A few days ago, I forwarded a note about the proposed joint resolutions of the Pennsylvania legislators to refuse to certify the results of a patently fraudulent election. I got a response which certainly anticipates the Democrats’ talking points: “Disenfranchising voters is not what conservatives do.”

Of course not. It's what Democrats do by diluting their votes time and again with illegal and nonexistent voters. Refusing to recognize fraud by removing such votes from the tally at certification time is what conservatives should do. To fail to do so is to ensure that we will never have free, honest elections again and legal voters voting in accord with relevant laws will be disenfranchised while illegal and nonexistent voters will win.  Scott Adams observes correctly that when people lose confidence in the regularity of elections, the orderly respect for government  and the willingness to comply with it will end. To fail to do so, as well, means the legislatures in these states will  have gelded themselves by refusing to enforce their prerogatives under the law. In the meantime, while state legislatures ponder their responsibilities, a large number of election challenges are being litigated around the country.  Here are the most significant ones.

Pennsylvania

Prior Supreme Court Ruling

The rule changes permitting the mail-in ballots’ deadline extension has already been heard by the Supreme Court when Justice Barrett had not yet been confirmed. While the Court said late-arriving ballots must be segregated it indicated it was likely to rehear the matter post-election. That case does not involve  all of the issues respecting the mail in ballots -- the failure to verify and match signatures on mail-in ballots as required by law was not then under consideration -- though the issue may have been preserved as it had been raised in the lower court. 

Present Injunction against Certification

The U.S. Supreme Court has addressed various circumstances concerning disenfranchisement of votes. For instance, it has held the right to vote is foundational to our Republic and this fundamental right “can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555 (1964). Reynolds, which established the “one person, one vote” doctrine, is the seminal case on voter dilution. Under this concept, a mail-in voting process that would exceed the limits of absentee voting prescribed in Pa. Const. Article VII sec 14 could be construed as violating the “one person one vote.” In that event, the sheer magnitude of the number of mail-in ballots would not be a basis to disregard not only this provision of the Pennsylvania Constitution but also the “one person, one vote” doctrine established by Reynolds, one of the bedrock decisions of the U.S. Supreme Court. 

This language is from the ruling of a Pennsylvania state court judge who has issued a preliminary injunction preventing Pennsylvania from perfecting its certification of the election and the appointment of electors or submitting the paperwork on electors to the Electoral College. The injunction is in effect until there is a full evidentiary hearing and is designed to preserve the status quo until the charges are investigated and adjudicated.

The charges are that the mail-in provisions of Pennsylvania Act 77 are at odds with the plain language of Pennsylvania Constitution Article VII, Section 14 

In the Petition, Petitioners allege that the Act of October 31, 2019, P.L. 552, No. 77 (Act 77), which added and amended various absentee and mail-in voting provisions in the Pennsylvania Election Code (Election Code),1 is unconstitutional and void ab initio because it purportedly contravenes the requirements of the Pennsylvania Constitution. Petitioners allege that Article VII, section 14 of the Pennsylvania Constitution provides two exclusive mechanisms by which a qualified elector may cast his or her vote in an election: (1) by submitting his or her vote in propria persona at the polling place on election day; and (2) by submitting an absentee ballot, but only if the qualified voter satisfies the conditions precedent to meet the requirements of one of the four, limited exclusive circumstances under which absentee voting is authorized under the Pennsylvania constitution. (Petition, ¶16.) Petitioners allege that mail-in voting in the form implemented through Act 77 is an attempt by the legislature to fundamentally overhaul the Pennsylvania voting system and permit universal, no-excuse, mail-in voting absent any constitutional authority. Id., ¶17. Petitioners argue that in order to amend the Constitution, mandatory procedural requirements must be strictly followed. Specifically, pursuant to Article XI, Section 1, a proposed constitutional amendment must be approved by a majority vote of the members of both the Pennsylvania House of Representatives and Senate in two consecutive legislative sessions, then the proposed amendment must be published for three months ahead of the next general election in two newspapers in each county, and finally it must be submitted to the qualified electors as a ballot question in the next general election and approved by a majority of those voting on the amendment. According to Petitioners, the legislature did not follow the necessary procedures for amending the Constitution before enacting Act 77 which created a new category of mail-in voting; therefore, the mail-in ballot scheme under Act 77 is unconstitutional on its face and must be struck down. Id., ¶¶27, 35-37. As relief, Petitioners seek, inter alia, a declaration and/or injunction that prohibits Respondents from certifying the November 2020 General Election results, which include mail-in ballots that are permitted on a statewide basis and are allegedly improper because Act 77 is unconstitutional.

The judge indicates that the issue is one of law and has been fully briefed by the parties so that the Court “can state that Petitioners have a likelihood of success on the merits of it Pennsylvania Constitutional claim.” The Court dealt with the disenfranchisement argument, summarily.

It’s not clear where the litigation will end.

Given how the PA Supreme Court has ruled previously on election matters, expanding procedures beyond what even the legislature adopted, I don’t see how this survives the PA Supreme Court. From there, the next stop is the U.S. Supreme Court where we know John Roberts and the three liberal Justices will defer to the state supreme court. But the Court is now 6-3, so a Roberts defection would not result in a 4-4 deadlock again if the 5 conservative Justices voted together.  

A former federal prosecutor with 22 years of experience explains:

The Pennsylvania Supreme Court can simply do nothing, and let the calendar take care of the problem by mooting out her order as of December 14 when the Electoral College meets to vote.

But, there are several matters that have come out of the Pennsylvania Supreme Court that I expect to see as the subject of petitions filed in the United States Supreme Court next week -- in addition to the Third Circuit case where the Court seemingly went out of its way in its opinion to note that much of the opinion rested on decisions in this election cycle by the Pennsylvania Supreme Court.

This challenge to Act 77 will likely not be the subject of any definitive Pennsylvania Supreme Court action in time to be taken up by the US Supreme Court as part of a review of these other matters.

But that doesn’t mean the Justices won’t be aware of the issue and how the Pennsylvania Supreme Court responded -- or failed to respond.

Action by State Legislatures

At the same time representatives of the Pennsylvania State General Assembly have filed a resolution to refuse to certify the results of the election to the Electoral College, something they are not authorized to do until December 8. The resolutions are scheduled to be heard this Monday. Under the U.S. Constitution, the legislature has the perfect right to refuse to certify or to pick another set of electors.  Neither the state Supreme Court nor election officials can rob the legislature of its prerogative under the U.S. Constitution.

Congress can determine whether to accept or reject the forwarded electoral panels and has in the past. And I remind you again that the House votes on this issue by state and the Republicans hold the largest number of states, something even CNN acknowledges. They can undo certifications of compromised elections and appoint a clean slate of electors.

Apart from the multiple election challenges in several states which allege fraudulent counting and procedures, several other state challenges, like the one in Pennsylvania, include arguments that the procedures under which the elections were held are contrary to the methods set forth by the legislatures, which under the U.S. Constitution are the binding rules respecting the time, manner, and place of the national elections in those states.

Thus, in Wisconsin,  Rudy Giuliani contends that 50-60 thousand absentee ballots were included without any application for them and argues those must be discarded from the count which, if done, would mean Trump wins Wisconsin.

Elsewhere I have discussed the Sidney Powell suit in Georgia which, among other things, argues that the election was held under rules which violated both the U.S. and  Georgia constitutions. Georgia election officials are  also charged by Lin Wood with having ignored the election laws set forth by the legislature; that suit is presently on appeal on an expedited basis. 

Hearings by State Legislatures

On November 25, members of the Pennsylvania legislature held a hearing on the election which documents the fraud that occurred there. 

State legislatures are conducting hearings in Michigan and Wisconsin, and on November 30, Arizona will as well. We can anticipate a lot of action until December 8, when the states submit the names of their electors to the Electoral College, and from then to December 14 when Congress decides which electors to count.