GOP Electors Claim 'Irregularities' Should Bar Pa. Votes

Law360 (December 7, 2020, 8:39 PM EST) -- A group of Pennsylvania state lawmakers and voters filed a last-minute bid in state court Monday seeking to throw out the state's presidential election results, citing several issues with the election that were already litigated and a testimonial from a U.S. Postal Service truck driver who claimed he delivered a load of mail-in ballots from New York to Pennsylvania.

Led by state Rep. Daryl Metcalfe, R-Butler County, the complaint filed with the Commonwealth Court of Pennsylvania asked the court to make Gov. Tom Wolf withdraw his certification of the general election results just before the Tuesday "safe harbor" deadline and revoke the certification for the state's 20 electoral votes for President-elect Joe Biden, claiming Wolf and Secretary of the Commonwealth Kathy Boockvar had failed to follow the state Election Code.

"Plaintiffs submit that, where the returns of the election of presidential electors laid before defendant Wolf violates the code, defendant Wolf has no discretion to determine whether to enumerate and ascertain the illegal returns. Instead, the illegal returns must be rejected," the complaint said. "A temporary injunction is necessary to immediately prohibit defendants from casting votes for president in the Electoral College based upon election results that cannot be certified as accurate."

The suit claims an unspecified number of votes may have been "illegal," pointing to a testimonial from Jesse R. Morgan that his regular contract hauling mail between postal facilities in Bethpage, New York, and Lancaster, Pennsylvania, included a truck with a large number of what he believed to be mail-in ballots. The suit does not specify that the ballots were illegitimate, just that they were believed to be under investigation and should be reason for holding up the election results due by the Dec. 8 "safe harbor" date for states to name or change their presidential electors.

"Investigation is essential to the determination of whether or not approximately 200,000 ballots were delivered into the Pennsylvania system improperly or illegally," the complaint said. "Pending such determination, there is no possible way that the validity of Pennsylvania's presidential election could possibly be certified by the governor."

The suit also claims there was "evidence" of ballots that were back-dated at a postal facility in Erie, Pennsylvania, in an apparent reference to statements made by a postal worker that he later recanted to investigators and denied recanting in online videos. The exhibits to the complaint did not include any other information about the Erie claims.

State Rep. Frank X. Ryan, R-Lebanon County, would "testify and identify significant and dispositive discrepancies and errors which call into question the results of the presidential election in Pennsylvania" based on a report he'd compiled, according to the suit.

Other issues identified in the lawsuit had already been litigated, including how some counties had contacted voters whose mail-in ballots were canceled due to defects like missing signatures or security envelopes and allowed voters to "cure" those defects or cast a provisional ballot. Counties that released the names of voters whose ballots were tossed on Election Day — so that candidates, campaigns or political parties could reach out to them and encourage them to cast a replacement vote — had illegally shared private voter information, the suit says.

A federal suit brought by the Trump campaign had claimed that the predominantly Democratic counties embracing the state's late guidance allowing "notice and cure" unfairly disadvantaged Republican counties, but U.S. District Judge Matthew Brann ruled that did not create an equal-protection claim. The lawsuit Monday asserts more broadly that allowing voters to replace or alter their defective ballots that had been canceled was a violation of the Election Code. 

"If an elector has already submitted an absentee or mail-in ballot and that ballot was received by his or her county board of elections, the elector cannot truthfully affirm that the provisional ballot is the only ballot cast by them in the election. The provisional ballot would in fact be a second ballot cast by the elector," the suit said.

Some counties had violated the rules for "pre-canvassing" ballots, which state law says can't start until the morning of Election Day, by weighing ballots to determine if they were missing their privacy envelopes or examining whether they'd been signed, in order to find votes that needed to be fixed or replaced, the suit says. Other counties had counted ballots whose outer envelopes were missing handwritten details like the date or address, though the state Supreme Court had ruled that was acceptable after the election.

Monday's suit also sought to second-guess the Sept. 17 Supreme Court of Pennsylvania ruling on a number of election-related issues, including how it allowed counties to use drop boxes to collect votes and had extended the deadline for ballots mailed by Election Day to arrive back at county election offices. On the last point, the U.S. Supreme Court agreed to segregate any ballots that arrived after Election Day, but state officials said there were only about 10,000 that met that criteria statewide — not enough to overturn Biden's win.

Attorney Thomas W. King III, representing the challengers, said an ongoing case in the U.S. Supreme Court seeking to deem all 2.5 million of Pennsylvania's mail-in votes unconstitutional — which several of the lawmakers on the Commonwealth Court suit sought to join with an amicus brief Monday — was another reason to hold off on finalizing the vote results.

Representatives for the state did not immediately respond to requests for comment Monday.

The challengers are represented by Thomas W. King III and Thomas E. Breth of Dillon McCandless King Coulter & Graham LLP.

Counsel information for Wolf, Boockvar and the Democratic electors was not immediately available.

The case is Metcalfe et al. v. Wolf et al. in the Commonwealth Court of Pennsylvania. A case number was not immediately available Monday.

--Editing by Janice Carter Brown.

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