After fierce public debate about a Luzerne County legal filing asking for the recusal of new U.S. Supreme Court Justice Amy Coney Barrett from a case involving ballot-counting deadlines, county council members broke from Tuesday’s virtual meeting to go into executive session.
When council emerged, a majority rejected a proposed motion advising the county manager to notify outside counsel to immediately withdraw the motion to recuse.
Only five of 11 council members approved the motion seeking withdrawal: Harry Haas, LeeAnn McDermott, Chris Perry, Stephen J. Urban and Walter Griffith.
Council members had no idea outside legal counsel would be filing the motion on the county’s behalf and learned about it when it made national news.
Haas said he was “extremely upset” council did not know the county would be seeking a Supreme Court justice’s recusal.
“This is a colossal big deal,” Haas said. “This was just wrong on so many different levels.”
Larry Moran, of Joyce, Carmody & Moran, P.C., said his firm filed the recusal request as part of continuing election-related litigation filed by President Donald Trump’s campaign and Pennsylvania Republicans.
While Luzerne County was singled out in national coverage, Moran said some of the other 66 counties have enjoined its filing.
At issue is whether the U.S. Supreme Court will reject a Pennsylvania Supreme Court ruling that mailed ballots must be counted if they are postmarked by Election Day and received by 5 p.m. Nov. 6.
In the June 2 primary, completed ballots had to be physically returned to the county election bureau by 8 p.m. on Election Day, and postmarks did not count. For the general election, the state Supreme Court granted the Democratic Party’s request to order a three-day extension.
The county’s filing argued Barrett should recuse herself from a decision on whether mail ballots are accepted after the Nov. 3 general election due to her “unprecedented” nomination and confirmation so close to a presidential election.
“As concerning as that is, 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,” the county’s filing said.
Moran said he has filed more than 30 motions since taking over the case and had informed county Manager C. David Pedri of the plan to file the recusal request.
The Supreme Court was split 4-4 on the issue before Barrett’s appointment, and reaching a speedy resolution on whether she would recuse herself in the latest request would allow Pennsylvania counties to know sooner if the three-day ballot acceptance extension would stand so they can prepare, Moran said.
But Urban said the county’s decision to act alone “gives us a black eye that we don’t need.”
Griffith said he does not believe it was “proper” to seek recusal of a Supreme Court justice and said council should have been alerted to “something of this magnitude.”
Several citizens also questioned the filing during public comment.
Hazleton resident Mark Rabo called it a “political stunt” and “disgusting.”
Keith Hunter, of Trucksville, said it was an “embarrassment to the county.”
Hazle Township resident David Bogansky said he spoke to many citizens upset about the filing, particularly following a still-pending federal investigation over nine mail ballots discarded by a temporary election worker.
“Who is in charge? Who is running the show?” he asked.
County Chief Solicitor Romilda Crocamo said Moran’s firm was hired because it was on a list of outside legal counsel approved by the insurance carrier.
The county’s liability insurance is providing up to $100,000 for the legal representation, Crocamo said. This litigation qualified for liability coverage because the county could be on the hook for a portion of the plaintiff’s legal fees, she said.
Based on the recusal file, Crocamo said she will inform all outside legal counsel that her office should be notified of all planned filings in advance.
County Election Board Vice Chairman Peter Ouellette said he and his fellow board members were not informed of the filing.
Election Board member Joyce Dombroski-Gebhardt said she believes the board should have voted on the filing or, at minimum, received notification in advance.
A Republican, Dombroski-Gebhardt said the litigation has placed her in a difficult situation because she personally opposes extending the acceptance of mail ballots three days.
“I am adamant that the election is over on Nov. 3. That’s it,” she said.