Penn. Supreme Court Denies Request to Stay Its Order Dismissing Lawsuit Challenging Mail-In Balloting

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There have been some “procedural” developments over the past 24 hours in the matter of the Emergency Application to the Justice Alito for an injunction to prevent the naming of electors in Pennsylvania to the Electoral College.

As I covered in this lengthy story yesterday, Congressman Mike Kelly and others are seeking review in the US Supreme Court of the Order by the Penn. Supreme Court dismissing their lawsuit challenging the “no excuse” mail-in voting scheme adopted by the Pennsylvania legislature and State Executive.  The lawsuit claimed that the State Defendants imposed this new voting scheme without going through the steps necessary to amend the Pennsylvania Constitution which establishes the manner by which elections for federal office are conducted.

The Application seeks to prevent the Order of the Penn. Supreme Court from going into effect — which clears the way for the naming of Pennsylvania’s electors for Joe Biden to the Electoral College.  But, United States Supreme Court rules require that a party seeking a stay from the Supreme Court must first seek a Stay of the Order from the Court issuing the Order before an application for a stay to the US Supreme Court will be considered.  Rule 23 of the Rules of the United States Supreme Court reads:

3. An application for a stay shall set out with particularity why the relief sought is not available from any other court or judge. Except in the most extraordinary circumstances, an application for a stay will not be entertained unless the relief requested was frst sought in the appropriate court or courts below or from a judge or judges thereof. An application for a stay shall identify the judgment sought to be reviewed and have appended thereto a copy of the order and opinion, if any, and a copy of the order, if any, of the court or judge below denying the relief sought, and shall set out specifc reasons why a stay is justifed.

Realizing this procedural hurdle had not been addressed in the Emergency Application, the attorneys for Kelly and the other plaintiffs requested yesterday that the Penn. Supreme Court stay the effect of its Order dismissing their case.  Earlier today the Penn. Supreme Court denied that request.

In its second unanimous ruling against Kelly in five days, the Pennsylvania Supreme Court on Thursday denied Kelly’s request to stay its Saturday order that dismissed his lawsuit.

In a one-line order, seven justices refused Kelly’s request….

I selected that particular story from to point out for readers why they should not accept uncritically news reports on legal issues.  The reporter who wrote that story did so in such a way as to make it seem that Kelly and the other Plaintiffs had “lost again” in the Pennsylvania courts. Here is the first sentence of that author’s story:

U.S. Rep. Mike Kelly has lost once more in his attempt to overturn the results of the presidential election in Pennsylvania.

The reporter, Ed Palattella, is clearly unfamiliar with the Supreme Court rule set out above and didn’t realize that Kelly needed to have the Penn. Supreme Court refuse to stay its Order before the Emergency Application to Justice Alito would be acted upon.

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There is no doubt that Justice Alito — and likely the entire Court — has been working on the response to the Emergency Application since shortly after it was filed.  They did not delay their work waiting for the Penn. Supreme Court to act.  We should have an answer from the Court sometime today or tonight.

As I said yesterday, there is no reason for Justice Alito or the Court to grant this Application if they do not intend to enter the litigation brawl that is currently being waged in several courts right now.  But if the Court does grant the Application, and enjoins Pennsylvania from naming electors, the chances are very high that the Court intends to take up all the challenges over the next couple of weeks.




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