Conservative law professor slams Ted Cruz’s push to throw our out 6.9 million Pennsylvania votes

Conservative law professor slams Ted Cruz’s push to throw our out 6.9 million Pennsylvania votes
Gage Skidmore

Pennsylvania is among the battleground states where President Donald Trump and his Republican supporters have been trying to overthrow the results of the 2020 presidential election. So far, Republican lawsuits in Pennsylvania — where President-elect Joe Biden won 20 electoral votes — have been unsuccessful. But Sen. Ted Cruz of Texas is saying that if one of those lawsuits makes it to the U.S. Supreme Court, he would make the oral arguments in favor of it. And one of the people on the right who is slamming Cruz for making that offer is Kimberly Wehle, a conservative law professor.

On Monday, December 7, Cruz told Fox News, " (The) petitioner's legal team has asked me whether I would be willing to argue the case before the Supreme Court, if the Court grants certiorari. I have agreed, and told them that, if the Court takes the appeal, I will stand ready to present the oral argument."

The two-term Texas senator added, "As I said last week, the bitter division and acrimony we see across the Nation needs resolution. I believe the Supreme Court has a responsibility to the American people to ensure, within its powers, that we are following the law and following the Constitution."

But according to Wehle, who teaches law at the University of Baltimore, the U.S. Constitution is the last thing that Cruz is following. In an article published by the conservative website The Bulwark on December 7, Wehle slams Cruz for trying to throw out 6.9 million votes in Pennsylvania.

The lawsuit that Cruz has offered to take up was filed by Republican Rep. Mike Kelly of Pennsylvania and is separate from the various Pennsylvania-related election lawsuits that former New York City Mayor Rudy Giuliani and other members of Trump's legal team have been working on. Kelly's lawsuit has been shot down by the Pennsylvania Supreme Court, but Kelly vowed to appeal that ruling — and Cruz is hoping that the U.S. Supreme Court will take up the lawsuit.

"Let's consider for a moment the lawsuit that Cruz promises to rescue from the clutches of the Pennsylvania Supreme Court — the highest court in the land on questions of Pennsylvania state law," Wehle explains. "Act 77 of 2019 established universally available mail-in voting in the Commonwealth of Pennsylvania: any registered voter who wanted a mail-in ballot could apply for and receive one without having to explain why. Team Kelly argues that, even though election procedures are a matter of state law, the federal Constitution was violated when the Pennsylvania legislature decided to expand mail-in voting prior to the November 3 election because the Pennsylvania legislature in fact doesn't have the power under the Pennsylvania constitution to authorize mail-in voting in Pennsylvania."

The law professor adds, "Kelly's lawyers argue: the Supreme Court of Pennsylvania's dismissal of their case violated the individual constitutional rights of Kelly and the two candidates for office who joined him as plaintiffs. They claim transgressions of the 1st and 14th Amendments to the U.S. Constitution. And as relief, they seek the vulgar disenfranchisement of up to 6.9 million voters — whose ballots were duly cast, counted, and certified pursuant to Pennsylvania law."

Kelly's lawsuit is badly flawed, Wehle stresses, because its reasoning is that the "individual constitutional rights" of three plaintiffs "were violated" — and therefore, "the Pennsylvania legislature should ignore the 6.9 million votes and unilaterally choose Pennsylvania's electors in their stead. For Trump, of course." Cruz, Wehle writes, is "is eager to stand before the U.S. Supreme Court to argue that the Pennsylvania legislature had no power to allow universal mail-in voting, but does have the power to throw out every single vote cast in Pennsylvania and impose its own political will on the citizens of Pennsylvania, who chose Joe Biden for president by a nearly 82,000-vote margin over Donald Trump."

Wehle wraps up her article by noting that Cruz' arguments in favor of Kelly's lawsuit make no sense from a constitutional standpoint.

"It doesn't take a trained lawyer to grasp the tortured nature of these arguments," Wehle writes, "and the obvious reality that basic decency and fairness weigh in favor of Pennsylvania voters, full stop."


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