You all remember the lawsuit brought by Congressman Mike Kelly in Pennsylvania regarding the state’s changes to the mail-in voting and elections, which he says were unconstitutional. The state supreme court rejected the case, and Kelly took it to the United States Supreme Court.
Justice Alito didn’t dismiss it, but he did allow time for a response and set the deadline for this week on Wednesday. The problem with that was that the deadline extended past the so-called “safe harbor” deadline.
You see, all disputes about electors are required to be settled six days prior to the date when the electoral college will meet to cast their state’s votes for President. That’s the 14th, which makes Tuesday the 8th the safe harbor deadline. So in other words, with a response time that extended to the 9th, they could safely ignore Kelly’s lawsuit until it was too late to overturn anything.
Well now that’s changed. It’s now Tuesday. Which is HUGE.
UPDATE: Justice Alito has just moved response deadline up from Wednesday at 4pm to Tuesday at 9am on @MikeKellyPA emergency application seeking to have #SCOTUS declare that PA mail-in ballot system adopted by legislature violated the state constitution.
— Josh Gerstein (@joshgerstein) December 6, 2020
This is confirmed by multiple outlets, including Law&Crime here.
That means that in theory, there is enough time for Kelly’s suit to succeed in getting an injunction to prevent certification of the election result. It’s a window.
Here’s more about Kelly’s argument from Law&Crime.
In strict theory, the U.S. Supreme Court has no jurisdiction to settle Pennsylvania constitutional issues, such as whether the state statute at question (Act 77) violates the state constitution. Generally, such matters are the exclusive realm of a state supreme court. But there are exceptions to that general concept, Kelly argues, including here. Because the state is acting under a “direct grant of authority” from the U.S. Constitution to manage federal elections, the U.S. Supreme Court can become involved, he argues, and can determine whether the Pennsylvania statutory and constitutional regime of laws violates the U.S. Constitution.
It’s big news because it means this suit is not MOOT and that Tuesday will hold a LOT of headlines on the outcome, or potential lack of outcome, from the 2020 Presidential election.
A classic “stay tuned” moment.