On today’s Jay Sekulow Live, he discusses the breaking news that Justice Alito has ordered a response in the Pennsylvania election case. Justice Alito wants a response before the electors are seated.
Jay Sekulow: If you’re just joining us there’s a bit of breaking news and that is Justice Samuel Alito, the Associate Justice of the Supreme Court of the United States, has issued an order. He issued an initial order, a case was brought by a Congressman Mike Kelly challenging the election certification issues about revolve around the situation in Pennsylvania where they, where the governor and the Secretary of the Commonwealth extended dates and made various changes without legislative support and that case was litigated at the Supreme Court of Pennsylvania. They ruled against Congressman Kelly. He took an application, for basically an emergency, will not basically, it’s an emergency application for a Writ of Injunction to stop this, basically, the seating of electors while the case is determined. Now originally the brief was due from the Commonwealth of Pennsylvania on Wednesday, but last night, late last night, Justice Alito issued an order saying, no, I want that brief tomorrow at 9 a.m. That is significant. I’m going to Andy go over again why that is significant that has been changed.
Andy: The significance is the fact that originally the brief for the response of the Commonwealth of Pennsylvania would have been due on Wednesday. Wednesday would have been after the date that the electors met and the slate of electors for the presumptive presidential candidate would have been cast and then that’s the end of it. So what Justice Alito has done was said, okay look, I want a response to the petition that Congressman Kelly filed from the Commonwealth of Pennsylvania not on Wednesday, and not and and after the electors have met, but before that, was specifically by 9 a.m. on Tuesday, December 8th which will give the Supreme Court three hours between the time it receives the response, 9:00 tomorrow and 12:00 when the electors meet, to make a decision as to whether or not , my view, stay the meeting of the Electors and the casting of that slate as the Biden slate.
Jay Sekulow: Yeah, well here’s what it means, yeah for Pennsylvania. Now, how does that, to be clear, that’s Pennsylvania. There’s other challenges in other states. Harry, the two issues that have been raised in Mike Kelly’s case is number one, do the Elections and the Elector Clauses, the Elections Clause in the Elector Clauses of the Constitution permit Pennsylvania to violate it’s state constitutions restrictions on its law-making power when enacting legislation for the conduct of federal election. Not a lot of people know the Elections Clauses and Elector Clauses, but people are becoming experts in it the last couple of weeks, that’s for sure. But that’s the straight question of whether the states can arbitrarily through, not the legislative process which is what’s required, but rather through administrative action of, here the Secretary of the Commonwealth, change the actual law.
Absolutely! So one of the key issues here is that the change in the voting process in the state of Pennsylvania was not enacted via statutory changes through the state legislature. They are the sole body empowered by the United States Constitution to change the rules. None the less the governor and the secretary of the state took it upon themselves to say this is what is best for the citizens of Pennsylvania. There is no legal or factual foundation for such a change, and I think it is clear on its face, speaking as a former law professor, that the governor and the secretary of state had the authority. They did not have such authority to change the rules, none the less they did it, nonetheless they promised the citizens of Pennsylvania, hey, you can vote in violation, effectively in violation of the United States Constitution. And the key question now is whether or not the Supreme Court will claw back the decision by the executive branch.
By Jay Sekulow
