A lawsuit challenging mail-in voting, involving two Butler County congressional candidates, now sits before the state Supreme Court after a lower court at least temporarily halted the certification of down-ballot races.

The respondents in the case — the commonwealth, Gov. Tom Wolf and Secretary of State Kathy Boockvar — appealed Wednesday a Commonwealth Court judge's preliminary injunction pending an evidentiary hearing set for Friday morning. After the case was appealed to the state high court, the lower court judge indefinitely postponed the hearing.

The lawsuit, filed by U.S. Rep. Mike Kelly, R-16th, and Sean Parnell, a Republican candidate for the 17th District which includes Beaver County and parts of Butler and Allegheny counties, along with seven Pennsylvania voters, claims Act 77 of 2019, which instituted no-excuse mail-in voting, runs afoul of the Pennsylvania Constitution and, as such, asks the court to toss out votes cast under Act 77's provisions.

Kelly won reelection by about 70,000 votes, according to the Department of State's unofficial results, whereas Parnell, who has refused to concede, trails incumbent Rep. Conor Lamb, a Democrat, by about 10,000 votes.

While Commonwealth Court Judge Patricia McCullough, a Republican, granted a preliminary injunction Wednesday, temporarily halting the certification of down-ballot races, the state appealed it to Pennsylvania's high court, claiming McCullough's ruling was an “overreach” and there were “myriad flaws fatal to this lawsuit.”

The plaintiffs in the lawsuit claim Act 77 should be struck because the state constitution explicitly defines four classes of electors who may vote by absentee ballot; the state, however, argues the constitution defines those four classes as a minimum, rather than a maximum, requirement for who may vote by mail.

Lawyers for the state, Wolf and Boockvar also argue that Act 77 contains a provision setting a limit to when it could be challenged under the state constitution, which expired six months ago, although the candidates and voters dispute the validity of that provision.

“That 180-day period expired on April 28, 2020, or more than six months ago, and Petitioners missed the deadline,” one court filing states. “Petitioners' claims are invalid and cannot be pursued in this Court or elsewhere.”

The state further posits that the timing of the lawsuit — which was filed Nov. 21, only a few days prior to the state's certification deadline — was “bad-faith litigation,” designed to disrupt the process rather than seek a resolution to the challenge.

Act 77 passed the state House of Representatives by a bipartisan 138-61 vote last October, with similar bipartisanship in the 35-14 state Senate vote.

Without intervention by the state Supreme Court before Tuesday, the General Assembly would be unable to begin its 2021-2022 legislative session, which begins Tuesday. The state's attorneys seized on this, as well as its inability to transmit votes to the Speaker of the House should the act be struck — thereby preventing Kelly from taking his seat — as a reason for critique.

“The (Pennsylvania) House of Representatives, which is scheduled to begin its next session on Dec. 1, 2020, would not be able to constitute itself or operate,” one pleading states. “Of course, if that relief were rewarded, another item of relief Petitioners request — which is an order directing the General Assembly to select Pennsylvania's presidential and vice presidential electors — has no basis in law and so would be impossible.”

The state Supreme Court, a majority Democratic panel, has generally sided with counting mail-in votes in previous cases, though this lawsuit has less to do with counting the ballots than the voting process itself.

Federal suit defeated

Parnell, Kelly and state Rep. Daryl Metcalfe, R-12th, filed briefs in support of a lawsuit filed Nov. 22 by President Donald Trump's campaign that was handed a stinging defeat Friday.

The lawsuit, in the U.S. Court of Appeals for the Third Circuit, sought to undo Pennsylvania's certification of its presidential and vice-presidential vote totals. But the three-judge panel was far from amenable.

“The Campaign's claims have no merit. The number of ballots it specifically challenges is far smaller than the roughly 81,000-vote margin of victory. And it never claims fraud or that any votes were cast by illegal voters,” the opinion, written by Circuit Judge Stephanos Bibas, a Trump appointee, states.

Bibas' 21-page opinion also challenges that the filing belongs in federal court, saying most of the complaints “boil down to issues of state law,” and “the Campaign has already litigated and lost many of these issues in state courts.”

The case was brought to the appellate court because the plaintiffs disagreed with a lower court decision that did not allow them to amend their complaint a second time, and the court, Bibas noted, considered it on those narrow grounds.

“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious,” the opinion read. “But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”