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U.S. Supreme Court Justice Samuel A. Alito Jr. Gives State Officials Until Dec. 9 To File Response, General Assembly’s Republican Leadership “have No Intention of Doing So”

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he date set by Justice Alito — who oversees emergency petitions arising from Pennsylvania, New Jersey, and Delaware for the court — comes one day after what is known as the “safe harbor date,” the federal deadline for states to resolve outstanding challenges to their elections. Once it has passed, the state’s slate of appointed electors is considered to be locked in for the Dec. 14 Electoral College vote.

An unequivocal statement from the General Assembly’s Republican leadership states that they had no intention of doing so.

The Senate Republican Leadership Team for the 2019-20 Legislative Session includes (front row, left to right) Senate Majority Leader Jake Corman; Senate President Pro Tempore Joe Scarnati; Majority Whip John Gordner; (back row, left to right) Majority Caucus Chairman Bob Mensch; Appropriations Committee Chairman Pat Browne; Majority Caucus Secretary Ryan Aument; Majority Caucus Administrator Kim Ward; and Majority Policy Committee Chairman David G. Argall.
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Supreme Court order, state GOP leaders effectively end Trump’s hope for Pa. legislators to reverse election results

By Jeremy Roebuck, The Philadelphia Inquirer, December 4, 2020:

If its fate had not been abundantly clear already, President Donald Trump’s dream of having Pennsylvania’s GOP-controlled legislature overturn the state’s election results received what appeared to be its final death blows Thursday with a late-night order from the U.S. Supreme Court and an unequivocal statement from the General Assembly’s Republican leadership that they had no intention of doing so.

The Supreme Court order came in response to a request from one of the president’s top boosters in Congress, U.S. Rep. Mike Kelly (R., Pa.), who has asked the justices to declare the state’s vote-by-mail law unconstitutional and to “decertify” Pennsylvania’s results, which cemented President-elect Joe Biden’s victory by roughly 81,000 votes last week.

But just hours after Kelly filed that appeal Thursday, U.S. Supreme Court Justice Samuel A. Alito Jr. crafted a telling schedule for the case, giving state officials until Dec. 9 to file their reply.

The date set by Alito — who oversees emergency petitions arising from Pennsylvania, New Jersey, and Delaware for the court — comes one day after what is known as the “safe harbor date,” the federal deadline for states to resolve outstanding challenges to their elections. Once it has passed, the state’s slate of appointed electors is considered to be locked in for the Dec. 14 Electoral College vote.i

It is still possible — though, election law experts said, unlikely — that the Supreme Court could decide to consider Kelly’s appeal about the constitutionality of Pennsylvania’s mail voting law outside the context of the 2020 election.

But the schedule laid out by Alito appeared to foreclose any chance of the court weighing in before its outcome had been finalized.

“The timing here matters,” said University of California-Irvine law professor Richard L. Hasen, in a post Thursday evening on his Election Law Blog. “I don’t see a path for Trump to use court cases to overturn the election results in even one state, much less the three states he would need at a minimum to get a different result in the Electoral College. But as the clock ticks down, those tiny chances fade into nothing.”

UPDATE: From Legal Insurrection

Pennsylvania – Don’t Assume Alito Giving Until 12/9 To Respond To Emergency Application Means He’s Letting It Die On the Vine

By: William Jacobson, December 4, 2020:

On December 1, 2020, we covered an emergency application for injunctive relief sought to halt any further actions by Pennsylvania to certify the election, Pennsylvania: Emergency Injunction Sought From SCOTUS To Halt Any Further Certification Actions.

See that post for background on the case, and my admittedly pessimistic assessment.

Another Emergency Application, substantially similar, was filed yesterday, December 3. That made no sense to me, why would they file twice?

I spoke to an attorney handling the case, and the explanation is that the first filing took place prior to a stay being sought from the Pennsylvania Supreme Court, which issued the decision at issue. Out of concern that the US Supreme Court might deny the stay on the procedural ground that a request had not been made to the state court, the attorneys waited for the PA Supreme Court predictably to deny the stay, and then refiled on December 3.

According to the Supreme Court docket, Justice Alito, who covers the Third Circuit, gave Pennsylvania and the other Respondents until next Wednesday to file responses.

Response to application (20A98) requested by Justice Alito, due Wednesday, December 9, by 4 p.m.

There is a lot of chatter that such a long period of time, under the circumstances, must be a way for Alito to let the application die on the vine, that the application would be “moot” or otherwise pushing it off to make meaningful relief impossible. Certainly, we can’t read Alito’s mind, but if there’s anyone on SCOTUS I don’t worry about playing such games, it’s Alito (and Thomas, too early to tell for Gorsuch, Kavanaugh, or Barrett).

In my mind-reading exercise, Alito giving the respondents’ enough time to fully prepare opposition likely means he and some other Justices take the matter seriously, and plan to rule on the merits once the opposition is submitted, rather than limiting their ruling to emergency injunctive relief. They could treat the Emergency Application as a Petition for Certiorari, accept it, and rule substantively. The few days gives the Justice enough time to prepare their respective opinions — it’s not like they really need briefs from the respondents to know the counter-arguments.

What that ultimate merits ruling would be remains to be seen. In my prior post, I was very pessimistic that SCOTUS would take the case or rule in a way that would change the state result. That’s not to say that what the PA Supreme Court did was right — it wasn’t and that PA Court has acted more like a litigant throughout this process. Mark Levin’s Landmark Legal Foundation has filed an Amicus Brief laying out the defects with the PA Supreme Court ruling.

The issue I keep coming back to is what is the remedy. SCOTUS could rule that the non-absentee mail-in votes were unlawful, and order that PA certify the vote and appoint electors based on the lawful vote only. That seems to be the only remedy to grant relief that works under the timeline for selecting the electoral college. (Denying the Application of course also is a possiblity.) Kicking the matter over the the PA legislature to select electors could be an alternative though less timely, but again, it would require disqualifying the mail-in vote as unlawful.

Would SCOTUS take such a step? It would mean that millions of voters who honestly thought they were lawfully voting would not have their votes counted. Don’t think for a second that the Justices don’t understand the political implications or are not sensitive to them.

I think we’ll find out one way or the other, but I don’t think Justice Alito is playing games to allow the case to die on the vine.

 

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