The people of Pennsylvania are unaware of how close U.S. Rep. Mike Kelly came to stealing the election for president in Pennsylvania, and maybe the nation, for Donald Trump.
Kelly, a Republican and Trump loyalist who represents the Mercer County-based 16th Congressional District, challenged Pennsylvania’s mail-in voting in court and then, after the attack on the Capitol, objected to the certification of the State’s electors for Joe Biden. He now claims that all he did was stand up for the rule of law.
But, looking at events as a whole, Kelly not only took advantage of ordinary voters, but also of legislators in his own party.
In 2019, a bipartisan majority in the Pennsylvania General Assembly passed Act 77, creating for the first time a regime of no-excuse mail-in voting for the State.
Everyone knew that there could be a state constitutional challenge to this change. Pennsylvania caselaw from the 19th and early 20th centuries treated in-person voting as the constitutional standard, with only limited exceptions for absentees. Because of anticipated legal actions, Act 77 gave challengers six months to sue and fast tracked any such challenge directly to the State Supreme Court.
This timetable would have given the General Assembly a chance to cure any defects, perhaps in time for the 2020 primary, but at least in time for the general election.
Surprisingly, no legal challenge was brought.
The change to no-excuse mail-in balloting proved unexpectedly prescient with the advent of the COVID-19 pandemic. Because we already had mail-in voting in Pennsylvania, there was no need to make any changes in the election law to protect the public.
The primary was held on June 2, 2020. No legal challenge was brought.
Then, beginning a few weeks before the Nov. 3 election, millions of Pennsylvanians, many of them anticipated to be voting for Biden, began to mail in their ballots, as permitted under Act 77. They had no reason to think there was any defect in voting that way.
Only after the election was over and Trump had lost did Kelly file his lawsuit. Kelly argued that mail-in voting was a violation of the State Constitution.
The relief he sought was the disqualification of all mail-in ballots or, in the alternative, the disqualification of all the ballots cast and the substitution of a slate of electors selected by the Republican dominated General Assembly.
Without alleging that a single ballot was fraudulent, Kelly wanted the courts to declare the losing candidate to be the winner.
Shockingly, this strategy almost worked. Certainly, Kelly had a plausible legal challenge to Act 77. Commonwealth Court granted a temporary injunction halting certification of Biden as the winner, pending an evidentiary hearing.
Fortunately, the Pennsylvania Supreme Court unanimously reversed and allowed the Biden certification to go forward.
Probably the most important opinion in the case was the partial dissent by the two Republicans on the Court: Chief Justice Thomas Saylor, joined by Justice Sallie Mundy.
Saylor suggested that Act 77 might indeed be unconstitutional. But the relief Kelly requested was “extreme and untenable.” There had been “too much good faith reliance, by the electorate” on Act 77.
Saylor meant that people would have voted in person if they had suspected that Act 77 might be unconstitutional and mail-in ballots might not be counted.
That is certainly true. I know that I would have voted in person.
But the actual reliance on Act 77 was even greater than that. Had Act 77 been struck down in a timely lawsuit, the General Assembly might have amended the law to cure any defects.
And once the pandemic hit, the General Assembly very likely would have expanded absentee voting to cover anyone who feared exposure to illness. There is not much doubt that such a change would have been constitutional.
In other words, had Kelly sued in a timely fashion, and had won his lawsuit, the result would probably have been the same Biden victory.
Does this mean that Mike Kelly delayed deliberately, setting a trap for the unwary electorate and the unsuspecting General Assembly? And did his lawyers knowingly cooperate in this intentional manipulation of the courts?
At the very least, it’s hard to believe he would have sued if Trump had won. Suing only when his candidate lost was the classic heads-I-win, tails-you-lose.
Then, as the final insult and provocation, Kelly objected to the electoral votes that likely would have gone to Biden anyway if Kelly had brought his suit when required. He pretended to be a victim: claiming a unanimous Pennsylvania Supreme Court was partisan and complaining that he was not heard on the merits, when he would have been heard at the proper time.
U.S. Sen. Josh Hawley, R-Mo., supporting Kelly’s objection, went so far as to falsely claim, on the floor of the U.S. Senate, that the objection was necessary because the Pennsylvania Supreme Court would never hear a challenge to Act 77.
The court said no such thing. The per curiam order dismissing the case expressly avoiding relying on any bar to sue other than Kelly’s own delay before the 2020 election.
Kelly uses the code words “integrity of the vote” in describing his lawsuit when he actually alleged not fraud, but merely a legal error that he himself had failed to cure. The one person without integrity in this story is Mike Kelly.
Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here.