Pa. appeals court dismissed GOP lawmaker suit challenging presidential results as state meets safe harbor deadline

By: - December 9, 2020 4:09 pm

A lawsuit brought by Pennsylvania Republican lawmakers challenging the commonwealth’s election result was tossed Wednesday by the state appeals court.

The lawsuit is one of a number of cases brought against Pennsylvania’s election results, which show an 80,000-plus vote lead for Democrat Joe Biden against Republican President Donald Trump.

In the ruling, Commonwealth Court Judge Mary Leavitt said that the election challenge, which named Gov. Tom Wolf, Secretary of State Kathy Boockvar and Pennsylvania’s 20 Democratic electors, was an “improper and untimely election contest,” and should have been filed last month.

Instead, the suit was filed Friday, brought by nine sitting state lawmakers, including Rep. Daryl Metcalfe, R-Butler, Rep. Russ Diamond, R-Lebanon, and others considered among the chamber’s most conservative members. Also listed as plaintiffs are former Lackawanna County state House candidate Frank Scavo, known for posting Islamophobic conspiracy theories, and a Montgomery County doctor.

The suit alleged “election irregularities and improprieties that prevent an accurate accounting of the election results in the Presidential election.” It sought to decertify the presidential election results, which Wolf signed on Nov. 24.

There is no evidence of widespread voter fraud in Pennsylvania, and state and federal judges across the country have tossed similar cases for lack of evidence.

The case was filed a day before the Electoral College’s Dec. 8 safe harbor deadline. The legalese is complicated, but any electors confirmed before Tuesday cannot be challenged by Congress.

Federal lawsuits will not block safe harbor. But ongoing election challenges filed in state court could block a state from meeting safe harbor, such as in Wisconsin, Forbes reported.

“It appears, therefore, that December 8 is a critical date for resolution of any state court litigation involving an aggrieved candidate who is contesting the outcome of an election,” a federal judge said in a ruling last week.

According to the Associated Press, Wisconsin was the only state to not meet safe harbor. But to disqualify its results, first both a member of the House of Representatives and the Senate have to file written objections. 

Then, the two chambers, held by Democrats and Republicans respectively, would need to agree by a majority vote to sustain the objection.

The same process would apply to Pennsylvania, if a member of Congress were to object to Pennsylvania’s electoral results as requested by 64 state lawmakers last Friday.

Even without Wisconsin and Pennsylvania, Biden would still have more than the 270 electoral votes he needs to win the presidency.

GOP leaders — once again — say they can’t overturn election results, but send letter disputing results to Congress

Rep. Scott Perry, R-10th, told the Washington Post that he was prepared to object to the state’s results. But according to Edward Foley, an constitutional law professor at Ohio State University who has studied the Electoral College, this late state lawsuit will likely not impact Pennsylvania’s safe harbor status, rendering Perry’s objection moot.

“I don’t think a case of this character can negate Safe Harbor status,” Foley told the Capital-Star in an email.

In a four-page filing dismissing the suit, Leavitt said the suit had been filed 11 days too late. All election challenges under state law must be filed within 20 days of the Nov. 3 election, or by Nov. 23.

“A frivolous complaint, not authorized by a state statute, whether filed before or after December 8, and whether its dismissal occurs before or after December 8, can’t negate Safe Harbor status in my judgment,” Foley added. “The obligation is to make a ‘final determination’ of any litigation authorized by state statute — not unauthorized litigation.”

The lawmakers signed onto the suit have been among the most vocal advocates for the Legislature to interfere in the certification of the 2020 election results, whether by issuing subpoenas, disputing the results, or even overturning them with legislation.

GOP leadership has instead held that Pennsylvania’s state law does not allow the Legislature to pick its own presidential electors. But House leaders did sign onto the letter calling for Congress to dispute the results in early January when the body certifies the election.

Two of the plaintiffs did not reply to a request for comment on appealing the decision to the state Supreme Court.

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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.