Sunday, December 6, 2020

Briefly Noted: Alito Moves Up PA Deadline

I just picked this up at Zerohedge:

Alito Moves Up Deadline For Supreme Court Briefing In Pennsylvania Case, Bringing Within 'Safe Harbor' Window To Intervene 

Recall that there's been a lot of speculation on what was behind the original deadline that was set one day after the expiration of the Safe Harbor deadline. Some argued that this meant there was no majority on the SCOTUS to hear the case on its merits, and so Alito was allowing the case to "die on the vine." Others, however, spurred by William Jacobson of Legal Insurrection (and others), argued that Alito was not one to play such games--that there must be something else going on behind the scenes. This is an especially important consideration because, as Jacobson (and the others) have maintained (IMO, FWIW, correctly), in the case of a fraudulent election the SCOTUS is not bound by the statutory Safe Harbor provision. Thus, Jacobson argued that the extended deadline was simply to allow the SCOTUS justices to write their opinions up, since the PA reply was very unlikely to raise issues that the justices would not have long since anticipated--they could hardly have been interested in what PA would reply. We can only speculate--has one of the justices come around to Alito's way of thinking (Alito and three other justices were in favor of addressing the substantive issues before the election)? Have the justices finished writing? We'll find out soon enough, because Alito moved the deadline up one day--to Tuesday the 8th, which is the Safe Harbor deadline. Here's Zerohedge in excerpt:

Supreme Court Justice Samuel Alito has made a critical decision which may signal that court's willingness to hear a controversial case attempting to flip Pennsylvania's 2020 election results.

Originally, Alito set a Wednesday deadline for the state to respond to GOP Rep. Mike Kelly's lawsuit alleging that a 2019 state election reform, known as Act 77, violates both the state and federal constitutions by creating a so-called "no-excuse mail-in" voting regime.

Many took the Wednesday deadline as political theater, as it would place the case outside the "safe harbor" window which requires that controversies "concerning the appointment of all or any of the electors . . . by judicial or other methods or procedures" to be determined" at least six days before the time fixed for the meeting of the electors," according to Law & Crime.

In other words, the Tuesday deadline may signal that the Supreme Court takes Kelly's case, which was rejected by the Pennsylvania Supreme Court with prejudice last weekend.

According to Kelly's filing, the 'no-excuse mail-in' voting scheme should only apply in a limited number of circumstances, and that people must vote in person unless a narrow list of excuses applies. Thus, Act 77 and related election access laws should be invalidated - along with votes cast under it in the 2020 election.


  1. I was inclined to think, by allowing the safe harbor day pass, Alito's intention was to close the door to PA, and move the ball to SCOTUS, then throw to US Congress.

    Could this be a sign that, there is a new inclination in SCOTUS, to throw the ball back to PA legislation for them to send their own electors. And if that is the case, I would hope SCOTUS prevents SoS to issue a separate set of electors.

    1. Occam's Razor. If they wanted to impact this election cycle, they would have moved the date up further than one day. I do not see a conservative Supreme Court throwing out an entire state's votes. This is an issue that the court believes is worth sorting out for future elections.

    2. I see that happening, because all the votes that are illegal are fake ballots.

      Rob S

  2. It would seem reasonable that there is no point in moving it up one day unless they are prepared to rule that day.
    Tom S.

  3. The ZeroHedge articles links to a Law and Order article (Alito Demands Briefs in Pennsylvania Congressman’s Lawsuit to Flip the Election UPDATED ….

    Which makes an interesting point about the PA Supreme Court decision to reject Kelly’s petition.

    “The state supreme court punted the matter by holding that

    “Kelly should have raised it earlier, e.g., after the law was passed, and certainly not after his preferred presidential candidate lost the election.

    The legal doctrine the state supreme court applied — laches — is a legal version of the phrase “speak now, or forever hold your piece.”

    Because Kelly didn’t sue immediately before or after the election, the court said it didn’t have to listen to his arguments or even consider whether they were valid.”

    Apart form the legal debate, it is a very good political question:

    Why no one, especially Republicans, didn't realize the potential negative implications of the law when it passed and moved immediately and aggressively to overturn it or at least see to it that protections were put in place to prevent fraud?

    1. "Why no one, especially Republicans, didn't realize the potential negative implications of the law when it passed and moved immediately and aggressively to overturn it or at least see to it that protections were put in place to prevent fraud?"

    2. If the point is, that the GOP indeed did strive to immediately and aggressively overturn or neuter it, why is the date of 21 Oct. (AP article's date) particularly important?
      More so than, had it been, say, 14 or 28 Oct.?

    3. Mark
      Respectfully, I don’t see how your suggested link addresses the PA Court's “speak now, or forever hold your piece” ruling.

      The law in question (if I understand correctly) was signed Oct 31 2019 ( a full year before the election)
      The law stipulates:
      “Voters can submit mail-in and absentee ballots until 8:00 p.m. on election day etc.”

      I am not presuming to judge the parties to this legal debate.

      But, it seems to me that the Republicans had a full year to consider the consequence of the law and either challenge it in court or made provisions to mitigate its negative effects.

      It seems as though the day after the election the Republicans had a “Huston we have a problem” moment.

      But this is my subjective take on the issue.

    4. Now you're talking my language. It's not like the legislature didn't know the crisis it was creating when it created it.

      They are just not that stupid.

    5. You're misunderstanding the situation. The law you cite was passed by a Republican legislature--thus the Republicans didn't challenge the law that they passed. After passage the Dem governor tried to get them to revise the law to allow submission of mail in ballots AFTER the stipulated deadline of 8PM on election day. The Republican legislature REFUSED TO DO SO. Then, not long before the election, the Dem dominated PA Supreme Court ruled that the Dem dominated PA administration could accept votes after the statutory deadline. That ruling was appealed to the SCOTUS which deadlocked at 4-4 thanks to Roberts, leaving the PA Supreme Court ruling in place.

    6. And THAT is the case on which SCOTUS is already writing opinions. (The deadlocked one.) You can expect that they will rule narrowly, to the effect that 'state legislatures govern elections, not commissioners, not judges, and this is to be narrowly interpreted.'

      Thus, they will toss ONLY the late-arriving ballots, but send a signal to Wisconsin (similar situation but not identical) and any other State where the legislation is being over-ridden by happy-assed commissioners, judges, secretaries of State (GEORGIA!!!), etc.

      One case three (or more) States!

    7. There was a challenge before the election that the PA Supreme Court denied on the basis of standing, said that there had been no election yet therefore no harm was possible to provide standing. The Catch 22 was that call coupled with the laches post election

    8. @Tom,

      Regarding "Why no one, especially Republicans, didn't realize the potential negative implications of the law when it passed and moved immediately and aggressively to overturn it or at least see to it that protections were put in place to prevent fraud?"

      The plaintiff's explain this in section II(A) of their SCOTUS petition on pages 29-30: "under controlling
      Pennsylvania law, Petitioners were foreclosed from challenging Act 77 prior to the
      Election occurring due to a lack of standing. [...] The only
      conceivable way to make this harm adequately non-speculative and factually
      supported, under Kauffman, would be to wait for an election to take place."

      Which makes sense. Yet, "Unfortunately, as the instant case has shown, when the standing would otherwise be
      met – when harm crosses the realm of speculative – laches is always a reliable crutch
      to lean on. Thus, under controlling Pennsylvania law Petitioners were required to
      until after the election to gain standing. And while Petitioners promptly brought
      this action after the Election – as soon as they reasonably could hire counsel and
      identify the constitutional infirmities of Act 77 – the court below disingenuously
      'retreat[ed] behind the facade' of the amorphous doctrine of laches in order to deny
      Petitioners their day in court." (emphasis in the original).

      Basically, damned if you do, damned if you don't.

    9. @ Michael C: exactly right. A SWC piece (I think it was a SWC piece!) Mark linked to a couple days ago explained very well the Catch-22 you describe here. PA precedent was that such an election law could not be challenged by regular citizens before the election, as no harm had yet been done and therefore they had no standing. Probably someone here has the link, but I'm pretty sure this issue has already been hashed out on this exact site.

    10. @ Mark... No I understood / understand what transpired perfectly.

      I'm being THAT cynical about what the door they opened and then held open.

      I base that upon their defence of the process to begin with and then their lack of importance in provisioning to deal with anything at the moment.

      The legislatures leadership in the mists of the current crisis said, naw... Were not going to extend session or go into session early... See ya after the new year!

      Though named as defence in the pre and post election filings with the PA SC they could have switched sides but didn't.

      My loathing has no boundaries where R and D are concerned in this.

  4. Personally I don't care how it gets done but I'm advocating for stealing the election back in any matter possible and willing to suffer the consequences personally, professionally, socially, politically.

    1. nyuk, nyuk, love your line of reasoning - reminiscent of the scene from The Sting where Paul Newman does Robert Shaw one better playing poker on the train: what was I supposed to do? Call him for cheating better than me?

      Trump's got this (I hope & pray) sweat(er)

    2. Dad29, on "One case three (or more) States!"
      And, good news is, that Biden need only lose EVs of *3* of (the following) 5 states (AZ, GA, MI, PA, WI), in order to be below 270.
      Or, if he loses NV, he must hold 2 of *these* 3:
      GA, MI, PA.


  6. Wallace just had Brennan on (alone) for c. 10 minutes.
    I was in no mood to watch it, as I assumed that it'd be a bevy of softballs.

    1. Not necessarily. It might have been intemperate invective.

    2. Couple of clips from the interview Brennan:

      “The Steele dossier was not used in any way to undergird the judgments that came out of the intelligence community assessment about the Russian actions in the 2016 election."
      "There was so much other intelligence..."

      “There was no spying on Donald Trump’s campaign”


    3. @Frank

      "There was so much other intelligence..."

      As in...?

  7. The more I read about this election debate (and I did skim read the 275 page Powell filings in George and Wisconsin), I find myself think about Herman Hesse’s brilliant characterization and denigration of academic debates in his novel “The Glass Bead Game … His Magister Ludi”. Truly, law is a game without any epistemological foundations.

  8. My take.

    Alito went to the Fab Four and they agreed that they want the option of reaching a decision before midnight on the 8th so they can argue more persuasively that the "election contest" was not resolved by the 8th and, therefore, not entitled to conclusive validity. I.e., they issue an opinion at 1159pm on 12.8 that the election in PA is disputed and throw it back to the PA legislature to resolve or, failing that, to Congress.

    1. I would have expected that the SCOTUS would have held a conference on this petition before Alito responded. It seems something else may have changed. But I'm guessing.

  9. Maria B. just had Rudy on. Next are Dersh & Ken Starr.

    1. Rudy said that, of course, SCotUS would block state legislatures, from wantonly overriding voters' clear choice of EVs.
      At issue is, what if voters' choices are in doubt.
      Dersh agreed, that the Const. isn't so clear, on cases where voters' choices are in doubt.
      Dersh also said that, if the PA case does get to SCotUS, DJT wins that one.
      Rudy also liked the prospects with state legislatures in GA, & maybe MI & WI.

    2. New York Times gleefully reporting that Rudy has tested positive….

      (Have another test, Rudy!)

    3. It sounded like Rudy did get one thing wrong, when he said that all vote-counting stoppages started simultaneously, c. 3:30 AM.
      I recall the GA counter woman, saying that the counting at her polling place (w/ suitcases under tables) stopped at c. 10:30 PM.

    4. I still say our best or most hopeful outcome will probably be electors simply taken away and given to no one.

      It's a decision but a decision to play duck duck goose until we run out of geese.

    5. If SCotUS takes electors, and it goes to the House, DJT may have to resort to extraordinary means, to get Pelosi to call a Session, where state delegations would likely pick DJT.

  10. SWC's latest dealing with the deadline for response being moved up:

    >> <<

    He assumes at least one justice demanded the change before being willing to hear the case/side with Alito.

    He's not sure which justice, or why the justice feels the date change is important.

  11. Voter Rights Group Notifies DOJ of Pakistani Link With Nevada Election Email System

    A U.S. voter rights group informed the Department of Justice on Dec. 3 of a link between the Nevada election emails system and a Pakistani company with ties to military and intelligence.

    True the Vote requested the Nevada voter file from the secretary of state after the Nov. 3 election. The state responded with a voter file in an email, but the message was copied to Waqas Butt, CEO of Pakistani-based Kavtech Solutions Ltd.

    More here:

  12. Here's a fuller interpretation of Dyer's piece on Trump's key supporting effort and why Durham is now a SC:

    He doesn't need to go to any US A to get an indictment. Durham can do them all himself. (and soon-ish).


    1. Some gripping judgements from Jen, 4 Dec.:
      "But the point of this main effort isn’t to break into the legacy media. The legacy media don’t matter. They have *sidelined* themselves.
      The point is to engage the American people.
      The point is to get the *state legislatures* to hear evidence, in a format that brings them before their constituents, and confront the evidence publicly. The point is to face the nation, in the forums that matter, with the reality of what just happened.
      In the face of such astonishing facts – which must assuredly be *sifted* to be gauged accurately; but that they are being attested to, by oath-sworn witnesses with *signed affidavits* is a fact – America cannot remain the same...."

  13. Cynically, justifiably so by events of the 5 years and due to events of the last month or so, I will say it’s to shoot Trump’s challenges completely down.

    That said, I have an extremely small amount of hope it is not.

  14. Republican Congressman Kelly’s application to the US Supreme Court ...

    Kelly’s appendix to the application...

    1. Do the Elections and Electors Clauses of the United States Constitution permit Pennsylvania to violate its state constitution’s restrictions on its lawmaking power when enacting legislation for the conduct of federal elections?

    2. Do the First and Fourteenth Amendments to the U.S. Constitution permit the dismissal of Petitioners’ claims with prejudice, on the basis of laches, where doing so foreclosed any opportunity for Petitioners to seek retrospective and prospective relief for ongoing constitutional violations?”

    And, no, I have not gone through any of it other than what’s posted.

  15. SGO Chairman Appointed to Lead Open Society Foundations Amid Allegations Against Their Smartmatic Voting System

    George Soros announced that British Lord Mark Malloch-Brown the chairman of SGO Corporation, the holding company that owns Smartmatic, will lead Open Society Foundations.

    “I applaud Patrick Gaspard’s leadership of the Open Society Foundations in a world beset by illiberalism. Mark Malloch-Brown will be Open Society’s new president. He is deeply familiar with its work and shares my vision of philanthropy,” Soros, the philanthropic organization’s founder and chair, said in a statement Friday on Twitter.

    Malloch-Brown is the chairman of SGO, an investor group whose leading business owns Smartmatic election systems. Its relationship with Dominion Voting Systems is drawing attention and scrutiny as numerous voter fraud allegations against Dominion Voting Systems grow in the wake of the 2020 U.S. Election.

    In a statement on Friday, SGO said that Malloch-Brown “has been instrumental in the growth and development” of Smartmatic, among other companies. He is stepping down as chairman of SGO on Dec. 31.

    Soros. Malloch. Smartmatic. Open Society. Cozy.

    Article goes on to describe founding of Smartmatic, bogus denial of connection with Dominion, and the story re Chavez. Pretty much what Sidney told us...

    1. Soros was quoted earlier saying that the fate of the world was riding on this election. No wonder Malloch Brown got rewarded.

      Funny thing is, Archbishop Vigano said the same thing--he's still in hiding.

  16. Here's some analysis of the Georgia CCTV video footage, re the "suitcases under the table"

    "The footage shows multiple evidence that the ‘special’ count session was pre-planned and carefully timed, it’s also clear that in 116 minute period the team sprinted through the ballot scanning process to meet some sort of a deadline."

    I guess that's why Ruby Freeman is lawyering up.


  17. A Running Compendium of Fraud Charges in Election 2020

    Each item in the list has an embedded link.

  18. Since all congressmen, senators, etc. take an Oath of Office to protect and defend the Constitution, what redress do we have if that oath is violated? Vote them out, sure, but is there any legal remedy available for violating their oath for cheating and fraud in an election? It must, at least, violate the spirit of the Constitution. Can it not be construed in some form as traitorous behavior?

  19. Electoral fraud by public officials may not be traitorous, but it sure as hell violates the Const.'s equal protection provisions.

    1. O/T, but Tucker just showed bombshell vid footage, of a ChiCom economist *bragging* about their power over *DC & Wall St.* (until DJT got in to crash the party)!

  20. Fox TV says that SCotUS just rejected DJT's bid on PA voting, but I see zip on this elsewhere.

  21. The top court rejected a petition from Trump ally Rep. Mike Kelly, a Pennsylvania Republican, who argued that virtually all of the state’s mail-in ballots were unlawful.

    1. According to ,
      "Justice Samuel Alito has failed the republic."

  22. Seeing as so much of the uproar in recent days has been, so I understand, about Kelly's case, this is a brutal surprise.