Supreme Court rejects bid to overturn Biden’s win in Pennsylvania

The Supreme Court has rejected a bid by a Republican member of Congress and other GOP activists to overturn President-elect Joe Biden’s win in Pennsylvania.

In a one-sentence order on Tuesday afternoon, the justices turned down the emergency request from Rep. Mike Kelly (R-Pa.) and two other House candidates to decertify the results of last month’s election in the Keystone State.

The high court acted without comment or noted dissent in the matter on the last day under federal law for states to submit their slates of presidential electors without being subject to potential contest in Congress.

Kelly’s suit, which was rejected by Pennsylvania courts, argued that legislation the state adopted last year allowing for no-excuse, mail-in voting violated the state constitution and that the results of last month’s vote should therefore be invalidated.

Critics said the request for the Supreme Court to take up the case was ill-founded because the justices do not typically step in to enforce state law provisions. They also faulted Kelly for waiting more than a year — and until after the hard-fought election was complete — to raise the legal challenge.

“Granting an injunction would sow chaos and confusion across the Nation while inflaming baseless concerns about electoral impropriety and ensnaring the Judiciary in partisan strife,” lawyers representing Pennsylvania wrote in a brief early Tuesday opposing Kelly’s request. “This case reaches the Court against the backdrop of unfounded claims — which have been repeatedly rejected by state and federal courts — that wrongly impugn the integrity of the democratic process and aim to cast doubt on the legitimacy of its outcome.”

Kelly’s last-ditch maneuver at the high court drew little attention until Sunday, when Justice Samuel Alito unexpectedly accelerated the state’s deadline to respond to the emergency application from Wednesday to 9 a.m. Tuesday. That prompted speculation among some conservatives that Alito or other Republican-appointed justices were planning to grant Kelly relief before Tuesday’s milestone to name presidential electors.

A contingent of Trump supporters tried to fan the flames around the case. Sen. Ted Cruz (R-Texas) sought to inject himself into Kelly’s case, going on a media campaign offering to present oral arguments, should the court have heard the case. Roy Moore, who in 2017 lost a special Senate election in Alabama to Doug Jones, also submitted a friend of the court brief that seemingly argued most early and mail voting should be deemed unconstitutional.

The high court’s action came after a day of jockeying over the import of that so-called safe-harbor deadline, as well as the dozens of election-related suits Trump and his allies have filed in state and federal courts across the country.

Media attention to the safe-harbor milestone prompted the Trump campaign to issue a public statement earlier Tuesday arguing that the date is of little consequence.

“The ‘Safe Harbor Deadline’ is a statutory timeline that generally denotes the last day for states to certify election results,” Trump lawyers Rudy Giuliani and Jenna Ellis said. “However, it is not unprecedented for election contests to last well beyond December 8.”

“Justice Ginsburg recognized in Bush v. Gore that the date of ‘ultimate significance' is January 6, when Congress counts and certifies the votes of the Electoral College,” they added. “The only fixed day in the U.S. Constitution is the inauguration of the President on January 20 at noon. Despite the media trying desperately to proclaim that the fight is over, we will continue to champion election integrity until legal vote is counted fairly and accurately.”

While the statement cited language Ginsburg used in the ruling that settled the election for George W. Bush, the campaign did not note that it appeared in a dissenting opinion and that the passage was endorsed by only one other member of the court, Justice John Paul Stevens. The court’s majority in that momentous decision indicated the case was of great urgency because of the safe-harbor date.

Nevertheless, Trump and his allies continue to launch lawsuits. Most recently, Texas Attorney General Ken Paxton, a Republican, asked the Supreme Court to stop four states that Biden carried — Pennsylvania, Georgia, Michigan and Wisconsin — from having their electors vote, making outlandish and false claims of widespread electoral fraud.

“These attempts are uniquely unserious — nothing has worked in court, in the legislature, and now the Texas Attorney General is seeking to just throw out the electoral votes all together in four fellow states,” Pennsylvania Attorney General Josh Shapiro, a Democrat, said in a statement. “These factless, baseless ‘lawsuits’ to stir confusion and doubt in our systems are un-American and we should not allow this circus to continue.”

Legal experts also laughed off the merits of Paxton’s case.

“It looks like we have a new leader in the ‘craziest lawsuit filed to purportedly challenge the election’ category,” Steve Vladeck, a law professor at the University of Texas, tweeted about the case. “So chalk this up as mostly a stunt — a dangerous, offensive, and wasteful one, but a stunt nonetheless.”

A few hours after the Texas filing, the Supreme Court ordered those opposing the effort to respond on a fairly tight timeline — answering by Thursday afternoon.

The scrap heap of failed Trump-related litigation continued to accumulate, reaching 50 losses as of Tuesday, according to the tally kept by one prominent Democratic election litigator, Marc Elias.

Meanwhile, two suits brought by Republican electors In Arizona and Wisconsin seemed poised to join the pile as well. The Trump allies led by attorney Sidney Powell received icy receptions from a pair of federal judges who questioned whether they even had the authority to consider lawsuits alleging widespread fraud in the election. Both cases, on behalf of Trump’s presidential electors, appear likely to be rejected — and in one case, that’s precisely what the lawyer for the plaintiffs said he was hoping for.

“What we would ask you to do is to dispose of both motions before you at once so we have an appealable order that we can immediately take to the United States Supreme Court so we can seek to join the case that Texas has brought,” said Howard Kleinhendler, an attorney for the GOP electors in Wisconsin.

After the judge, Pamela Pepper, an appointee of President Barack Obama, noted that the plaintiffs would first have to contend with the 7th U.S. Circuit Court of Appeals, Kleinhendler said they planned to pursue an “extraordinary writ” that would expedite bringing the case to the high court.

At a hearing held by Zoom in the Arizona case, Judge Diane Humetewa expressed concern that the suit brought to her was “late-filed” and retreading covered ground because the claims were already being litigated in the state courts.

“At this juncture, I’d like to understand why your complaint should survive,” the Obama-appointed judge said to attorney Julia Haller, who resigned from the Trump administration last month to jump on board Powell’s legal drive.

Haller said federal constitutional rights were at stake, and she suggested the state courts couldn’t be trusted to handle such suits.

“It would make things very complicated for a judge in state court to have to address a claim against a sitting governor,” she said. “This court always has federal jurisdiction over fundamental rights of voters.”

Haller asserted an “injection of votes” in five states late on Election Day night at roughly the same time. She blamed equipment from Dominion Election Systems and said it boosted the number of votes for Biden, although experts have said such alteration would be quickly caught because of paper receipts the machines print out for voters. It was also widely reported in advance of the election that most of Trump’s voters were expected to vote in person, while many Biden supporters would cast absentee or mail-in ballots that are often counted later in the process.

Justin Nelson, a lawyer for Arizona Secretary of State Katie Hobbs, a Democrat, and other state officials targeted in the suit, called the claims “utterly implausible.”

“Their supposed experts have no expertise and their opinions have fatal methodological flaws,” Nelson said.

In neighboring Nevada, the state Supreme Court was also considering a last-ditch bid by Trump electors to derail Biden’s win there. Attorneys for the Democratic electors set to vote in next week’s formal tally urged the court to definitively reject the case and to do so quickly.

This Court should act today, before Congress’s ‘safe harbor’ date … to foreclose Contestants’ further attempts to hijack the democratic process with their baseless arguments and unsubstantiated accusations,” lawyers for the Democrats wrote. “The time for foot-dragging is over.”

The pro-Trump forces were ultimately left emptyhanded at Nevada's highest court. Late Tuesday night, the court announced it had voted, 6-0, to uphold a lower court ruling rejecting the suit by Trump electors.