Mike Kelly and Sean Parnell say Pennsylvania's Legislature did not have the authority under the state Constitution to pass no-excuse voting by mail.By Jon Delano

PITTSBURGH (KDKA) — By federal law, Tuesday is the last day for states to certify who won their presidential election.

President-elect Joe Biden has been certified the winner of Pennsylvania and its electoral votes. But a lawsuit filed locally, now on appeal to the U.S. Supreme Court, seeks to overturn that.

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    U.S. Rep. Mike Kelly, a Butler Republican, and Republican congressional candidate Sean Parnell say most of those who voted by mail in Pennsylvania should have their votes disqualified. That would give the state to President Donald Trump.

    Kelly and Parnell say Pennsylvania’s Legislature did not have the authority under the state Constitution to pass no-excuse voting by mail. When the state Supreme Court said they were too late to raise that argument, Kelly and Parnell appealed.

    Greg Teufel, Kelly and Parnell’s attorney, is hopeful.

    Last week, U.S. Supreme Court Justice Samuel Alito gave the parties until Wednesday — after Tuesday’s federal law deadline — to file their briefs. But on Sunday, Alito moved the deadline to 9 a.m. on Tuesday.

    “That suggests to us that the Court is giving serious consideration to granting interim relief,” Teufel told KDKA political editor Jon Delano.

    Relief like halting Pennsylvania’s certification of Biden electors on the last day allowed by law.

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    “It really is the Hail Mary of Hail Marys in terms of election law here,” says Cliff Levine, a Democratic Party attorney.

    Levine says you shouldn’t read too much into Alito’s date change for briefs.

    “He has to be aware of the 8th being this final ‘safe harbor day’ and perhaps just wanted to bend over backward to be fair and consider the arguments,” says Levine.

    Tossing out the mail-in votes of 2.6 million Pennsylvanians is pretty radical for a court to do, says the Republicans’ attorney, but, adds Teufel, “No matter what happens, it’s pretty radical. It would be radical to whip out the stamp of approval and say 2.5 million votes cast contrary to the Constitution are OK by us.”

    But voting by mail was approved by the Republican-controlled legislature in 2019, and Levine says nobody went to court back then before millions voted by mail.

    “It’s a pretty far-fetched legal theory. And at the first level, what the Pennsylvania Supreme Court said was that you guys are too late. We’ve already had the election,” Levine said.

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    Late Monday afternoon, U.S. Sen. Ted Cruz of Texas said if the U.S. Supreme Court decides to hear Kelly and Parnell’s lawsuit, he would deliver the oral argument in court.