Supreme Court rejects US Rep. Mike Kelly's election appeal; he calls ruling 'astounding'

• In unanimous decision, U.S. Supreme Court refuses to hear an appeal of U.S. Rep. Mike Kelly's challenge to mail-in voting in Pennsylvania
• Kelly, an ally of former President Donald Trump, claimed the 2019 state law that expanded mail-in voting was unconstitutional
• Mail-in voting benefited President Joe Biden as many Democrats stayed away from the polls due to the pandemic

U.S. Rep. Mike Kelly's court fight against the results of the presidential election in Pennsylvania has ended with a loss before the U.S. Supreme Court.

The decision, announced Monday, finishes off Kelly's case.

The Supreme Court refused to hear the election case of Kelly, who started his legal fight against the results of the presidential race within weeks after fellow Republican Donald Trump lost the White House to Democrat Joe Biden.

The justices unanimously declined to approve Kelly's petition that they hear his appeal by granting what is known as a writ of certiorari. The Supreme Court ruled without providing an explanation, which is typically how it announces whether it has granted appeal requests.

"The petition for a writ of certiorari is denied," according to the order.

Kelly asked the high court to hear his appeal, in which he and other Republicans sought to eliminate mail-in voting in future Pennsylvania elections without further action.

Kelly, of Butler, whose 16th Congressional District includes Erie, wanted mail-in voting declared unconstitutional and eliminated unless Pennsylvania voters approve universal mail-in voting by amending the state constitution, a process that would take years.

Kelly, the lead plaintiff in the case, claimed that Act 77, the 2019 state law that authorized universal, no-excuses mail-in voting, was unconstitutional because of a lack of a constitutional amendment. Act 77 passed the GOP-controlled General Assembly with bipartisan support.

Kelly decried the Supreme Court's decision.

"It is astounding that our nation's highest court was unwilling to hear arguments in a case that called on the Court to require states to follow their own constitutions in the conduct of federal elections," Kelly said in a statement. "Act 77 expressly violates the Pennsylvania Constitution and the only court to consider the merits acknowledged the strength of our argument and said we were likely to succeed.

"I call on the governor and the General Assembly to do the right thing by repealing the no-excuse mail-in voting system, starting the constitutional amendment process, and letting Pennsylvania voters decide the issue."

The Supreme Court rejected Kelly's appeal petition despite a conservative majority, including three justices whom Trump appointed — Amy Coney Barrett, Neal Gorsuch and Brett Kavanaugh. Only four of the nine justices must agree to grant a writ of certiorari, known as a cert petition, for a case to proceed to a hearing before the full court, which then decides the case based on majority rule.

Focus on Act 77

The Supreme Court's refusal to hear Kelly's appeal came on the same day the high court also rejected two other Republican challenges to voting in Pennsylvania in 2020. The Supreme Court in the other two cases was divided over whether the justices should hear the appeals.

Pennsylvania Lt. Gov. John Fetterman lauded the Supreme Court rulings in a statement that alluded to Trump's repeated and unsuccesful attempts to overturn the presidential election results in Pennsylvania. Fetterman is seeking the Democratic nomination for the Pennsylvania U.S. Senate seat that will become open with the retirement of Republican Sen. Pat Toomey, who is not running for reelection in 2022.

"Apparently losing once in Pennsylvania wasn’t enough for Trump, so he decided to take it to court and lose 68 more times," Fetterman said in a statement. "To be clear, then and now, there's only ever been 4 cases of voter fraud out of 7 million ballots cast. The former President is not leaving empty handed, as he secured 100% of the dead relative vote in the commonwealth."

Kelly and the other Republican plaintiffs, or petitioners, in all three cases initially filed their lawsuits hoping to change the outcome of the presidential race. But with those votes certified, and Biden sworn in, the Republican plaintiffs, including Kelly, said they were focused on changing the procedures in future elections.

Kelly pressed the case against the constitutionality of Act 77 after he initially failed, before the state appellate courts and the U.S. Supreme Court, to overturn the results of the presidential election in Pennsylvania by having the courts invalidate the 2.5 million mail-in ballots cast in the race and counted in November.

High court review:US Supreme Court set to decide in Feb. whether to hear US Rep. Mike Kelly's election case

If the Supreme Court on Monday had decided to hear Kelly's case, his claims would have remained alive, raising the possibility that Kelly could have prevailed and upended the same mail-in voting system that the General Assembly approved with Act 77.

Appeal requests rarely granted

The chances were always slim that the Supreme Court would agree to hear Kelly's case. The Supreme Court each term gets 7,000 to 8,000 petitions for writs of certiorari, and grants only about 80, according to www.scotusblog.com, which tracks Supreme Court cases and statistics. The Supreme Court also showed no inclination to address Kelly's claims previously.

Petitioning the justices:Congressman Mike Kelly asks Supreme Court to rule against Pa. mail-in voting before primary

The Supreme Court on Dec. 8 unanimously rejected Kelly's request that the justices grant an emergency injunction and halt the tallying of Pennsylvania's Electoral College votes — which Biden won — in light of Kelly's concerns.

On Dec. 11, Kelly asked the Supreme Court to expedite a decision on whether to grant his cert petition. He argued that the justices needed to hear the case quickly to affect mail-in voting in the spring 2021 primary in Pennsylvania. The Supreme Court on Jan. 11 unanimously rejected Kelly's request for expedited consideration, leaving the justices to decide whether to hear the case on a regular schedule.

Guest opinion:Pennsylvania U.S. Rep. Mike Kelly must resign

Kelly's position:Congressman says he wants to make sure 'the law, as written, actually matters'

Kelly sued over mail-in ballots in the Pennsylvania appellate courts on Nov. 21, after Democrats who used the ballots helped Biden defeat Trump in Pennsylvania. The state Supreme Court unanimously ruled against Kelly on Nov. 28, and he started his series of appeals before the U.S. Supreme Court. Kelly was re-elected to a sixth consecutive term in November.

Kelly's office has said he filed his lawsuits as a private citizen rather than a congressman and that taxpayers did not fund the litigation.

Repeated objections:After riots, US Rep. Mike Kelly kept pressing election challenge despite GOP admonitions

Kelly was one of Trump's strongest supporters in Congress. During a debate on the House floor in the early morning of Jan. 7, hours after a pro-Trump mob stormed the U.S. Capitol, Kelly objected to the certification of the Pennsylvania Electoral College results.

In the past several weeks, Kelly used developments in Harrisburg to champion his case for invalidating Act 77. He raised what he considered the unconstitutionality of mail-in voting after the resignation of Pennsylvania Secretary of State Kathy Boockvar was announced on Feb. 1.

Boockvar, who worked under Gov. Tom Wolf, a Democrat, stepped down after her office botched the advertising of the proposed constitutional amendment over child sex abuse cases. The proposed constitutional amendment had nothing to do with mail-in voting.

"This incident highlights the real-world consequences of failing to follow the constitutional amendment process, which in this case delays justice for the victims of heinous crimes," Kelly said in a statement on Feb. 1. "This is not the first blatant disregard of our laws. Act 77, which allowed for the no-excuse mail-in ballot system, shook the faith of millions of Pennsylvanians in the administration of our elections.

"It is good that Secretary Boockvar will be held accountable for continuing the state government's pattern of neglecting the Commonwealth's constitution. I hope that Pennsylvania voters will see justice through the court system regarding Act 77."

Contact Ed Palattella at epalattella@timesnews.com. Follow him on Twitter @ETNpalattella.

GOP turned away in other cases

In two other Pennsylvania election cases denied appeal petitions on Monday, Republicans wanted the Supreme Court to hear their appeals over the Pennsylvania Supreme Court's granting of a three-day extension for mail-in ballots to be counted following the election on Nov. 3.

The Republican plaintiffs claimed that only the Pennsylvania General Assembly could extend the deadline for tabulating ballots.

Supreme Court Justice Samuel Alito in November issued the order to separate those ballots from being counted, pending possible further review.

Following the Supreme Court's refusal to hear the appeals on the ballots, those votes can now be counted. But they will not affect the results of the presidential election in Pennsylvania, where Democrat Joe Biden defeated President Donald Trump by more than 80,000 votes.

In the two cases over the counting of the ballots, three of the nine Supreme Court justices — Alito, Neal Gorsuch and Clarence Thomas — said they would approve the appeal petitions by granting writs of certiorari, one vote short of the four votes needed.

Justice Thomas, in his dissent, said having the Supreme Court decide the two cases would clear up similar issues in future elections.

"One wonders what this Court waits for," Thomas wrote. "We failed to settle this dispute before the election, and thus provide clear rules. Now we again fail to provide clear rules for future elections.

"The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence. Our fellow citizens deserve better and expect more of us."