Mark Levin pushes back against Andy McCarthy’s analysis of Pennsylvania election case being dismissed

Andy McCarthy wrote today in the National Review that the dismissal of the election case by the Pennsylvania Supreme Court, brought by Congressman Mike Kelly and congressional candidate Sean Parnell, was on solid footing because the plaintiffs waited too long to bring the case:

Here, however, the court was on solid footing because the plaintiffs did not file lawsuits against the new mail-in voting when it was enacted. They waited for over a year, until after 2.6 million Pennsylvanians had availed themselves of the opportunity to vote by mail during a pandemic. Republicans were suddenly objecting now, not because the election was unfair, but because their presidential candidate lost. Indeed, some of the plaintiffs had run for office under the Act 77 mail-in procedures without objecting to them.

Consequently, the court ruled that the doctrine of laches applied — i.e., claims must be timely raised or they are forfeited. Moreover, to repeat a refrain we’ve been stressing for a while, there was a gross mismatch between the harm alleged and the remedy sought: The Republicans were asking that the mail-in ballots be thrown out or, in the alternative, that the election be voided and the (Republican-majority) state legislature be directed to choose the state’s electors (i.e., the Trump slate). This would disenfranchise either the 2.6 million Pennsylvanians who mailed in ballots or all of the commonwealth’s 6.8 million voters.

The court’s ruling on the issue of laches was unanimous. Two judges dissented in part, reasoning that the Republican plaintiffs’ construction of the state constitution appears sound, and that Act 77’s attempt to put a 180-day time-limit on challenges to its lawfulness should be unenforceable against challenges based on the state constitution (an issue the majority opinion sidestepped). The dissenters argued that the plaintiffs should be permitted to proceed with their objections to mass mail-in voting for the purpose of future elections, but not the 2020 election.

But Mark Levin disagrees, saying that laches doesn’t apply:

Levin doesn’t go into much explanation, but he does suggest that Kelly and Parnell are taking their case to the Supreme Court today. We’ll let you know what happens with that as soon as we hear something.

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