Election season court fights have cost Pa. taxpayers nearly $4M and counting

By: and - January 31, 2021 7:37 am

Stock photo by Juanmonino/Getty Images

The year 2020 may have brought economic misery and job loss to nearly 1 million Pennsylvanians, but it was a great time to be an election lawyer.

Records the Capital-Star obtained through Right-to-Know requests show that the Wolf administration and Republican leaders in the state House and Senate paid millions of dollars last year to well-connected, partisan attorneys to litigate aspects of Act 77 — the mail-in voting law the Legislature passed with broad bipartisan support in 2019, and then failed to fine-tune before the Nov. 3 General Election.

A barrage of litigation over that law and the 2020 election has cost taxpayers more than $3.9 million to date, the Capital-Star’s analysis found. That sum could climb as attorneys bill the state for completed work and litigate appeals.

Lawyers who netted lucrative contracts with the state include the chairman of the Pennsylvania Republican Party; an attorney who defended a former Senate leader against federal corruption charges, and even Kentucky’s top elections official, who moonlights as a private attorney.

While their work may seem costly, one former political leader argued that elections aren’t cheap — especially one with as much on the line as 2020.

“These white shoe firm law firms from Philadelphia and Pittsburgh could certainly gobble up a massive amount of legal fees in very short order,” said former Democratic House Speaker Bill DeWeese. 

But, with the presidency and control of the General Assembly up for grabs in November, DeWeese said, “[legislative leaders] are going to hire outside counsel. I don’t fault them for that.”

Invoices from these firms started to pile up last year as bills of a different kind stagnated in Harrisburg: Despite pleas from local election officials, lawmakers did not advance legislation to adapt Act 77 to the demands of the COVID-19 pandemic.

Local election officials made clear early on that the state’s deadlines for requesting, delivering and counting ballots were unworkable. Advocacy groups and the state Democratic Party took those issues to court, suing the Department of State to seek more generous mail-in ballot deadlines and collection practices.

Lawyers for the General Assembly raised objections, arguing they needed time to amend Act 77 ahead of the Nov. 3 general election.

But a compromise with the Wolf administration never materialized. The debate that started in court finished there, with taxpayers holding the bag as corrective legislation collapsed under partisan gridlock in Harrisburg.

“There was all this talk after summer about the need for some sort of bipartisan legislation to get ready for November, and it never materialized,” Ned Foley, a constitutional law professor at Ohio State University, said. “The Legislature and governor’s office share responsibility for that. The court stepped into a vacuum [they] created.”

Meet the white shoes

The technical aspects of Act 77 came under fire one by one in 2020, as lawsuits challenged its rules for collecting ballots, verifying their authenticity, and allowing campaign volunteers to watch their tabulation. 

The pressure on the state’s election system compounded when postal delays swept the country last summer. 

Wolf wanted to account for postal delays by allowing counties to use secure drop boxes to collect ballots and by giving them a grace period to accept late-arriving election mail. 

Republicans wanted instead to shorten the window for voters to apply to vote by mail –thereby giving counties more time to send them ballots – and to eliminate the use of drop boxes entirely.

Wolf and the Legislature stopped negotiating those proposals in September, when the state Supreme Court issued a ruling that delivered the administration’s wish list. But they continued to argue appeals and new cases in state and federal court.

Legislative Republicans were steadfast in their argument that courts don’t have the constitutional power to dictate election rules.

But the GOP sharpened its legal arguments after Election Day, as former president Donald Trump’s campaign fanned conspiracy theories about a “stolen” election. 

Republican legislative leaders told a federal judge that Democratic election officials and the State Supreme Court tried to manipulate state law to bring about Democratic victories on Nov. 3. The House GOP also supplied evidence in a case brought by the Texas attorney general that sought to invalidate Pennsylvania’s election results. 

The defendant in most of these legal disputes — whether brought by Republicans, Democrats, or outside groups — was the Pennsylvania Department of State. It accounted for the bulk of Pennsylvania’s election-related legal spending in 2020, the Capital-Star’s analysis found.  

The agency that oversees elections in Pennsylvania fended off more than a dozen lawsuits in 2020 taking aim at the state’s election laws.

Attorneys for the Wolf administration also went to court on their own accord. They asked the state Supreme Court to expedite a case challenging ballot access during the pandemic, and to take its side in a dispute with the Trump campaign over signature verification methods.

For those efforts, the agency received more than $2 million in bills from Democratic-connected law firms, invoices obtained through a public records request show.

Those firms include Scranton-based Myers, Brier & Kelly. The firm, founded by a former aide to Gov. Bob Casey Sr., has deep ties to the Democratic Party. 

Partner Daniel Brier, who billed the Department of State for election work last year, was part of a team that defended former Senate Democratic Leader Robert J. Mellow, also of Lackawanna County, from corruption charges.

The administration also tapped Philadelphia-based firm Hangley Aronchick Segal Pudlin & Schiller.

The Department of State defended its spending as a cost of doing business in a contentious election cycle. 

The department added the firms were chosen through “a competitive process,” and denied that political favor had anything to do with awarding the contracts. (Campaign finance records filed with the Department of State show Myers, Brier & Kelly’s PAC and its attorneys have donated $89,300 to Wolf’s political action committee since 2014.)

Republican leaders in the House and Senate, meanwhile, paid attorneys nearly $1.8 million to join and instigate election-related litigation in Pennsylvania and beyond. 

Many of the lawyers employed by legislative Republicans also have close ties to party politics. They include Lawrence Tabas, chairman of the state Republican Party, and head of the election law division at Obermayer Rebmann Maxwell & Hippel in Philadelphia. 

Senate Republicans, who spent just more than $1 million, sent most of its work to the Virginia-based firm Holtzman Vogel Josefiak Torchinsky, where partner Jason Torchinsky offered the caucus a discounted billing rate and oversaw their representation, according to a May contract.

A well-known Republican lawyer, Torchinsky is also lead counsel for a GOP group that’s gearing up to spend millions of dollars on battles to redraw legislative and Congressional maps during the 2021 redistricting cycle, according to NBC News.

House Republicans, meanwhile, received invoices totaling more than $740,000 between late April and the end of November from two law firms: Chalmer & Adams and Holland & Knight. 

Chalmer & Adams is named in part for Michael Adams, a former general counsel for the Republican Governors’ Association who was elected as Kentucky’s Secretary of State in 2019.

As the top election official in the Bluegrass State, Adams, a Republican, earned credit for expanding voting access during the 2020 election, and expressed support for further reforms post-election.

But as counsel for Pennsylvania’s House Republicans, he charged $500 an hour while working against lawsuits to legalize ballot drop off boxes, pay for voter’s return postage, and extend the deadline for counties to receive mail ballots amid postal delays. A Kentucky ethics official said Adams’ out-of-state work doesn’t violate their laws.

“The House Republican Caucus has an interest in upholding the laws as written and as the legislature intended them, which is why we were involved in any of these matters to begin with,” House GOP spokesperson Jason Gottesman said. The Senate GOP did not reply to a request for comment.

The Legislature and Wolf administration did come together once to defend Act 77, when they both opposed a suit filed by U.S. Rep Mike Kelly, R-16th District, to overturn the law and effectively toss 2.6 million November ballots cast by mail.

The General Assembly brought in the firm Stradley Ronon Stevens & Young to handle that case. The firm formerly employed the last GOP state party chair, and its PAC and lawyers have donated to both parties. An open records request for its bills is still pending.

Finding compromise?

Caught in the middle of these protracted legal fights were Pennsylvania’s local election officials, who were implementing a new vote-by-mail system amidst a pandemic and period of historic partisanship. 

Lisa Schaefer, director of the County Commissioners Association of Pennsylvania, told the Capital-Star in November that the dizzying pace of litigation and court orders “made things even more confusing. One decision could have been made and you’d see it appealed the next day, one day you’d see [one] rule the next it would be changed.”

Schaefer thinks the legislature could have preempted the court battles if it approved fixes to the state election code. 

“It would have taken tough work, serious discussion and motivation, but it was possible and it could have happened,” Schaefer told the Capital-Star. “That would have let us address [these problems] up front instead of waiting for litigation” to provide clarity. 

Election law and public policy experts, however, say the onslaught of litigation wasn’t solely the result of legislative inaction. 

Those experts said any significant change to a state’s voting rules will likely be met with litigation, as political parties, campaigns and special interest groups try to test its bounds to bring about wins for their constituencies. 

Act 77 marked the biggest change to state election law in three decades. But the new vote-by-mail law also had unique vulnerabilities, many of which were laid bare by the COVID-19 pandemic, according to Daniel Mallinson, a professor of public policy at Penn State Harrisburg.  

Unlike other states, Pennsylvania’s election code doesn’t outline explicit rules for voters to fix clerical problems with their ballots – a process known as ballot curing.

Nor does it give counties time to pre-canvass, or open and prepare ballots for counting, before Election Day.

Mallinson said the potential pitfalls in Act 77 law were “very obvious [ahead of the election] based on what we know from other states” that offer no-excuses mail-in voting. 

Lawmakers who voted for Act 77 told the Capital-Star that they always saw the law as a work in progress. They intended to give it a trial run in the 2020 primary race, then potentially fine tune it ahead of the Nov. 3 election. 

What they didn’t bargain for, they said, was that a pandemic would relegate them to their home offices for much of the year – or that it would force counties to roll out mail-in voting programs much faster than they ever anticipated.

Lawmakers have already said that amending Act 77 is a top priority for 2021. Wolf has called for same-day voter registration and for giving counties more time to process mail-in ballots. 

Some Republicans, amid a series of hearings on election law and the 2020 race, have called for voter ID laws and even repealing Act 77 entirely.

Reconciling these opposing priorities in Harrisburg may seem impossible. But Gene DiGirolamo, who left his 25-year career in the state House last year to serve as a Bucks County Commissioner, said it’s absolutely necessary.

I hope this doesn’t happen again,” he told the Capital-Star. “But the only way we will get this straightened out is legislatively … to come up with a compromise that’s good for both sides, where we can have a safe and secure election and people will be able to vote by mail.”

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Elizabeth Hardison
Elizabeth Hardison

Elizabeth Hardison covered education policy, election administration, criminal justice and legislative news for the Capital-Star from Jan. 2019-April 2021. You can find her on Twitter @ElizHardison.

Stephen Caruso
Stephen Caruso

Stephen Caruso is a former senior reporter with Pennsylvania Capital-Star. Before working with the Capital-Star he covered Pennsylvania state government for The PLS Reporter.