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PA judge rules Trump’s side ‘likely to succeed’ on constitutional merits; halts certification

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Pennsylvania Judge Patricia A. McCullough ruled Friday that the state’s preliminary election certification injunction was property issued and should be upheld. She has issued a preliminary injunction preventing Pennsylvania from taking any further steps to complete its certification of the election, including but not limited to the appointment of electors and transmission of the necessary paperwork to the Electoral College, pending further court hearings and rulings. The ruling upholds an injunction from earlier in the week and is significant because of the findings made in her Opinion released Friday night.

The ruling received next to no press. The case does not allege fraud but instead is a solid legal argument based on the state’s constitution. This is not the federal court case that has received a lot of media playtime in which the Third Circuit Court of Appeals denied relief.

Instead, this case is premised on whether the legislative expansion of absentee balloting to broad mail-in balloting violated the Pennsylvania Constitution. The petitioners seek to keep the Secretary of State from transmitting the certification or otherwise perfecting the electoral college selections.

A group of Republican lawmakers and candidates sued the state of Pennsylvania earlier this week, arguing that the state legislature’s mail-in voting law – Act 77 – violated the commonwealth’s constitution.

Earlier this week, Judge Patricia McCollough issued a temporary halt to the certification process. That issue is now on appeal to the PA Supreme Court. The Judge issued her Opinion to extend that halt pending further hearings, and to set forth the basis for the injunction, which could be relevant to the appeal.

Judge McCullough found that the plaintiffs were likely to prevail on their PA constitutional claims and that the matter was not moot even though PA had “certified” the results, because there were more steps that needed to be taken.

“Accordingly, in careful consideration [on November 25] of the exigencies and time constraints in this matter of statewide and national import, and the longstanding constitutional mandate that every citizen of this Commonwealth is entitled to no less than a fair and free election, it was necessary [on November 25] to preliminarily enjoin, on an emergency and temporary basis, Executive Respondents from undertaking any other actions with respect to the certification of the results of the presidential and vice-presidential elections, if indeed anything else needs to be done, pending an evidentiary hearing to ascertain the facts of this matter and to determine if the dispute is moot….”

“Based upon the record before it, this Court has sufficient grounds to enjoin Respondents from further certification activities on an emergency preliminary basis, pending the results of the evidentiary hearing it had scheduled for this date, after which the Court would have determined if a preliminary injunction should issue. Since the Court is sitting in equity it has the power to fashion such relief as it is vitally important that the status quo be preserved pending further judicial scrutiny….”

“Additionally, Petitioners appear to have established a likelihood to succeed on the merits because Petitioners have asserted the Constitution does not provide a mechanism for the legislature to allow for expansion of absentee voting without a constitutional amendment. Petitioners appear to have a viable claim that the mail-in ballot procedures set forth in Act 77 contravene Pa. Const. Article VII Section 14 as the plain language of that constitutional provision is at odds with the mail-in provisions of Act 77. Since this presents an issue of law which has already been thoroughly briefed by the parties, this Court can state that Petitioners have a likelihood of success on the merits of its Pennsylvania Constitutional claim.”

McCullough is very concerned about what remedy would be levied if she were to rule the mail-in balloting unconstitutional. It could well cause violence and unrest.

“That being said, this Court is mindful that one of the alternative reliefs noted by Petitioners would cause the disenfranchisement of the nearly seven million Pennsylvanians who voted in the 2020 General Election. Specifically, Respondents claim that a temporary stay would disenfranchise voters as the legislature would appoint the electors to the Election College. However, as noted, the legislature is not authorized to appoint the electors to the Electoral College until December 8, the “Federal Safe Harbor” date for certifying results for presidential electors. The Court agrees it would be untenable for the legislature to appoint the electors where an election has already occurred, if the majority of voters who did not vote by mail entered their votes in accord with a constitutionally recognized method, as such action would result in the disenfranchisement of every voter in the Commonwealth who voted in this election – not only those whose ballots are being challenged due to the constitutionality of Act 77. However, this is not the only equitable remedy available in a matter which hinges upon upholding a most basic constitutional right of the people to a fair and free election. Hence, Respondents have not established that greater harm will result in providing emergency relief, than the harm suffered by the public due to the results of a purportedly unconstitutional election.5”

She concluded:

“For all of the above reasons, the Court respectfully submits that the emergency preliminary injunction was properly issued and should be upheld pending an expedited emergency evidentiary hearing.”

This ruling is meant to prevent PA from taking more steps until the court finally rules on the case.

This case will most likely not survive the PA Supreme Court where Democrats are in the majority. After that, the case will head to the U.S. Supreme Court where conservatives hold the majority and are much more likely to rule in favor of the petitioners.

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