Just to keep you updated on how things stand, Rep. Mike Kelly and Sean Parnell have asked Justice Alito to grant a temporary injunction ordering Pennsylvania to halt the certification pending their appeal:
Mike Kelly and Sean Parnell et al have asked Justice Alito for a temporary injunction in PA supreme court decision (via press release on e-mail). They want Alito to stay any certification pending application for cert. https://t.co/zoxvZROPF2
— Ed Morrissey (@EdMorrissey) December 1, 2020
From CBS local in Pittsburgh:
On Saturday night, the Pennsylvania Supreme Court said Kelly and Parnell were too late to claim that no-excuse mail-in voting was unconstitutional when so many people relied on it in this recent election.
Republicans Kelly and Parnell claim that Act 77, passed a year ago by the state’s Republican-controlled Legislature to allow no-excuse mail-in voting, violates the state Constitution.
That’s a state issue, but Kelly and Parnell assert federal issues of due process to get the U.S. Supreme Court to hear their appeal.
“While we believe that Act 77 is certainly a state issue, we so believe that there are very important federal questions nested within it,” Parnell told KDKA political editor Jon Delano on Monday.
And Sen. Ted Cruz is urging the Supreme Court to hear the case rather than let Justice Alito act alone in his capacity as a Circuit Justice:
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#SCOTUS should hear the emergency appeal on the Pennsylvania election challenge. pic.twitter.com/mzwr4eaHR8
— Ted Cruz (@tedcruz) December 1, 2020
Mark Levin agrees:
Sen. Cruz is right, yes SCOTUS should take up this case, and asap https://t.co/wx4V3uwv6R
— Mark R. Levin (@marklevinshow) December 1, 2020
Now, some on law Twitter are claiming if Justice Alito does refer the case to SCOTUS it would be a “punt”:
Interesting choice for Justice Alito: He can deny the application in his capacity as Circuit Justice or he can order Pennsylvania to respond — and presumably then refer the matter to the full #SCOTUS.
The former would be a loud message to Team Trump; the latter would be a punt. https://t.co/lgzwAJP1qq
— Steve Vladeck (@steve_vladeck) December 1, 2020
But that’s not necessarily the case, as explained here in this thread from attorney Mike Dunford:
For the nonlawyers:
If you file an emergency application with one Justice and that Justice denies it, you can turn around and send it to another and another until you run out.But if the full court denies it, it's dead.
— Mike Dunford (@questauthority) December 1, 2020
Also, I think there's some (considerable) room for doubt as to whether a single Justice can issue the relief sought – this isn't seeking a stay or to *preserve* the status quo; it's demanding major changes to it. pic.twitter.com/wWuhAOMTsQ
— Mike Dunford (@questauthority) December 1, 2020
There's no way Alito grants this in any form. He might deny it himself, but I suspect he may send it to the full court and let them deal with it. That will deal with it quicker.
— Mike Dunford (@questauthority) December 1, 2020
And now we wait.
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