Back on November 21, Republican Rep. Mike Kelly headlined a group of Trump loyalists in filing a lawsuit that went beyond just asking for certification of Pennsylvania votes to be halted, but insisted that the votes of 2.5 million Pennsylvania citizens had to be discarded. At the time, it was clear the entire filing was actually intended for an audience of one—just not the usual audience of one. Sure, the whole purpose of the filing was to demonstrate Kelly’s loyalty to Donald Trump, but the real target was Supreme Court Justice Samuel Alito.
In an earlier ruling, Alito referred to a Pennsylvania law known as “Act 77,” which served to expand the scope of mail-in ballots in the state. Alito didn’t given an opinion on the rule, but made it clear he thought the law’s mail-in ballot provisions could be invalidated if votes that arrived after Election Day were not segregated. So Kelly and Co. crafted a case that designed to attack specifically along those lines. Then, after it failed in other courts, the Pennsylvania Supreme Court gave Kelly’s suit a huge slapdown on Saturday, dismissing it as an attempt to disenfranchise millions of voters … which it is.
And now that Kelly has lost in all the other places, he’s ready to go where he wanted to go in any case. He’s made an emergency appeal to Alito to prevent the certification of Pennsylvania’s election results … even though Pennsylvania already certified its election results.
Actually, what Kelly’s lawsuit asks is that Alito prevent Pennsylvania from “taking any further action to perfect the certification of the results” and in prevent officials from “taking official action to tabulate, compute, canvass, certify, or otherwise finalize the results.” But since all of that computing, canvassing, and certifying has already been done, it would all seem to be the definition of moot.
Except that “prevent” isn’t the only thing that the suit is seeking. In a update of the request to the state courts, Kelly now asks:
“To the extent that the above-prohibited actions have already taken place, Petitioners seek an injunction to restore the status quo ante, compelling Respondents to nullify any such actions already taken...”
So they’re no longer actually asking for the Court to halt counting or prevent certification, they’re asking that the court undo certification, and roll back tabulation … again for the express purpose of invalidating 2.5 million ballots.
The claim by Kelly, et. al. is that the whole of Act 77 represents an unconstitutional change of Pennsylvania’s voting law, and that there’s no choice but to throw it out completely. Which in turn, they say, means there’s no choice but to throw out all those votes. And they helpfully provide two options from there: either retotal the votes without mail-in ballots, handing the electors to Trump; or just toss the whole thing to the Republican-controlled state legislature, and let them hand the electors to Trump. Easy peasy.
Of course, there are a few problems with this request that previous judges have been happy to point out:
- The proposed remedy represents a huge, direct, and deliberate disenfranchisement of Pennsylvania voters who were told their votes could be made by mail.
- There was plenty of time to file such a lawsuit before the election, rather than waiting until everything was counted.
In short, it’s clear that the suit isn’t about the law, it’s about the outcome of the election and an effort to alter that outcome. Pennsylvania courts were not amused.
It’s unlikely that, even though Kelly’s group followed the trail of breadcrumbs Alito left in his previous statement on Act 77, the justice would find that there was a reason why the PA Supreme Court’s ruling wasn’t definitive. But then … Alito has been known to get extremely fond of his own form of literalism when it pleases him.
Three hours after Kelly sent his emergency application to Alito, there has been no writ. But then, since there’s nothing really happening, it’s not exactly an emergency emergency. So maybe Alito is walking around the offices of his new big church service > dying from COVID-19 majority seeking out the other three votes he would need to offer Kelly a certiorari review. But … probably not.
More likely, Rep. Mike Kelly will go down having made a fool of himself at every level of state and federal court. But that’s not what matters. What matters is that he’ll be able to prove that he was Trump’s fool to the bitter, bitter end.
