In September 2020, the Court rewrote Pennsylvania election law to allow ballots received three days after Election Day, even without a postmark, to be counted. Further, it kicked off the ballot the Green Party candidate, who normally takes away votes from the Democratic candidate. The Court rewrote the clear language of the statute:

Deadline.--Except as provided under 25 Pa.C.S. § 3511[24] (relating to receipt of voted ballot), a completed mail-in ballot must be received in the office of the county board of elections no later than eight o'clock P.M. on the day of the primary or election.

This case is on appeal to the U.S. Supreme Court on the argument that only the Legislature can set the rules for a federal election:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.*

On November 27, 2020, Judge McCullough of the PA Commonwealth Court issued a preliminary injunction to stop certification of the vote pending review because the Pennsylvania statute, Act 77, enacted on October 31, 2019, which provided for "no-excuse" mail- in voting, changed the Pennsylvania constitution. Amending the PA Constitution requires that the Legislature pass the law in two sessions, and then the amendment is voted upon by the voters. This was not followed in enacting Act 77. The case is Mike Kelly, Sean Parnell, et al. v. Commonwealth of Pa, Governor Thomas Wolf, et al.

On Saturday, November 28, 2020, the Pennsylvania Supreme Court overruled Judge McCullough. The vote was 7-0, with the two Republicans joining in the decision with the exception that the two Republicans wanted to keep the case open to decide the constitutionality of the statute.

The two Republicans should have dissented to state that the election was held under an unconstitutional and therefore an illegal statute. They should have stated that Gov. Wolf, his Democrat secretary of state, and Democrat attorney general Josh Shapiro allowed the election to proceed under a statute they knew was unconstitutional. All three are sworn to uphold the laws and constitutions of Pennsylvania and the United States.

Senator Kelly filed an emergency appeal to Judge Alito of the U.S. Supreme Court requesting an injunction to bar the certification.

The issues raised by Kelly are as follows:

1. May a legislature violate its state constitution's restrictions on the lawmaking power when enacting legislation for the conduct of federal elections pursuant to Article I, § 4, and Article II, § 1 of the U.S. Constitution?

2. Did the Pennsylvania Supreme Court violate Petitioners' rights under the First and Fourteenth Amendment of the U.S. Constitution by dismissing with prejudice the case below, on the basis of laches, thereby foreclosing any opportunity for Petitioners to seek retrospective and prospective relief for ongoing constitutional violations?

The Court did not hold an evidentiary hearing to question why Wolf allowed the election to proceed pursuant to a statute he knew was unconstitutional.

Further, the Republicans have a majority in the Senate and House of the PA Legislature. Why did the Republicans in the Legislature vote for Act 77 to allow no-excuse mail-in voting?

The votes of voters who voted in person were not treated equally because the no-excuse mail-in voters voted pursuant to an unconstitutional law. This is a denial of equal protection and due process.

As Judge McCullough stated:

[A] mail-in voting process that would exceed the limits of absentee voting prescribed in PA Const. Article VII sec 14 could be construed as violating the "one person one vote." In that event, the sheer magnitude of the number of mail-in ballots would not be a basis to disregard not only this provision of the Pennsylvania Constitution but also the "one person, one vote" doctrine established by Reynolds, one of the bedrock decisions of the U.S. Supreme Court.

The PA Supreme Court also said the mail-in voters would be disenfranchised. But that is the fault of Wolf and his secretary of state, who created the problem, not the fault of those challenging an unconstitutional law.

Senator Ted Cruz urged the U.S. Supreme Court to review Kelly's appeal.

The PA Supreme Court ruled to protect the "win" by Biden. This is consistent with its decision to rewrite the law to allow unlimited mail-in ballots received after the election date.