narrow rulings on just state law grounds/doctrines in order to avoid SCOTUS review. SCOTUS, after all, can only get involved if a question of Federal law is involved (or diversity jurisdiction but that doesn't apply here). That said, I believe Bush v. Gore started out as 'state grounds' that the SCOTUS decided it could jump in on so it's not impossible. The left-wing of SCOTUS will have plenty of ammo to try and persuade their colleagues to ignore it as a result though.

What’s Up With the PA Supreme Court?

So just as a bit of background, the PA Supreme Court is pretty partisan at the moment. Basically, the right-win of the court got in a political knife fight with PA’s former attorney general: Kathleen Kane which there were no political survivors. The right-wing lost two justices to a porn scandal allegedly leaked by the AG. The AG was, in turn, allegedly doing this in revenge for something I don’t quite remember. The AG herself was sentenced to prison for perjury and obstruction of justice. So it’s a mess at the state level.

Ask questions below and I'll try to get answers!