The Pennsylvania Supreme Court on Saturday dismissed a lawsuit led by U.S. Rep. Mike Kelly that sought to negate 2.5 million mail-in ballots cast in the Nov. 3 election, ruling the congressman from Butler waited too long to bring the legal action.

The unanimous decision by the state's high court tossed out last week's order from a lower appellate court judge that temporarily halted the commonwealth from certifying election results.

“It is not our role to lend legitimacy to such transparent and untimely efforts to subvert the will of Pennsylvania voters,” Justice David Wecht wrote in a concurring opinion. “Courts should not decide elections when the will of the voters is clear.”

Kelly, R-16th, and his fellow petitioners, including Sean Parnell, a Republican candidate for the 17th District that includes a small part of Butler County, claimed the state legislature lacked authority to act on its own in 2019 when it expanded the availability of remote voting.Both Kelly and Parnell are staunch supporters of President Donald Trump.In their suit filed Nov. 21, the petitioners argued that such a move required an amendment to the state constitution.The suit, as a remedy, called for either all mail-in ballots — most of them by Democrats — to be thrown out, or to scrap the election results and for the Legislature — controlled by Republicans — to choose the commonwealth's presidential electors.The state Supreme Court — comprised of five Democrats and two Republicans — in its three-page order, however, ruled the petitioners failed to file in a timely manner their constitutional challenge of the state's year-old mail-in voting law known as Act 77.“The want of due diligence demonstrated in this matter is unmistakable,” the court said in its order. “Petitioners filed this facial challenge to the mail-in voting statutory provisions more than one year after the enactment of Act 77.“At the time this action was filed ... millions of Pennsylvania voters had already expressed their will in both the June 2020 primary election and the November 2020 General Election and the final ballots in the 2020 General Election were being tallied, with the results becoming seemingly apparent.”Wecht in his opinion noted that Kelly and Parnell were among the petitioners who were candidates in the Nov. 3 election.“But it occurred to none of them to challenge the constitutionality of Act 77 before then, or indeed before participating in and contemplating the results of the 2020 General Election,” Wecht wrote.Kelly won reelection by about 70,000 votes, according to the Department of State's unofficial results, whereas Parnell, who has refused to concede, trails incumbent Rep. Conor Lamb, a Democrat, by about 10,000 votes.A day after the state completed certification of the presidential results, declaring Democratic candidate Joe Biden the winner of Pennsylvania's 20 electoral votes, Commonwealth Court Judge Patricia McCullough on Wednesday, in response to Kelly's suit, ordered a halt to the certification process pending a hearing on the case.Gov. Tom Wolf, a Democrat, immediately appealed McCullough's decision to the state Supreme Court, saying there was no “conceivable justification” for it.The high court's order dismissed the case with prejudice, which means it cannot be filed again.Wecht, in his opinion, also referred to the lawsuit's attempt to retroactively undo an election.“Extraordinary claims demand extraordinary proof,” he wrote. “To that end, it is well-settled that to annul an election in this commonwealth 'requires proof of fraud or other unlawful practices of such magnitude and so interwoven with the casting and counting of the votes as to obviously deprive the election returns of all validity.' ”But, he continued, “Petitioners cannot carry their enormous burden. They have failed to allege that even a single mail-in ballot was fraudulently cast or counted.”Additionally, Wecht wrote that there was “no basis in law by which the courts may grant petitioners' request to ignore the results of an election and recommit the choice to the General Assembly to substitute its preferred slate of electors for the one chosen by a majority of Pennsylvania's voters.”Despite concurring with the majority on that issue, Chief Justice Thomas Saylor, who was joined by Justice Sallie Mundy, the court's two Republicans, in a separate opinion, wrote that Kelly's suit “presents troublesome questions about the constitutional validity of the new mail-in voting scheme.”Rather than dismiss the whole suit, Saylor argued there was basis for review of Act 77, in regard to future elections, on grounds it possibly violated the state constitution.Neither Kelly nor Parnell could be reached for comment Sunday. But on Saturday night, in response to the Supreme Court decision, Parnell tweeted: “It's not over. This was not unexpected. Stay tuned.”In his own tweet Sunday recognizing the court ruling, state Attorney General Josh Shapiro, a Democrat, said, “We just notched another win for democracy.”Shapiro's office and several private attorneys for law firms in Philadelphia and New York represented Wolf and Secretary of State Kathy Boockvar, defendants, in the case.The Republican-controlled General Assembly was also named as a defendant.

Mike Kelly