Pa. Court Tosses Latest Challenge To State's Election Results

Law360 (December 9, 2020, 7:01 PM EST) -- A Pennsylvania judge ruled Wednesday that a group of Republican lawmakers had waited too long before coming forward last week with claims of election irregularities and potential fraud aimed at upending President-elect Joe Biden's win in last month's presidential race in the state.

The state's Commonwealth Court ruled that the lawsuit, which sought a so-called mandamus order requiring that Democratic Gov. Tom Wolf decertify the result of the race, had come after the Nov. 23 deadline under state law for filing election contests.

"Petitioners are unable to demonstrate a clear right to relief or likelihood of prevailing on the merits because their underlying action, although styled as a complaint seeking a writ of mandamus, is really an improper and untimely election contest," Judge Mary Hannah Leavitt ruled.

The suit from lawmakers led by Rep. Daryl Metcalfe, R-Butler, claimed an unspecified number of votes may have been "illegal" based on a testimonial from a U.S. Postal Service contractor who said he was hired to haul a truck of what he believed to be completed mail-in ballots from New York to Pennsylvania.

The complaint also alleged that there was "evidence" of ballots that were backdated at a postal facility in Erie, in an apparent reference to statements made by a postal worker who later recanted the claim to investigators before denying that he had recanted in online videos.

Other issues identified in the lawsuits, however, amounted to warmed-over reassertions of issues that had already been litigated in other election-related cases in the state, including procedures in certain counties that allowed voters to "cure" defects on mail-in ballots.

Even as Metcalfe and his co-challengers alleged that there was evidence of potential fraud, Wolf noted in a brief Tuesday that no such claims had been raised in the slew of lawsuits filed by President Donald Trump's reelection campaign in the days and weeks following Election Day.

"At no point, in all of this litigation, did anyone establish that any fraud had taken place in the Pennsylvania election," the governor said. "Indeed, no one, in all of the federal and state court cases relating to Pennsylvania's 2020 general election, has introduced any evidence of fraud."

Putting aside the relative merits of the lawsuit, however, the governor argued that the state's election code set Nov. 23 as the deadline for parties to file any challenges related to certification of results in presidential contests in the state.

Given that Metcalfe and company waited until Dec. 4 to file suit, the governor said the case should not be allowed to move forward.

Judge Leavitt ultimately agreed in her decision Wednesday.

"This court lacks jurisdiction over the contest and, thus, petitioners cannot prevail on the merits," she said.

Lyndsay Kensinger, a spokeswoman for Wolf, praised the court's move to reject what she said were the "debunked conspiracy theories" raised as part of the case.

"This is just one more ridiculous lawsuit filled with debunked conspiracy theories that has been rejected by the court," she said. "Trying to overturn the will of the voters only harms the democracy that so many Americans have died to protect."

Thomas King, an attorney with Dillon McCandless King Coulter & Graham LLP representing the challengers, said he and his clients, although disappointed by the decision, were turning their attention to a pending petition before the U.S. Supreme Court in which the attorney general of Texas asked the justices to overturn the election results.

"While we're disappointed in the result, our clients are refocusing their efforts to support the action brought by the Texas attorney general ... where their same grievances would be heard," he said.

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

The respondents are represented by Michele Hangley, Robert Wiygul, John Coit, Christina Matthias and John Brent of Hangley Aronchick Segal Pudlin & Schiller PC, Adam Bonin of the Law Office of Adam C. Bonin and Lazar Melton Palnick.

The case is Daryl Metcalfe et al. v. Thomas Wolf et al., case number 636 MD 2020, before the Pennsylvania Commonwealth Court.

--Additional reporting by Matthew Santoni. Editing by Stephen Berg.

For a reprint of this article, please contact reprints@law360.com.

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