Judge Did NOT Give Pennsylvania Legislators Power to Choose Electors

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Fact Check: Judge Did NOT Give Pennsylvania Legislators Power to Choose
Nov 28, 2020 by: Alan Duke



Did a judge give Pennsylvania's legislators the power to choose presidential electors? No, that's not true: Commonwealth Court Judge Patricia McCullough issued a memorandum to explain to the state Supreme Court what her thinking was when she ordered a temporary halt to the certification of Pennsylvania election results while the petition to declare a mail-in voting law unconstitutional was litigated. When she wrote on Friday, November 27, 2020, that she believed a legal challenge by several Republican lawmakers had enough likelihood of success to justify her order, it was not a ruling on the constitutional issue and it did not give state lawmakers the power to ignore the vote and chose their own slate of presidential electors. In fact, the Pennsylvania Supreme Court quickly dismissed the petition on Saturday, November 28, 2020.

The claim appeared in an article published by The Gateway Pundit on November 28, 2020 titled "BREAKING HUGE: Judge McCullough Rules 2020 PA Election Likely Unconstitutional - Gives State Legislators Power to Choose Electors!" (archived here) which opened:

This is HUGE! Pennsylvania Judge McCullough ruled that the Pennsylvania preliminary ELECTION CERTIFICATION injunction was PROPERLY ISSUED and should be upheld. McCullough added this, "Additionally, petitioners appear to have established a likelihood to succeed." Pennsylvania trial court rules the 2020 election was likely unconstitutional in Pennsylvania, and that gives state legislators power to choose electors....
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The Republican lawmakers argued that a law the legislature passed a year earlier, known as Act 77, to make it easier to vote by mail was illegal because it expanded absentee voting beyond the reasons given in the state constitution. Mailed ballots are credited with giving Joe Biden his margin of victory in Pennsylvania. If the law is declared illegal it would throw the certification of the election into chaos and potentially cause the state to miss the constitutional deadline to approve its slate of electors in the presidential race.

While the Gateway Pundit headline screamed that Judge McCullough's memo was "BREAKING HUGE," it was just setting the table for the state's Supreme Court to consider the petition. That court decided the next day to vacate Judge McCullough's injunction "with prejudice."

The decision noted that the plaintiffs only challenged the law a year after it was passed and only after the election didn't go their way. The justices ruled they violated the "doctrine of laches" by not filing their peition in "a timely manner":

The want of due diligence demonstrated in this matter is unmistakable. 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 on November 21, 2020, 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. Nevertheless, Petitioners waited to commence this litigation until days before the county boards of election were required to certify the election results to the Secretary of the Commonwealth. Thus, it is beyond cavil that Petitioners failed to act with due diligence in presenting the instant claim. Equally clear is the substantial prejudice arising from Petitioners' failure to institute promptly a facial challenge to the mail-in voting statutory scheme, as such inaction would result in the disenfranchisement of millions of Pennsylvania voters.
We cannot fault the Gateway Pundit for not foreseeing the petition's failure in the Supreme Court, but we do find it misrepresented the lower court "memorandum" as a ruling and it falsely claimed it meant that legislators were given the power to choose the electors. It was not "BREAKING HUGE."

NewsGuard, a company that uses trained journalist to rank the reliability of websites, describes thegatewaypundit.com as:
A partisan conservative website that regularly publishes hoaxes, conspiracy theories, and unsubstantiated claims, including those related to the COVID-19 pandemic.