Fox News host Mark Levin made the case for why the U.S. Supreme Court should rule in a favor of a lawsuit challenging the constitutionality of changes to Pennsylvania’s election law regarding absentee ballots, which would invalidate Democrat Joe Biden’s win over President Donald Trump in the Keystone State.
On his program “Life, Liberty, and Levin” on Sunday, the conservative firebrand offered two primary grounds to support his argument.
First, the new election law provisions themselves, passed in October 2019 as part of an omnibus bill allowing for universal mail-in voting and early voting, were not enacted in the way required by the Pennsylvania Constitution.
Second, Democratic Pennsylvania Gov. Tom Wolf and the state’s Supreme Court went beyond even the language of the new law by removing safeguards such as signature and postmark requirements and allowing ballots to be received after Election Day.
U.S. Supreme Court Justice Samuel Alito — who oversees the 3rd U.S. Circuit Court of Appeals, which includes Pennsylvania — took notice of the changes and last month and ordered all ballots received after the deadline on Election Day to be kept apart.
On Sunday, Alito bumped up a deadline to Tuesday for state officials to respond to a case being brought by GOP Rep. Mike Kelly of Pennsylvania that the vote-by-mail law changes were unconstitutional and therefore those ballots must be disqualified, Fox News reported.
Levin, who served as chief of staff to Attorney General Edwin Meese during the administration of President Ronald Reagan, explained why Kelly’s case is strong.
“Under the constitution of Pennsylvania, if there are to be any election law changes, you have to amend the constitution. Did they amend the constitution? No. What’s required to amend the constitution of Pennsylvania? It’s very complicated,” Levin said, according to a transcript.
“There needs to be a majority vote of both houses of the state legislature, not once but twice. Then there needs to be a respite,” he continued.
Levin then noted the state constitution requires ads announcing the changes to be placed in at least two papers in all the state’s 67 counties.
Then, finally, the citizens of Pennsylvania get to vote on whether they want the amendment, he said.
“It has to be on the ballot. Did that happen? No, it didn’t happen,” Levin said.
Regarding the changes Wolf implemented going beyond the language of the law itself, he pointed out the Republican-controlled Pennsylvania House specifically declined to act on those proposals when the governor pushed them in the weeks before the election.
Wolf’s administration then went to the Pennsylvania Supreme Court, which has a 5-2 liberal majority.
The justices ruled in the governor’s favor, including on the issue of not allowing ballots to be rejected based on signature comparisons, Politico reported.
“They had no legal or constitutional basis for doing any of that,” Levin said. “So they violated Article 2, Section 1, Clause 2 of the United States Constitution, which leaves the power to the state legislature to make the election laws.”
Late last month, Pennsylvania Commonwealth Court Judge Patricia McCullough issued a preliminary injunction against the certification of the state’s election based on the arguments presented in Kelly’s case.
“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,” McCullough wrote in her ruling.
“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,” she said.
Rather than allowing the matter to proceed at the Commonwealth Court, Democratic Pennsylvania Attorney General Josh Shapiro petitioned the state’s Supreme Court to step in, which it did, closing down the case.
Levin believes the U.S. Supreme Court should agree to hear Kelly’s appeal.
“It should take the case up because there’s clearly a federal issue. … It should rule that what the state of Pennsylvania did violates the federal Constitution on a number of grounds and is, in fact, unconstitutional,” he contended, pointing out it has to do with the Electoral College vote of a presidential election.
Levin said the U.S. Supreme Court does not have to fashion a remedy should it determine that Wolf and the Pennsylvania Supreme Court ruled unconstitutionally.
It can leave it up to the state legislature and Congress.
Among other options, the Pennsylvania General Assembly could choose to award the state’s 20 electors to Trump (since he was ahead by more than 600,000 votes on election night prior to most mail-in votes being counted) or find the election has been so corrupted that there must be a redo.
Last month, constitutional legal scholar Alan Dershowitz told Fox News that the president has two “winning issues” at the U.S. Supreme Court regarding Pennsylvania, including changing the ballot deadline and the unequal treatment of the curing of mail-in ballots between different counties in the commonwealth.
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