Pa. County Wants Justice Barrett Off Election Deadline Case

Law360 (October 27, 2020, 1:03 PM EDT) -- With a lawsuit over Pennsylvania's Nov. 6 deadline for mail-in ballots as one of the first cases on the newly full U.S. Supreme Court's plate, one county asked Justice Amy Coney Barrett on Tuesday to recuse herself because of President Donald Trump's stated desire to have her decide election cases in his favor.

The Luzerne County Board of Elections said the potential tiebreaker justice should step away from the suit because President Trump had expressly stated that he hoped to appoint a replacement for the late Justice Ruth Bader Ginsburg because he did not want a 4-4 tie when the court addressed what he called a "scam that the Democrats are pulling."

"The nomination and confirmation of a Supreme Court justice this close to a presidential election is unprecedented," the motion to recuse said Tuesday. "What is even more troubling is the language President Trump has used in consideration of this nomination, linking it directly to the electoral season at hand, with implications for his own re-election."

After the court deadlocked 4-4 Oct. 19 over whether to take up the Republican Party of Pennsylvania's challenge to the Supreme Court of Pennsylvania's three-day extension of the deadline for ballots sent on Election Day to make their way to election offices, the party revived its case on the eve of Justice Barrett's confirmation.

In its motion, the county quoted a September press conference where Trump linked the next justice's nomination with his reelection efforts.

"I think this will end up in the Supreme Court. And I think it's very important that we have nine justices," the motion quoted Trump as saying. "It's better if you go before the election, because I think this scam that the Democrats are pulling — it's a scam — the scam will be before the United States Supreme Court. And I think having a 4-4 situation is not a good situation."

Luzerne County compared Justice Barrett's appointment and her support from Trump to a West Virginia Supreme Court justice whose campaign was funded by the chairman of a coal company, and the U.S. Supreme Court's 2009 ruling in Caperton v. A.T. Massey Coal Co. that said the risk of actual bias could require the judge's recusal under the Due Process clause of the Fifth and Fourteenth Amendments. Like the coal company chairman, the president had chosen the judge in his own case, the county claimed.

"Justice Barrett's confirmation only eight days before the election and in the midst of this election case (with presumably others to follow) accomplishes the president's goal," the county's motion said. "It is of little importance what Justice Barrett's own searing examination of her subjective views are or may be regarding any potential bias she may or may not harbor in considering this case. She has been placed in a position not of her own making but one in which disqualification is constitutionally mandated."

The county also cited the federal Judicial Code and its statement that judges should disqualify themselves from proceedings where their "impartiality might reasonably be questioned," citing Justice Barrett's mentor, the late Justice Antonin Scalia, in a 1994 case.

"As Justice Scalia wrote in Liteky v. United States , recusal questions ... are 'to be evaluated on an objective basis, so that what matters is not the reality of bias or prejudice but its appearance. Quite simply and quite universally, recusal was required whenever 'impartiality might reasonably be questioned,'" the county's motion said. "Public polling, editorials, news columns, and the persistent presidential expressions melding Justice Barrett's placement on the court with the electoral season can do nothing other than raise the quite 'reasonable question' as to the 'impartiality' of someone in Justice Barrett's shoes."

An attorney for Luzerne County declined to comment Tuesday. A representative of the state and attorneys for the political parties did not immediately respond to requests for comment.

The Luzerne County Board of Elections is represented by Jennifer Menichini and Larry Moran of Joyce Carmody & Moran PC and Joseph M. Cosgrove of Selino Guagliardo LLC.

The Republicans are represented by John M. Gore and Alex Potapov of Jones Day, and Kathleen Gallagher and Russell D. Giancola of Porter Wright Morris & Arthur LLP.

Pennsylvania Secretary of the Commonwealth Kathy Boockvar is represented by J. Bart DeLone, Sean A. Kirkpatrick, Michael J. Scarinci and Daniel B. Mullen of the Pennsylvania Office of the Attorney General.

The Democratic Party intervenors are represented by Clifford B. Levine and Alex M. Lacey of Dentons Cohen & Grigsby PC; Donald B. Verrilli Jr., Ginger D. Anders, Rachel G. Miller-Ziegler, and Jeremy S. Kreisberg of Munger Tolles & Olson LLP; Kevin Greenberg, A. Michael Pratt and Adam Roseman of Greenberg Traurig LLP; and Lazar M. Palnick.

The case is Republican Party of Pennsylvania v. Boockvar et al., case number 20-542, in the U.S. Supreme Court.

--Editing by Marygrace Murphy.

Update: This article has been updated with more details from the motion.

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