Senator Cruz Agrees to Argue Pennsylvania Election Case If Taken Up by Supreme Court

By Janita Kan

Senator Ted Cruz (R-Texas) said on Monday that he was willing to make oral arguments before the Supreme Court in an appeal seeking to block the state from taking further action to certify their election results.

The appeal is currently pending before the Supreme Court after Pennsylvania Republicans filed a request to block the finalizing of certification citing constitutional challenges.

In the instance where the certification has been finalized, Republicans asked the court to restore the “status quo” by compelling Pennsylvania officials to nullify its actions until an order from the court.

The Republicans also asked the court to treat the request as a petition of certiorari, asking the court to review the lawfulness of the Pennsylvania Supreme Court’s decision.

Cruz said that he was asked whether he would be willing to argue the case before the nation’s top court if the justices grant certiorari. The former Texas solicitor general said that he had agreed and that he would “stand ready to present oral arguments.”

“Because of the importance of the legal issues presented, I’ve publicly urged #SCOTUS to hear the case brought by Congressman Mike Kelly, congressional candidate Sean Parnell & state rep. candidate Wanda Logan challenging the constitutionality of the POTUS election results in PA,” Cruz wrote in his statement.

“As I said last week, the bitter division and acrimony we see across the Nation needs resolution. I believe #SCOTUS has a responsibility to the American People to ensure, within its powers, that we are following the law and following the Constitution.”

Cruz served as Texas’s top litigation official between 2003 and 2008 where he made nine appearances before the U.S. Supreme Court and authored 80 briefs to the court.

In the case at hand, Pennsylvania Republicans escalated the case to the nation’s top court after their state Supreme Court overturned a lower court order blocking election officials from certifying the results of the 2020 election. The Pennsylvania justices also dismissed the case.

In an unsigned opinion, the state’s top court ruled to reverse Commonwealth Judge Patricia McCullough’s temporary injunction that would have prevented the state from taking further steps to complete the certification of the presidential race.

The court said that petitioners had failed to file their challenge in a “timely manner,” as they had filed their suit more than one year after the enactment of Act 77—the law central to the case.

The Republicans argued that Act 77, a law that made voting by mail without an excuse legal in Pennsylvania, violates the state’s constitution. Their lawsuit alleges that the state law is “another illegal attempt to override the limitations on absentee voting prescribed in the Pennsylvania Constitution, without first following the necessary procedure to amend the constitution to allow for the expansion.”

Following that decision, the Republicans then filed their request to the nation’s top court hoping to stop Pennsylvania from finishing their certification process. Electors will meet on Dec. 14.

In their petition, the Republicans argued that the Pennsylvania Supreme Court’s characterization that they waited to bring their challenge to the courts was wrong.

“Petitioners did not hedge their bets, they simply brought an action within mere days of gaining enough information to know that they had been harmed by an unconstitutional election, as soon as they reasonably could have hired counsel to research and identify the constitutional issues and after they gained standing to bring their claims,” the filing read (pdf).

“They did not even wait for certified election results to confirm that they had been harmed. It could not have in any way served the Petitioners’ interests in this matter to delay action for even one day. To suggest they did so deliberately is unsupported.”

On Monday, 22 House members filed a friend-of-the-court brief urging the Supreme Court to take up the case. Among those who signed the brief was Rep. Andy Biggs (R-Ariz.), Rep. Matt Gaetz (R-Fla.), and Ranking Member of the House Judiciary Committee Jim Jordan (R-Ohio).

“Pennsylvania’s Supreme Court has insulated Act 77, a significant and patently unconstitutional alteration of the means by which the Nation’s fifth-largest State chooses its members of Congress and Presidential electors, from any judicial scrutiny. This Court now stands as the last bulwark capable of providing that review,” they wrote (pdf).

This case is cited as Kelly et al v. Commonwealth of Pennsylvania (20A98).

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