Late in the day on Saturday the Pennsylvania Supreme Court ordered dismissed with prejudice the complaint filed by GOP Congressman Mike Kelly, failed GOP candidate Sean Parnell, and others, claiming that the “no excuse” mail-in ballot option created by the Pennsylvania legislature in 2019 violated Section 14 of Pennsylvania Constitution which limits “absentee” voting to four very narrow categories of “absent electors”. The complaint alleged that because Section 14 is itself a constitutional limit on exceptions to in-person voting, the no-excuse mail-in voting statute worked as a de facto amendment to the Pennsylvania Constitution without going through the required amendment process.
Without addressing the merits of the allegations of the complaint in any fashion, the Court ordered the dismissal on the equitable grounds of “laches”, finding that the “facial” challenge to the constitutionality of Act 77 which crated no-excuse mail-in balloting was a matter the plaintiffs could have brought the time the Act was passed, but they did nothing for more than a year, and through both a primary and general election where the no-excuse mail-in voting procedures were employed.
I’m going to make this point somewhat out of place at the beginning because I want the readers to keep it in mind as they read through the remainder of this article.
The Kelly complaint alleges that the process for voting in Pennsylvania was changed in a manner that worked to amend the Pennsylvania Constitution, without going through the process of for making amendments to the Constitution as set forth therein.
The opponents of the Kelly complaint — joined by the Pennsylvania Supreme Court in dismissing it — point to the disenfranchising of millions of Pennsylvania electors if “no-excuse” absentee voting is declared to be invalid.
What I have not seen commented on — and that failure is why I put this issue here at the top — is that one of the approvals required of a proposed amendment to the Pennsylvania Constitution is that it must receive a majority vote of Pennsylvania electors in a general election.
The voters of Pennsylvania were entitled to have a say in whether the Constitution’s provisions regarding elections and voting are to be amended. The General Assembly, Governor, Secretary of the Commonwealth, and County Boards of Election DISENFRANCHISED Pennsylania voters by imposing a “no-excuse” change to the “absentee ballot” provisions of the Constitution without first getting their approval.
Keep that in mind when we get to the issue of “prejudice” as part of the application of the “laches” defense below.
Laches is an “equitable defense” to a meritorious and timely legal claim, where allowing the plaintiff to enforce their claim would be unfair due to prejudice or disadvantage that has resulted from the passage of time, coupled with the “fact” that the plaintiff “sat on their rights.” The United States Supreme Court has described the defense thusly:
The defense of laches “requires proof of (1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.” “`Doctrine of laches,’ is based upon maxim that equity aids the vigilant and not those who slumber on their rights. It is defined as neglect to assert a right or claim which, taken together with lapse of time and other circumstances causing prejudice to the adverse party, operates as bar in court of equity”).
So, in fact, there are actually three elements to the doctrine, the first two of which are often conflated — first, neglect on the part of the plaintiff in not asserting the right; second, a lapse of time; and third, circumstances showing prejudice to the adverse party.
There was no doubt that the partisan members of the Pennsylvania Supreme Court would never allow the Kelly complaint to have it an airing on its merits in the judicial system. All seven members of that court must stand for re-election in partisan contests. A vote in favor of the Kelly complaint would subject the Judge to open partisan warfare by the Democrat Party of Pennsylvania by placing the “victory” of Joe Biden in doubt.
But, the perfunctory nature of the Court’s treatment of the laches issue might bring it some grief in the days ahead. The Court did not treat the issue carefully, nor did it render a decision with acute legal clarity that is necessary when setting aside a meritorious and timely claim based on an equitable defense.
The Court acknowledges that it rendered its decision only on the filings of the parties in the court below. It allowed no evidence to be taken — which is all the lower court intended to do — even though prior decisions of the Supreme Court describe the application of “laches” as a “fact-intensive” inquiry. Its legal explanation for to why “laches” should bar the claims raised by Kelly is legally inadequate and fails to account for its own decisions reaching the opposition outcome in earlier election cases.
In short, the Pennsylvania Supreme Court protected the partisan outcome of the electoral tally that it favors — nothing more.
A thorough legal analysis of the historical origins and application of “laches” as a common law equitable defense would be the length of an involved law review article. I am not attempting that here. There is case law on just about every side of the application of “laches” so there is plenty of available language from compelling cases that would contradict what follows.
But I begin my criticism of the Pennsylvania Supreme Court with its own words — from two days ago, and from 22 years ago.
In ordering the dismissal of the Kelly Complaint the Court stated:
Upon consideration of the parties’ filings in Commonwealth Court, we hereby dismiss the petition for review with prejudice based upon Petitioners’ failure to file their facial constitutional challenge in a timely manner. Petitioners’ challenge violates the doctrine of laches given their complete failure to act with due diligence in commencing their facial constitutional challenge, which was ascertainable upon Act 77’s enactment. It is well-established that “[l]aches is an equitable doctrine that bars relief when a complaining party is guilty of want of due diligence in failing to promptly institute an action to the prejudice of another.” Stilp v. Hafer, 718 A.2d 290, 292 (Pa. 1998).
Let’s stop here. I always enjoy reading the cases cited in support of key legal points made by a party, and Stilp is the first key citation to authority made by the PA SC in its decision. So, what did the Court say in Stilp?
Stilp also involved a constitutional challenge to a statute, in that case, a statute passed as part of a multi-state compact on dealing with storage of low-level radioactive waste material. The statute in question was passed eight years prior to the complaint filed by the Plaintiffs. But, significantly, the challenge to the statute was not based on its substance, but rather on the procedures followed in passing the statute. This became a significant basis for the Court finding that the doctrine of laches — after 8 years of delay — applied as an equitable defense to the Plaintiff’s claim.
Also significant in Stilp was the fact that the application of laches came as part of a motion for summary judgment filed 13 months after the complaint had been filed, and after the parties had conducted extensive discovery, i.e., a “fact-intensive” inquiry on the question.
The parties in Stilp — and the Supreme Court in its decision — distinguished constitutional challenges to the substance of a statute from constitutional challenges to the procedural manner in which a statute was passed. Note the following:
Appellants argue that the Commonwealth Court erred in granting summary judgment based upon laches because the doctrine may not be used to defeat a constitutional challenge to a statute. While Appellees concede that laches may not bar a constitutional challenge to the substance of a statute, they maintain that laches may bar a challenge like the one in this case, which only attacks the process by which the statute at issue was enacted eight years ago.
Consider for a moment the “Appellees” in that case. They were Tom Ridge, Governor of Pennsylania, and the State of Pennsylvania.
“Appellees concede that laches may not bar a constitutional challenge to the substance of a statute.“
Well, the Governor and State of Pennsylvania just argued to the Pennsylvania Supreme Court, and the Supreme Court agreed — 22 years later — to bar a constitutional challenge to the substance of a statute based on laches. So much for legal and political ethics.
The Court in Stilp also referred to its earlier decision in Sprague v. Casey, also decided in 1988, which the Plaintiffs in Stilp cited for the language where the Supreme Court said “laches and prejudice can never be permitted to amend the Constitution.” But the Court noted in Stilp that the cases cited in Sprague for the proposition that “laches and prejudice” could never be allowed to amend the constitution were cases involving a challenge to the substance of the statutes under attack — not the procedure by which the statutes were passed.
The Court in Stilp relied on Sprague and those two prior cases to further reinforce the distinction between constitutional attacks on the substance of a statute, and constitutional attacks on process. Laches could work to bar the latter, but never the former.
Until Act 77, Joe Biden, and Donald Trump.
But let’s consider further the holding in Sprague, as that was an election case. The Plaintiff in Sprague was challenging the decision to place two races for two open judicial positions on the general election ballot in November 1988, which the Plaintiff claimed was in violation of Pennsylvania law. The Plaintiff failed to file his complaint for more than six months after the two races were added to the ballots. A difference in Sprague, however, is that the challenge was filed prior to the election taking place.
Nevertheless, there is key language in Sprague that addresses the issue of delay and prejudice when it comes to the application of laches to an election contest.
Let’s begin with the fact that the Pennsylvania Supreme Court found that laches did not apply in Sprague even though the Plaintiff did know for many months prior to filing his suit that the two judgeships were on the ballot, and he did not file his complaint until the eve of the election. But the Court denied the defense of laches to the defendants, and the reason for doing so is highly pertinent to the complaint filed by Kelly:
Respondents contend that the petitioner unreasonably failed to commence this action for six and one-half months from the time he had actual or constructive notice of his claim…. In the instant case, petitioner had not only to discover the facts surrounding his claim, but also to ascertain the legal consequences of those facts. It is asserted petitioner, as an attorney, is deemed to be familiar with the mandate of the Constitution of this Commonwealth, and thus should have been immediately aware of his claim. The candidates-respondents, however, are also lawyers and are candidates for offices on the two highest courts in this jurisdiction, and should be charged with the knowledge of the Constitution as well. Respondents are requesting that this Court use its equitable powers to deny petitioner relief; yet, they have made no effort to seek judicial approval of the scheduled election. He who seeks equity must do equity. Mazer v. Sargent Electric Co., 407 Pa. 169, 180 A.2d 63 (1962), Hartman v. Cohn, 350 Pa. 41, 38 A.2d 22 (1944). To find that petitioner was not duly diligent in pursuing his claim would require this Court to ignore the fact that respondents failed to ascertain the same facts and legal consequences and failed to diligently pursue any possible action. We cannot say that respondents who seek to invoke this equitable defense have acted equitably in this manner. In light of the foregoing, we cannot say that petitioner failed to pursue this matter diligently.
Did the Pennsylvania Supreme Court say in Sprague that the question of whether legislative action is lawful is a question known to both the Plaintiff complaining of the action, and the State Officials taking the action, such that each had a concomitant obligation to diligently seek out an answer with regard to that legality, and one cannot equitably complaint about the failure of the other to act diligently in that regard if one had not taken any action oneself on the same matter?
Yes. That’s exactly what the Pennsylvania Supreme Court said in Sprague. The state officials knew that putting the judgeships on the general election ballot was potentially a violation of state law, and they did not seek judicial sanction for their decision as they could have done. Since they had not been diligent in seeking to defend their action, they could not — in equity — complain about the Plaintiff’s lack of diligence in seeking to challenge their action. “He who seeks equity must do equity.”
The same is true with regard to Act 77. The Legislature and Governor knew Act 77’s introduction of “no-excuse” mail-in balloting was an expansion of the “absentee voting” limited by Sec. 14 of the Pennsylvania Constitution. They reflected that knowledge by simultaneously advancing a separate piece of legislation that was intended to be an amendment to Sec. 14. They faulted Kelly and the other Plaintiffs for not seeking to make their factual challenge to the constitutionality of Act 77, but they failed to seek a judicial sanction of the immediate implementation of Act 77’s adoption of “no-excuse” mail-in balloting. That is the precise basis upon which the same Court in Sprague determined that it could not find that Plaintiff had not been diligent.
The Supreme Court in Kelly doesn’t even mention the fact — even though it references Sprague.
But there is a second aspect to the “imprecision” of the Pennsylvania Supreme Court’s decision, and in the briefing of the issue to the Court by the State Defendants — the issue of prejudice.
Note the language of the United States Supreme Court on “prejudice” that I quoted near the top — the reference is to prejudice to “the respondent” — the defendant in the case.
But the Pennsylvania Supreme Court followed the lead of the briefing by the State — it relies on “prejudice” to voters who would be “disenfranchised” by the remedy sought by the Kelly complaint. It did so without even pausing to consider whether this is appropriate “prejudice” that the Court should take into account in determining whether the defense of laches should apply.
“Laches” is an affirmative defense. Voters aren’t parties to the Kelly complaint and do not assert “defenses” to the claims made. Voters aren’t “prejudiced” by the fact that the case is pursued. There is no outcome yet in the case. There is no “disenfranchisement” unless Kelly prevails on the merits and invalidating all mail-in ballots is the remedy to be imposed.
Under Pennsylvania law, an invalidly cast ballot is void that shall not be counted in the tally of votes. A ballot is either validly cast according to law or it is invalidly cast — the cause is irrelevant.
There are invalidly cast ballots in every election, and those ballots are set aside. Those voters are disenfranchised. So voter “disenfranchisement” is not an uncommon occurrence in elections.
The fact that there may be 2.3 million such invalid ballots is not the fault of the Plaintiffs bringing the Kelly complaint. By refusing to allow the case to be resolved on its merits, the Pennsylvania Supreme Court is likely violating Pennsylvania law by allowing invalid votes to be included in the final tally.
And this takes me back to the point I made near the top. The voters of Pennsylvania are given a meaningful and necessary role in amending their State’s constitution. A vote of a majority of the electors in a general election is the required final step to adoption of such amendments. The Defendants in the Kelly complaint deprived the Electors of their right to validate the proposed amendment passed by the General Assembly, and they put the amendment in place without their approval.
That was “disenfranchisement” of the Pennsylvania electorate. Who is to say that Pennsylvania voters might have rejected “no excuse” mail-in balloting if not for being disenfranchised.
So let’s not kid ourselves about what the real “prejudice” is the Supreme Court was worried about with regard to the Kelly complaint. The real prejudice that concerned the Court was that Joe Biden might not get the benefit of the illicit acts of partisan democrats in control of the state’s elections.