PHILADELPHIA — If its fate had not been abundantly clear already, President Donald Trump's dream of having Pennsylvania's GOP-controlled legislature overturn the state's election results received what appeared to be its final death blows Thursday with a late-night order from the U.S. Supreme Court and an unequivocal statement from the General Assembly's Republican leadership that they had no intention of doing so.
The Supreme Court order came in response to a request from one of the president's top boosters in Congress, U.S. Rep. Mike Kelly (R., Pa.), who has asked the justices to declare the state's vote-by-mail law unconstitutional and to "decertify" Pennsylvania's results, which cemented President-elect Joe Biden's victory by roughly 81,000 votes last week.
But just hours after Kelly filed that appeal Thursday, U.S. Supreme Court Justice Samuel A. Alito Jr. crafted a telling schedule for the case, giving state officials until Dec. 9 to file their reply.
That date set by Alito — who oversees emergency matters arising from Pennsylvania, New Jersey and Delaware for the court — comes one day after what is known as the "safe harbor date," the federal deadline for states to resolve any outstanding challenges to their elections. Beyond it, the state's slate of appointed electors is considered to be locked in for the Dec. 14 Electoral College vote.
It is still possible — though, election law experts said, unlikely — that the Supreme Court could decide to consider Kelly's appeal about the constitutionality of Pennsylvania's mail voting law outside the context of the 2020 election.
But the schedule laid out by Alito appeared to foreclose any chance of the court weighing in before its outcome had been finalized.
"The timing here matters," said University of California-Irvine law professor Richard L. Hasen, in a post Thursday evening on his Election Law Blog. "I don't see a path for Trump to use court cases to overturn the election results in even one state, much less the three states he would need at a minimum to get a different result in the Electoral College. But as the clock ticks down, those tiny chances fade into nothing."
Several other Pennsylvania cases arising from what has been the most litigated election in the state's history — including fights over the three-day, post-Election Day deadline extension for mail ballots to arrive — remain pending for potential Supreme Court review, but none of them explicitly seeks to reverse the outcome or involves enough votes to accomplish that goal.
And tellingly, the court has not moved to hear any of them on an emergency schedule, either.
Still, that hasn't stopped the push among some GOP lawmakers in Harrisburg, led most vocally by state Sen. Doug Mastriano (R., Franklin), to find some other way for the General Assembly to intervene — much to the chagrin of Republican leadership.
In recent days, Mastriano has led a group of three other Republican state Senate members and 29 in the House in filing resolutions calling upon Gov. Tom Wolf and the elections administrator Secretary of State Kathy Boockvar to recall the certified election results.
Neither of the proposed measures were called for votes before the General Assembly's term ended Monday.
But facing continued pressure from a segment of their party, outgoing Senate Majority Leader Jake Corman (R., Centre), and his successor Sen. Kim Ward, (R., Westmoreland) joined House Speaker Bryan Cutler (R., Lancaster) and Majority Leader Kerry Benninghoff (R., Centre) in issuing their most definitive statement yet declaring the matter dead.
"The General Assembly lacks the authority to take action to overturn the popular vote and appoint our own slate of presidential electors," it read. "While we clearly recognize the need for legislative action to address the issues presented by the 2020 General Election, some of the actions requested by our residents would require us to disregard the statutes and Constitution we have fought so hard to protect."
Still, the GOP leaders vowed to address what it described as "very legitimate and credible issues" about the "security of mail-in ballots and the process for counting votes" in future elections as part of the next legislative session that begins in January.
Thus far, the president's legal team and their allies have yet to produce any evidence to support their speculative claims of widespread fraud and have failed to persuade judges in nearly every case they've brought in court.
After the U.S. Court of Appeals for the Third Circuit rejected the latest Trump campaign legal challenge last week, lawyers Rudy Giuliani and Jenna Ellis immediately vowed they, like Kelly, would take their case to the Supreme Court, where they felt confident that the conservative majority the president helped cement there would rule in their favor.
But seven days later and with time running out before the "safe harbor" date, they have taken no steps to file that appeal.
