U.S. Rep. Mike Kelly has backed President Donald Trump throughout Trump's four years in office, and the two Republicans remain joined until the very end.
Both want to upset the results of the election.
Kelly lost his effort on Saturday, just as Trump and his campaign have continued to come up short in court.
The state Supreme Court on Saturday dismissed Kelly's lawsuit, in which he sought to invalidate the more than 2.5 million mail-in ballots that Pennsylvanians used to vote in the Nov. 3 election.
The suit also sought to have the GOP-controlled state General Assembly select new electors for the Electoral College, which could have delivered the state's 20 electoral votes to Trump rather than Democrat Joe Biden.
Kelly — who on Nov. 3 won his sixth consecutive two-year term as a congressman —claimed the General Assembly's bipartisan approval of mail-in ballots in 2019 violated the state constitution.
He was the lead petitioner in the suit, similar to a plaintiff, and sued on Nov. 21.
As the Trump campaign's legal losses continue to mount, Kelly's lawsuit remained alive for a time in the Pennsylvania appellate courts.
The congressman from Butler, whose 16th District includes Erie, won a procedural victory this past week, only to have the state Supreme Court dismiss the case on Saturday evening
In an unsigned order, the seven-member state Supreme Court unanimously found that Kelly and the other petitioners had waited too long to challenge the state law that authorized mail-in ballots, Act 77 of 2019.
"The want of due diligence demonstrated in this matter is unmistakable," the court ruled. "Petitioners filed this facial challenge to the mail-in voting statutory provisions more than one year after the enactment of Act 77.
"At the time this action was filed on November 21, 2020, millions of Pennsylvania voters had already expressed their will in both the June 2020 Primary Election and the November 2020 General Election and the final ballots in the 2020 General Election were being tallied, with the results becoming seemingly apparent."
The justices ruled "to dismiss with prejudice Petitioners' petition."
Though the suit was tossed, it added to the bizarre nature of an election that the president is still claiming he won — even as the Pennsylvania state government has certified Biden as the winner of the presidential election in Pennsylvania and as Biden's official transition into the White House has started with authorization from Trump's own administration.
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On Nov. 21, 18 days after the election, Kelly sued in state Commonwealth Court along with seven other petitioners: Sean Parnell, an unsuccessful GOP congressional nominee in the 17th District, which includes all of Beaver County and parts of Butler and Allegheny counties; Wanda Logan, an unsuccessful GOP nominee for a state House race in Philadelphia; and five voters, including an Erie County resident, Nancy Kierzek.
The respondents, whom Kelly and the other petitioners sued, were the state of Pennsylvania, the GOP-controlled General Assembly and Gov. Tom Wolf, a Democrat, and the state's secretary of state, Kathy Boockvar.
Kelly and the other petitioners did not claim fraud, as has been the case in many of the election challenges of the Trump campaign. They instead argued that Act 77 of 2019, which authorized universal "no excuses" mail-in voting, was unconstitutional, even as the law passed with widespread Democratic and Republican support.
The proper way to adopt universal mail-in voting, they claimed, is to amend the state constitution.
The remedy, according to the suit, was for the courts to strike down Act 77 and declare "invalid any certification of results that include the tabulation of unauthorized votes, including mail-in ballots that did not meet the Constitutional requirements."
Kelly and the others wanted the courts to toss the mail-in ballots, which would have made Trump the winner in Pennsylvania, or take other steps that would invalidate Biden's victory in the state.
Though tossing the mail-in ballots would have affected Kelly's race, he still recorded enough regular votes to defeat his Democratic challenger, Erie resident Kristy Gnibus, even with no mail-in ballots counted. The state has yet to certify the votes in his race, but he is the clear winner, according to the unofficial count.
The case went before Commonwealth Court Judge Patricia A. McCullough, a Republican. On Wednesday, she scheduled an evidentiary hearing for Friday. In the meantime, she ordered the state to stop "certifying the remaining results of the Election," a day after Boockvar certified Biden as the winner of the presidential election in Pennsylvania by 80,555 votes, capturing the state's 20 electoral votes.
McCullough on Wednesday evening called off the hearing for Friday after Wolf and Boockvar appealed McCullough's order to the state Supreme Court, which does not have to accept all the appeal requests before it. McCullough's order remained in effect until the state Supreme Court ruled.
In its ruling on Saturday, the state Supreme Court, composed of five Democrats and two Republicans, vacated McCullough's order.
McCullough's order, if left to stand, could have held up the state certification of down-ballot winners on Nov. 3, including Kelly's race, or interrupted the Dec. 14 meeting of the state's 20 electors. In her order, McCullough temporarily enjoined the state from acting, "to the extent that there remains any further action to perfect the certification of the results" of the election for president and vice president in Pennsylvania.
Wolf, Boockvar and the General Assembly wanted the suit tossed as meritless. They argued that, among other things, the petitioners waited too long to challenge the constitutionality of Act 77, that the law is constitutional in any case and that the suit is moot because the state already certified the results of the presidential election.
"The relief Petitioners seek is simply breathtaking," the state Attorney General's Office and other lawyers for Wolf and Boockvar wrote in a filing that seeks to dismiss the suit. "They ask this Court to invalidate Pennsylvania’s voting laws, undo the results of Pennsylvania’s general election, and disenfranchise several million voters."
The lawyers also criticized McCullough for issuing the order that temporarily halted the certification of the vote.
"Since the birth of our nation nearly 250 years ago, no court has ever issued an order purporting to interfere with a state’s ascertainment of its presidential electors — until today," the lawyers wrote in their appeal request to the state Supreme Court. "There is no conceivable justification for the lower court’s issuance of such an order in this case."
The lawyers for the General Assembly, where the majority of the lawmakers are in the same party as Kelly and Trump, also sought to get the case dismissed.
"The votes petitioners seek to invalidate were cast by a constitutionally-permissible method," they wrote.
The state Supreme Court's decision added to the string of court defeats for Trump and his allies,
On Friday, the Philadelphia-based 3rd U.S. Circuit Court of Appeals upheld a federal judge's dismissal last week of a suit in which Trump lawyer Rudy Giuliani claimed irregularities with the mail-in ballots in Pennsylvania and sought to block the certification of the vote.
At the same time, a number of Republicans in the state House have not given up on challenging the election results. Twenty-six of them on Friday proposed a resolution that disputes the results and calls on Wolf and Boockvar to set them aside. Among those signing on were Rep. Brad Roae, of East Mead Township, Crawford County, R-6th Dist.; and Rep. Kathy Rapp, of Warren, R-65th Dist.
Kelly could not be immediately reached for comment for this article. In an interview published in the Erie Times-News on Nov. 10, Kelly did not claim proof of election fraud, but said allegations of voter irregularities should be investigated before declaring a winner in the presidential race.
"The election isn't over yet," Kelly said. "Everything that we've heard so far makes it look like it's going to go to Joe Biden. But the second part of that is, let's wait for it to go its full process, and at the end of that, after everything's been looked at and everything has been evaluated, and the totals are the totals, then we're going to determine who the winner is. I think it's very premature to say who the winner is right now."
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Trump, who welcomed Kelly at a campaign rally at Erie International Airport on Oct. 20, had high praise for Kelly going to court.
This is not at all frivolous. It is brought on behalf of one of the most respected members of the United States Congress who is disgusted, like so many others, by an Election that is a fraudulent mess. Fake ballots, dead people voting, no Republican Poll Watchers allowed, & more! https://t.co/mOGdSOeZW8
— Donald J. Trump (@realDonaldTrump) November 22, 2020
"This is not at all frivolous. It is brought on behalf of one of the most respected members of the United States Congress who is disgusted, like so many others, by an Election that is a fraudulent mess," Trump tweeted on Nov. 21, when Kelly and the other petitioners sued.
Trump was responding to a Democratic lawyer who called the suit "frivolous."
Referring to claims he has yet to prove in court, Trump also put in his tweet, "Fake ballots, dead people voting, no Republican Poll Watchers allowed, & more!"
Twitter attached a caution to Trump's tweet: "This claim about election fraud is disputed."
This article originally appeared on Erie Times-News: US Rep. Mike Kelly's lawsuit dismissed as Trump's court losses grow