Horowitz: Republicans have a moral obligation to support the Pennsylvania lawsuit against universal mail-in ballots

Will we allow our election system for future elections to be upended by a single state supreme court, which happens to consist of partisan hacks? If the answer is no, then the only option is to fight the open lawlessness in Pennsylvania with every channel and tool of both the judicial and legislative processes.

While there is much focus on allegations of ballot fraud, there is the greatest systemic election fraud in plain sight that has still not gotten its day in the highest court in the land.

The bottom line is that the number of mail-in ballots in Pennsylvania grew from 266,208 just four years ago to 2.6 million in 2020 – all built upon an illegal state supreme court decision and a state omnibus election bill that violated the state's constitution. As such, millions of ballots, pursuant to state law and the state's constitution, are invalid, and because they implicate the ultimate federal question regarding the election of the president and vice president, those votes violate federal election law and the U.S. Constitution.

That might be an inconvenient truth and a messy predicament, but ignoring it won't make the constitutional crisis – along with its accompanying political/electoral fallout – disappear. Questions of standing, judicial remedies, and other technical limitations don't diminish the broader point that millions of ballots were cast illegally in a process enabled by one of the most partisan state supreme courts in the country. Furthermore, hoping to fight this out "the next time" in court, in legislatures, or at the ballot box misses the point that there won't be another time because Democrats would have already successfully established the precedent that they can unilaterally alter the rules of an election midway through it.

The simple fact that nobody can deny is that the mail-in voting law that was attached to an omnibus election bill in October 2019 — Act 77 — violated the state's constitution. Whether one agrees with the laws or not, Article VII of the Pennsylvania constitution states clearly that there may be no alternatives to in-person Election Day voting aside from those approved for absentee ballots, which require voters to demonstrate their absence.

This is why Pennsylvania is still one of the few states without any early voting. Such a change requires voters to adopt a constitutional amendment at the ballot box itself, not just an act of the legislature to modify a statute. In Pennsylvania, this is a very strict process, which requires both houses of the legislature to pass the proposed amendment in two consecutive legislative sessions, publish the amendment in two newspapers in each county three months before the vote, and then conduct a popular referendum on that proposed change at the ballot box (Penn. Const. art. XI §1).

Yes, it's very tedious, but it is the law, and we are a nation of laws, not of political whims of men. The Pennsylvania constitution does provide for an emergency avenue for expedited amendments, but that only circumvents the need for votes in two consecutive legislative sessions (but requires a two-thirds majority vote), not the need for a popular referendum.

Thus, given that the constitutionally prescribed process was sidestepped with the mail-in law, those mail-in votes are all illegal, plain and simple. Just as illegal as if a governor, or legislature working against the state's constitution, approved voting on the internet in middle of the election.

One can debate the merits of the fraud lawsuits in Pennsylvania and in several other states, but this one is as clean as it gets. How can you certify election results when millions of ballots clearly violated the law? This is why Commonwealth Court Judge Patricia McCullough placed an injunction on the certification so this problem can be worked out both in the courts and in the legislature. She understood that, regardless of any other questions of fraud, of which there are many, "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."

So we are all to believe this issue goes away simply because five Democrat-appointed hacks on the state's supreme court throw out the case on a technicality, after they were the very court that allowed this change to go through illegally, which brought us into this constitutional crisis? They further exacerbated the crisis by overwriting state law and allowing ballots without matching signatures and other vital information.

My friend Andy McCarthy, always a thoughtful and incisive legal mind, feels that the state supreme court is "on solid footing" because the plaintiffs, in this case Mike Kelly and Sean Parnell, two Republican candidates for Congress, "did not file lawsuits against the new mail-in voting when it was enacted." As such, he believes the court got it right by tossing the lawsuit under the "doctrine of laches," which is to say that because the plaintiffs failed to raise the issue in a timely fashion, they have forfeited their claims.

The problem with this analysis is everyone knew at the time this partisan court would have denied anyone standing by asserting the grievance was not ripe. It's only now that they are an aggrieved party that they can they bring such a lawsuit. If not now, then when? We will continue repeating this cycle of lack of standing during the off-season while the issue becomes too "messy" for a remedy ex post facto.

Also, let's not forget that this same court that now seeks to greenlight Act 77 in expanding absentee balloting options to universal mail-ins also overrode the limitations prescribed on those mail-ins in that very same act. Thus, we are not dealing with a court on solid footing. The court has lost all legitimacy ever since it unilaterally redrew the congressional districts and handed several seats to the Democrats.

The lack of an easy political remedy doesn't change the fact that these candidates absolutely have standing and that these votes are absolutely illegal. Obviously, the remedy will necessarily be somewhat political and involve investigations and negotiations between state legislatures and Congress. But that should not stop Republican lawyers for these candidates and for the Trump campaign from getting a court to state "what the law is." And that law clearly dictates that these ballots are illegal.

We often hear the refrain that pursuing any mix of judicial or legislative remedies for this election would disenfranchise millions. But what about the required ballot initiative to change election law that never took place? Why is it that nobody cared about that disenfranchisement?

Also, some of the same naysayers scoff at some of the other lawsuits by suggesting they are small potatoes and won't affect the outcome of the election. Then, when it comes to this lawsuit, they claim it would disenfranchise millions? Well, that's kind of the point. The lawlessness was breathtaking, and we need the time, energy, and focus to deal with it right here and right now.

Maybe the remedy – whether it's a mix of political horse trading, holding new elections in one or several states, or selecting competing electors for Congress to decide on – would still result in Biden taking office, as part of some deal similar to what took place in the 1876 election between Sam Tilden and Rutherford Hayes. But we need the impetus to make some sort of arrangement or compromise just like they did back then. And that requires us to embrace these lawsuits and clarify the laws, not close our eyes to a blatant problem, as if this won't repeat itself with a greater intensity during the next election.

There is no doubt that the U.S. Supreme Court has an obligation to rectify the problem created by this rogue state court. The high court can rectify it by simply declaring what the law is, and the rest is for the various state and federal political branches to work out. This systemic state election law fraud, being committed during a presidential election, infects the entire Electoral College process and is now the ultimate federal question that the U.S. Supreme Court can no longer ignore.

Several Supreme Court justices have already recognized that the state supreme court violated existing law regarding mail-ins in numerous other ways. As Justice Alito warned on October 28, "The Court's handling of the important constitutional issue raised by this matter has needlessly created conditions that could lead to serious post-election problems." Well, here we are with some of the most serious post-election questions imaginable. The time for the court to take up the lawsuits is now.

Concomitantly, the state legislature must meet every day for the next several weeks to investigate, publicize, and remedy this known problem in addition to the questions of voter fraud. Sadly, as so many Republicans are trained to do, they have waved the white flag during the heat of battle, as the state House of Representatives in Harrisburg plans to sit out the rest of the year. Which is why it's so important to continue the fight to the Supreme Court. That will force these phony Republicans to act.

Ultimately, Republicans must remember that what comes around goes around. This is not about Trump. If Democrats can unilaterally alter the basic mode of casting votes and use this mail-in model as the new baseline, Republicans will lose, just like Trump. In New York, which was never a contested state, they are still counting ballots weeks later, and Republicans might lose a congressional race in district 22, thanks to mail-in irregularities. Oswego County Supreme Court Justice Scott DelConte warned with regard to the absentee balloting in that race, "We may have a serious problem on our hands."

Unless Republicans unite and fight against the election chicanery now, they will have this serious problem on their hands in nearly every future election.